Yan (Migration)

[2024] AATA 1114

Yan (Migration) [2024] AATA 1114 (6 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yang Yan

REPRESENTATIVE:  Mr Hailin Guo (MARN: 0639334)

CASE NUMBER:  2204167

HOME AFFAIRS REFERENCE(S):          BCC2019/6193647

MEMBER:R. Skaros

DATE:6 May 2024

PLACE OF DECISION:  Sydney

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:

·cl 188.222 of Schedule 2 to the Regulations.

Statement made on 06 May 2024 at 10:44am

CATCHWORDS

MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 Business Innovation and Investment (Provisional) – Business Innovation stream – points-based visa – ownership interest in a main business – direct and continuous involvement in management of the business – loan to the business as asset – total personal and business assets – decision under review remitted      

LEGISLATION

Migration Act 1958, ss 65, 134
Migration Regulations 1994, Schedule 2, cls 188.222, 188.226; Schedule 7A; rr 1.03, 1.11
Trade Marks Act 1995, s 72

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 9 March 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 Business Innovation and Investment (Provisional) (Subclass 188) visa on 22 November 2019. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 188.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had met the points test score requirement. The applicant provided a copy of the delegate’s decision record to the Tribunal.

3. The applicant was invited by the Tribunal to provide current and updated information about their business activities, assets and the points test requirements. On 15 March 2024, the Tribunal received submissions together with various supporting documents to which it has had regard further below.

4. The applicant appeared before the Tribunal by video conference on 2 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant’s representative attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

6. The applicant is a citizen of China. He arrived in Australia in September 2013 on a student visa (Subclass 573). He completed a Bachelor of Digital Media at Griffith University in December 2015. He was granted a temporary graduate visa (Subclass 485) in May 2016 which was in effect until May 2018. The applicant departed Australia in June 2018 and returned in July 2018 as the holder of a student visa (Subclass 500). He completed a Master of Advanced Marketing at Griffith University in December 2020.

7. The applicant was invited to apply for the Subclass 188 visa in the Business Innovation stream on 24 September 2019. He applied for the visa on 2 November 2019.

8. When applying for the visa, the applicant provided evidence of his ownership interest in the business, the operations of the business, his personal and business assets and other information relevant to the claim for points. The applicant claimed to have a total score of 70 points under the points test in Schedule 7A. The delegate, however, refused to grant the visa on the basis that he had not provided sufficient evidence to support his claim for points in relation to two of the Items in Schedule 7A.

   Relevant law 

9. The issue in the present case is whether the applicant meets cl 188.222. This requires that the applicant’s score on the business innovation and investment points test is not less that the number of points specified by the Minister in a written instrument: cl 188.222(1). At the time of application, the relevant instrument was IMMI 12/041. However, that instrument was repealed by LIN 22/083 which commenced on 4 October 2022. LIN 22/083 specifies that, for Subclause 188.222(1) the applicant’s score on the business innovation and investment points test must not be less than 65 points. 

10. In calculating an applicant’s score under Schedule 7A, Parts 7A.2–7A.5 and Parts 7A.7–7A.10 are to be added together. Where an applicant’s circumstances satisfy more than one prescribed qualification under any of these Parts (except for Part 7A.9) only the qualification which attracts the highest number of points is to be given to the applicant: cl 188.222(2).

11. There are several defined terms in Schedule 7A, such as “ownership interest” and “main business”. The Tribunal considers it appropriate to first determine whether the applicant satisfies those definitions before assessing his score under the points test in Schedule 7A.

    Did the applicant have an ownership interest in a main business?

12. 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).

13. The business relied on by the applicant to satisfy the requirements of the Subclass 188 visa in the Business Innovation stream is Faster Tyres Pty Ltd trading as Faster Tyres. The company was registered with the Australian Securities and Investment Commission (ASIC) on 29 May 2016. A Current and Historical ASIC statement confirms that the applicant has been the company’s sole director and 100% shareholder since registration.

14. As the applicant is a shareholder in the company (Faster Tyres Pty Ltd) that operates the business (Fast Tyers), it follows that the applicant has an ownership interest in the in relation to the business.   

