Mao (Migration) - [2025] ARTA 2130

MAO (MIGRATION) [2025] ARTA 2130 (9 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicants:Ms Dongli Mao
Master Chengze Li
Master Sinuo Li
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2214417

Tribunal:General Member Robyn Anderson
Place:Melbourne
Date: 9 July 2025
Decision:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 188 Business Innovation and Investment (Provisional) visa in the Significant Investor stream:
Cl 188.211 of Schedule 2 to the Regulations· .

Statement made on 09 July 2025 at 3:34pm
CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 Business Innovation and Investment (Provisional) – Significant Investor Extension stream – business or investment activities of a nature not generally acceptable in Australia – involvement of the Australian Criminal Intelligence Commission – development and sales of electrical machinery – voluntary deregistration in China – no breach penalty information – restrictions on bank account lifted – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cls 188.211, 892.214
CASES
Lee & Ors v Minister for Immigration & Anor [2008] FMCA 1523
Minister for Immigration & Multicultural & Indigenous Affairs v Lat (2006) 151 FCR 2014
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 26 September 2022 to refuse to grant the applicants Business Skills (Provisional) (Class EB) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 17 May 2021. Class EB contains the Subclass 188 Business Innovation and Investment (Provisional) visas. 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 to satisfy only the secondary criteria. The primary criteria includes common criteria, and criteria set out in streams. In this case, the first named visa applicant (‘the applicant’) applied for the visa in the Significant Investor stream.
The delegate in this case refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl 188.211 of Schedule 2 to the Regulations. The delegate was not satisfied that the evidence before her supported the claim that the applicant and her ex-husband had not had a history of involvement in business or investment activities that are of a nature that is not generally acceptable in Australia.
The visa applicants applied to the Administrative Appeals Tribunal (the AAT) on 29 September 2022, requesting an independent review of the delegate’s decision.
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicants were represented in relation to the review.
On 11 April 2025, the Tribunal wrote to the applicants to invite them to attend a hearing by MS Teams video conference on 10 June 2025 at 11.30 am. The letter also stated as follows:
Please provide all documents you intend to rely on to support your case by 3 June
2025 if you have not already done so. The decision made by the department should
set out the reasons for the decision, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing.
In response, submissions and evidence were received on 3 June 2025, 5 June 2025 and 6 June 2025. The applicant appeared before the Tribunal on 10 June 2025 and gave sworn oral evidence to the Tribunal. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. On 10 June 2025, the Tribunal deferred making a decision in this matter to allow the applicants to provide additional evidence in support of their case. Further information was provided to the Tribunal on 24 June 2025.
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In this case, the applicant had been involved in businesses in China with her ex-husband, Mr Li Yuandong (Mr Li), since their marriage in 2002. Evidence before the Tribunal confirms that they were officially divorced on 24 September 2019. The applicant gave oral evidence that she continues to work in the family businesses in China, fulfilling her role in managing the internal matters of the businesses, including policies and human resources.
The criterion in cl 188.211 of Schedule 2 to the Regulations must be satisfied at the time of decision and states as follows:
The applicant, and the applicant’s spouse or de facto partner, do not have a history of involvement in business or investment activities that are of a nature that is not generally acceptable in Australia.
Clause 188.211 of Schedule 2 to the Regulations refers specifically to past activities. Therefore, the relevant period for consideration includes the period in which the applicant was involved in business activities with Mr Li both before and after their divorce.
The delegate raised concerns about the lack of evidence demonstrating the source of the funds transferred to Australia and did not accept some of the explanations in relation to various business transactions that had occurred. The delegate also raised concerns over the involvement of the Australian Criminal Intelligence Commission (ACIC) and the shortfall between the amount of funds transferred to Australia of approximately AUD12m and the capacity to purchase assets of approximately AUD16m.
As discussed at hearing, the Tribunal is independent of the Department and considers the review with fresh eyes. Therefore, regardless of the Department’s concerns, the Tribunal must assess the evidence before it anew to establish whether or not the applicant meets cl 188.211 of Schedule 2 to the Regulations. The Tribunal clarified at hearing that it will only be considering cl 188.211 of Schedule 2 to the Regulations.
