Ye (Migration)

[2024] AATA 1624

Ye (Migration) [2024] AATA 1624 (28 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Weizhong Ye
Mr Wenqing Ye
Mrs Lihong Wen

REPRESENTATIVE:  Mr Bin Zhu (MARN: 1802239)

CASE NUMBER:  2214737

HOME AFFAIRS REFERENCE(S):          BCC2019/6622349

MEMBER:Peter Ranson

DATE:28 May 2024

PLACE OF DECISION:  Brisbane

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

·cl.188.226 of Schedule 2 to the Regulations.

Statement made on 28 May 2024 at 4:26pm

CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – Business Innovation stream – role of policy ­– net value of assets that can be applied to business – bank account – real estate property – shareholding in company – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 188.226

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Ye is from China where he has a business selling construction materials and his representative says he intends to establish a similar business in regional NSW. He and his family arrived in Australia in 2019.

2. The applicants were invited to apply for the visas on 10 December 2019 and did so on 12 December 2019. 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). Mr Ye 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.

3. The primary criteria must be satisfied by at least one applicant. Mr Ye is the visa applicant and the review applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria. The primary criteria include common criteria, and criteria set out in streams.

4. On 16 September 2022, a delegate of the Minister for Home Affairs refused to grant the applicants Business Skills (Provisional) (Class EB) visas under s 65 of the Migration Act 1958 (Cth). Mr Ye then applied for review of that decision.

5. The secondary applicants applied based on being members of the family unit of Mr Ye. The delegate found the secondary applicants could not be granted Subclass 188 visas, as they did not meet the primary criteria, nor did they meet the secondary visa criterion (cl.188.311) requiring them to be members of the family unit of a person who met the primary visa criteria.

6. The issue in the present case is whether Mr Ye meets cl.188.226 of Schedule 2 to the Regulations. The delegate refused to grant the visas because insufficient evidence was provided and that which was provided was inadequate to form the view the required asset level of $800,000 had been reached.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

A note about policy

1. The Tribunal is charged with determining the correct or preferable decision based on an independent assessment of the facts before it and is entitled to treat policy as a relevant factor in that determination. The Full Federal Court has found that where a policy exists to guide the decision maker in exercising its powers, the Tribunal may apply that policy in reviewing a decision where it "makes it clear that it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion”.[1]

   [1] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, from 420.

2. To the extent the Tribunal has considered policy in this case, it has not applied it inflexibly and has only considered it to the extent the policy is consistent with the requirements as set out in the legislation.

Net value of assets that can be applied to business – cl.188.226

1. Mr Ye has a business in China called Chongqing Baisan Building Materials Co., Ltd. In his application for a Subclass 188 visa, he nominated the Chinese fiscal years ended 31 December 2016 and 2017. He also has an apartment in Guangzhou and funds on deposit with the China Commerce Bank.

2. The documentation which accompanied the visa application and the responses to the various requests for further information under s 56 of the Act were wholly inadequate for the delegate to assess the net asset position at the time of invitation. Further and better particulars have been provided to the Tribunal with which to reconsider the application.

3. Clause 188.226 requires that at the time of invitation, the business and personal assets of the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together, that can be applied to the establishment or conduct of a business in Australia have a net value of at least $800,000 (if the time of invitation was before 1 July 2021) or $1,250,000 (if the time of invitation was on or after 1 July 2021).

4. As the time of invitation to apply for the visa was 10 December 2019, the lower threshold of $800,000 applies to Mr Ye.

5. Mr Ye provided statements of assets and liabilities position (Form 1139A) at the time of application, and again after the first hearing at the request of the Tribunal. At the second hearing, Mr Ye said he was relying on the form lodged in 2024. That form lists his assets as follows:

Description	Asset value	Liabilities (if any)	Net assets (CNY)
China Construction Bank account ending #6563	3,768,179	0	3,768,179
Apartment 404	4,260,000	0	4,260,000
100% Shareholder of Chongqing Baisan Building Materials Co., Ltd	2,128,076	1,235,046	893,030
Total (CNY)	$10,156,255	$1,235,046	$8,921,209
Total (AUD @ 4.8064)[2]	$2,113,069	$256,959	$1,856,110

[2] Reserve Bank of Australia rates.

