Wu (Migration)

[2023] AATA 4263

Wu (Migration) [2023] AATA 4263 (14 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ying Wu

REPRESENTATIVE:  Mr Jiang Liu

CASE NUMBER:  2209552

HOME AFFAIRS REFERENCE(S):          BCC2020/2667436

MEMBER:Susan Hoffman

DATE:14 December 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Business Skills (Provisional) (Class EB) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 188 (Business Innovation and Investment (Provisional)) visa:

·cls 188.225 and 188.229 of Schedule 2 to the Regulations.

Statement made on 14 December 2023 at 7:46am

CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – business innovation stream – turnover of main business for relevant periods – exporting to state-owned enterprises in China – continued operations during COVID pandemic and trading restrictions – applicant’s employment and business background and detailed and clearly articulated knowledge of business operations and long-term plans – genuine realistic commitment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 134(10)
Migration Regulations 1994 (Cth), rr 1.03, 1.11, Schedule 2, cls 188.225(1), 188.229

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 16 June 2022 to refuse to grant the applicant a Business Skills (Provisional) (Class EB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 19 November 2020. Class EB contains Subclass 188 (Business Innovation and Investment (Provisional)). The criteria for the grant of a Subclass 188 (Business Innovation and Investment (Provisional)) visa are set out in Part 188 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. The primary criteria include common criteria, and criteria set out in streams. In this case, the applicant applied for the visa in the Business Innovation stream.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 188.225 of Schedule 2 to the Regulations because the applicant had not demonstrated to the delegate’s satisfaction that the turnover of the main business was at least AUD 500,000 for the relevant periods.

4. The applicant appeared before the Tribunal on 23 November 2023 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Mandarin and English languages.

5. The applicant requested that the Tribunal take evidence from two witnesses, being Mr Tiger Ludi, company director, and Ms Izzy Lu, financial officer. The Tribunal declined to do so as it was satisfied that it could make a decision favourable to the applicant without taking evidence from the witnesses.

6. After the hearing, further documents were provided.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant is seeking to satisfy the primary criteria for a Subclass 188 visa in the Business Innovation stream which include the criteria in Subdivisions 188.21 and 188.22 of Schedule 2 to the Regulations. The issue in the present case is whether the applicant meets cl 188.225.

   Ownership interest in main business – cl 188.225(1)

9. Clause 188.225(1) requires that for at least 2 of the 4 fiscal years immediately before the time of invitation to apply for the visa, the applicant had an ownership interest in one or more established main businesses that had an annual turnover, in each of those years, of at least AUD500,000 (if the time of invitation was before 1 July 2021) or at least AUD750,000 (if the time of invitation was on or after 1 July 2021). No more than two businesses can be nominated for this purpose (reg 1.11(2)). ‘Fiscal year’, in relation to a business or investment, means, if there is applicable to the business or investment by law an accounting period of 12 months – that period; or in any other case – a period of 12 months approved by the Minister in writing for that business or investment: reg 1.03.

10. The business relied on by the applicant to satisfy these requirements is LD Investment Management Pty Ltd (LD). Accordingly, the Tribunal must consider the nature of the applicant’s interest in this business and whether the business met the definition of ‘main business’ for at least 2 of the 4 fiscal years immediately before the time of invitation to apply for the visa, as well as the annual turnover of the business in the relevant years.

11. As the invitation to apply for the visa was made on 23 September 2020, the previous four fiscal years were those ending on 30 June 2017, 2018, 2019 and 2020.

12. In her visa application form, the applicant selected 2018 and 2019 as the best two of the last four fiscal years.

    Did the applicant have an ownership interest in each business relied on for at least 2 of the 4 fiscal years immediately before the time of invitation?

13. An ‘ownership interest’, in relation to a business, means an interest in the business as:

    ·a shareholder in a company that carries on the business, or

    ·a partner in a partnership that carries on the business, or

    ·the sole proprietor of the business;

    including such an interest held indirectly through one or more interposed companies, partnerships or trusts (s 134(10) of the Act and reg 1.03 of the Regulations). Ownership for this purpose includes beneficial ownership if it is evidenced in accordance with the terms of reg 1.11A of the Regulations.

