Zhang (Migration)

[2019] AATA 2968

Zhang (Migration) [2019] AATA 2968 (17 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Miao Zhang
Mr Frank Zhang

CASE NUMBER:  1600966

DIBP REFERENCE(S):  BCC2015/1335597

MEMBER:Sheridan Lee

DATE:17 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Business Innovation and Investment (Provisional) visa with a direction that the applicant meets the requirements of regulation 5.19B(3) for the purposes of clause 188.252(1) of Schedule 2 to the Migration Regulations 1994.

Statement made on 17 May 2019 at 4:56pm

CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – complying investment – unencumbered and lawfully acquired – Deed of Gift – legal authority to disperse funds – family trust – income tax obligations – still in possession of necessary funds – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19B; Schedule 2, cl 188.252

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 25 January 2016 to refuse to grant the visa applicant a Business Skills (Provisional) Subclass 188 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 8 May 2015. The delegate refused to grant the visa as she was not satisfied that the applicant had unencumbered and lawfully acquired funds for the purpose of making a complying investment as defined in r.5.19B of the Migration Regulations 1994 (the Regulations).

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. It is a requirement under cl.188.252(1) of Schedule 2 to the Regulations that the applicant has made a complying investment of at least AUD5 million. What constitutes a complying investment is defined in r.5.19B of the Regulations.

6. Relevantly, r.5.19B(3) sets out that the funds used to make the investment must be unencumbered and lawfully acquired.

7. The applicant has provided a Deed of Gift, dated 12 March 2014. The deed sets out that her father, Fumin Zhang, wishes to gift RMB25,600,000 from his personal savings to Ms Miao Zhang. Under term 3.1 of the deed, the donor makes an irrevocable and unconditional gift to the recipient at the date of signing the deed.

8. The funds were transferred into the account of the applicant by Longten Pty Ltd on 8 April 2015. The applicant has supplied a list of transactions for a Commonwealth Bank Account in the name of Miao Zhang evidencing the receipt of AUD $5 million in funds from Longten.

9. Longten is an Australian Proprietary Company limited by shares. Australian Securities & Investments Commission (ASIC) records show that the company was registered on 9 May 2012. The records also show that the company has two Directors: Fumin Zhang and Tao Zhou. Mr Zhang is recorded as the 100% shareholder. A Trust Deed sets out that Longten acts as the trustee for the Zhang Family Trust, for which Fumin Zhang is the principle. The primary beneficiaries of the trust are Fumin Zhang, Miao Zhang and Ying Zhang.

10. At the time of the delegate’s decision, the financial statements for Longten and the Zhang Family Trust for the 2014-15 financial year - the year during which the transfer of funds was made - had not been finalised. The delegate expressed concern that she was therefore unable to confirm that the requisite income tax had been paid. Finalised financial statements for the year ending 30 June 2015 have subsequently been supplied to the Tribunal. Further, extracts from the Australian Taxation Office (ATO) Tax Agent Portal show that income tax has been lodged and paid each year from 2015.

11. On the basis of the evidence submitted, the Tribunal is satisfied that Longten had legal authority to disperse funds to the applicant on behalf of Fumin Zhang. The Tribunal is further satisfied that Longten is a company registered with ASIC, which paid income tax to the ATO for the relevant financial year, and each financial year since. There is no evidence before the Tribunal to indicate that Longten has failed to comply with its obligations under Australian company or taxation laws.

12. On 29 March 2019, the Tribunal wrote to the applicant to request evidence that she was currently in possession of the required AUD5 million. In response, the applicant supplied six statements issued by the Commonwealth Bank for a Term Deposit held in the name of M Zhang. The statements show that the applicant held a term deposit from 28 March 2017 to 28 June 2017 with an initial investment balance of AUD5 million. A second investment of AUD5 million was then made on 25 October 2017 to mature on 25 January 2018. This was followed by an investment of AUD5 million on 29 January 2018, which was subsequently rolled over into new terms on 29 April 2018, 29 July 2018 and finally 29 December 2018. The most recent statement shows that the term deposit currently holds AUD5,097,981.03 and is due to mature on 29 July 2019.

13. While not determinative, the Tribunal may have regard to Departmental policy. The Procedures Advice Manual, as it applied at the time of application, notes that:

    Regulation 5.19B(3) is intended to provide a degree of discretion should the officers have concern that, despite supporting documentation:

    ·the funds were sourced from illegal activities, or

    ·the funds were not wholly owned by the applicant or their spouse or defacto partner, or

    ·the supporting documentation is not genuine.

14. The Tribunal has evidence that the funds were transferred from an Australian Proprietary Company wholly owned by Fumin Zhang into a bank account held by the applicant with an Australian institution in fulfilment of the deed of gift. The applicant is still in possession of the necessary funds more than four years after the transfer into her account. On the basis of this evidence, the Tribunal finds it unnecessary to make further enquiries as to the source of the funds.

15. The Tribunal is satisfied that the funds are unencumbered and lawfully acquired, in compliance with the requirement of r.5.19B(3).

16. As the second named applicant applied on the basis of being a member of the family unit of the first named applicant, their application will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.

    DECISION

17. The Tribunal remits the application for a Business Innovation and Investment (Provisional) visa with a direction that the applicant meets the requirements of r.5.19B(3) for the purposes of cl.188.252(1) of Schedule 2 to the Regulations.

    Sheridan Lee
    Member