Yew (Migration)

[2020] AATA 3077

Yew (Migration) [2020] AATA 3077 (5 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Ms Foong Sin Yew

Mr Wing Fook Goh

Mr Chinq Loong Goh

Miss Chinq Leing Goh

Mr Chinq Heei Goh

CASE NUMBER:  1904626

HOME AFFAIRS REFERENCE(S): BCC2015/3049259 BCC2017/2826436 BCC2017/2826445

MEMBER:Robyn Anderson

DATE:5 June 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicants Business Skills (Residence) (Class DF) visas.

Statement made on 5 June 2020 at 4.00pm.

CATCHWORDS

MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Business Owner) visa – value of net business assets and net personal assets – loans to the applicant’s children for education costs – ownership interest in main business – value of goodwill – value of the shareholding – significant degree of control over loans to children – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 892.211, 892.212, 892.213, 892.311

CASES

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Shi v Migration Agents Registration Authority [2008] HCA 31

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 21 February 2019 to refuse to grant the visa applicants Business Skills (Residence) (Class DF) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 19 October 2015. At the time of application, Class DF contained four subclasses: Subclass 890 (Business Owner), Subclass 891 (Investor), Subclass 892 (State/Territory Business Owner) and Subclass 893 (State/Territory Sponsored Investor). The applicants in this case are seeking to satisfy the criteria for the grant of Subclass 892 (State/Territory Business Owner) visas, as set out in Part 892 of Schedule 2 to the Migration Regulations 1994 (the Regulations). At least one member of the family unit must satisfy the primary criteria set out in Subdivision 892.2. The others need only to satisfy the secondary criteria set out in Subdivision 892.3.

3. The delegate in this case refused to grant the visas on the basis that the first named visa applicant, Ms Yew, did not satisfy the requirements of cl.892.213 of Schedule 2 to the Regulations, in particular cl.892.213(3)(a) of Schedule 2 to the Regulations. This essentially requires two out of the three requirements detailed in cl.892.212 of Schedule 2 to the Regulations to be met.

4. The applicants appeared before the Tribunal on 11 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

5. In accordance with s.359AA of the Act, the Tribunal put to the applicants at hearing that if it were to rely on the information currently before the Tribunal in making a decision, it would be a reason for finding that the applicant does not meet the requirements under cl.892.212 of Schedule 2 to the Regulations, and for affirming the delegate’s decision. The Tribunal went on to explain that based on the evidence before it, Ms Yew is unable to meet cl.892.212(c) of Schedule 2 to the Regulations. This means that cl.892.212(a) and cl.892.212(b) must both be met. Given the deficiencies in the evidence in respect of cl.892.212(a) and cl.892.212(b), as discussed in detail below, this would mean that the criteria under cl.892.212 is not met. The applicant responded in relation to cl.892.212(b) by raising the issue of loans between the children and Mr Goh, discussed below. The Tribunal granted a request by the applicants for additional time after the hearing, beyond Chinese New Year, to respond and to provide further evidence in relation to the three criteria outlined in cl.892.212 of Schedule 2 to the Regulations, being the net personal assets of Ms Yew and Mr Goh, the net assets of the Business and also in relation to the employment of the equivalent of one full-time employee.

6. On 24 February 2020, the information provided was limited to the loans between Mr Goh and his children, Goh Chinq Heei and Goh Chinq Loong, for their education costs. The Tribunal wrote to the applicants and allowed further time for them to provide supporting evidence in respect of the value of net business assets and net personal assets, including at the time of decision, and the provision of employment equivalent to at least one full-time employee, as was discussed at hearing. Further information was provided by the applicants on 20 March 2020. However, the information remained incomplete.