14. In order to meet cl 188.225(1), the Tribunal must be satisfied that the applicant had an interest of this kind in the relevant business or businesses for at least 2 of the 4 fiscal years immediately before the time of the invitation.

15. Extracts from the records of the Australian Securities and Investments Commission (ASIC) dated 15 October 2020 and 6 November 2023 recorded that LD was registered on 14 October 2015. Also on 14 October 2015, 100 ordinary shares were issued. These were issued to and owned by Mr Ludi.

16. The ASIC extracts also stated that the applicant was appointed a director on 13 December 2016 and ceased to be a director on 7 April 2017.

17. Further shares were issued on 5 January 2017, described as ordinary Class B shares. The Tribunal has ascertained the date they were issued from a document number reference in the ASIC extracts of 7E8662961 which was about changes to company details including changes to the share structure, issue of shares and changes to shareholdings.

18. The ASIC extracts identified the applicant as the owner of the ordinary Class B shares. They refer to document number 7EAQ93164 received by ASIC on 1 November 2019. That document was described as being about a change of address or name, rather than a change of shareholding.

19. The ASIC extracts did not refer to any changes in shareholding after 5 January 2017. On that basis the Tribunal is satisfied that the applicant owned the 400 ordinary Class B shares in LD from 5 January 2017 and through the relevant two-year period until now.

20. The Tribunal requested clarification as to why there were two classes of share. A letter dated 28 November 2023 was submitted after the hearing, written by LD’s accountant, Ms Vivian Wang from Prospect Financial Services Group Pty Ltd. Ms Wang wrote that she helped restructure the company in 2017 and it was then that there was a restructure into two classes of ordinary share, and the purpose of this was to have flexibility in the future as to the rights of the shareholders. The 2018 and 2019 balance sheets record under “Issued capital”, AUD 100 of Ordinary A class shares and AUD 1.5 million of Ordinary B class shares. There was no evidence before the Tribunal of either shareholder currently having rights not available to the other.

21. The Tribunal is therefore satisfied that the applicant has had an ownership interest in the nominated main business from a date earlier than 1 July 2017 and therefore during the financial years of 2018 and 2019.

22. Accordingly, the Tribunal is satisfied that the applicant had an ownership interest in the nominated for at least 2 of the 4 fiscal years immediately before the time of invitation to apply for the visa.

    Did each business relied on have sufficient annual turnover?

23. In order to meet cl 188.225(1) the Tribunal must be satisfied that the relevant business or businesses had an annual turnover, in each of the 2 fiscal years identified above, of at least AUD500,000 (if the time of invitation was before 1 July 2021) or at least AUD750,000 (if the time of invitation was on or after 1 July 2021).

24. As the time of invitation was before 1 July 2021, the threshold figure is AUD 500,000.

25. The applicant submitted financial statements for LD for the 2018 and 2019 financial years. These show that gross incomes from export sales were AUD 4,858,900 and AUD 2,745,417 respectively.

26. The applicant submitted copies of quarterly BAS returns covering those years, which recorded sales as follows:

Period	2018	2019
1 July to 30 September	226,271	611,214
1 September to 31 December	1,075,556	538,859
1 January to 31 March	1,034,744	719,799
1 April to 30 June	2,668,354	919,258
Total	5,004,925	2,789,130

1. The Tribunal notes that the sales as per the BAS returns were higher than those in the financial statements. The BAS returns recorded that the sales figures included GST which is not, of course, included in the trading statement found in the financial statements.

2. Consistent with other evidence, the applicant advised that most of the sales were export sales. There were a few, but only a few, sales to Australian customers. The overseas sales did not attract GST but the non-export sales did.

3. The copies of BAS returns were documents issued by the Australian Taxation Office (ATO). The applicant also submitted a report from the ATO dated 6 November 2023, similar to a ledger, which recorded various debits and credits for LD between 2017 and 2019.

4. In light of the above, the Tribunal is satisfied that the nominated business had an annual turnover, in each relevant year, of at least AUD 500,000.

   Did each business relied on satisfy the definition of ‘main business’?

5. The business or businesses relied on by the applicant to satisfy cl 188.225(1) must also have been an established ‘main business’ for the relevant 2 fiscal years identified above. The term ‘main business’ is defined in reg 1.11 of the Regulations. There are four elements to the definition, each of which must be satisfied for a business to be a main business.

