Nguyen (Migration)

This matter concerned a Business Skills (Residence) (Class DF) visa application, subclass 892 State/Territory Sponsored Business Owner (Residence), made by Mr Hoang Sang Nguyen, a national of Vietnam, and his spouse. The primary dispute revolved around whether the applicants met the net asset value requirements stipulated by clause 892.212 of Schedule 2 to the Migration Regulations. The Tribunal was tasked with determining the net value of the business and personal assets in Australia held by the applicants during the 12-month period preceding the visa application lodgement on 6 December 2012.

The court was required to determine if the applicants satisfied at least two of the three requirements of clause 892.212. Specifically, the Tribunal had to assess whether the business employed the equivalent of a full-time Australian citizen, permanent resident, or New Zealand citizen, and critically, whether the applicants met the financial thresholds relating to the net value of their business and personal assets in Australia. The Tribunal also considered the role of the appropriate regional authority in determining "exceptional circumstances" and its own limited power in this regard.

The Tribunal found that the criterion regarding the employment of a full-time Australian worker was not met. However, it determined that the net value of the business and personal assets in Australia owned by the applicants in their main business was at least $75,000 throughout the relevant 12-month period and had been lawfully acquired. The Tribunal also considered the inclusion of jewellery as a personal asset, accepting its potential to be an asset if ownership, recognition, and valuation could be reasonably established, though a market valuation was lacking for this item.

Ultimately, the Tribunal remitted the visa applications for reconsideration. It directed that the first named applicant, Mr Nguyen, met the criterion under clause 892.212 of Schedule 2 to the Migration Regulations for the subclass 892 visa.