ZHANG (Migration)

[2024] AATA 3488

ZHANG (Migration) [2024] AATA 3488 (16 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr XIANG ZHANG
Ms LIN YUAN

CASE NUMBER:  2214385

HOME AFFAIRS REFERENCE:               BCC2019/4637000

MEMBER:Robyn Anderson

DATE:16 September 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicants Business Innovation and Investment (Provisional) Subclass 188 visas in the Investor stream.

Statement made on 16 September 2024 at 1.30pm.

CATCHWORDS

MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 Business Innovation and Investment (Provisional) – Investor stream – business and personal assets for the previous two fiscal years – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 188.241, 188.245, 188.311

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 13 September 2022 to refuse to grant the visa applicants a Business Innovation and Investment (Provisional) Subclass 188 visa in the Investor stream under s 65 of the Migration Act 1958 (Cth).

2. The applicant was invited to apply for the Subclass 188 visa on 13 August 2019. According to departmental records, the first-named applicant (the applicant) arrived in Australia on 11 September 2019 on a tourist visa and has not left Australia since. In the meantime, he was granted a Subclass 010 Bridging visa A on 17 September 2019.

3. The second-named applicant last arrived in Australia on 5 June 2018 and has not left Australia since. She is currently on a Subclass 030 Bridging visa C. While the application indicates that the applicants have a son, he was not part of the application and resides in China.

4. The delegate refused to grant the visas on the basis that she could not be satisfied that the requirements under cl 188.245 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) were met by the applicant. This was because the applicant failed to provide any documentation to support his claim that for the two fiscal years immediately before the time of invitation, the business and personal assets of him, his spouse or him and his spouse together had a net value of at least AUD2,250,000.

5. The matter was constituted to a Tribunal Member on 20 June 2024.

6. On 4 July 2024, the Tribunal wrote to the applicant via the email address he provided in his application to invite him to attend a hearing by MS Teams video conference on 3 September 2024 at 11.30am. There was no response to the hearing invitation within the required seven‑day timeframe. The letter also requested the applicant provide supporting documents in support of the net assets he was relying on for the Subclass 188 visa no later than 14 days prior to the hearing. On 6 August 2024, the Tribunal emailed the applicant requesting the provision of a telephone contact number. There was no response.

7. On 7 August 2024, the Tribunal sent a courtesy copy of the hearing invitation to the postal address on the application. The letter also requested the applicant provide supporting documents in support of the net assets he was relying on for the Subclass 188 visa no later than 14 days prior to the hearing. The applicant failed to respond within the required time. Therefore, the Tribunal attempted to contact him again via email on 9 August 2024, without any response.

8. On 15 August 2024, the Tribunal notified the applicant of a video test call on 27 August 2024. On 27 August 2024, the applicant failed to participate in the video test call and failed to respond to any of the Tribunal’s correspondence.

9. On 3 September 2024, the hearing attendant opened the MS Teams video meeting at 11.15am in preparation for the hearing at 11.30am. The Tribunal waited for the applicants to join the meeting until 12.00pm. They did not appear.

10. The Tribunal has had no contact from the applicant since the hearing. Therefore, the Tribunal considered how to proceed and decided that in such circumstances, where there was an historic pattern of failure to respond at the Department level that has been repeated at the Tribunal, it was appropriate to proceed to make a decision on the papers.

11. For the following reasons, the Tribunal has affirmed the decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. Relevantly, cl 188.245(a) of Schedule 2 to the Regulations sets out the requirement that for the two fiscal years immediately before the time of invitation to apply for the visa, the business and personal assets of the applicant or the applicant’s spouse or de facto partner, or the applicant and his spouse or de facto partner together, had a net value of at least AUD2,250,000.

13. The two fiscal years immediately before the date of invitation on 13 August 2019 is the period 1 January 2017 to 31 December 2018 (the relevant period). There was no evidence provided to the Department to demonstrate that the applicant and/or his spouse or de facto partner held net business and personal assets during the relevant period valued at least AUD2,250,000. This was despite the Department writing to the applicant via email on 20 January 2022 requesting the supporting documentation within 28 days. When the applicant failed to respond, a further email was sent to the applicant on 6 August 2022, advising him that if he did not respond it was open to the delegate to go ahead and make a decision without seeking further information.

14. On 13 September 2022, the delegate made a decision to refuse to grant the applicant a Subclass 188 visa because no evidence was provided to verify that the net asset value of him and/or his spouse or de facto partner together was at least AUD2,250,000. The applicants were notified of the decision via email. It is noteworthy that the applicants provided a different email address to the Tribunal in the application lodged on 28 September 2022. The applicant completed the declaration on his application form lodged with the Tribunal which stated, amongst other things, that “I understand that if I change my contact details and do not inform the AAT of my change of address or other new contact details, the AAT may proceed to make a decision even if it cannot contact me.”

15. On 29 September 2022, the Tribunal acknowledged receipt of the applicant’s review application via the email address provided by the applicant. The letter requested the applicant provide a phone number to the Tribunal by 6 October 2022. To date, the applicant has not contacted the Tribunal in any manner or provided a phone number. The letter of 29 September 2022 also noted the importance of advising the Tribunal immediately if there was any change in his contact details. He was also advised to provide any further material he wanted the Tribunal to consider as soon as possible. To date the applicant has made no contact with the Tribunal or provided any documentation in support of his application.

16. As noted above, the applicant failed to join the MS Teams video conference on 3 September 2024, scheduled for 11.30am, despite being advised numerous times via his nominated email address and via the post by a courtesy letter. In the period from 29 August 2022 to 9 August 2024, despite being advised to provide any additional evidence as soon as possible on numerous occasions, no further evidence has been provided by the applicant. The delegate refused to grant the applicant a Subclass 188 visa because of a lack of provision of supporting evidence in relation to his level of net business and personal assets. The Tribunal faces the same dilemma. There appears to be a pattern whereby the applicant ignores correspondence.

17. The Tribunal is satisfied that the applicant was given ample opportunity to provide supporting evidence to the Department and ample opportunity to provide further evidence to the Tribunal. He chose not to make any contact with the Department or the Tribunal in support of his claim, other than to submit an application for review. In such circumstances, the Tribunal cannot be satisfied that for the relevant period, the business and personal assets of the applicant, the applicant’s spouse or de facto partner or the applicant and his spouse or de facto partner together had a net value of AUD2,250,000.

18. Therefore, the Tribunal finds that the requirement under cl 188.245 of Schedule 2 to the Regulations is not met and that it is appropriate to affirm the decision under review in respect of the applicant.

19. In respect of the second-named applicant, as she is not a member of a family unit of a person who holds a subclass 188 visa granted on the basis of satisfying the primary criteria for the grant of a visa, she is unable to meet the first of the secondary criteria under cl 188.311 of Schedule 2 to the Regulations. Furthermore, as there is no evidence that the second-named applicant received an invitation to apply for a Business Innovation and Investment Subclass 188 (Provisional) visa in her own right as a primary applicant, in accordance with cl 188.241 of Schedule 2 to the Regulations, she also fails to meet the first limb of the criteria under cl 188.241 of Schedule 2 to the Regulations. Accordingly, the Tribunal finds that it is also appropriate to affirm the decision under review in respect of the second-named applicant.

    DECISION

20. The Tribunal affirms the decision not to grant the applicants Business Innovation and Investment (Provisional) Subclass 188 visas in the Investor stream.

    Robyn Anderson
    Member