7. As no further information was forthcoming, the Tribunal wrote to the applicants on 20 April 2020 and allowed further time for the applicant to provide additional information in respect of the value of the net business assets and net personal assets of the applicant, the applicant’s spouse or the applicant and her spouse together, including at time of decision. The Tribunal requested additional financial information in respect of the Company and gave the applicants the opportunity to provide any other financial statements they wished the Tribunal to consider. On 4 May 2020, the Tribunal granted an extension of time for Ms Yew to provide further evidence in regard to personal assets and again on 20 May 2020 for the provision of personal bank statements.

8. In addition to information on the departmental file, oral evidence received at hearing and all evidence provided at hearing, the Tribunal also relied on oral and written evidence provided by the applicants at an earlier hearing on 4 December 2018, as presently constituted, in respect of review 1716629. This review was in relation to the same Subclass 892 visa application. The issue was in respect of ownership interest for the purposes of assessing the criteria under cl.892.211(1) of Schedule 2 to the Regulations and also in respect of Yuwee Enterprise Pty Ltd (the Company) satisfying the requirements to be considered the main business. The Tribunal remitted the application to the Department on the basis that cl.892.211(1) was met. The application was subsequently refused by the Department on the basis that cl.892.213(3)(a) was not met as two out of the three requirements in cl.892.212 were not met.

9. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. Ms Yew gave oral evidence in the previous hearing that prior to their arrival in Australia in January 2011, she and her family resided in Malaysia. While Ms Yew was employed as a legal secretary, Mr Goh operated his own business in the construction industry. Ms Yew told the Tribunal that things were complicated in Malaysia in a political sense and they were concerned in respect of their future rights. She and her husband decided that a move to Australia would be in the best interest of the family, enabling the children to receive a good education and the family to establish itself in the Australian community. Consequently, they applied for a State Sponsored Business Owner (Temporary) (Subclass 163) visa, which was subsequently granted in March 2009.

11. Ms Yew further stated that as she had previous experience in the operation of a café with her parents, the decision was made to open a café in Ballarat. Ms Yew has always taken responsibility for the daily operation of the café, while Mr Goh initially took on a more administrative role, such as dealing with the accountant to set up the Company. Furthermore, he continued to operate his business in Malaysia while based in Australia.

12. In the Tribunal’s view, the issue in the present case is whether the requirements of cl.892.212 of Schedule 2 to the Regulations are met by Ms Yew.

13. There is no evidence before the Tribunal to suggest that there is an exceptional circumstance determination by an appropriate regional authority in relation to the assets provisions in this case. The exceptional circumstances determined by the appropriate regional authority are limited to waiving the turnover requirement under cl.892.213 of Schedule 2 to the Regulations. Therefore, cl.892.212 of Schedule 2 to the Regulations requires the applicant, the applicant’s spouse, or the applicant and her spouse together in the main business or main businesses in Australia to meet at least two of the three requirements under cl.892.212(a), 892.212(b) or 892.212(c) of Schedule 2 to the Regulations at the time of application and in the 12-month period immediately prior to the application date. As Ms Yew lodged her application on 19 October 2015, the relevant period is from 19 October 2014 to 18 October 2015 (the relevant period).

14. The meaning of ‘main business’ is set out in r.1.11(1) of the Regulations (as defined in r.1.03). Ms Yew nominated the Company as ‘the main business’. In order for a business to be considered a ‘main business’, r.1.11(1) sets out four criteria. The criteria are not mutually exclusive and must all be met before a nominated business can be considered as the ‘main business’. On 4 January 2019, in relation to review 1716629 (as per above reference), the Tribunal found that the Company met all four of the criteria under r.1.11 such that the Company was eligible to be considered the ‘main business’. That is, that Ms Yew has an ownership interest in the Company, she has maintained direct and continuous involvement in the management of the business including day-to-day operations and decisions affecting the overall direction of the business, the combined shareholding of Ms Yew and Mr Goh in a private company with an annual turnover of less than AUD400,000 is at least 51% and the Company is a qualifying business. Consequently, there is no necessity for the Tribunal to detail the considerations again in this decision and it will move forward on the basis that the Company was found to qualify as the main business.

