1515947 (Migration) - [2016] AATA 4083

1515947 (Migration) [2016] AATA 4083 (6 July 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Ping He
Mr Baizheng Liu
CASE NUMBER:  1515947
DIBP REFERENCE(S):  CLF2014/20843 CLF2014/20844
MEMBER:Glen Cranwell
DATE:6 July 2016
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 890 (Business Owner) visa:
·cl.890.212 of Schedule 2 to the Regulations.

Statement made on 06 July 2016 at 2:18pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 July 2014 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).
The visa applicants applied for the visa on 10 February 2014. The delegate refused to grant the visa on the basis that the first named applicant (the applicant) did not meet cl.890.212 of Schedule 2 to the Regulations.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant must satisfy cl.890.212, which provides:
890.212
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.
The issue in the present case is whether the applicant may include in the calculation of her net assets in her main business a shareholder loan of $104,000, which Mirror then placed in a term deposit.
The Tribunal as previously constituted applied the relevant policy advice in PAM3, finding that because Mirror put the shareholder loan in a term deposit, the loan monies were used as an inactive investment and not used to fund Mirror activities. Therefore, the applicant could not rely on his shareholder loan in the calculation of net assets for the purpose of satisfying 890.212.
Upon judicial review, the Federal Circuit Court in He v Minister for Immigration [2015] FCCA 2915 found the wording of cl.890.212 did not connote a necessity for the loan to be genuine. Accordingly, the Tribunal calculates the net value of the assets of the applicant and her spouse for the relevant 12 month period as follows:
As at 31 Dec 12  as at 31 Dec 13
Net assets in Mirror     $20,532  Net assets in Mirror     $38,523
Shareholder Loan      $104,000  Shareholder Loan      $104,000
Total net assets         $124,532  Total net assets         $142,523
Given the above, the Tribunal is satisfied that the assets of the applicant and/or her spouse, in the main business in Australia had a net value of at least AUD100,000 throughout the period of 12 months ending immediately before the application is made. There is no evidence before the Tribunal to suggest that the assets were not lawfully acquired. The Tribunal accordingly finds that the applicant does meet cl.890.212.
DECISION
The Tribunal remits the application for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 890 (Business Owner) visa:
·cl.890.212 of Schedule 2 to the Regulations.
Glen Cranwell
Member

Details

AGLC: 1515947 (Migration) [2016] AATA 4083
Case: [2016] AATA 4083
Decision Date: 6 July 2016

CaseChat Overview and Summary

This matter concerned an application for a Subclass 890 (Business Owner) visa. The applicant sought to include a shareholder loan of $104,000 in the calculation of the net assets of her main business in Australia for the purpose of satisfying clause 890.212 of the Migration Regulations 1994. The Tribunal had previously determined that this shareholder loan could not be included because it had been placed in a term deposit, rendering it an inactive investment rather than funds used to fund business activities.

The primary legal issue before the Tribunal was whether the wording of clause 890.212 required the shareholder loan to be actively used in the business, or if its mere existence as a net asset of the business was sufficient. The Tribunal considered a previous judicial review decision, *He v Minister for Immigration* [2015] FCCA 2915, which found that the clause did not necessitate the loan being "genuine" in the sense of being actively employed in business operations.

Applying this interpretation, the Tribunal recalculated the applicant's net assets. Including the shareholder loan, the net assets in the main business were $124,532 as at 31 December 2012 and $142,523 as at 31 December 2013. The Tribunal was satisfied that these figures met the requirement of having a net value of at least AUD100,000 throughout the 12 months preceding the application, and that there was no evidence to suggest the assets were not lawfully acquired. Consequently, the Tribunal found that the applicant met the criteria under clause 890.212. The Tribunal remitted the application for reconsideration with a direction that the applicant meets this specific criterion.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant must satisfy cl.890.212, which provides:890.212The 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. The issue in the present case is whether the applicant may include in the calculation of her net assets in her main business a shareholder loan of $104,000, which Mirror then placed in a term deposit. The Tribunal as previously constituted applied the relevant policy advice in PAM3, finding that because Mirror put the shareholder loan in a term deposit, the loan monies were used as an inactive investment and not used to fund Mirror activities. Therefore, the applicant could not rely on his shareholder loan in the calculation of net assets for the purpose of satisfying 890.212. Upon judicial review, the Federal Circuit Court in He v Minister for Immigration [2015] FCCA 2915 found the wording of cl.890.212 did not connote a necessity for the loan to be genuine. Accordingly, the Tribunal calculates the net value of the assets of the applicant and her spouse for the relevant 12 month period as follows:As at 31 Dec 12 as at 31 Dec 13Net assets in Mirror $20,532 Net assets in Mirror $38,523Shareholder Loan $104,000 Shareholder Loan $104,000Total net assets $124,532 Total net assets $142,523 Given the above, the Tribunal is satisfied that the assets of the applicant and/or her spouse, in the main business in Australia had a net value of at least AUD100,000 throughout the period of 12 months ending immediately before the application is made. There is no evidence before the Tribunal to suggest that the assets were not lawfully acquired. The Tribunal accordingly finds that the applicant does meet cl.890.212. DECISION The Tribunal remits the application for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 890 (Business Owner) visa:·cl.890.212 of Schedule 2 to the Regulations.Glen CranwellMember

Decision

Reasons for decision

Given the above, the Tribunal is satisfied that the assets of the applicant and/or her spouse, in the main business in Australia had a net value of at least AUD100,000 throughout the period of 12 months ending immediately before the application is made. There is no evidence before the Tribunal to suggest that the assets were not lawfully acquired. The Tribunal accordingly finds that the applicant does meet cl.890.212. DECISION The Tribunal remits the application for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 890 (Business Owner) visa:·cl.890.212 of Schedule 2 to the Regulations.Glen CranwellMember

Ratio Decidendi

Legal Principle Established

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