YANG (Migration)

[2018] AATA 2215

YANG (Migration) [2018] AATA 2215 (8 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ming YANG
Mrs Liping WU

CASE NUMBER:  1803260

DIBP REFERENCE(S):  BCC2017/3899008

MEMBER:Bridget Cullen

DATE:8 May 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision of the Department not to grant the visa applicants Business Skills (Permanent) (subclass 888) visas.

Statement made on 08 May 2018 at 5:04pm

CATCHWORDS
Migration – Business Skills (Permanent) visa – Subclass 888 (Business Innovation and Investment (Permanent)) – Requirement to hold a Complying Investment during relevant period – Complying Investment not held for longer than 30 days – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19B(6), Schedule 2, cls 888.241(2A), 888.311

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 Immigration on 30 January 2018 to refuse to grant the visa applicants a Business Skills (Permanent) Subclass 888 visa under s.65 of the Migration Act 1958 (the Act).

2. The primary visa applicant, Ming Yang (“primary applicant”), applied for the visa on 23 October 2017. The delegate refused to grant the visa on the basis that Clause 888.241 was not satisfied.  As the primary criteria were not satisfied, the delegate also found that that the secondary applicant, Liping Wu (“secondary applicant”), was not a member of the family unit of a person who holds a Subclass 888 visa, and therefore did not meet Clause 888.311.

3. The applicants have requested that the Tribunal deal with the application expeditiously, by making a decision “on the papers” and without an oral hearing.[1] The reason for the applicants’ request is that they wish to approach the Minister to ask him to intervene, and that requires the Tribunal process to be finalised.

   [1] Applicant’s request for expedited decision, filed in the Tribunal on 22 February 2018.

4. The applicants were represented in relation to the review by their registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether clause 888.241 in Schedule 2 of the Regulations is satisfied. This clause provides that:

   888.241  

   (1)  At the time of application:

   (a)  the applicant has held a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor stream for a continuous period of 4 years; or

   (b)  the applicant has held a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor stream and one or more Subclass 188 (Business Innovation and Investment (Provisional)) visas in the Significant Investor Extension stream for a continuous period of 4 years; or

   (c)  the applicant:

   (i)  has held, for a continuous period of 3 years and 11 months, a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor stream applied for before 1 July 2015; and

   (ii)  has not held a Subclass 188 (Business Innovation and Investment (Provisional)) visa in the Significant Investor Extension stream granted on the basis of the visa mentioned in subparagraph (i).

   (2)  The applicant meets the requirements of subclause (2A) or (2B).

   (2A)  Both of the following apply:

   (a)  the most recent Subclass 188 visa in the Significant Investor stream held by the applicant (which may be the visa currently held by the applicant) was granted on the basis of an application made before 1 July 2015;

   (b)  the applicant has held, for the whole of the period during which the applicant has held the visas or visa mentioned in subclause (1), a complying investment within the meaning of regulation 5.19B as in force at the time the application mentioned in paragraph (a) was made.

   (2B)  Both of the following apply:

   (a)  the most recent Subclass 188 visa in the Significant Investor stream held by the applicant (which may be the visa currently held by the applicant) was granted on the basis of an application made on or after 1 July 2015;

   (b)  the applicant has held, for the whole of the period during which the applicant has held the visas or visa mentioned in subclause (1), a complying significant investment within the meaning of regulation 5.19C as in force at the time the application mentioned in paragraph (a) was made.

   (3)  For any part of the investment mentioned in subclause (2A) or (2B) for the applicant that is, or was, a direct investment in an Australian proprietary company:

   (a)  if the period of the direct investment was less than 2 years, the company was a qualifying business for the whole period; or

   (b)  if the period of the direct investment was 2 years or more, the company was a qualifying business for at least 2 years; or

   (c)  if the company has been unable to operate as a qualifying business, the Minister is satisfied that the applicant made a genuine attempt to operate the business as a qualifying business.

   (4)  The applicant has given the Minister:

   (a)  if subclause (2A) applies to the applicant--a completed copy of approved form 1413 for each investment in a managed fund on which the investment mentioned in that subclause is based; or

   (b)  if subclause (2B) applies to the applicant--evidence that the applicant holds an investment as required for that subclause.

   Note:          Approved form 1413 includes a declaration that the investments made by a managed fund for the benefit of clients are limited to one or more of the purposes specified by the Minister for paragraph 5.19B(2)(c).