15. Clause 892.212(a) of Schedule 2 to the Regulations relates to the Company providing the equivalent of full-time employment to a person/s that is not a family member and is also an Australian citizen or Australian permanent resident or a New Zealand passport holder, in the relevant period from 19 October 2014 to 18 October 2015. Clause 892.212(b) and cl.892.212(c) of Schedule 2 to the Regulations relate to the personal and net business assets held in Australia by the applicant, the applicant’s spouse, or the applicant and his spouse together.

16. The Department determined that as neither of the net asset requirements were met, it was not possible for Ms Yew to satisfy two out of the three criteria under cl.892.212 of Schedule 2 to the Regulations. As such, no consideration was given to the criterion under cl.892.212(a) of Schedule 2 to the Regulations.

17. Following notification of the hearing date, Ms Yew requested a rescheduling of the hearing to enable time for a new accountant to provide updated financial statements, in particular in relation to goodwill. As it was evident that the central issue was misunderstood by the applicants, the Tribunal refused the request and progressed to hearing to discuss the issues directly with the applicants.

    Net personal assets and net business assets

18. Ms Yew submitted at hearing on 11 December 2019 that goodwill has arisen over time as she has built up the business. She further stated that given the development in the immediate area, the value of the business has increased. Goodwill is generally the difference between the tangible assets purchased in a business, such as stock and equipment, and the purchase price. The Sale of Business Contract between the Vendor and the Business was in the departmental records. It clearly details the purchase price of AUD35,000 being representative of plant and equipment valued at AUD34,500 and stock valued at AUD500. The value of goodwill is specifically stated as nil. As discussed at hearing, it is common practice based on Australian accounting standards, that goodwill is not accepted as an asset of a business unless it was provided for in the purchase price. According to Australian Accounting Standards Board (AASB) 1013, it is not possible to accurately determine a value for goodwill other than at sale and it cannot be taken up otherwise. As such, the Tribunal pointed out that any submission by an accountant in regard to a value for goodwill would not be accepted by the Tribunal.

19. Clause 892.212(b) of Schedule 2 to the Regulations relates to whether the applicant, the applicant’s spouse, or the applicant and her spouse together held business and personal assets in Australia at the time of application that have a net value of at least AUD250,000 and had a net value of at least AUD250,000 throughout the period of 12 months ending immediately before the application was made, and that these assets were legally acquired. As noted above, the relevant period is 19 October 2014 to 18 October 2015.

20. Clause 892.212(c) of Schedule 2 to the Regulations relates to whether the applicant, the applicant’s spouse, or the applicant and her spouse held business assets in Australia at the time of application that have a net value of at least AUD75,000 and had a net value of at least AUD75,000 throughout the period of 12 months ending immediately before the application was made (the relevant period), and that these assets were legally acquired.

21. Ms Yew provided financial statements at 30 September 2014 and 30 September 2015 to the Department. A written submission from the applicants’ representative dated 28 February 2019 for this review application asserted that the delegate’s decision was incorrect and that the calculations should be based on the submission to the Department in respect of cl.892.212(b) of Schedule 2 to the Regulations, whereby the personal assets and net assets of the Company consisted of the following:

Assets	30/09/2014 AUD	30/09/2015 AUD
Ms Yew - Netbank Saver account	30.06	30.66
Ms Yew - Smart Access account	612.20	5,298.53
Residential property (sold December 2015)	184,336.26	184,336.26
Vehicles x 2	15,300	15,300
Personal Assets	200,278.52	204,965.45
Net assets/(deficiency) of the Company	(95,154)	(115,115)
Loan from shareholders	105,274	124,268
Shareholding	50,000	50,000
Business Assets	60,120	59,153
Combined personal and business net assets	260,398.52	264,118.45

1. The Tribunal discussed the calculations at hearing, pointing out that the value of the shareholding is represented by the net assets/liabilities of the Company. As such, inclusion of the value of the shareholding results in a duplication when added to the net assets/liabilities, resulting in an inflated net assets value. While the value of the shareholding may have initially been AUD50,000, based on the balance sheets on the departmental file at the relevant points in time of 30 September 2014 and 30 September 2015, there is a net deficiency in assets [(AUD95,154) and (AUD115,115) respectively], meaning that the value of the shares is essentially nil.

