Yao (Migration)

The matter before the Tribunal concerned an application for a Business Skills (Residence) visa (Subclass 890). The applicants sought to establish that they met the requirements of clause 890.212 of Schedule 2 to the Regulations, which pertains to the net value of their main business in Australia. The central dispute revolved around whether funds transferred by the applicants to their company, Q&Y (Aust) Pty Ltd, constituted a loan to the company or were for the purchase of shares, and how these funds impacted the net value of the business for visa purposes.

The Tribunal was required to determine whether the applicants, their spouse, or de facto partner, together, had assets in the main business with a net value of at least AUD100,000 throughout the 12 months preceding the application, and that these assets were lawfully acquired. Specifically, the Tribunal had to consider the nature of the $490,000 transferred by the applicants to Q&Y (Aust) Pty Ltd between November 2010 and August 2011, and whether this amount represented a loan or share acquisition, as this significantly affected the company's liabilities and thus its net asset value.

The Tribunal's reasoning focused on the interpretation of the financial transactions and the company's balance sheets. It noted that the company's balance sheets indicated financial liabilities, including secured loans from the applicant, Jin Yao, amounting to $490,000 as at 31 December 2012. This classification suggested that the funds were treated as a loan to the company. The Tribunal concluded that, based on the available evidence and the company's financial statements, the net assets of the business did not meet the required AUD100,000 threshold throughout the relevant period.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the first applicant met the criteria under clause 890.212 of Schedule 2 to the Regulations.