6. Firstly, the applicant must have or have had an ownership interest in the business. ‘Ownership interest’ is defined in s 134(10) of the Act: reg 1.03. If a beneficial interest is relied on for these purposes, certain evidentiary requirements must also be met: reg 1.11A.

7. Secondly, the applicant must maintain or have maintained direct and continuous involvement in management of the business from day to day and in making decisions affecting the overall direction and performance of the business.

8. Thirdly, the value of the applicant’s ownership interest, or the total value of the ownership interests of the applicant and the applicant’s spouse or de facto partner, in the business must meet certain thresholds:

   ·if the business is operated by a publicly listed company, the value of the ownership interest must be at least 10% of the total value of the business;

   ·if the businesses is not operated by a publicly listed company and the annual turnover of the business is at least AUD400 000, the value of the ownership interest must be at least 30% of the total value of the business;

   ·if the business is not operated by a publicly listed company and the annual turnover of the business is less than AUD400 000, the value of the ownership interest must be at least 51% of the total value of the business.

9. Finally, the business must be a qualifying business. ‘Qualifying business’ is defined as an enterprise that is operated for the purpose of making profit through the provision of goods, services or goods and services (other than the provision of rental property) to the public, and is not operated primarily or substantially for the purpose of speculative or passive investment: reg 1.03.

10. To meet the third element, as the turnover of the business exceeds AUD 400,000 and the business is not operated by a publicly listed company, the value of the applicant’s ownership interest in the business must be at least 30% of the value of the business.

11. According to ASIC records, the total amount paid for the applicant’s 400 B shares at the time of issue was AUD 1,500,000 and for Mr Ludi’s 100 ordinary shares was AUD 100. The Tribunal is satisfied therefore that the value of the applicant’s ownership interest in the business has at all relevant times exceeded 30%. This means that the first and third elements are met.

12. The Tribunal will now consider the fourth element: whether the business a qualifying business.

13. According to the visa application form, the industry type for LD is agriculture, forestry and fishing. The major business activity was the acquisition of quality wood logs from suppliers in Australia, and then the sale and export of them to importers in China. Those importers would then on-sell the logs for product manufacture to domestic and overseas customers.

14. This activity is consistent with information in the financial statements. For example, in the 2019 financial year, goods were purchased for AUD 2,043,846. Packing costs were AUD 232,925 and freight costs were AUD 117,645. Gross profit was AUD 351,001.

15. The applicant provided copies of invoices dated between 5 July 2019 and 27 June 2020, which recorded sales to three customers, Yueyang Guangsheng Investment Development Company Ltd, Shanghai Textile Raw Materials Co. Ltd and Dongyang Huirong Import and Export Co. Ltd.

16. The applicant said at the hearing that none of the sales were made to companies in which she, or her relatives, had an interest. She said that since the 2019-20 financial year, the customer base has expanded.

17. The applicant said the three main customers just named were state-owned enterprises in China and all very large companies. The Tribunal enquired as to how sales in the millions of dollars could be achieved by a relatively new company. The applicant said that these were not large contracts for those companies, and that they had turnover in the billions. She said that before the business started, she had already cooperated with those companies. The sales in 2018 of AUD 5 million were largely due to having got one big order. She said that they have negotiated a contract for about AUD 3 million for 2024.

18. The Tribunal is satisfied that the business is and was being operated to make a profit through the provision of goods to the public, and is a qualifying business.

19. The second element concerns the applicant’s role in the management of the business from day to day and in making decisions affecting the overall direction and performance of the business.

20. A letter from the representative to the Department dated 10 December 2020 stated that before working for LD, between 2011 and 2017, the applicant was based in Shanghai, working for Shanghai Maruki Industrial Company as its general manager. That business manufactured and exported quality wood products to overseas markets such as Japan. The applicant was responsible for the overall management of that company, including sales and marketing, foreign investment, export trade, finances and overseas development. She was in charge of departments and staff involved in management, sales and products. She held 50% of the shares in that company which had an annual turnover of AUD 13,000,000.

21. Prior to that, between 2004 to 2011, the applicant held managerial positions in Shanghai Express Tesco Supermarket Company Limited, Shanghai Sam’s Supermarket Company Limited and Auchan (China) Investment Company Limited.