2. The Tribunal also discussed the intangible assets of legal costs and formation expenses recorded on the balance sheets at 30 September 2014 and 30 September 2015 totalling AUD5,119 and AUD4,732 respectively. The AASB defines an “asset” as something from which future economic benefits are expected to flow to the entity. Formation expenses and legal expenses are “intangible assets” and represent a past expense that is gradually being amortised over time and clearly does not represent future value or benefit to the Company other than a reduction of profit. Accordingly, the Tribunal finds it appropriate to ignore the legal and formation expenses recorded as assets in the balance sheets at 30 September 2014 and 30 September 2015 of AUD5,119 and AUD4,732 respectively for the purposes of assessing the value of the Company assets under cl.892.212 of Schedule 2 to the Regulations.

3. The applicants raised the issue of the possible inaccuracy of the balance sheets, in particular the value of plant and equipment. While the Tribunal granted additional time and further extensions of time for the applicants to provide more accurate financial statements in respect of the relevant period, no further financial statements were forthcoming. As such, the Tribunal proceeded to make a decision on the basis of the financial statements provided at 30 September 2014 and 30 September 2015.

4. Based on the details in the table in paragraph 21 above, after excluding the shareholding value and the legal and formation expenses from the net business assets calculation, the Tribunal calculates that the applicant, the applicant’s spouse, or the applicant and her spouse held assets in the Company in Australia during the relevant period, that is at 30 September 2014 and 30 September 2015, of AUD5,001 [(AUD95,154) – (AUD5,119) + AUD105,274] and AUD4,421 [(AUD115,115) – (AUD4,732) + (AUD124,258)] respectively. Consequently, as these amounts are less than AUD75,000, the criterion under cl.892.212(c) cannot be met. The Tribunal finds accordingly.

5. As the criteria under cl.892.212(c) of Schedule 2 to the Regulations is not met, the applicant must now rely on meeting the criteria of both cl.892.212(a) and cl.892.212(b) in order to satisfy cl.892.212 of Schedule 2 to the Regulations. When relying on cl.892.212(b) as one of the two clauses to be satisfied to meet cl.892.212 of Schedule 2 to the Regulations, cl.892.221(b) of Schedule 2 to the Regulations provides that the same criteria must also be met at the time of decision. The Tribunal wrote to the applicants on two occasions requesting further information in this regard and also granted further extensions of time.

6. As discussed at hearing, if the personal assets recorded by the applicants at 30 September 2014 in respect of residential property (AUD184,336.26), bank statements (AUD642.26) and motor vehicles (AUD15,300) are added to the net business assets calculated above of AUD5,001, the Tribunal calculates that the business and personal assets in Australia of the applicant, the applicant’s spouse, or the applicant and her spouse at 30 September 2014 totals AUD205,279.52. If the personal assets recorded by the applicants at 30 September 2015 in respect of residential property (AUD184,336.26), bank statements (AUD5,329.19) and motor vehicles (AUD15,300) are added to the net business assets calculated above of AUD4,421, the Tribunal calculates that the business and personal assets in Australia of the applicant, the applicant’s spouse, or the applicant and her spouse at 30 September 2015 totals AUD209,386.45. These amounts are less than AUD250,000, as required under cl.892.212(b) of Schedule 2 to the Regulations.

