Zhang (Migration)

The matter before the Tribunal concerned an application for a Business Skills (Residence) (Class DF) visa, specifically a Subclass 892 State/Territory Sponsored Business Owner (Residence) visa. The applicant sought to demonstrate that they, along with their spouse, lawfully acquired net assets in their main business in Australia to the value of at least AUD 75,000, both at the time of application and for the 12 months prior. The Tribunal was presented with conflicting financial records and evidence suggesting the main business had a turnover of less than AUD 20,000, with a director's loan of AUD 80,000 being introduced to the business account via a mortgage on a property.

The primary legal issues before the Tribunal were whether the applicant and/or their spouse together owned assets in their main business in Australia with a net value of at least AUD 75,000 at the time of application, and whether such assets had maintained this net value for the 12 months preceding the application. Crucially, the Tribunal also had to determine if these assets had been lawfully acquired by the applicant and/or their spouse, as stipulated by regulation 892.212 of the Migration Regulations. The applicant did not claim to satisfy sub-clause 892.212(a) and the Tribunal found no exceptional circumstances to waive the requirements.

The Tribunal's reasoning focused on the credibility of the financial evidence presented. The existence of two sets of inconsistent financial records raised significant doubts about the true value and lawful acquisition of the claimed assets. Despite the applicant's attempt to bolster the business's financial standing through a director's loan, the low turnover of the main business further complicated the assessment of net asset value. Given these credibility issues and the lack of clear, consistent evidence satisfying the regulatory requirements, the Tribunal concluded that the matter could not be definitively determined on the presented evidence.

Consequently, the Tribunal remitted the applications for reconsideration. The direction was that the first named applicant met the criteria under clause 892.212(c) of Schedule 2 to the Regulations, indicating that the Tribunal found sufficient evidence or a basis for reconsideration regarding the net asset value and lawful acquisition of those assets in the main business. The Department was directed to consider the remaining criteria for the Subclass 892 visa.