22. According to an undated statement provided to the Department, the applicant had a substantial industry background in wood products, manufacturing and export. She also had contacts in China. She was assisting the LD business in developing overseas marketing which led to the business expanding. Before she invested in LD, the applicant researched the industry in Australia and conducted business meetings. LD engaged the specialist firm, Sinotrans Integrated Logistics Australia (SILA).    

23. Based on its website, SILA is part of an international network and is China’s largest shipping and logistics company with headquarters in Beijing. The statement claimed that SILA handled all aspects of exporting logs, such inspection and fumigation, cargo management and ensuring other requirements for export were met.

24. The statement also recorded that the applicant invested AUD 1,500,000 into the business which facilitated its development, including office rental, purchase of office equipment and machines, and employment of staff.

25. According to the visa application form, the applicant was awarded a bachelor degree in weaving engineering in July 1995 and a master’s degree in business administration in 2003.

26. The Tribunal asked the applicant to talk about herself and her business background. She said that she came from Shanghai in China and graduated from the textile university where she learned about textile techniques. She said her background was like that of an engineer. After leaving university she worked in an import/export company in Shanghai for about two years. The major type of goods being exported were clothes.

27. The applicant said that after that, for about 12 years she worked as a merchandiser, as a buyer, for several companies in China, mainly the supermarket chain, Tesco. The goods she was responsible for purchasing were mainly clothes, bedding and children’s toys.

28. The applicant said her current business was related to those, as they were import and export. Before she came to Australia, she also worked for a company that manufactured furniture that was exported mainly to Japan.

29. The applicant said that she met her business partner, Ludi, over ten years ago. They were very good friends and they discussed starting the business. They saw an opportunity in buying and producing wood in Australia and selling it to China.

30. The applicant said that they started initial work on the business in about 2015 and started the business in 2017. The Tribunal understood from this that the applicant was claiming that the business started trading in 2017. She referred to the turnover being over AUD 4 million in the first year and AUD 2 million in the second year, consistent with the income figures recorded in the table below.

31. The Tribunal has already recorded, based on ASIC records, that the company was registered on 14 October 2015, that the applicant was appointed in late 2016 as a director for a few months, and that in early 2017 she purchased shares in LD. According to her visa application form, the applicant left her employment as a general manager in another company, Shanghai Maruki Industrial Co. Ltd., on 17 March 2017 and was employed by LD as its overseas marketing manager on 24 August 2017. The foregoing is consistent with the applicant’s account of how her involvement with the business came about and that it was a process over a few years.

32. The Tribunal asked the applicant about her work history and moving from Tesco to a furniture company working with wood. The applicant said her background was as an engineer rather than as a manager. At university they studied machines, how they worked and how to fix them. They had dirty hands. So moving from manufacturing clothes to manufacturing wood products was not hard for her. Things had to be built and repaired. It was easy for her to understand how a factory produces goods and how to calculate the price. The principles were the same: get the materials, perhaps ship them, process them and package them. Part of what she knew was how to cost them and how to sell them, and to understand the export market.

1. With regard to how many people worked in the business, the applicant said that in 2018 and 2019, there was her and her business partner, plus one part-time employee. She said that the year when sales were AUD 4 million, they were selling eucalyptus and pine logs. The selling price was low and the profit was made through a high volume of sales. The following year, they decided to focus on selling eucalyptus logs. This meant the total sales were lower but as the profit margins were higher, the gross profit for 2019 was similar to that for 2018.  

2. This was borne out by the income, cost of sales and gross profit figures in the financial statements for 2018 and 2019 as follows:

2018	2019
Income	4,858,900	2,745,417
Less purchases	3,624,796	2,043,846
Less other costs of sales	886,737	350,570
Gross profit	347,367	351,001

1. The applicant said that the business operated in the following way. They would get a contract from a Chinese customer which would mean that orders were placed for annual or quarterly supply. They would then find the wood to be cut which would be done in Queensland. The wood would be fumigated against pests. The logs would be transported by sea which would take three to four weeks. The wood would, for example, be used to make furniture or for decking.