While the matter of Lee & Ors v Minister for Immigration & Anor [2008] FMCA 1523 (Lee) is in relation to a Subclass 892 (State/Territory Sponsored Business Owner) (Permanent) visa, the wording in cl 892.214 of Schedule 2 to the Regulations is almost identical to that of cl 188.211 of Schedule 2 to the Regulations.
In Lee, Smith FM affirmed the findings in Minister for Immigration & Multicultural & Indigenous Affairs v Lat (2006) 151 FCR 2014 where it was held that the decisionmaker must be “affirmatively satisfied” that the respondent did not have a history of involvement in unacceptable business activities. Smith FM went on to state that:
“A decision-maker faced with evidence suggesting questionable business activities associated with an applicant is required to identify the ‘business activities’, characterise their ‘nature’, and assess whether this is ‘not generally acceptable in Australia’. The decision-maker must also address whether the evidence shows ‘a history of involvement’ by the applicant in the activities.
Grammatically, the test in cl.892.214 of ‘not generally acceptable in Australia’ relates to the ‘nature’ of one or more ‘business activities’ in which the primary applicant has a ‘history’ of ‘involvement’. It does not attach directly to the ‘history’ of such ‘involvement’. It would therefore be an error for a decision-maker to ask whether a ‘history of involvement’ was ‘not generally acceptable in Australia’, rather than whether the nature of relevant business activities in which he was involved had that character.
In Lee, the consideration was in relation to a business being conducted in Australia. While in this case the businesses under consideration are operating in China, the Tribunal is satisfied that it is equally appropriate to examine the same considerations as set out in Lee, whereby ‘Business activities’ can include the manner in which a business is conducted for profit, as well as the profit-making activities themselves, and a decision maker can also consider the applicant’s compliance with laws, standards, ethics, and community expectations in the course of conducting a legitimate business.
The Tribunal notes the advice in Pam3 GenGuide M – Business Visas (PAM3), to which the Tribunal may have regard in appropriate cases that, “the policy intention is to guard against the entry of persons who may otherwise satisfy Business visa criteria, but whose business is in an industry, or whose business practices are of a nature that would generally be unacceptable to the Australian community, were the business to operate in Australia”. PAM3 goes on to note that if unacceptable business activity is found to exist, it should be more than a minor, one-off event in order to constitute a ‘history’ of such practices.
Examples given in PAM3, albeit not exhaustive, are as follows:
·a contravention of government law;
·a criminal conviction relating to business activities;
·serious disregard of industry, licencing and regulations;
·fraudulent trade practices;
·Foreign Investment Review Board violations or
·not providing fair pay for employment.
The applicant gave oral evidence that when she married in 2002, Mr Li was working in the family businesses which were engaged with manufacturing and selling rubber products. She further stated that in the area where he grew up it was commonplace for households to run their own businesses.
The applicant told the Tribunal that in 2006, she and Mr Li set up Shaanxi Yuanda Industrial Co Ltd (Yuanda) and in 2007, Shaanxi Xigao Electrical Technology Co Ltd (Xigao). With these businesses they expanded into machinery and electrics in the mining industry.
Information was provided after the hearing in the form of an Enterprise Credit Information Report (ECIR) from the National Enterprise Credit Information Publicity System in respect of Xigao. The National Enterprise Credit Information Publicity System was formed in accordance with legislative changes effective 1 March 2014 to create a nationwide system to assist the public in evaluating a company’s credit worthiness. The ECIR confirmed the oral evidence of the applicant in respect of the business activities of Xigao. The ECIR also confirmed that the applicant and Mr Li were the original shareholders of Xigao and continue to be so, albeit for a period they held a partial ownership in Xigao indirectly through Yuanda. It is evident that Xigao’s name was officially changed on 9 April 2024 to Shaanxi Xigao Electric Technology Group Co Ltd. The ECIR of Xigao has recorded no change in the business activities, which correspond to the oral evidence of the applicant. The ECIR also records that there is no breach penalty information and no serious illegal activity information in respect of Xigao.
