Ye (Migration)

The Administrative Appeals Tribunal considered an appeal by Mr Ye concerning a Subclass 188 (Business Innovation and Investment (Provisional)) visa. The dispute centred on whether Mr Ye met the net asset value requirements for the Business Innovation stream of this visa. Mr Ye’s application for the visa was initially refused by the delegate, and this decision was subsequently reviewed by the Tribunal.

The primary legal issue before the Tribunal was to determine the correct or preferable decision regarding Mr Ye's eligibility for the visa, specifically whether he possessed the requisite net value of assets that could be applied to a business in Australia at the time of his invitation to apply. This required the Tribunal to assess the adequacy of the documentation provided by Mr Ye to substantiate his claimed asset position, including his shareholding in a Chinese company, his ownership of real estate, and funds held in a bank account.

The Tribunal reasoned that it is empowered to treat policy as a relevant factor in its determination, provided it conducts an independent assessment of the facts and considers the propriety of the policy, indicating the considerations leading to its conclusion. In this instance, the Tribunal found that the documentation provided by Mr Ye was insufficient for the delegate to assess his net asset position at the time of invitation. While Mr Ye provided updated asset statements to the Tribunal, discrepancies were noted, particularly concerning a significant withdrawal from his bank account shortly before the invitation date. The Tribunal noted that Clause 188.226 of the Migration Regulations requires a net asset value of at least $800,000 for invitations issued before 1 July 2021, which applied to Mr Ye's case.

Given the inadequacies in the evidence presented and the discrepancies identified, the Tribunal concluded that the matter should be remitted for reconsideration. This would allow for a fresh assessment of Mr Ye's eligibility based on further particulars and a more thorough examination of his asset position.