Lim (Migration)

[2023] AATA 4146

Lim (Migration) [2023] AATA 4146 (7 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sophy Lim
Miss Sophylyka Chheak
Miss Lisa Chheak
Mr Piseth Chheak
Mr Chheak Kokly

REPRESENTATIVE:  Mr Thu Thanh Bui

CASE NUMBER:  2205683

HOME AFFAIRS REFERENCE(S):          BCC2019/4739676

MEMBER:Susan Hoffman

DATE:7 December 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal does not have jurisdiction in relation to the applications for review for Miss Sophylyka Chheak and Mr Chheak Kokly.

The Tribunal affirms the decision not to grant the remaining visa applicants Business Skills (Provisional) (Class EB) visas.

Statement made on 07 December 2023 at 7:57am

CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – investor stream – direct involvement in managing qualifying business or investments – no further documents provided, no submissions made and consent to decision without hearing – limited evidence of eligible business ownership – value and financing of properties claimed as eligible investments – direct involvement in management – authenticity of documents – created at relevant times or recently for purpose of supporting application – similarity of handwriting, signatures and pen used and discrepancies between documents – members of family unit – two applicants not in Australia when review application made – no jurisdiction for those applicants – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338(2), 347(3), 375A
Migration Regulations 1994 (Cth), Schedule 2, cl 188.244

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 March 2022 to refuse to grant the applicants Business Skills (Provisional) (Class EB) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 21 September 2019. Class EB contains Subclass 188 (Business Innovation and Investment (Provisional)). The criteria for the grant of a Subclass 188 (Business Innovation and Investment (Provisional)) visa are set out in Part 188 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria. The primary criteria include common criteria, and criteria set out in streams. In this case, the first named visa applicant (‘the applicant’) applied for the visa in the Investor stream.

3. The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl 188.244 of Schedule 2 to the Regulations. The delegate was not satisfied that the applicant met the criteria in relation to properties claimed to be eligible investments during the relevant time.

4. Subsection 347(3) sets out that if the reviewable decision was covered by s 338(2), (3), (3A) or (4), then an application for review may only be made by a non‑citizen who is physically present in the migration zone when the application for review is made.

5. The Tribunal is satisfied that the reviewable decision in this case is covered by s 338(2) and therefore an application for review may only be made by a non‑citizen who is physically present in the migration zone when the application for review is made.

6. On 24 May 2022, the AAT wrote to the applicants inviting comment on the validity of the applications for review for two of the secondary applicants, Mr Chheak Kokly and Miss Sophylyka Chheak, as they were not in Australia on the date their applications for review were lodged.

7. Their representative, Mr Bui, provided a response confirming that Mr Chheak Kokly and Miss Sophylyka Chheak were not in Australia at the time their applications for review were lodged.

8. Pursuant to s 347(3) of the Act, the Tribunal determines that the applications for review made by Mr Chheak Kokly and Miss Sophylyka Chheak were not valid.

9. This review is being undertaken for the remaining three applicants, including the first-named applicant.

10. A hearing invitation was sent to the applicant on 24 October 2023 via her representative, along with a form titled “Response to hearing invitation” (the response form). Part 5 of the response form is titled “Signature and submission”. Below the title are the words “Signed on behalf of, and with the consent of, all applicants”. There is then has a space for the name of the signatory, the date and the person’s signature. One of the secondary applicants, Ms Lisa Chheak, signed the response form.

11. Ms Lisa Chheak advised via the form that none of the applicants would participate in the hearing and that the primary applicant consented to the Tribunal making a decision on the papers without taking further steps to allow her to appear.

12. On that basis, the Tribunal proceeded to make its decision on the papers. No written submissions were provided to the Tribunal and it has therefore relied on documents provided to the Department in making its decision.

13. The departmental file relevant to this matter included a certificate titled “Certificate and notification regarding disclosure of certain information to Administrative Appeals Tribunal under s375A of Migration Act 1958.” The certificate was dated 28 March 2022 and unsigned. It referred to two documents. As the certificate was unsigned, the Tribunal was not satisfied that the certificate was valid.

