Zhang (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Business Skills (Provisional) (Class EB) visa, subclass 188. The core dispute revolved around whether the applicant had met the requirements for a "complying investment" as stipulated by the Migration Regulations. The applicant's ability to satisfy the criteria for this visa subclass was challenged by the delegate's decision, which was under review by the Tribunal.

The legal issues before the Tribunal were whether the applicant had made a complying investment of at least AUD $5,000,000, and whether she had a genuine intention to hold this investment for at least four years, as required by clause 188.252 of the Migration Regulations. Crucially, the Tribunal had to determine if the funds intended for the investment were unencumbered and lawfully acquired, as mandated by regulation 5.19B(3) of the definition of a "complying investment."

The Tribunal found that the documentary evidence provided by the applicant did not sufficiently establish that the funds she held were lawfully acquired and unencumbered. While some funds were transferred directly from her father, other amounts originated from third parties and companies unrelated to her father's direct ownership. This lack of clear financial evidence meant the applicant failed to demonstrate that the investment met the requirements of regulation 5.19B(2) and (3). Consequently, the Tribunal concluded that the applicant did not meet clause 188.252(1) and, as no evidence was presented regarding eligibility for other visa streams, the Tribunal affirmed the delegate's decision.