China Construction Bank account ending #6563

1. Mr Ye provided a translated copy of a statement from a personal savings account (number ending #6563) from China Construction Bank. It shows the balance of the account on 10 December 2019 was CNY124,757.34. The balance shown on the Form 1139A is CNY3,768,178.59 on 9 December 2019.

2. On 9 December 2019, a withdrawal was made of CNY3,500,000 described as ‘Subscription for wealth management products GD072013001000Y01’. On 10 December 2019 a further withdrawal was made of $143,421.25 described as ‘Inter-bank Transfer-out’. Those withdrawals left the account balance on the date of invitation as CNY124,757.34.

3. The Tribunal finds the balance in CCB account ending #6563 at the time of invitation was CNY124,757.

Apartment 404

1. Mr Ye provided a translated copy of a valuation of this property conducted by Guangdong Excellence Real Estate Appraisal Consulting Co., Ltd. The date of the report is 26 January 2024, and the valuation is dated 10 December 2019. The value ascribed to the property is CNY4,260,000,

2. He also provided a translated copy of a document entitled ‘Real Estate Title Certificate’ for Location 8-404, Shanyunxuan, Huanan Xincheng, Nancun Town, Panyu District, Guangzhou City. The certificate shows Mr Ye is a co-owner of the property with Ms Wen and the date of registration was 28 June 2007. The maturity date for the right to use the land is 27 September 2071.

3. He subsequently provided a translated copy of an extract dated 19 March 2024 from the Guangzhou Real Estate Registration Database, which confirms the details as shown on the Real Estate Title Certificate.

4. The Tribunal finds Mr Ye and Ms We owned apartment 404 at the time of invitation and it had a value at that time of CNY4,260,000.

Chongqing Baisan Building Materials Co., Ltd

1. Mr Ye provided a translated copy of the audited financial statements for the company for the year ended 31 December 2019. The audit was conducted by Guangzhou Zhongxiong Certified Public Accountants (General Partnership) and signed by Wei Zhang and Xiaofang Wu who provided their CPA registration numbers. Relevantly, their audit opinion says:

   ‘In our opinion, the accompanying financial statements have been prepared in accordance with Accounting Standards for Small Enterprises in all material respects and give a fair view of the financial position of Chongqing Baisan Building Materials Co., Ltd.as of December 31, 2019 and of its results of operations and cash flows for the year 2019.’

2. The translation shows the date of signing as 2004, which appears to be a typographical error and the translator, Mr Tony Liu of Shenzhen Neptune Translations Co., Ltd, confirmed that and some other such errors in his letter dated 18 March 2024. The Tribunal is unconcerned about these now corrected errors and finds they do not detract from the authenticity of the audited financial statements.

3. The balance sheet shows the following:

CNY
Total assets	2,128,076
Total liabilities	1,235,046
Net assets (Owners’ equity)	893,030

1. The Tribunal has scrutinised the balance sheet items in the audited financial statements and finds they appear consistent with those expected of a materials supply business and no specific investigation of them is required.

2. The Tribunal finds the book value of the net assets of the company on 31 December 2019 were CNY893,030 and accepts that value as appropriate for the purpose of cl.188.226 as it is within three months of the date of invitation as contemplated by departmental policy.

3. Based on the above analysis, the Tribunal finds the net business and personal assets of Mr Ye and Ms Wen at the time of invitation were as follows:

Description	Asset value	Liabilities (if any)	Net assets (CNY)
China Construction Bank account ending #6563	124,757	0	124,757
Apartment 404	4,260,000	0	4,260,000
100% Shareholder of Chongqing Baisan Building Materials Co., Ltd	2,128,076	1,235,046	893,030
Total (CNY)	$6,512,833	$1,235,046	$5,277,787
Total (AUD @ 4.8064)[3]	$1,355,033	$256,959	$1,098,075

[3] Reserve Bank of Australia rates.

1. For these reasons, the Tribunal is satisfied that Mr Ye meets cl.188.226.

CONCLUSION

1. 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.

2. The secondary visa applicants are remitted for reconsideration by the Department based on the outcome of the application by the primary visa applicant.

DECISION

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

·cl.188.226 of Schedule 2 to the Regulations.

Peter Ranson

Member

Date(s) of hearing:	15 January 2024 and 18 March 2024
Type of hearing:	Teams video
Representative for the Applicant:	Mr Bin Zhu of Ausbridge Migration and Education Service
Interpreter:	Mandarin and English
Witnesses:	None