14. The AAT wrote to the Department on 2 November 2023 about the certificate. The Department responded on 3 November 2023, confirming that the notice was invalid as it had not been signed. The Department also advised that the two documents which were the subject of the s 375 non-disclosure notice were not relevant to the decision under review and they had not been sent to the AAT. Therefore, the Tribunal will not consider the certificate any further.

15. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The applicant is seeking to satisfy the primary criteria for a Subclass 188 visa in the Investor stream which includes the criteria in Subdivision 188.24 of Schedule 2 to the Regulations. The issue in the present case is whether the applicant meets cl 188.244 which read as follows: at the date the visa application was lodged

    Cl 188.244 

    For at least one of the 5 fiscal years immediately before the time of invitation to apply for the visa:

    (a)  both of the following apply:

    (i)  the applicant maintained direct involvement in managing a qualifying business;

    (ii)  the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, had an ownership interest of at least 10% of the total value of the business; or

    (b)  both of the following apply:

    (i)  the applicant maintained direct involvement in managing eligible investments of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together;

    (ii)  the total net value of the eligible investments was at least AUD 1 500 000.

17. The applicant was invited to apply for the visa on 3 September 2019 and the visa application was lodged on 21 September 2019. She is a citizen of Cambodia.

18. The fiscal year in Cambodia aligns with the calendar year.[1] Therefore the five relevant years in relation to this review are calendar years 2014, 2015, 2016, 2017 and 2018.

    [1] Numerous online sources state that Cambodia’s fiscal year aligns with the calendar year, for example: Acclime Cambodia (2023) Determining & changing financial year end (FYE) in Cambodia, accessed 16 November 2023

19. The applicant can satisfy cl.188.244 by demonstrating direct involvement in managing a qualifying business or direct involvement in managing eligible investments for at least one the relevant years.

20. The Tribunal will first consider whether there is a qualifying business.

    Cl 188.244(a) – Mittaheap

21. The applicant advised the Department that she had a 50% ownership interest in a family business, Mittaheap Furniture Shop (Miitaheap), from January 2001 to 2 September 2019. In her visa application, she stated that she managed and oversaw daily operations of the business.

22. The applicant provided the Department with a License issued by Phnom Penh Capital Administration dated 7 September 2018 which permitted the applicant to operate the business Mittaheap Furniture Store and display its name for the period 7 November 2017 to 6 November 2018.

23. The applicant submitted a business plan for Mittaheap prepared on 30 August 2019. This was a proposal to set up a Mittaheap business in Australia rather than a business plan pertaining to the Mittaheap business in operation in Cambodia during one of the relevant years. Therefore, it does not assist the applicant in demonstrating that the criteria in cl 188.244 are met.

24. In a statutory declaration dated 1 October 2019, the applicant stated that between 1994 and 2000, she used to work for her mother who owned Mittaheap. Her mother retired in October 2001, and transferred the ownership of the business to the applicant.

25. The applicant wrote that she married on 16 May 2001 and she and her husband together managed the business successfully and that the profits generated from the business enabled them to acquire a number of properties.

26. The Tribunal could not locate any other documents to do with Mittaheap. The Department requested the applicant provide additional evidence in relation to Mittaheap if that was to be assessed as a qualifying business but that was not provided.

27. Given the limited evidence provided, the Tribunal cannot be satisfied that cl 188.244(a) is met. It then considered whether cl 188.244(b) is met.

    Cl 188.244(b) – Eligible investments

28. The applicant submitted that she and her husband had purchased various properties. She confirmed the details of each property in tables provided to the Department on 17 January 2022. [2] The Tribunal drew up the following table using information provided by the applicant. The applicant allocated numbers 1 to 10 to each property which the Tribunal has used in in Table 1 and other tables in this Statement.

    [2] One table was dated 17 January 2021 but was provided to the Department with related information on 17 January 2022. The reference to 17 January 2021 was probably a typographical error and of no consequence.