15. The Tribunal has next considered whether the business (Faster Tyres) satisfies the definition of main business.

16. 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.

17. Firstly, the applicant must have or have had an ownership interest in the business. As found above, the Tribunal is satisfied that the applicant has an ownership interest in the business by way of his shareholding in the company that operates the business.

18. 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.

19. The evidence before the Tribunal indicates that the business is currently located in the suburb of Underwood in Brisbane and provides rubber tyre products to commercial operations and the general public. At the hearing, the applicant gave evidence that the business focuses on providing specialised tyres, maintenance and after sales services to the public and to other businesses. As the sole director and owner, the applicant informed the Tribunal that he is responsible for managing workers (contractors), sourcing products, liaising with suppliers and customers, quality control, marketing, pricing, managing receivables, creditors and meeting with clients.

20. At the hearing, the applicant provided details of the current activities of the business and its financial performance since its establishment in 2016/2017. He provided details of his involvement in the day-to-day management of the business and the strategies he has implemented to maintain a competitive advantage in the tyre supply market in Queensland. The applicant gave evidence that he recently purchased a commercial warehouse in the suburb of Yatala, which is a regional area of Queensland, from which he intends to operate the business. He informed the Tribunal that the lease for the Underwood premises expired in March 2024, however, he has negotiated to stay in the premises until he can relocate to the new premises in Yatala which is much bigger and newer.

21. The applicant has demonstrated to the satisfaction of the Tribunal that he maintains (and has maintained) direct and continuous involvement in the management of the business from day to day and in making decisions affecting the overall direction and performance of the business.

22. 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.

23. The financial records provided to the Tribunal, including income statements and business activity statements, indicate that the annual turnover of the business has been well above AUD400,000. Therefore, the value of the applicant’s ownership interest in the business must be at least 30%. In this case, the applicant’s ownership interest in the business is 100%. As the value of the applicant’s ownership interest in the business is at least 30%, he meets the required threshold.

24. 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.

25. The applicant’s business is involved in providing motor vehicle tyres to individuals and other businesses. The applicant gave evidence at the hearing that he established the tyre business himself in 2016/2017 and that it has generally been profitable. The applicant expressed a desire to expand the operations of the business and increase sales. On the evidence before it, the Tribunal is satisfied that the applicant’s business is operated for the purpose of making a profit through the provision of goods to the public. It is, therefore, a qualifying business.

26. Given the above findings, the Tribunal is satisfied that the business (Faster Tyres) relied upon by the applicant meets the definition of main business in reg 1.11.

27. The applicant, therefore, has (and has had) an ownership interest in the main business.

    Is the applicant’s score on the business innovation and investment points test at least 65 points?

28. The applicant claimed points for age, English language, educational qualifications, business turnover, financial assets and business innovation. The Tribunal has considered each of these claims for points as follows:

    Part 7A.2 – Age qualifications

29. At the time of invitation, the applicant was 28-year-old. As he was not less than 25 and was under 33, he is entitled to 30 points under item 7A22.

    Part 7A.3 – English language qualifications

30. Points are available under Part 7A.2 if at the time of invitation to apply the applicant had Vocational English[1] or Proficient English.[2]

    [1] see reg 1.15B and IMMI 15/005.

    [2] See reg 1.15D and IMMI 15/005.

31. The Tribunal has before it an IELTS test Report indicating that the applicant undertook an English language test on 29 June 2019. In that test he achieved the following scores: 7 for listening; 5.5 for reading; 6.0 for writing; and 6.0 for speaking.

32. As the applicant’s English language proficiency at the relevant time was Vocational, he is entitled to 5 points under item 7A31.

    Part 7A.4 – Educational Qualifications  

33. Five points are available for educational qualifications if, at the time of invitation to apply, the applicant met the requirements for the award of a specified Australian qualification or overseas qualification of a recognised standard.

34. Ten points are available if, at the time of invitation to apply, the applicant met the requirements for the award of a bachelor degree in business, science or technology by an Australian educational institution or the award of a bachelor qualification in business, science or technology by an educational institution that is of a recognised standard.