7. Departmental records reflect that the applicants’ Subclass 188 visas were granted on 28 October 2013, and expired on 28 October 2017.  The applicants’ evidence indicates that the Complying Investment was deposited on 10 September 2013 and withdrawn on 15 September 2017. 

8. Departmental policy is to allow an applicant a maximum of 30 days during their 188 visa period where they do not hold a Complying Investment in accordance with Subregulation 5.19B(6).  Subregulation 5.19B(6) provides that:

   If:

   (a)an investor withdraws money from a complying investment, or cancels the investment, and

   (b)the investor makes an investment of at least the value of the withdrawn money or cancelled investment in one or more other investments mentioned in subregulation (2); and

   (c)no more than 30 days passes between the events mentioned in paragraphs (a) and (b);

   the investment is taken not to have ceased to be a complying investment during the period between the events mentioned in paragraphs (a) and (b).

9. The delegate determined that the primary applicant did not hold a Complying Investment from 16 September 2017 to 28 October 2017, a period of 43 days.  As the period is greater than 30-days, the primary applicant fails to satisfy subclause 888.241(2A).

10. The applicants, in submissions prepared by their Registered Migration Agent, and filed in the Tribunal on 23 March 2018, concede that the delegate was correct.  The applicants concede that they cannot locate any method by which the Tribunal might find discretion to make a decision other than to find that subclause 888.241 was not met.  The applicants concede that the Tribunal will have no option but to affirm the decision of the Department.

11. The applicants have proceeded with the review, as they intend to ask the Minister to intervene and exercise the discretion available to him. 

12. The applicants’ Registered Migration Agent, in his submissions, explains that:

    “The Applicants, to the best of my belief, were the first Chinese nationals to lodge a subclass 188 Significant Investor Visa (“SIV”) application request for Queensland State Sponsorship. They lodged this after being advised by the Department’s officers in Hong Kong that they did not need assistance from a migration agent professional. After receiving a satisfactory response from Queensland, the Applicants lodged AUD 5 million into Queensland State Government bonds and followed published requirements. What they did not anticipate, however, was that on the fourth anniversary of the lodging of funds to purchase the Queensland bonds, the Queensland bonds, the Queensland Treasury Corporation (“QTC”) returned the funds and then applicable interest to the Applicants’ bank account without notice. The Applicants discovered the funds and interest had been returned some days later when they performed a regular check of their account.

    In essence, an applicant for a SIV lodges details into SkillSelect, a State or Territory Government invites the applicant to lodge an application for a 188 Visa with the Department of Home Affairs (“DHA”) as it is now branded, when the DHA determines it will grant the 188 Visa it asks the applicant to lodge a complying investment of AUD 5 million, when the complying investment is lodged the 188 Visa is granted for four years, on the fourth anniversary of the lodging of the complying investment the complying investment can be drawn back by the applicant, if the applicant has in the previous four years during which the 188 Visa was held, complied with statutory criteria relation to the SIV the applicant then applies for the permanent 888 Visa.

    The Applicants’ 188 Visa was granted on 28 October 2013 and expired on 28 October 2017, The complying investment was deposited on 10 September 2013 and returned by the QTC on 15 September 2017. Sub-regulation 5.19B(6) of the Migration Regulations, at the time of the subject decision on 30 January 2018, then allowed an applicant a maximum of 30 days during their 188 visa holding where they do not hold a complying investment. The said regulations do not give the DHA decision maker any discretion in this regard. The subclass 888 Visa application had to be refused because the Applicants did not hold a complying investment between 16 September 2017 and 28 October 2017, a period of 43 days or 13 days beyond the specified period of 30 days then applicable.

    The QTC was then dealing with its earliest applicants. Subsequently it adopted a policy to warn applicants of the possibility of non-compliance with the time limit, and I understand that all States and Territories, as a matter of procedure now provide such warnings in emails and letters to applicants and their appointed agents, and as well their websites carry a clear warning. Unfortunately, that practice was not in vogue at that time and the Applicants did not receive such warning.”

13. The Tribunal finds that the primary applicant did not hold a Complying Investment from 16 September to 28 October 2017, a period of 43 days. As this period is greater than 30 days, the primary applicant does not satisfy subclause 888.241(2A).

14. As the primary applicant does not meet the primary criteria for the grant of the visa, the secondary applicant does not satisfy Clause 888.311, as the secondary applicant is not a member of the family unit of a person who holds a Subclass 888 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

    Decision

15. The Tribunal affirms the decision of the Department not to grant the applicants Business Skills (Permanent) (subclass 888) visas.

    Bridget Cullen

    
    

    Member