2. The applicant said that during 2019/20, the pandemic had an effect on their business as did the restrictions placed on Australian export goods by China and they made a loss that year. There was also a huge increase in shipping costs that adversely the business. The following two years were difficult for the business and the business made losses in those years. However, the recent visit to China by the Australian prime minister has improved relations between the two countries. They (she and her business partner) have now had official notice that the market is now open which is very positive for them. The applicant confirmed that the business is still operating.

3. The departmental files include notices of directors’ meetings and minutes of the meetings during 2018 and 2019. The notices appear to be based on a template as the same 13 items for discussion are listed on each one. The minutes are therefore more useful.

4. The minutes dated 2 January 2018 stated that the meeting was in relation to reports for October, November and December 2017.  The two shareholders, including the applicant, and two other people were present.

5. The minutes referred to the sales figures, that they were not good enough. There was acknowledgment that commission and legal expenses were too high and they should get quotes from other legal advisors, but the most important focus for the next quarter was the sales target.

6. The minutes dated 5 April 2018 were headed as being reports for January, February and March 2018. The same four people were present. Reference was made to sales and the need to find a logs supplier and a logs packing service. A reduction in the loss was noted despite costs associated with setting up a new office.

7. The minutes dated 7 July 2018 referred to reports for April, May and June 2018. The minutes referred to an increase in sales, an increase in the profit margin and that there were new staff.

8. The minutes dated 15 October 2018 summarised events in July, August and September 2018. The minutes referred to a change in environmental policy in China which had a significant negative impact on sales. The minutes referred to going to China and having an urgent meeting in Shanghai, during which they solved their biggest problem with the Chinese government. As a result, they expected the next quarter’s sales to improve but if the improvement was not enough, then would need to reduce staff.

9. The same four people attended the next meeting with minutes dated 3 January 2019, which covered reports for October, November and December 2018. These minutes states that sales had increased by 50%, the sales target had been met and there was also income from consultation. The quarter just finished was profitable.

10. The following quarter’s reports, covered by the minutes dated 8 April 2019, stated that sales had reduced, and referred to the influence of the change in policy by the Chinese government. The minutes stated that maybe they would need to find different products to sell to China if the market did not improve.

11. The Tribunal asked the applicant to talk about her role in managing the business, and overseeing its direction. The applicant said that attendance at these meetings was just part of her involvement in the business. Her role also included attending to the customer relationships and getting more orders.

12. The applicant said that regarding the production side, she was responsible for quality control and contacting the sea shipping companies. She said that being a small company, she and her business partner manage the business together. He deals with suppliers and negotiates with them. When her partner was away, she took over overall management of the company.

13. The applicant said that for the last two years because business was bad, they had just one part-time employee but intend for this to increase to two to three permanent employees in the next year.

14. The applicant said that for the 2018 and 2019 periods, they had one part-time employee in addition to the applicant and her business partner. That increased in the following year.

15. The Tribunal asked the applicant about an organisational chart that had been provided to the Department. It was submitted that had been provided to the Department by a previous migration agent.

16. The organisational chart showed a general manager at the top and underneath, at the same level, a financial officer, an officer manager, an export manager and an overseas marketing manager. Underneath there is a subheading “Responsibilities” and a description of the duties of each of the five positions.

17. None of the positions have a name attached to them. The chart looks generic, as if it could be a template taken from the internet. It does not make sense to provide an organisational chart showing five positions when the business does not have that many people working in it. Further, the applicant said that she was responsible for the export side of the business and her business partner dealt with suppliers. According to the chart, the export manager also dealt with suppliers.

18. At the hearing there was some discussion about the chart. The Tribunal asked the applicant which of the positions listed in the chart was hers. She said none of them. The Tribunal asked her who the general manager was. She said it was her partner, Ludi. She said she was not included in the chart. She said she had nothing to do with drawing it up. She said she was involved in the discussion about what the chart should look like and that was the outcome of the discussion.

19. The Tribunal expressed a view that the chart seemed to suggest the business was bigger than it was and that it would not place much weight on the chart. It asked the applicant if that was a reasonable position for the Tribunal to take and it was agreed it was. The Tribunal considers the chart may have been aspirational rather than representing the business structure at the relevant times.