35. The applicant has completed a bachelor degree from Griffith University, which is an Australian educational institution. It was conceded that the qualification is in graphic design and arts and not technology as initially claimed by the applicant.  On this basis, the Tribunal considers that the applicant is entitled to 5 points under item 7A41.

    Part 7A.8 – Business turnover qualifications

36. The applicant claimed 15 points under item 7A82(a), which applies to applicants who were invited to apply for the visa before 1 July 2021, on the basis that he had an ownership interest in one or more main businesses that had an annual turnover of not less than AUD 1,000,000 in at least 2 of the 4 years immediately before the time of invitation to apply for the visa.

37. As noted above, the applicant holds 100% of the shares in the Company (Faster Tyres Pty Ltd) that carries on the business (Faster Tyres). The Tribunal is accordingly satisfied that the applicant has an ownership interest in the business. Further, as found above, the Tribunal is satisfied the business is a main business in relation to the applicant.

38. As to the turnover of the business, the delegate was concerned that the figures on the financial statements for the fiscal years ended 30 June 2018 and 30 June 2019 did not correlate to the total amounts indicated on the business activity statements lodged with the Australian Taxation Office (ATO) for the corresponding periods. Nevertheless, the delegate acknowledged that on either record, the applicant’s sales exceeded AUD 1,000,000 in each fiscal year. The delegate preferred the amounts declared on the business activity statements lodged with the ATO which indicated that in the fiscal year ended 30 June 2018 the total sales were $1,085,949 and for the fiscal year ended 30 June 2019 the total sales were $1,089,629.

39. At the hearing, the applicant was unable to explain the discrepancies between the figures on the financial reports and those in the lodged business activity statements. He said the accountant lodges the returns on behalf of the company and he could ask him about the difference in the figures. It is possible that the discrepancy was due to subsequent adjustment to the sales figures. In any case, the Tribunal considers the discrepancies in the figures to be minor and, given all records indicate that the business had a turnover of at least AUD 1,000,000 in at least two of the four years immediately before the time of invitation to apply for the visa, the Tribunal is satisfied that the applicant is entitled to be allocated 15 points under item 7A82.

    Part 7A.9 – Business innovation qualifications

40. The applicant claimed 10 points under item 7A92 on the basis that his main business had a registered trade mark at the time of the invitation to apply for the visa that:

    a.was registered not less than one year before that time; and

    b.was used in the day-to-day activities of the main business.

41. The delegate did not award any points under this part because they were not satisfied that the registered trade mark was registered on 5 June 2018 as claimed by the applicant. The delegate referred to the Certificate of Registration issued by IP Australia which stated that the Registrar of Trade Marks had registered the trade mark (No. 1921809) represented on the certificate on 15 January 2019. It certifies that the owner of the trade mark is Faster Tyres Pty Ltd and that the date of filing is 5 June 2018 with the term of initial registration being ten years from 5 June 2018. The delegate found that the trade mark was registered on 15 January 2019 which was less than one year before the day of the invitation to apply.

42. On review, the applicant’s representative submitted that the date of 15 January 2019 is when IP Australia informed the applicant that the application was successful and issued the Certificate of Registration. The representative drew the Tribunal’s attention to the date of initial registration which was recorded on the certificate as being for 10 years from 5 June 2018.

43. The Tribunal received further information from IP Australia to clarify the date of registration of the trade mark, which was not before the delegate, including an extract from a current search of IP Australia’s database which provides the following details about the trade mark:

    Priority date:      5 June 2018 (filing)

    Renewal date:   5 June 2028

    Registration advertised:         15 January 2019

    Entered on the Register:       15 January 2019

    Acceptance advertised:         28 October 2018

    Registration from:                 5 June 2018

44. The online registration information confirms that the trade mark is in respect of goods and services (class 12) in relation to a business that provides tyres for vehicles.

45. It is clear on the information, which is current and publicly available, that the trade mark was registered from 5 June 2018. The date of 15 January 2019 is the date on which the trade mark was entered into the Register and the certificate issued by the Registrar of Trade Marks. The Tribunal also has before it an email from 15 March 2024 to the applicant from the customer service team at IP Australia confirming that the protection on trade mark 1931809 is retroactive (i.e. takes effect from a past date) and was registered from the date of filing.

