Wu (Migration)

The Administrative Appeals Tribunal considered the case of Wu, an applicant for a Subclass 888 Business Innovation and Investment (Permanent) visa under the Significant Investor stream. The dispute concerned whether the applicant had met the requirements for the visa, specifically regarding the source and nature of the AUD5 million investment made. The applicant's spouse was also a party to the proceedings, as the other named applicants sought to have their applications determined by reference to the primary applicant's outcome.

The primary legal issue before the Tribunal was whether the AUD5 million investment made by the applicant qualified as a "complying investment" for the purposes of clause 888.241(2A)(b) of the Migration Regulations 1994. This involved determining whether the funds used for the investment were unencumbered and lawfully acquired, and whether the investment was made "with" the applicant's spouse, even if the funds were initially transferred into the applicant's sole name.

The Tribunal reasoned that the evidence established that the funds used for the investment were lawfully acquired and unencumbered, originating from the applicant's spouse's substantial business interests. It was also found that the investment was made "with" the spouse, as evidenced by the intention to include him as a joint holder and the Department's subsequent advice confirming that no specific percentage contribution was required as long as they were joint holders. The Tribunal concluded that the transfer of funds into the applicant's sole name and subsequent discussions about changing the holding for tax purposes did not negate the fact that the investment was made with the spouse.

Consequently, the Tribunal remitted the applications for reconsideration by the Department, with a direction that the first named applicant meets the criteria under clause 888.241 of Schedule 2 to the Regulations. The Tribunal also noted that the other named applicants, who applied as family unit members, would have their applications determined based on this outcome.