20. The Tribunal considered the applicant to be an impressive witness. She clearly articulated how the business came to be and her role in it. It was apparent that she and her business partner work together and share responsibilities for the business according to their respective strengths. The applicant’s detailed knowledge of how the business operated, changes that were made to it such as focusing on selling eucalyptus rather than pine, and what is planned for the immediate future, demonstrated her direct and continuous involvement in the management of business at the relevant times.

21. Given the applicant was present at all the quarterly directors’ meetings recorded above, that she is one of two shareholders, the evidence she gave about her role in the business and her particular skillset, the Tribunal is satisfied that the applicant maintained direct and continuous involvement in the management of the business, and in making decisions about the overall direction and performance of the business.

22. Accordingly, the Tribunal is satisfied that the nominated business does meet the definition of main business for at least 2 of the 4 fiscal years immediately before the time of invitation to apply for the visa.

23. Given the findings above, the Tribunal is satisfied that cl 188.225(1) is met. The Tribunal has also considered cl 188.225(2).

    Direct engagement in provision of services – cl 188.225(2)

24. Clause 188.225(2) provides that if the applicant was engaged in one or more businesses providing professional, technical or trade services for at least 2 of the 4 fiscal years immediately before the time of invitation to apply for the visa, the applicant was directly engaged in the provision of the services, as distinct from the general direction of the operation of the business, for no more than half the time spent by the applicant from day to day in the conduct of the business.

25. Having regard to the above findings, the relevant business is LD Investment Management Pty Ltd. Its business activity is exporting logs from Australia. The Tribunal finds it does not provide professional, technical or trade services of the kind contemplated by cl 188.225(2).  

26. Given that the applicant was not engaged in one or more businesses providing professional, technical or trade services, cl 188.225(2) does not apply.

27. Given the findings above, the Tribunal is satisfied that cl 188.225 is met.

    Genuine realistic commitment – cl 188.229

28. Clause 188.229 requires that the applicant genuinely has a realistic commitment to:

    ·establish a qualifying business in Australia; or

    ·participate in an existing qualifying business in Australia.

    ·maintain a substantial ownership interest in the qualifying business just referred to; and

    ·maintain a direct and continuous involvement in the managing of the qualifying business from day to day, and in the making of decisions that affect the overall direction and performance of the qualifying business, in a manner that benefits the Australian economy.

29. ‘Qualifying business’ is defined as an enterprise that is operated for the purpose of making profit through the provision of goods, services or goods and services (other than the provision of rental property) to the public, and is not operated primarily or substantially for the purpose of speculative or passive investment: reg 1.03.

30. The Tribunal has already set out evidence relevant to cl 188.229 as it is also relevant to cl 188.225. It has already found that LD is a qualifying business. The Tribunal is satisfied that the applicant has a genuine and realistic commitment to continuing her participation in this business as she is one of two shareholders in this business and has been since 2017.

31. The applicant has continued her involvement in the business during the difficult trading financial years: difficult because of the pandemic and because of the trade restrictions imposed on Australian exporters by China. These have recently been lifted and the applicant referred to new business opportunities opening up as a result. As recorded earlier, the applicant said at the hearing that the business has recently negotiated a contract for sales worth about AUD 3 million during 2024.

32. The applicant also referred to purchases of machinery costing about AUD 1.5 million, which will be depreciated over six to eight years. The applicant referred to the significant set up costs but in future years, the expenses will stabilise. The way in which the applicant spoke about the business was indicative of her and her business partner have long term plans for it.

33. During the hearing, the applicant demonstrated her in depth knowledge of, and ongoing involvement in, and commitment to, the business. As recorded earlier, the applicant continues to have a substantial interest in the business, as she owns 400 ordinary B Class shares and her partner owns 100 ordinary A Class shares, meaning she owns the majority of the shares. Further the applicant has invested AUD 1.5 million into the company.

34. The Tribunal notes the benefit to Australia of this business as it opens up an export market for Australian logs to be sold into China.

35. Given the findings above, the Tribunal is satisfied that cl 188.229 is met.

36. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 188 (Business Innovation and Investment (Provisional)) visa.

    DECISION

37. The Tribunal remits the application for a Business Skills (Provisional) (Class EB) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 188 (Business Innovation and Investment (Provisional)) visa:

    ·cls 188.225 and 188.229 of Schedule 2 to the Regulations.