46. The information provided from IP Australia about the date of registration is consistent with the provision in s 72 in the Trade Marks Act 1995 (Cth) which states, in relation to the date of registration, that:

    (1)   the registration of a trade mark in respect of goods and/or services in respect of which the trade mark is registered is take to have had effect from (and including) the filing date in respect of the application for registration. 

47. It is not in dispute that the date of filing for registration of the trademark was 5 June 2018. Accordingly, the registration of the trade mark, which in this case is in respect of goods and/or services, is taken to have had effect from (and including) 5 June 2018. At the time of the invitation to apply for the visa (i.e., 24 September 2019), the trade mark had been registered with IP Australia for 18 months. It follows, that the trade mark was registered not less than one year before the time of invitation to apply for the visa.  

48. The Tribunal has also had regard to the evidence provided, including photographs of the applicant’s business premises, company vehicles, letterhead and business cards which indicate that the trade mark (as depicted on the Certificate of Registration) has been issued in the day to day activities of the main business.

49. As items in 7A92(a) and (b) have been satisfied, the Tribunal finds that the applicant is entitled to 10 points under item 7A92.

    Summary on the allocation of points

50. The Tribunal is satisfied that the applicant has the required score of at least 65 points as provided for in Schedule 7A of the Regulations.  

    Qualification   Points

    7A.2 – Age Qualifications   30 points

    7A.3 – English language qualifications         5 points

    7A.4 – Educational qualifications                  5 points

    7A.8 – Business turnover qualifications        15 points        

    7A.9 – Business innovation qualifications     10 points

    Total points allocated   65 points

    Remarks on Part 7A.7 – Financial asset qualification

1. As the applicant’s score is not less than 65 points, it is technically not necessary to make an assessment on the applicant’s claim for points under Part 7A.71 in relation to the net value of his business and personal assets. However, given the applicant has made substantial submissions addressing the concerns of the delegate, the Tribunal has considered those submissions and has made remarks where appropriate.  

2. Relevantly, for applicants invited to apply for the visa before 1 July 2021, as in this case, five points are available if the net value of the business and personal assets of the applicant and/or his spouse, were not less than AUD 800,000 in each of the 2 fiscal years immediately before the time of the invitation to apply for the visa.

3. As provided for in reg 1.03, a fiscal year, in relation to a business or investment, means:

   (a) if there is applicable to the business or investment by law an accounting period of 12 months--that period; or

   (b) in any other case--a period of 12 months approved by the Minister in writing for that business or investment.

4. The applicant’s business operates in Australia where the fiscal year is for the 12-month period that commences 1 July and ends 30 June of the following year. Therefore, the two fiscal years immediately before the time of the invitation are: from 1 July 2017 to 30 June 2018 and from 1 July 2018 to 30 June 2019.

5. The applicant has provided a statement of assets and liabilities, together with supporting evidence, regarding the value of his assets as at 30 June 2018 and 30 June 2019. While the evidence supports the applicant’s claim as to the net value of his assets for the fiscal year ended 30 June 2019 (i.e. 1 July 2018 to 30 June 2019), the applicant did not provide evidence of the net value of his assets as at 1 July 2017, as such the Tribunal is unable to be satisfied on the evidence before it that the applicant held the required net value of assets in the period of 12 months from 1 July 2017 to 30 June 2018.

6. At the hearing, the applicant said the evidence regarding his assets from 2017 had not been provided by his former agent. The applicant indicated that he could get the evidence, but he would require time to obtain another valuation of his property in China, as his former agent had only requested a property valuation as at 30 June 2018 and 30 June 2019.

7. In the interest of efficiency, the Tribunal did not consider it necessary to delay the making of its decision to enable the applicant to obtain the 2017 valuation. As explained to the applicant at the hearing, as the Tribunal is able to make a favourable finding on the issue in the review, namely, the points test requirement in cl 188.222, it was not necessary for him to obtain a valuation of the property China as at 30 June 2017. Furthermore, other criteria relating to the net value of assets, as in cl 188.226, relate to the net value of his personal and business assets as at the time of invitation to apply for the visa, which was on 24 September 2019. As such, the Tribunal does not consider a 2017 valuation of the property in China to be of assistance for the purposes of this review. 