7. At hearing, the applicants highlighted that significant sums of money have been brought into Australia by Mr Goh and Ms Yew to pay the full-fee university costs of their three children and raised the issue of the loans being attributed as personal assets of Mr Goh and Ms Yew. Mr Chinq Loong Goh told the Tribunal that the monies were transferred to the accounts of either Ms Yew or the children to on-pay to the respective university and inferred that such amounts could be considered an asset of his parents for the purposes of cl.892.212(b) of Schedule 2 to the Regulations. Following the hearing, statutory declarations signed by Mr Chinq Loong Goh and Mr Chinq Heei Goh were provided to the Tribunal. The Tribunal allowed further time for the applicants to provide evidence in the form of bank statements.

8. Bank statements recording various transfers were later provided, in addition to evidence of foreign transfers of funds from Mr Goh to either Ms Yew or the children. The Tribunal is not precluded from having regard to the material before it and is not limited to consideration only of the facts and evidence before the Department at the time of the delegate’s decision (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at [589] and Shi v Migration Agents Registration Authority [2008] HCA 31).

1. Mr Chinq Loong Goh signed and dated the statutory declaration on 24 February 2020, which stated that there was a loan agreement with Mr Goh at commencement of his tertiary studies in January 2012 to repay all monies loaned throughout the span of his university studies in full any time before 18 January 2022 at 0% interest. The outstanding balances at 30 September 2014 and 30 September 2015 were recorded in a separate summary as AUD129,571. Mr Chinq Loong Goh is an engineer graduate and in the period 21 August 2017 to 19 December 2019 maintains that he has repaid a total sum of AUD12,710. He provided a summary and evidence of payments in the form of bank transactions made to his parents in the period between 21 August 2017 and 19 December 2019.

2. Mr Chinq Heei Goh signed and dated the statutory declaration on 24 February 2020, which stated that there was a loan agreement with Mr Goh at commencement of his tertiary studies in February 2014 to repay all monies loaned throughout the span of his university studies in full any time before 1 January 2024 at 0% interest. The outstanding balances at 30 September 2014 and 30 September 2015 were recorded in a separate summary as AUD15,635 and AUD30,680 respectively. Mr Chinq Heei Goh is a recent graduate architect and is yet to make any repayments to his parents.

3. A revised statement of assets was submitted to the Tribunal, as follows. It is noteworthy that legal costs and formation expenses have not been excluded:

Assets	30/09/2014 AUD	30/09/2015 AUD
Ms Yew - Netbank Saver account	30.06	30.66
Ms Yew - Smart Access account	612.20	5,298.53
Residential property (sold December 2015)	184,336.26	184,336.26
Vehicles x 2	15,300	15,300
Loan to Chinq Loong Goh	129,571.41	129,571.41
Loan to Chinq Heei Goh	15,635.18	30,680.32
Personal Assets	345,485.11	365,217.18
Net assets/(deficiency)	(95,154)	(115,115)
Loan from shareholders	105,274	124,268
Business Assets	10,120	9,153
Combined personal and Business net assets	355,605.11	374,370.18

1. Departmental policy in PAM3 GenGuide M – Business Visas (PAM3) refers to a personal asset as, amongst others, a loan made by the applicant to other parties. PAM3 states that in consideration of a particular asset, relevant factors include claimed title to the asset, recognition of rights over the asset and the degree of control over the asset. The Tribunal accepts that the term ‘personal asset’ is accepted as being a far broader definition than that of “business asset” and notes that PAM3 stops short of the requirement of a personal asset to provide a future economic benefit, as is the case with a business asset as defined in Australian and international accounting standards.

2. The Tribunal notes that whilst PAM3 policy may provide guidance, it is not bound to follow it. In particular, the courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision-makers in relation to the application of the Act and Regulations, and that they are incapable of being elevated into legally necessary or relevant considerations. Nevertheless, the Tribunal considers the asset definition set out in the policy guidelines to be a reasonable starting point for the purposes of applying cl.892.212 of Schedule 2 to the Regulations.

3. A generally accepted definition of asset in accordance with the Macquarie Dictionary is a ‘useful thing or quality’ or ‘an item of property’; and ‘an economic resource’, being something of value that is available for personal use.

