ZHANG (Migration)

[2018] AATA 113

ZHANG (Migration) [2018] AATA 113 (19 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr BIN ZHANG
Mrs Shuya Lei
Mr Renzhe Zhang

CASE NUMBER:  1604199

DIBP REFERENCE(S):  BCC2015/526549

MEMBER:Hugh Sanderson

DATE:19 January 2018

PLACE OF DECISION:  Sydney

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

The Tribunal does not have jurisdiction to review the decision in relation to the second named applicant.

Statement made on 19 January 2018 at 12:49pm

CATCHWORDS
Migration – Business Skills (Residence) (Class DF) visa – Subclass 890 (Business Owner) – Director’s loan – Claimed assets not part of net assets – Net value less than $100,000 – Second applicant not in migration zone

LEGISLATION
Migration Act 1958, ss 65, 347(3), 347(3A), 359(2), 359C
Migration Regulations 1994, Schedule 2, cls 890.211, 890.212, 890.213, 890.214, 890.215, 890.216

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 8 March 2016 to refuse to grant the visa applicant a Business Skills (Residence) (Class DF) Subclass 890 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 17 February 2015. The delegate refused to grant the visa on the basis that the first named applicant (hereinafter “the applicant”) did not meet the criteria in cl.890.212 because the delegate was not satisfied the applicant’s business had a net value of at least $100,000.

   Background

3. The first named applicant (hereinafter “the applicant”) applied for the visa on the basis of his 21% share in the nominated business, Uwell Pty Ltd. The second named visa applicants have applied for the visas on the basis of their being members of the family unit of the applicant.

4. The Department requested the applicant provide information that the business had a net value of at least $100,000 at the time of the application and for the 12 months ending immediately before the application was made. The applicant provided various documents in support of the application.

5. The applicant relied on a $300,000 director’s loan to meet the requirements for the grant of the visa. As evidence for the directors loan to the business the businesses bank statements showed funds transferred from ‘Bright Ben’ on 9, 10, 11 and 12 March 2010. The bank statements also show that $300,000 was transferred to another company, United World, on 11 and 12 March 2010. When this issue was raised by the Department, the applicant claimed that he was the sole owner of ‘Ben Bright’ (sic), however, he had not previously listed this business or provided its details to the Department. It was claimed that the business was based in Hong Kong.

6. As evidence of ownership of Bright Ben the applicant provided a 2015 Tax return and a Certificate of Incorporation and a Share Certificate. These documents showed that Bright Ben had authorised capital of HK$10,000 divided into 10,000 shares valued at HK$1.00 each. The applicant was shown to hold one share and therefore was not shown to be the sole owner of Bright Ben or Ben Bright.

7. The delegate also noted that as the claimed $300,000 director’s loan appeared to have been immediately transferred to another company it was not used to fund the activities of the business and therefore would not be taken into account when assessing the net assets of the business.

8. The delegate noted the applicant also relied upon a $343,288 investment in Uwell (Shanghai) Trading. As that company was trading and located in China it was not an Australian company and therefore not accepted as part of the net assets of the business as the funds were not used for business in Australia.

9. Based on the information provided by the applicant, the delegate therefore calculated that the business as at 31 December 2014 had net liabilities of $65,360 and as at 31 December 2013 had net liabilities of $68,919. Accordingly, the delegate found that the business in Australia had a net value of less than $100,000 at the time of the application and throughout the period of 12 months ending immediately before the application was made and therefore did not meet the criteria in cl.890.212.

10. As the delegate found that the applicant did not meet the criteria for the grant of the visa, the applications of the second named applicants were refused as they were not members of the family unit of a person who met the primary criteria.

    Information to the Tribunal

11. The applicant provided a copy of the Department’s decision to the Tribunal. No further documents were provided in support of the application.

12. The Tribunal wrote to the applicant on 21 December 2017 noting that the second named applicant, Shuya Lei, was not in the migration zone at the time of the primary decision and at the time the review application was filed with the Tribunal. It appears, therefore, that the Tribunal did not have jurisdiction to consider her application as she did not satisfy s.347(3A) and s.347(3) of the Act. The applicant was invited to comment or respond to this information.

13. The applicant was further requested to provide information pursuant to s.359(2) of the Act that the applicant met the criteria in cl.890.211, cl.890.212, cl.890.213, cl.890.214, cl.890.215 and cl.890.216. The applicant was required to respond to this request by 4 January 2018.

14. On 3 January 2018 the applicant’s agent wrote to the Tribunal stating as follows:

    Thanks for your email. The applicant was informed on Dec 22, 2017. It seems the client intends to give up as he indicates. (sic)

15. No comment was received in respect of the issue raised as to jurisdiction and no information in support of the application was provided. An officer from the Tribunal contacted the applicant’s agent on 9 January 2018 asking the applicant’s agent to confirm that the applicant was seeking to withdraw the application. The applicant’s agent advised the Tribunal that he would contact the applicant, however, the agent has not contacted the Tribunal since that date.

16. As the applicant has failed to respond to the request for information pursuant to s.359(2) the Tribunal has proceeded to a decision pursuant to s.359C.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in the present case is whether the applicant meets the criteria in cl.890.212. This states as follows:

    The 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, in the main business or main businesses in Australia:

    a)have a net value of at least AUD100,000; and

    b)had a net value of at least AUD100,000 throughout the period of 12 months ending immediately before the application is made; and

    c)have been lawfully acquired by the applicant, the applicant’s spouse or de facto partner, or the applicant and his or her spouse or de facto partner together.

20. The Tribunal has considered the information provided by the applicant to the Department. The applicant has failed to provide any further information to the Tribunal which would indicate that he meets the criteria for the grant of the visa.

21. The applicant has relied upon a director’s loan to the business in the sum of $300,000. This money was immediately transferred to another company, United World, which the applicant claimed was an investment company owned by other shareholders of the business. The Tribunal does not accept that this provides evidence that the business has a net value of at least $100,000 at the time of the application or for the period of 12 months immediately before the application was made. There is no plausible explanation as to why, if the loan of $300,000 was to be used to fund the activities of the business that it would then be transferred to another independent company.

22. The Tribunal does not accept that the claimed investment of $343,288 in Uwell (Shanghai) Trading can be considered as part of the net assets of the business. Uwell (Shanghai) Trading is a company trading and located in China and therefore the investment in this business are not funds to be used for a business in Australia.

23. These issues were outlined in the Department’s decision, a copy of which was provided by the applicant to the Tribunal. No further information has been provided by the applicant which would support a finding that the business had a net value of at least $100,000 at the time of the application or in the 12 months immediately before the application. The applicant’s agent has advised the Tribunal that “It seems the client intends to give up as he indicates”.

24. For the above reasons, the Tribunal finds that the assets of the applicant and his spouse in the business, Uwell Pty Ltd, had a net value of less than $100,000 at the time of the application and throughout the period of 12 months ending immediately before the application was made. Accordingly, the Tribunal finds that the criteria in cl.890.212 is not met.

25. As the applicant does not meet the criteria for the grant of the visa, the second named visa applicants are not members of the family unit of a person who meets the primary criteria and therefore the decision to refuse their applications must also be affirmed.

26. It is noted that in respect of the application of Shuya Lei that as she was not physically present in the migration zone at the time of the decision or at the time the review application was filed and therefore the Tribunal does not have jurisdiction to consider her application.

    DECISION

27. The Tribunal affirms the decision not to grant the first and third named applicants the Business Skills (Residence) (Class DF) visas.

28. The Tribunal does not have jurisdiction to review the decision in relation to the second named applicant.

    Hugh Sanderson
    Member