8. The Tribunal is satisfied that the net value of the applicant’s personal and business assets as at 30 June 2018 are as follows:

   Asset  Net value

   Cash at bank:  $ 515,065

   Cash at bank:  $ 15,713

   Property in Shandong, China:  $ 326,176

   Equity in Faster Tyres Pty Ltd:   $ 45,424

   Loan to Faster Tyres Pty Ltd:  $ 115,712

   Total in AUD:  $ 1,018,090

9. As evidence of his cash assets, the applicant provided bank statements in his name for the period from 12 March 2018 to 12 September 2018 and from 11 May 2018 to 12 July 2018.

10. In respect of the property in China, the applicant provided a report of a market valuation undertaken by a professional property surveyor. The report indicates that the property is owned by the applicant and his mother (Ms Wang Chunhua), each of whom have 50% interest in the property. It was also indicated that there were nil encumbrances against the property. As at 30 June 2018, the property was valued at RMB 3,190,000. As Wang is not the spouse or de facto partner of the applicant, he is only entitled to rely on 50% of the value of the property. Based on the currency exchange rate of RMB to AUD (0.2044)[3] as at 30 June 2018, the property was valued at AUD 652,036. The applicant’s share of 50% would therefore be $326,018 (or $326,127 on the applicant’s calculations).

    [3] CNY to AUD Exchange Rate History for 2018 (exchange-rates.org)

11. In relation to the equity in the business and the loan to the business, the applicant relied on the figures in the comparative financial report for the period of 12 months ended 30 June 2019 and 30 June 2018. The amount claimed for equity in the business is not in dispute. As to the director’s loan, the applicant also provided evidence of the transactions between his account and the business account as evidence of transfer of funds, however, it was difficult to ascertain the purpose of each transaction. The applicant indicated that some of the transfers from the business account to his account encompassed reimbursements and wages to the applicant. As the applicant’s assets exceed AUD 800,000 without having to rely on the loan to the business, it was not necessary to press the applicant on this issue. However, the Tribunal considers that the applicant could have provided a ledger of the director loan account as evidence of the value of his loan to the business.

12. The Tribunal has also considered the applicant’s claims as to the net value of his personal and business assets as at 30 June 2019. These considerations may be relevant in assessing the net value of the applicant’s personal and business assets at the time of invitation.

13. For reasons that follow, the Tribunal is satisfied as to the below net value of the applicant’s claimed business and personal assets:

    Asset  Net value

    Property in Australia (Parkinson, QLD):  $ 430,000

    Property in Shandong, China:  $ 345,436

    Equity in Faster Tyres Pty Ltd:   $ 64,396

    Loan to Faster Tyres Pty Ltd:  $ 170,209

    Total in AUD:  $ 1,010,041

14. The delegate took issue with the valuation of the property in Australia on the basis that the title search provided showed the following interests in the property: rights and interests reserved by the Crown and a mortgage to ANZ Bank, which had not been declared by the applicant.

15. In relation to the rights and interests reserved by the Crown, this is common to all property titles in the State of Queensland and is not an encumbrance that reduces the value (as indicated by the valuation) of the applicant’s property.

16. As to the interest to ANZ Bank, the applicant has provided evidence of a business overdraft facility issued to the company (Faster Tyres Pty Ltd) on 20 September 2018 for $100,000 which is secured by the property. As at 30 June 2019, the balance of the overdraft account was $92,030 DR. This amount appears to have been accounted for on the business’ balance sheet as a current liability. In a letter to the Tribunal, the applicant’s accountant explained that the balance of the overdraft account, which is reported at $92,030, is presented as a separate item in the financial statement (as a current liability) and does not form part of the director’s loan (which is an asset of the applicant). On this basis, the Tribunal accepts the submission that the overdraft balance should not be considered a liability against the applicant’s property as it has already been included as a liability of the business and has thereby reduced the value of the applicant’s assets in the business. To also record the overdraft amount against the value of the property would be improper as this would result in the liability being deducted twice from the applicant’s assets. For these reasons, the Tribunal considers that the applicant is entitled to rely on the full amount of $430,000 indicated in the property valuation report.