    Table 1

Number	Property address	Purpose	Date of purchase
4	No. 317 Eo, Preah Monivong Boulevard (St 93), Sangkat Orussey 4, Khan 7Makara, Phnom Penh Cambodia	Personal business premises	9 December 2014
8	No. 175 Phum Meanchey, Sangkar Steung Meanchey, Khan Meanchey, Phnom Penh, Cambodia	Personal business - warehouse	16 February 2007
10	29.      Lot 687 Phum Thmey Sangkat Steung Meanchey, Khan Meanchey Phnom Penh Cambodia	Residential	12 December 2008
1	Chamkar Doung Street (217), Phum Sambor, Sangkat Dangkor, Khan Dankor, Phnom Penh Cambodia	Rental	9 February 2012
2	Street 78C, Phum Meanchey, Sangkat Steung Meanchey, Khan Meanchey, Phnom Penh Cambodia	Rental	23 October 2016
3	National Rd No. 4, Phum Thnal Bambek, Sangkat Choam Chao, Khan Dangkor, Phnom Penh Cambodia	Rental	5 May 2009
6	Phum Boeung Duan Pa, Sangkat Slakram, Krong Siem Reap, Siem Reap Province Cambodia	Rental	17 October 2007 or 13 April 2018 (see below)
9	Phum Veal, Sangkat Kok Chork, Krong Siem Reap, Siem Reap Province Cambodia	Rental	2 March 2019
7	House No. S2-07 Street Monireth (217), Sankat Veal Vong, Khan 7 Makara. Phnom Penh Cambodia	Rental	26 October 2015
5	Street 430, Phum 1, Sangkat Phsar Doem Thkov, Khan Chamkamorn, Phnom Penh Cambodia	Sold	9 October 2014 (sold 17 July 2019)

1. In relation to property 6, in the table she provided to the Department, the applicant stated that this property was purchased on 17 October 2007. However other documents she provided indicated that this property was purchased on 13 April 2018. These other documents include the title deed and a sales contract. There was a also a copy of a bank cheque, bank statements and a receipt for the funds from the seller which tend to corroborate that this property was purchased on 13 April 2018 and not on 17 October 2007. The Tribunal finds accordingly.

2. As property 6 was purchased on 13 April 2018, it was not an eligible investment for the duration of 2018 and has to be excluded for the purpose of assessing eligible assessments during the relevant years.

3. Property 9 was purchased after the invitation to apply for a visa was made and therefore has to be excluded also.

4. In addition, three of the properties (property 4, 8 and 10) were identified as the applicant’s home or connected to the family business. That leaves five of the 10 properties in Table 1 which are potentially eligible investment properties during the relevant period, as follows:

   Table 2

Number	Property address	Purpose	Date of purchase	Purchase Price USD
1	Chamkar Doung Street (217), Phum Sambor, Sangkat Dangkor, Khan Dankor, Phnom Penh Cambodia	Rented to Express Food Group	9 February 2012	550,000
2	Street 78C, Phum Meanchey, Sangkat Steung Meanchey, Khan Meanchey, Phnom Penh Cambodia	63 rooms available to rent	23 October 2006	65,000
3	National Rd No. 4, Phum Thnal Bambek, Sangkat Choam Chao, Khan Dangkor, Phnom Penh Cambodia	Rented to Sathapana Bank	5 May 2009	320,000
5	Street 430, Phum 1, Sangkat Phsar Doem Thkov, Khan Khamkamorn, Phnom Penh Cambodia	Rented to a school	9 October 2014 (sold 17 July 2019)	430,000    (sold for 570,000)
7	House No. S2-07 Street Monireth (217), Sankat Veal Vong, Khan 7 Makara. Phnom Penh Cambodia	Rental	26 October 2015	560,000

1. The total of the purchase prices is USD 1,925,000. It would be expected that the value of the properties would increase over time. Using an exchange rate of 1.41922 which applied in December 2018, the value of the properties at that time was AUD 2,732,000.[3]

   [3] This is the exchange rate as at 31 December 2018 according to the OANDA currency converter, accessible at 

2. The applicant provided the Department with a table recording amounts of loans and their start and end dates, in relation to the 10 properties. The table was dated 17 January 2022. The following table records details of mortgages and loans for the five properties of interest extracted from the applicant’s table.