4. While the Tribunal acknowledges the significance of verbal agreements in the culture of the applicants, it must satisfy itself that the verbal agreements are at arms-length. This involves consideration of the terms of the agreements, any security or penalty that is part of the agreement and the likelihood of the loan being repaid. This is particularly so, given that Mr Chinq Loong Goh and Mr Chinq Heei Goh are immediate family members of Mr Goh, all of whom are visa applicants in respect of this review.

5. According to his most recent bank statement in October 2019 provided as part of this review, Mr Chinq Loong Goh’s net weekly salary is AUD955.54, which annualises to just under AUD50,000. Evidence before the Tribunal indicates that in the period 21 August 2017 to 19 December 2019, he has repaid a total sum of AUD12,710. It is apparent that Mr Chinq Loon Goh is not on track to repay the remaining amount of AUD116,861 by 18 January 2022 in accordance with the agreed terms as set out in the statutory declaration of 24 February 2020. Furthermore, the Tribunal notes that of the 21 payments made to 19 December 2019 by Mr Chinq Loong Goh, 16 are notated “living expense”. It would be reasonable to expect a notation to record the payment as a loan repayment if that is what it is.

6. According to the information provided by the parties for this review, the loan to Mr Chinq Heei Goh had not increased at 30 September 2016, and as noted above, to date no repayments have been made. There is no evidence of any security held or penalty that will ensue if the terms of either of the loans are not met.

7. Given that the loans are between family members and visa applicants, the repayments to date are largely to Ms Yew and not to Mr Goh (the named payer), the terms of the loans are unlikely to be met, the majority of the payments to date do not indicate at the time of transfer that they are in relation to repayment of the loan and in the absence of any security or penalty arrangements if the terms are not met, it is difficult to accept that Mr Goh has a significant degree of control over the loans as an asset and recognition of his rights over the loans are also questionable. Furthermore, given the discussion above, the loans are unlikely to provide an economic resource or be an item of property or be something of value that is available for Mr Goh’s personal use.

8. The Tribunal is also cognisant of the fact that treatment of the loans as an asset was not raised until hearing and also that it is not uncommon for parents to pay the university fees of their children without an expectation of repayment.

9. Overall, after consideration of the points discussed above, the Tribunal is not satisfied that the loans from Mr Goh to his sons for their university fees are arms-length agreements, or that the terms of the loans will in fact be enforced such that the loans meet the definition of asset, being to provide value that is available for personal use by Mr Goh. As such, the Tribunal finds that it is not appropriate for the purposes of cl.892.212(b) of Schedule 2 to the Regulations to include the loans between Mr Goh and his sons as a personal asset.

10. Following the hearing, additional time and extensions of time were granted on numerous occasions for the applicants to provide further evidence in regard to their personal assets. Information provided after hearing in relation to the personal assets of Ms Yew and Mr Goh held in Australia included current valuations of personal items such as jewellery, a piano, antiques and general household furniture and effects. PAM3 policy specifically refers to, amongst others, “cars, jewellery, furniture and other personal effects” as examples of net personal assets. No evidence of ownership such as purchase invoices or insurance policy documents were provided in respect of the personal assets, despite a discussion at hearing as to such a requirement. Rather, a valuation was provided in respect of the assets of jewellery, piano, antiques and furniture and household effects as at May 2020, as set out below:

Asset	Valuation source	AUD
Various pieces of jewellery	Gem & Jewels, Ballarat	43,800
Diamond ring	Gem & Jewels, Ballarat	40,000
Household furniture and effects	Mr A. Doyle of Leader Property Practice - certified practising valuer	6,350
Piano	Mr P. Cockerill - Piano specialist	3,000
Various Antiques	Mr P Wills of Lydiard Furniture and Antiques, Ballarat	4,450
CBA Netbank Saver account - Ms F Yew	Bank statement at 20 May 2020	41,768
CBA Smart Access account - Ms F Yew	Bank statement at 20 May 2020	3,766
Total personal assets	143,134