Supporting evidence in the form of shareholders meeting resolutions of Yuanda and Xigao, Bank of China credit slips and cheque transfers, Yuanda bank records and a bookkeeping voucher were before the Tribunal in relation to Yuanda investing RMB95m in Xigao in February 2012 and provision of a loan from Xigao to Yuanda in the amount of RMB80m shortly thereafter. The loan was repaid in full by 2014. The applicant told the Tribunal that as Xigao did not require the funds at that time, it seemed appropriate to loan RMB80m to Yuanda for a period of five years to enable the repayment in full in respect of an existing loan on Yuanda’s balance sheet from Mr Dong Qian.
Immediately prior to Yuanda’s investment in Xigao, the existing capital of Xigao was RMB5m, of which 80% was attributed to the applicant and 20% to Mr Li, as confirmed in the ECIR. Yuanda then became a 95% shareholder in Xigao with the applicant and Mr Li holding 4% and 1% respectively.
In addition, the Administration for Industry and Commerce (AIC) issued an approval of registration change notice in respect of Yuanda’s shareholding in Xigao on 21 February 2012. The AIC information has been reflected in the ECIR since 1 March 2014, recording an investment date of 1 February 2012.
Xigao continues to operate successfully with an online presence. Evidence was provided to the Tribunal confirming all required income and VAT tax payments of Xigao had been paid. The ECIR in 2024 records some 33 employees for social insurance purposes. Based on the evidence before it, the Tribunal is satisfied that Xigao has and still does operate a business involved in the development and sales of electrical machinery and that this business activity is of a kind that is acceptable in Australia. It is noteworthy that Xigao has been in operation for almost 20 years and it has been more than 12 years since the change in shareholding and loan transactions that involved Yuanda. The Tribunal has no doubt that had there been any suggestion of wrongdoing by Xigao and/or Yuanda in relation to compliance with the Company Law of the Peoples Republic of China (2005 Edition) and the AIC, that it would have come to light by now and Xigao penalised accordingly. This is not the case. Rather, the ECIR reports no history of penalties or breaches. The Tribunal is satisfied that the applicant and Mr Li have a history of involvement in Xigao and that the business activities of Xigao are of a legitimate nature that is generally acceptable in Australia.
The ECIR in respect of Yuanda confirms the oral and written evidence of the applicant in relation to the business activities of Yuanda. It also confirms the ownership of Yuanda by the applicant and Mr Li until Yuanda was voluntarily deregistered on 19 June 2019. It was submitted that in 2017 the business operations of Yuanda began to decline. In April 2019, the RMB95m shareholding in Xigao held by Yuanda was transferred to the applicant and Mr Li. The Tribunal accepts that this transaction was conducted in accordance with Company Law of the People’s Republic of China (2005), which allows for transactions of common control such as this, to be completed for zero consideration.
The application for voluntary deregistration of Yuanda was also lodged in April 2019 and was finalised in June 2019. According to the evidence before the Tribunal, the deregistration was officially approved by Shaanxi Provincial Administration for Market Regulations on 19 June 2019. This resulted in the applicant holding 51.5% of the shareholding in Xigao and Mr Li holding the remaining 48.5%, as confirmed in the ECIR of Xigao.
The ECIR also records that there is no breach penalty information and no serious illegal activity information in respect of Yuanda. The Tribunal is satisfied that as submitted, the transactions in relation to the investment and the loan complied with Company Law of the People’s Republic of China (2005).
The Tribunal is satisfied that the applicant and Mr Li have a history of involvement in Yuanda. While Yuanda was voluntarily deregistered in 2019, as outlined above in respect of the Xigao/Yuanda shareholding change and loan, the evidence supports the transactions complied with the Company Law of the People’s Republic of China (2005) and the ECIR reports no history of penalties or breaches. Yuanda operated for around 10 years and the voluntary deregistration was formally accepted by the AIC six years ago. In the absence of any action taken against Yuanda by any government regulatory body in the meantime, the Tribunal is satisfied that the business activities of Yuanda are of a legitimate nature that is generally acceptable in Australia.