   Table 3

Number	Amount of loan	Start date	End date
1	USD 200,000	14 February 2012	17 February 2016
2	USD 250,000	25 July 2016	15 August 2017
3	USD 70,000	11 May 2012	18 May 2013
5	USD 220,000	6 September 2012
7	USD 270,000	26 October 2015	14 December 2021

1. The applicant also provided values of each of the relevant properties as at 31 December 2018.[4] She applied an exchange rate of 0.704.

   [4] The applicant also provide the information as at 2019 (about page 958)

   Table 4

Number	Property	USD	AUD
1	Chamkar Doung Street (217), Phum Sambor, Sangkat Dangkor, Khan Dankor, Phnom Penh Cambodia	2,305,000	3,274,147
2	Street 78C, Phum Meanchey, Sangkat Steung Meanchey, Khan Meanchey, Phnom Penh Cambodia	774,000	1,099,431
3	National Rd No. 4, Phum Thnal Bambek, Sangkat Choam Chao, Khan Dangkor, Phnom Penh Cambodia	711,000	1,009,943
5	Street 430, Phum 1, Sangkat Phsar Doem Thkov, Khan Khamkamorn, Phnom Penh Cambodia	578,000	821,022
7	House No. S2-07 Street Monireth (217), Sankat Veal Vong, Khan 7 Makara. Phnom Penh Cambodia	948,000	1,346,590

1. The Department sought documentation from the applicant to corroborate the figures she provided, and also as evidence of her direct involvement in managing the eligible investments. The Department requested evidence of the following:

   ·Legal ownership, for example certificate of title, title deed or similar

   ·Sales or purchase contracts

   ·Payment of stamp duty, or similar, to the relevant taxation office

   ·Bank statement showing funds debited for the purchase of the properties

   ·The amounts outstanding in relation to mortgages at relevant dates

2. The Department also requested evidence to demonstrate management of the real estate assets, as follows:

   ·Bank statements showing rent paid by tenants

   ·Records of advertising/marketing of rental properties

   ·Records of maintenance and repair of the rental properties

3. The applicant provided the Department with a statutory declaration dated 20 January 2022, in which she stated that she had tried to obtain relevant documents from the bank, but some historic documents were not available as she is no longer a customer of that particular bank. In addition, some documents have been misplaced over the years.

4. The applicant had previously provided the Department with a statement dated 15 October 2019 about her management of eligible investments. She wrote that since 2016, she had owned, operated and leased clean, well-managed investment properties to well-qualified tenants. Her objectives were: to invest in quality, well-cared for properties, priced within the local market range; to locate only well-qualified tenants, desiring to lease long term; and to generate passive income. The applicant stated the following:

   ·     Tenants were chosen after a purposeful, planned and methodical basis and evaluated by the applicant personally. She has an interview with each prospective tenant and obtained credit and background checks. References were required and checked.

   ·     She sought long term leases.

   ·     Property selection was rigorous and based on long term investment that would generate positive cashflow.

   ·     She relied on adverting in the local classified ads in newspapers, and word of mouth, to find tenants. She posted signage at the front of property.

   ·     She personally managed all the rental properties to ensure repairs were addressed immediately, rents collected in timely fashion and the accounting ledger kept up to date.

   ·     If a tenant contacted her wanting a repair, she would attend to it that day. She used bonded and licensed contractors in good standing with the locals.

   ·     On a monthly basis, she drives by the properties for a visual inspection and makes notations of the overall physical condition of the property.

   ·     The tenant will be put on notice if, for example, the yard needs to be mowed or weeds appear to be an issue. The tenant will have sufficient time to remedy the notice and will be fined daily until the issue has been resolved.

5. The applicant also provided the Department with a statement dated 2 March 2021, in which she wrote the following:

   ·     She got into property investment with an aim of setting up an income stream that flowed steadily into her bank account.

