Shen (Migration)

This matter concerned an appeal by the Applicant, Weiping Shen, against a decision of the Department of Home Affairs regarding her application for a Business Skills (Residence) (Class DF) visa, Subclass 890 (Business Owner). The central dispute revolved around whether the Applicant and her spouse held beneficial ownership of a residential property located at 710-722 George Street, Sydney, which had been purchased in the name of the secondary applicant, Zhenfei Gu. The Applicant claimed this property, along with business assets, met the net asset requirements for the visa. The case was heard by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the Applicant had successfully demonstrated beneficial ownership of the George Street Property in accordance with Regulation 1.11A of the Migration Regulations 1994 (Cth). This regulation prescribes the evidentiary requirements for assets subject to beneficial ownership arrangements to be included in the calculation of net business and personal assets for Business visa purposes. Specifically, the Tribunal had to determine if the provided Declaration of Trust, or any other documentation, sufficiently evidenced the Applicant's beneficial ownership to satisfy the requirements of the regulation, which mandates that such evidence be stamped or registered by an appropriate authority.

The Tribunal reasoned that while a Declaration of Trust was provided, it was drafted in the future tense, suggesting it recorded intentions rather than an existing arrangement at the time of purchase. Crucially, Regulation 1.11A(2) requires that evidence of beneficial ownership, such as a trust instrument or contract, be stamped or registered by an appropriate authority. The Declaration of Trust in this case was neither stamped nor registered. The Tribunal noted that the purpose of Regulation 1.11A is to prevent claims to ownership that cannot be substantially proven by authenticated documents, thereby addressing the difficulties decision-makers face in verifying claims, particularly when documents may be in a foreign language or reflect foreign legal systems. The contract for the property itself also did not indicate that the purchaser was acting as a nominee or trustee for another party.

For these reasons, the Tribunal concluded that the Applicant had failed to satisfy the evidentiary requirements for beneficial ownership under Regulation 1.11A. Consequently, the Tribunal affirmed the decision under review.