Wen (Migration)

This matter concerned an appeal by Mrs Wen and her spouse, Mr Li, against a decision regarding their application for a Business Skills (Provisional) visa, subclass 188, in the business innovation stream. The central dispute revolved around whether the applicants had demonstrated that they possessed net business and personal assets of at least AUD800,000 at the time of their invitation to apply for the visa. The applicants' nominated assets were assessed as at 30 April 2017, a date considered acceptable by the Tribunal as it fell within three months prior to their visa application.

The primary legal issue before the Tribunal was to determine if the applicants had provided sufficient evidence to establish ownership of their claimed assets, particularly a property in Australia and shareholdings in a Chinese company. The Tribunal was required to assess whether the net value of these assets, after accounting for liabilities and unfulfilled share payments, met the minimum threshold stipulated by the relevant visa regulations, specifically clause 188.226(a) of Schedule 2 to the Regulations. The Tribunal also considered the status of an Australian company associated with the applicants, which had been deregistered.

The Tribunal reasoned that while the initial assessment by the Department excluded the Australian property due to insufficient proof of ownership, further evidence, including a title search and valuation report, indicated Mr Li was the sole proprietor from February 2015 with a property valuation of AUD2,100,000 as at April 2017. Despite a registered mortgage in June 2017, a NAB loan offer and statements from November 2014 showed an outstanding liability of AUD1,073,660 as at April 2017. The Tribunal found that the shareholdings in the Chinese company were not fully paid up, meaning their net asset value could not be included in the calculation. Considering the evidence regarding the property and Mr Li's bank accounts, the Tribunal concluded that the first named applicant met the criteria under clauses 188.226 and 188.228 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for reconsideration by the Department, directing that the first named applicant be found to meet the specified criteria. The applications of the other family unit members were to be determined by reference to the outcome of Mrs Wen's application upon remittal.