   ·     She targeted properties that delivered high rental yields as well as a promise of high capital returns.

   ·     She purchased a lot in 2006 at 78C, Phum Meanchey, Sangkat Steng Meanchey, Khan Meanchey, Phnom Penh (property 2) with the plan to to build small units for rental. In 2016, she resumed her plan and built the units, renting them to families who tended to work around the city,

   ·     She then purchased two properties, one which was used as a warehouse and another as a personal residence.

   ·     She then decided to purchase a property (property 3) on the outer fringes of Phnom Penh, located on a corner which tends to be attractive to buyers and renters as they give opportunity for product displays and more parking.

   ·     She worked out that older houses on the fringes of the city generally achieved higher rental yields because of lower price points and the potential to increase their value through renovations. Also, as these areas on the outer fringes of the city were developed through markets, schools, shops, etc., that increased the value of older properties already there.

   ·     Property 1 was a lower cost property located on a main road in the outer fringes of Phnom Penh. She had conducted research, and knew that other investors were planning to build schools, restaurants and hundreds of houses. The property was renovated before being made available to rent.

   ·     Property 7 is a house located in Phnom Penh central business district which should attract high rent and strong capital growth over time.

   ·     Property 5 is located near a populated area and marketplace, and will be able to attract purchasers and renters easily. After extensive renovations, it was rented to a school called UCMAS and in May 2019, was sold to the owner of the school.

   ·     She then purchased a property in Siem Riep (property 6). As noted earlier this was purchased 13 April 2018. That was followed by the purchase of a second property in Siem Riep (property 9) in March 2019. Both of these properties were purchased too recently to be included as eligible investments which were owned for the entirety of 2018.

1. The documents provided by the applicant for each of the five properties are recorded in Table 5.

   Table 5

Number	Property	Documents provided
1	Chamkar Doung Street (217), Phum Sambor, Sangkat Dangkor, Khan Dankor, Phnom Penh Cambodia	Title deed recording date of purchase 9 February 2012, with mortgage of USD 200,000 Ten-year lease agreement dated 22 April 2017 and expiring 22 April 2017.  It recorded the applicant and her husband as the owners of the property. The lease also recorded that the tenant was Express Food Group (EFG); a deposit of six months’ rent was paid in the amount of USD 16,662, that for the first five years the monthly rent was USD 2,777 and the last five years, it was USD 3,333. A bank statement in the names of the applicant and her husband record monthly deposits of USD 2,500 from EFG for the period August 2017 to 16 February 2021. A bank cheque with the applicant’s spouse’s name for USD 15,000 which may be the rental deposit or bond paid by EFG An inspection form which records an inspection was made on 27 March 2016, and an invoice related to property maintenance that aligns with the inspection form
2	Street 78C, Phum Meanchey, Sangkat Steung Meanchey, Khan Meanchey, Phnom Penh Cambodia	Title deed recording a mortgage against this property from Canadian Bank of USD 230,000, which was increased to USD 250,000 on 27 August 2020, due to expire on 27 August 2025. It is not clear when the mortgage started. Record showing 63 rooms available in the property and the monthly rate for each room (page 851) Charts summarising rentals during 2018 and 2019 and income from those rentals Inspection form recording inspections done, or notifications by the manager, of work needed on the property on two dates in each of the 2016,2017, 2018 and 2019 calendar years. The applicant signed off on each entry.   Invoices that matched with the work done as recorded on the inspection form
3	National Rd No. 4, Phum Thnal Bambek, Sangkat Choam Chao, Khan Dangkor, Phnom Penh Cambodia	Letter of transfer of land tenure dated 5 May 2009 recording ownership of the property transferred to the applicant and her spouse Loan agreement between Cambodian Public bank and the applicant and her spouse recording an eight-year loan from 11 May 2012 to 11 May 2020 for USD 200,000, with repayment of US 790.92 a month for the first year, rising to US 844.55 for the second and third years, and US 864.93 a month for the fourth to eighth years. Application for credit facility in relation to the loan just detailed. Inspection form recording property inspections on 5 February 2017 a and 5 February 2018, recording maintenance work required to the roof and new water pipes; and replacing plaster on the third floor. Invoices that matched with the work recorded on the inspection form. Lease agreement between the applicant and her spouse as lessors, and Sathapana Bank as the tenant, from 1 June 2013 to 31 May 2019. Rent was approximately US 1,700 a month (USD 1,888 less 10% tax deduction). Bank statements recording the receipt of rental payments from 29 September 2016.
5	Street 430, Phum 1, Sangkat Phsar Doem Thkov, Khan Khamkamorn, Phnom Penh Cambodia	Document recording purchase of the property on 2 August 2016 for USD 460,000. Loan agreement dated 6 June 2016 between the applicant and her spouse, and the Cambodian Public Bank. Documents recording that the property was sold on USD 570,000 on 17 July 2019 and joint bank statement showing that amount was deposited into the applicant’s and her husband’s bank account An inspection form showing inspections of the property took place on 15 September 2016, 2 March 2017, 1 January 2018 and 4 May 2019 and recorded the maintenance work undertaken as a consequence of the inspections. Invoices consistent with maintenance work done as per the inspection form
7	House No. S2-07 Street Monireth (217), Sankat Veal Vong, Khan 7 Makara. Phnom Penh Cambodia	A letter dated 26 October 2015 by The Olympia City which claimed the property belonged to both the applicant and her spouse. Loan agreement dated 6 June 2016 between the applicant and her spouse, and the Cambodian Public Bank. Lease agreement dated 1 April 2018  that record the applicant and her spouse as the owners of the property, and that the term of the lease was from 1 April 2018 to 1 April 2021. Inspection form dated 10 January 2017 that recorded maintenance needed. It stated that electricity, water and air conditioning system prepared for future tenants. Invoices consistent with maintenance work as per the inspection form.

