Mizikovsky (Migration)

This matter concerned an appeal by Mr Mizikovsky against the refusal of his application for a Subclass 188 Business Innovation and Investment (Provisional) visa in the Significant Investor Extension stream. Mr Mizikovsky and Ms Nakupova had previously been granted Subclass 188 visas in the Significant Investor stream in August 2015, which were due to expire in August 2019. Mr Mizikovsky subsequently applied for extensions of this visa. The decision under review affirmed the refusal of his second application for a Subclass 188 visa in the Significant Investor Extension stream.

The primary legal issue before the Tribunal was whether Mr Mizikovsky continued to hold a complying significant investment as required by clause 188.261 of Schedule 2 to the Regulations. This clause mandates the continuous holding of a complying significant investment for the duration of the visa. The dispute arose because Mr Mizikovsky's initial investment in a Queensland Treasury Corporation bond matured and was returned to him on 15 August 2019, with a new complying investment in the MA Fixed Income Fund III not being made until 18 August 2020. This created a gap in his investment holdings.

The Tribunal reasoned that while policy guidance exists for decision-makers, it must be applied consistently with the legislation and cannot override statutory requirements. The Tribunal noted that Mr Mizikovsky's initial investment matured on 15 August 2019, and the funds were returned to him. A new complying investment was not made until 18 August 2020, resulting in a period where he did not hold the requisite investment. Specifically, there was a gap of 27 days between the grant of his first SIV extension on 23 July 2020 and the placement of the new investment on 18 August 2020. The Tribunal found that this gap meant Mr Mizikovsky had not continuously held a complying significant investment as required by the visa criteria.

The Tribunal concluded that the decision under review should be affirmed.