The applicant gave oral evidence that in 2012 a third business was set up, called Yongshang Industrial Development Co Ltd (Yongshang). Yongshang is also involved in the sale of electrical machinery, as confirmed in the ECIR. The applicant told the Tribunal that the initial shareholders were her and Mr Li and her older sister, as evidenced in the ECIR. She further stated that each of them loaned funds to Yongshang, which were subsequently repaid as business expanded and the customer base became more stable.
A written submission from Yongshang’s accountant on 17 June 2025 explained that software accounting practices commenced in November 2013 and the accounting was outsourced until late 2019. In November 2013, the records indicate that a loan of RMB6.5m from the applicant to Yongshang had accumulated. The balance sheet of Yongshang at 1 November 2013 records the outstanding loan to the applicant in the amount of RMB6.5m. The balance sheets of Yongshang provided after the hearing reflect that the loan had reduced to RMB740,000 at 31 December 2016, RMB230,000 by 31 December 2017 and nil by 31 December 2018. The applicant gave oral evidence that by 2013 Mr Li and her sister had already been repaid their loans to Yongshang, which was supported by the absence of their loan accounts on the relevant balance sheet.
The ECIR in respect of Yongshang records that in July 2017, the applicant took over her sister’s shareholding, resulting in her shareholding in Yongshang being 90% and Mr Li’s shareholding being 10%. The applicant further stated that last year the shares held by her and Mr Li were transferred to Xigao. As they are the sole shareholders of Xigao, they retain their ownership of Yongshang through the indirect ownership of Xigao. The ECIR in respect of Yongshang records the transfer to Xigao, now recorded as the sole shareholder in Yongshang from April 2024.
The ECIR of Yongshang also records that there is no breach penalty information and no serious illegal activity information. The applicant submitted that while Yongshang continues to operate, there is no online presence in respect of Yongshang.
The Tribunal is satisfied that the applicant and Mr Li have a history of involvement in Yongshang. Yongshang has operated for more than 12 years and continues to do so. Given that the ECIR reports no history of penalties or breaches and there is no evidence of any action taken against Yongshang by any government regulatory body over such an extensive period, the Tribunal is satisfied that the business activities of Yongshang are of a legitimate nature that is generally acceptable in Australia.
In relation to any involvement in businesses in Australia, the applicant gave oral evidence that she was a shareholder with another person in Everbright Property Development Pty Ltd (Everbright) in 2017, planning to develop real estate. However, it soon became evident that the property market had declined and after development costs there would be minimal profits. Consequently, no trading ever took place. The property in Kosciusko Rd Balwyn that was purchased in April 2017 by Everbright was sold in June 2021. According to the Australian Business Register and ASIC, GST registration was cancelled in October 2021, Everbright was voluntarily deregistered and the ABN cancelled in June 2022. The Tribunal accepts that the applicant had an involvement in Everbright, and is satisfied that Everbright did not operate in business activities that were not generally acceptable in Australia.
In accordance with the Resolution of Shareholders meeting held on 30 August 2019 it was resolved to distribute the undistributed profits of Xigao up to 30 June 2019 to the applicant and Mr Li in accordance with their shareholdings of 51.5% and 48.5% respectively. The applicant and Mr Li received dividends of RMB6,428,745 and RMB,054,255 respectively, which were recorded on Xigao’s 2019 annual tax return, as expected in the pattern of normal business procedures. Supporting documentation recorded the tax payment by the applicant and Mr Li on 2 September 2019 in relation to the dividends issued. The applicant submitted that the net funds received from the dividend issue to her and Mr Li from Xigao were transferred to the Westpac Choice bank account in the name of the applicant in three transactions on 26 March 2020, 1 April 2020 and 16 April 2020, totalling AUD2,239,472.50. The Westpac bank statements before the Tribunal verified the transactions.

It was evident from the Westpac Choice bank statements of the applicant that further transactions totalling more than AUD1.9m were transferred in May 2020. The delegate raised concerns about the source of the funds and a possible connection to business activities being of a nature that is not generally acceptable in Australia.