1. The Tribunal considered whether the documentation provided by the applicant was sufficient to demonstrate that the applicant maintained direct involvement in managing eligible investments.

2. The Tribunal notes departmental policy from the date relevant to this review. It stated that ownership of real estate is evidenced through legally recognised title deeds. These were only provided for properties 1 and 2. Documents provided in relation to the remaining three properties support the applicant’s claim that she and her spouse owned these properties.

3. The value of the properties 1 and 2, based on Tables 3 and 5, exceeded AUD 1,500,000 at December 2018. However, ownership of investment properties of a certain value is not of itself sufficient. The applicant is required to demonstrate that she maintained direct involvement in managing the eligible investments.

4. About this, departmental policy at the time the visa application was made stated in relation to demonstrating direct and continuous involvement in management of their eligible investments where these were real estate, documents could include:

   yield statements in terns of income from investment properties, cash flow statements and disbursements, records of property maintenance/improvements …

5. A basic aspect of managing eligible investments of any type is record keeping. It is reasonable to expect, in relation to real estate investments, that records would be kept that would set out the basis for acquiring a new investment property and would track the profitability of each investment. Such records would include details of costs incurred in repairs and maintenance and advertising for new tenants. The documents pertaining to these, such as suppliers’ invoices would be kept, along with all leases, correspondence with tenants and the like.

6. As noted in Table 5 in relation to property 1, the lease stated that for the first five years, the monthly rent payable by the tenant, EFG, was USD 2,777 whereas a bank statement recorded monthly rental payments from the tenant, EFG, of USD 2,500 for the period 17 August 2017 to 16 February 2021.

7. The bank statement was for a J Trust Royal Bank joint account, held in the names of the applicant and her husband, and in USD. Most of the deposits for USD 2,500 identified the payee as EFG while some were just described as “rental” or “cheque deposit”. This particular bank statement was provided to the Department in relation to property 1 and the deposits of USD 2,500 were highlighted. No explanation was provided for the discrepancy between the rent due as per the lease and the rent actually paid.

