WANG (Migration)

[2024] AATA 3000

WANG (Migration) [2024] AATA 3000 (6 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Douli Wang

CASE NUMBER:   2211503

HOME AFFAIRS REFERENCE:               BCC2019/5188369

MEMBER:Robyn Anderson

DATE:  9 August 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant’s Business Innovation and Investment (Provisional) Subclass 188 visa in the Investor stream.

Statement made on 9 August 2024 at 11.30am.

CATCHWORDS

MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – net business and personal assets of applicant and/or non-migrating spouse – no financial documentation provided to department – no response to tribunal’s communications, further evidence or appearance at hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 188.245(a)

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 21 July 2022 to refuse to grant the visa applicant a Business Innovation and Investment (Provisional) Subclass 188 visa in the Investor stream, under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant was invited to apply for the Subclass 188 visa on 19 August 2019. According to departmental records he arrived in Australia on 21 August 2019 and has not left Australia since. While his application indicates that he has a spouse and daughter, they were not part of the application and reside in China.

3. The delegate refused to grant the visa on the basis that she could not be satisfied that the requirements under cl 188.245 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) were met. This was because the applicant failed to provide any documentation to support his claim that for the two fiscal years immediately before the time of invitation, the business and personal assets of him, his spouse or him and his spouse together, had a net value of at least AUD2,250,000.

4. The matter was constituted to a Tribunal Member on 20 June 2024.

5. On 4 July 2024, the Tribunal wrote to the applicant via the email address he provided in his application to invite him to attend a hearing by MS Teams video conference on 6 August 2024 at 11.30am. The letter also requested the applicant provide supporting documents in support of the net assets he was relying on for the Subclass 188 visa. The applicant failed to respond within the required time. Therefore, the Tribunal attempted to contact him again on 29 July 2024, without any response. On 30 July 2024, the Tribunal notified the applicant of a video test call on 1 August 2024.

6. On 1 August 2024, the applicant failed to participate in the video test call. The Tribunal then requested via email that the applicant provide a phone contact. A further video test call was scheduled for 5 August 2024 and the applicant was notified. The applicant failed to participate and failed to respond to any of the Tribunal’s correspondence.

7. On 6 August 2024, the hearing attendant opened the MS Teams video meeting at 11.17am in preparation for the hearing at 11.30am. The Tribunal waited for the applicant to join the meeting until 11.55am. He did not appear. As the Tribunal has had no contact from the applicant since the hearing, it proceeded to make a decision on the papers.

8. For the following reasons, the Tribunal has affirmed the decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. Relevantly, cl 188.245(a) of Schedule 2 to the Regulations sets out the requirement that for the two fiscal years immediately before the time of invitation to apply for the visa, the business and personal assets of the applicant, the applicant’s spouse or de facto partner, or the applicant and his spouse or de facto partner together, had a net value of at least AUD2,250,000.

10. The two fiscal years immediately before the date of invitation on 19 August 2019 is the period 1 January 2017 to 31 December 2018 (the relevant period). There was no evidence provided to the Department to demonstrate that the applicant and/or his spouse or de facto partner held net business and personal assets during the relevant period of at least AUD2,250,000. This was despite the Department writing to the applicant via email on 25 January 2022 requesting the supporting documentation within 28 days. When the applicant failed to respond, a further email was sent to the applicant on 7 July 2022, advising him that if he did not respond it was open to the delegate to go ahead and make a decision without seeking further information.

11. On 21 July 2022, the delegate made a decision to refuse to grant the applicant a Subclass 188 visa because no evidence was provided to verify that the net asset value of him and/or his spouse or de facto partner together was at least AUD2,250,000. The applicant was notified of the decision via email. It is noteworthy that the applicant provided a different email address to the Tribunal in his application lodged on 9 August 2022. The applicant completed the declaration on his application form lodged with the Tribunal which stated, amongst other things, that, “I understand that if I change my contact details and do not inform the AAT of my change of address or other new contact details, the AAT may proceed to make a decision even if it cannot contact me.”

12. The Tribunal acknowledged receipt of the applicant’s review application via the email address provided by the applicant, on 11 August 2022. The letter requested the applicant provide a phone number to the Tribunal by 18 August 2022. To date, the applicant has not contacted the Tribunal in any manner or provided a phone number. The letter of 18 August 2022 also noted the importance of advising the Tribunal immediately if there was any change in his contact details. He was also advised to provide any further material he wanted the Tribunal to consider as soon as possible. To date the applicant has made no contact with the Tribunal or provided any documentation in support of his application.

13. As noted above, the applicant failed to join the MS Teams video conference on 6 August 2024, scheduled for 11.30am, despite being advised numerous times via his nominated email address. In the period from 9 August 2022 to 6 August 2024, despite being advised to provide any additional evidence as soon as possible on numerous occasions, no further evidence has been provided by the applicant. The delegate refused to grant the applicant a Subclass 188 visa because of a lack of supporting evidence in relation to his level of net business and personal assets. The Tribunal faces the same dilemma. There appears to be a pattern whereby the applicant ignores correspondence.

14. The Tribunal is satisfied that the applicant was given ample opportunity to provide supporting evidence to the Department and ample opportunity to provide further evidence to the Tribunal. He chose not to make any contact with the Department or the Tribunal in support of his claim, other than to submit an application for review. In such circumstances, the Tribunal cannot be satisfied that for the relevant period, the business and personal assets of the applicant, the applicant’s spouse or de facto partner, or the applicant and his spouse or de facto partner together, had a net value of AUD2,250,000.

15. Therefore, the Tribunal finds that the requirement under cl 188.245 of Schedule 2 to the Regulations is not met and that it is appropriate to affirm the decision under review.

    DECISION

16. The Tribunal affirms the decision not to grant the applicant’s Business Innovation and Investment (Provisional) Subclass 188 visa in the Investor stream.

    Robyn Anderson
    Member