As a result of the significant sums of money transferred to Australia, the applicant was subject to an AUSTRAC investigation. The applicant provided copies of emails from ACIC and also the original summons issued on 5 June 2020, requiring the applicant to give evidence and provide documents in relation to her visa applications, Australian and overseas bank accounts, Australian and overseas businesses in which she has an involvement and their respective bank accounts and property ownership in Australia. At the same time a restriction was placed on all withdrawals from the applicant’s Westpac Choice account , which held a balance on 29 May 2020 of AUD4,186,604. According to the bank statements, the restriction appears to have been lifted in March 2021, when the applicant transferred AUD2,239,472 into a Westpac term deposit account.
The applicant gave oral evidence that she attended the meeting with ACIC on 11 June 2020 and provided the requested information. On 25 September 2020, she received an email stating that she is excused from further attending the ACIC office. The email goes on to state that the team conducting the investigations may be in touch in the future. An email from the applicant’s representative to ACIC on 25 February 2021 requested further clarification in relation to the investigation and the restriction applied to her Westpac Choice account. No further information was received. However, as noted above, restrictions on her Westpac Choice account were lifted in March 2021.
The Tribunal notes that it is now more than four years since the last communication with ACIC and since the restrictions were lifted on the Westpac Choice account of the applicant. Since that time, the applicant has sold two properties and Mr Li has purchased the family residence which settled on 30 June 2021 for the amount of AUD3,966,000. The applicant has also voluntarily deregistered Everbright as a joint shareholder. In the circumstances, with the passage of more than four years, the Tribunal is satisfied that ACIC found that there was no basis for the investigation in respect of the source of the funds transferred to Australia. The Tribunal finds that if anything, the existence of the investigation and an outcome whereby there were no allegations or charges and all funds were released for use by the applicant more than four years ago, serves only to support the applicant’s submission that she and Mr Li have not had a history of involvement in business or investment activities that are of a nature that is not generally acceptable in Australia.
While the applicant no longer holds property in her own name in Australia, according to evidence before the Tribunal she has held a commercial property in China in her own name in Lianhu district in Xi’an City since 2009. It is currently rented. A second property on Furong East Road in Xi’an City was initially purchased in joint names with Mr Li in 2009. Since the divorce settlement the property is now held in the name of the applicant. Both properties are unencumbered. A third property in the Beilin district of Xi’an City is held in the name of the applicant’s daughter and was purchased in 2016. The property is unencumbered and for the purposes of the visa a Deed of Gift signed by the applicant and her daughter on 3 August 2022 states that funds received either by a mortgage against the property or by a sale are permanently and unconditionally gifted to the applicant. Valuation reports have been provided by registered valuers in respect of each of the three properties. Given the length of time that the applicant has had ownership of the above properties, the change of title following divorce and the investigations by ACIC into the activities of the applicant in China to justify the transferred funds to Australia, in the absence of any evidence to the contrary, the Tribunal is satisfied that such property investments are of a nature that is generally acceptable in Australia.
It is apparent from the evidence before the Tribunal that none of the examples of unacceptable business activities listed in PAM3 have existed in the history of the applicant and Ms Li. After consideration of the business and investment activities in which the applicant and Mr Li have been and continue to be involved in, the Tribunal is “affirmatively satisfied” that the applicant, and at the relevant time her spouse, Mr Li, did not have a history of involvement in business or investment activities that are of a nature that is not generally acceptable in Australia. Accordingly, the Tribunal finds that the criterion under cl 188.211 of Schedule 2 to the Regulations is met.
Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 188 Business Innovation and Investment (Provisional) visa.
The Tribunal finds that as the second and third named applicants applied on the basis of being family unit members of the applicant, their applications will be determined by reference to the outcome of the applicant’s application on remittal to the Minister for reconsideration.
DECISION
The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 188 Business Innovation and Investment (Provisional) visa in the Significant Investor stream:
·cl 188.211 of Schedule 2 to the Regulations.
Representative for the Applicant: Ms Lena Hung