8. The Tribunal recorded in Table 5 that the applicant provided inspection forms for all the five properties, along with invoices for work undertaken as recorded on the inspection form. The entries on the original inspection forms (that is, the untranslated versions) are handwritten. They all appear to be in the same handwriting and to have been written in the same pen. This suggests they were written at the same time rather than as at the various dates recorded on the inspection forms. Also, they were signed off by the applicant in Khmer and in English. It does not make sense that a document written in Khmer would be signed in both Khmer and English.

9. The Tribunal is not satisfied that the entries on the inspection forms were made at the dates recorded for each inspection.

10. The invoices relating to the maintenance work undertaken, as recorded on the inspection forms, are all on the letterhead of a business called Khemara. That of itself is not of concern as it is not unreasonable for the applicant to use the same business to undertake maintenance work on the properties over a period of years. Information on the original (untranslated) invoices, such as dates, names, descriptions of goods, quantities, unit prices and amounts are all handwritten.

11. As with the inspection forms, the appearance of the invoices is remarkably similar, with regard to the handwriting, the signatures and the pen used, even though they cover dates from June 2016 to June 2019.

12. Further, the English translations of the invoices are also on Khmer letterhead. In the translated versions, the information such as dates, names, descriptions of goods, quantities, unit prices and amounts are all typed. That is reasonable but what is odd is that English translations of invoices written in Khmer and raised between 2016 and 2019, have been typed on the letterhead of the supplier.

13. The foregoing raises a question as to the authenticity of the invoices and whether the copies written in Khmer provided to the Department were generated at the time the maintenance work was undertaken or drawn up more recently for the purpose of providing documents to support the visa application

14. The Tribunal accepts that if the applicant is the joint owner of one or more investment properties, then she will have arranged for maintenance work to be undertaken at various times. However, the Tribunal is not satisfied as to the authenticity of the documents relating to inspection work and repairs as it is not satisfied that those documents were drawn up at the time the work was undertaken.

15. In the Tribunal’s view, an important aspect of managing an eligible investment is maintaining appropriate and contemporaneous paperwork. The Tribunal is not satisfied that was done in relation to the maintenance of the properties for reasons just set out.

16. The Tribunal notes that the applicant referred to an accounting ledger and also notations she made of the physical condition of the properties when she drove by them on a monthly basis.

17. The applicant did not provide copies of an accounting ledger or of the monthly notations. She did not provide any records that indicate the return on investment was projected, calculated, noted or monitored for any of the five relevant properties.

18. The applicant did not provide copies of records one might expect to be available, given information she provided in her statement dated 15 October 2019, such as tenants’ references and credit and background checks.

19. In that statement, the applicant referred to the possibility of fining a tenant if they did not maintain the outside of the premises satisfactorily. The Tribunal checked the lease agreements, none of which give the lessor the right to fine a tenant for not maintaining the outside of the property satisfactorily. The Tribunal does not accept that fining tenants was an option open to the applicant.

20. Given the issues raised by the maintenance forms and invoices provided by the applicant as discussed above, and the absence of other documentation also set out above, the Tribunal is not satisfied that the applicant has demonstrated she maintained direct involvement in managing her eligible investments.

21. For these reasons, the Tribunal is not satisfied that the applicant meets cl 188.244(b).

22. As the Tribunal is not satisfied that the applicant meets either cl. 188.244(a) or (b), the Tribunal can only find that cl 188.244 is not met.

    OVERALL CONCLUSION

23. For reasons already set out, the Tribunal is not satisfied that the primary applicant meets the criteria for the grant of a Subclass 188 (Business Innovation and Investment (Provisional)) visa. Accordingly, the decision under review must be affirmed in relation to the primary applicant.

24. As the primary applicant is unable to satisfy cl 188.244, the secondary applicants with review rights do not meet the criteria for grant of a visa as they are not members of a family unit of a person who holds a Subclass 188 visa, granted on the basis of satisfying the primary criteria. Therefore, the decision in relation to the secondary applicants must also be affirmed.

    DECISION

    The Tribunal affirms the decisions not to grant the visa applicants Business Skills (Provisional) (Class EB) visas.