17. In relation to the property in China, the applicant continued to hold that property (as a co-owner with his mother) as at 30 June 2019. The property valuation report indicates that, at that time, the property was valued at RMB 3,330,000. Based on the currency exchange rate of RMB to AUD (0.2094)[4], the property had a valuation of AUD 691,350. The applicant’s share of 50% would therefore be $345,675 (or $345,436 on the applicant’s calculations). The Tribunal is satisfied that the applicant is entitled to rely on the amount of $345,436, being his share of the value of the property in China.

    [4] CNY to AUD Exchange Rate History for 2019 (exchange-rates.org)

18. The applicant has claimed $64,396 as equity in the business: this represents the net value of his assets in the business and has been properly evidenced by the signed financial report for the 12 months period ended 30 June 2019. The delegate did not take issue with the applicant’s claim to the value of the equity in the business and neither does the Tribunal. The applicant is therefore entitled to rely on the amount of $64,396 towards the total of his net business assets.

19. The applicant has claimed, as an asset, a loan to the business to the value of $170,209. This amount is recorded on the balance sheet as a non-current liability. The delegate did not accept this figure on the basis that the applicant had made more withdrawals from the bank account of business than he had made deposit payments. The applicant challenged this finding by providing an itemised list of all the deposits and withdrawals between his account and the account of the business for the period from 1 July 2018 and 30 June 2019. It indicated that the payments made by the applicant to the business totalled $259,050 and the total withdrawals were $136,034. This represents a difference of $123,016 in favour of the business. The Tribunal accepts the applicant’s evidence on this matter.

20. The amount of $123,016 does not equate to the value of the loan to the business which is claimed to be $170,209. The applicant acknowledged this and submitted that some of the withdrawals from the account were also for repayment of disbursements he made on behalf of the business and his wages. As noted above, a ledger of the director’s loan account could have been provided to contemporaneously evidence the value of the applicant’s loan to the business. Nevertheless, the Tribunal is prepared to accept, based on the advice of the accountant, that the value of the director’s loan was $170,209 as at 30 June 2019. The accountant provided details of the value of the loan at the end of each financial year and explained in his letter that the values (as recorded) were in compliance with Australian accounting standards.

21. Even if the Tribunal were to reject the applicant’s claim of the loan to the business, this would be of no consequence when calculating the net value of the applicant’s assets in the business. This is because the loan (having been recorded as a liability on the balance sheet) would not be included in the calculation of the equity, i.e. it would reduce the total liabilities of the business and thereby increase the applicant’s equity in the business by $170,209. On either calculation, the net value of the applicant’s assets in the business would be the same. i.e., it would be either the equity of $64,369 plus the director’s loan of $170,209 (which equals to $243,578) or the equity of $243,578 (being the total assets less liabilities excluding the director’s loan).

22. In considering the advice of the accountant, the Tribunal is satisfied that the $170,209 has been properly recorded as a director’s loan on the financial statements. The applicant is therefore entitled to rely on this amount as an asset in the business.

23. Having regard to the above, the Tribunal is satisfied that as at 30 June 2019 the total net value of the applicant’s personal and business assets was $1,018,010.

24. While the above assessments of the net value of the applicant’s assets were not included in the consideration of points test requirement, the assessment (as at 30 June 2019) may be of assistance to the applicant in establishing the net value of his personal and business assets in the period preceding the time of invitation to apply for the visa. This would be relevant to the net assets requirement in cl 188.226. The applicant, however, may still be required by the Department to demonstrate the value of his assets as at the time of the invitation to apply and it will be up to the applicant to provide the relevant updated evidence in support of his claims.

    Conclusion

25. As found above, the applicant’s total score as calculated under Schedule 7A is 65 points. As the mark specified in the relevant instrument is at least 65 points, it follows that the applicant satisfies cl 188.222 of Schedule 2 to the Regulations.

26. 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

27. 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:

    ·cl 188.222 of Schedule 2 to the Regulations.

    R. Skaros

    Senior Member