1. As discussed above, the Tribunal is not bound to follow departmental policy. Furthermore, while the Macquarie Dictionary defines “asset” as a ‘useful thing or quality’ or ‘an item of property’; and ‘an economic resource’ being something of value that is available for personal use, the Tribunal does not consider that items such as mattresses, cooking utensils, small appliances and the like could reasonably be considered an economic resource. Accordingly, the Tribunal does not accept the valuation of AUD6,350 in respect of the list of furniture and effects.

2. The remaining items of various pieces of jewellery, piano and antiques are valued in May 2020 at AUD91,250. However, no evidence in regard to ownership, as discussed at hearing, was provided in the form of purchase invoices or insurance policy documents or other. Nor was any acknowledgement of lack of proof of ownership put to the Tribunal. In the absence of such supporting evidence, the Tribunal does not accept the valuations of jewellery, piano and antiques as personal assets of Ms Yew and/or Mr Goh. Consequently, the Tribunal is left with the same calculation as discussed in paragraph 27 above. As the personal assets and net business assets of Ms Yew and/or Mr Goh at 30 September 2014 and 30 September 2015 of AUD205,279 and AUD209,386 respectively are below AUD250,000, it follows that the requirements under cl.892.212(b) of Schedule 2 to the Regulations are not met.

Asset	30/09/2014 AUD	30/09/2015 AUD
Net business assets	5,001.00	4,421.00
Ms Yew - Netbank Saver account	30.06	30.66
Ms Yew - Smart Access account	612.20	5,298.53
Residential property (sold December 2015)	184,336.26	184,336.26
Vehicles x 2	15,300.00	15,300.00
Combined net business and personal assets	205,279.52	209,386.45

1. Therefore, as two of the three criteria are not met, it is not possible for Ms Yew to satisfy cl.892.212 of Schedule 2 to the Regulations. As such, there is no necessity for the Tribunal to consider the criteria under cl.892.212(a) of Schedule 2 to the Regulations. The Tribunal finds accordingly.

   Conclusion

2. As the Tribunal has found that an essential requirement for the visa is not met, the decision under review must therefore be affirmed.

3. Further, because the first named applicant is unable to satisfy cl.892.212 of Schedule 2 to the Regulations, the second, third, fourth and fifth applicants are unable to satisfy cl.892.311 of Schedule 2 to the Regulations because they are not members of a family unit of a person who holds a Subclass 892 visa granted on the basis of satisfying the primary criteria for the grant of the visa. Therefore, the decision in relation to the secondary applicants must also be affirmed.

4. It is noteworthy that the Tribunal also observed a potential issue in relation to meeting the criteria at time of decision in accordance with cl.892.221(b) of Schedule 2 to the Regulations. Based on the financial statements provided to the Tribunal, the value of the net business assets at 30 June 2019 had decreased to a net deficiency after consideration of the directors loans of AUD1,352. As the property has since been sold, it appears that even if evidence of ownership were available in respect of the personal assets valuations provided, the combined personal assets and net business assets of Ms Yew and/or Mr Goh at the time of decision would seem to fall well short of AUD250,000.

Asset	Valuation source	AUD
Various pieces of jewellery	Gem & Jewels, Ballarat	43,800
Diamond ring	Gem & Jewels, Ballarat	40,000
Piano	Mr P. Cockerill - Piano specialist	3,000
Various Antiques	Mr P Wills of Lydiard Furniture and Antiques, Ballarat	4,450
CBA Netbank Saver account - Foong Sin Yew	Bank statement at 20 May 2020	41,768
CBA Smart Access account – Foong Sin Yew	Bank statement at 20 May 2020	3,766
Total personal assets	136,784
Net business assets	(1,352)
Combined net personal and business assets	135,432

DECISION

1. The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.

   Robyn Anderson
   Member