Badenhorst and Minister for Immigration and Multicultural Affairs

[2006] AATA 742

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 742

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2005/1549
  N2005/1550
  N2006/585 - 587

ADMINISTRATIVE APPEALS DIVISION		)
Re		FREDERIK BADENHORST

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal The Hon R N J Purvis, AM QC, Deputy President

Date28 August 2006

PlaceSydney

Decision The decisions under review are set aside. To the extent that it may be necessary, the applications are remitted to the Respondent for such further consideration as may be warranted. The Applicant has satisfied the requirements of s 134(2).

[Sgd] The Hon R N J Purvis, AM QC   Deputy President

CATCHWORDS

MIGRATION ACT – Business skills visa cancelled – Whether the Applicant made a genuine effort to meet the requirements of s134(1) – Exercise of residual discretion considered –genuine effort made up to and after the cancellation date – Further time to be granted to enable Applicant to fulfil the statutory obligations.

LEGISLATION

Migration Act 1958 SS 134, 136

The Migration Series Instructions – 133 Visa Cancellation under subdivision G – Cancellation of Business Visa

CASE LAW

Malcov and Minister for Immigration and Multicultural Affairs [2005] AATA 1290

Freeman v Secretary, Department of Social Security (1988) 19 FCR 342

Re Griffiths and Migration Agents Registration Authority [2001] AATA 240

Re Lau and Minister for Immigration and Multicultural Affairs [2002] AATA 703

Re Halim and Minister for Immigration and Multicultural Affairs [2002] AATA 767

Kim v Minister for Immigration and Multicultural Affairs [2004] FCA 31

Best and Minister for Immigration and Multicultural Affairs [2005] AATA 348

Negaria and Minister for Immigration and Multicultural Affairs [2004] AATA 579

Yam and Minister for Immigration and Multicultural Affairs [2004] AATA 283

REASONS FOR DECISION

28 August 2006 The Hon R N J Purvis, AM QC, Deputy President        

the applications

1.      There are five applications pending before the Tribunal. By agreement they are to be heard together.

2.      The first application is that of Mr Frederik Badenhorst (“the Applicant”) where he seeks to have the Tribunal set aside a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Respondent”) made on 28 November 2005 whereby his Business Skills (Migrant) (Class AD) (Sub-class 127-Business Owner) visa was cancelled.

3.      The application of Mrs Lynette Badenhorst also seeks a setting aside of the decision of the Respondent made on the same day as that of her husband. The remaining three applications are those of the children of the Applicant and Mrs Badenhorst lodged on their behalf for greater caution. The children are Christopher, Michael and Nicola Badenhorst.

4.      In the reasons given by the Respondent for cancellation of the Business Skills visa held by the Applicant it was amongst other matters stated:

“.…I received your response to the notice of intention to cancel on 2 September 2005.

You stated the following:

·You have held discussions with a few people in regard to purchasing a business and you will continue to pursue business opportunities;

·You are currently investigating two businesses: ‘World of Golf’ and ‘Ace Hobby Distributors’ (Aust) Pty Ltd;

·Your investment portfolio has a current market value of $177,613;

·Your parents and your brother and his family are Australian citizens.

… It appears based on your 24-months survey and the response to the Notice of Intention to Cancel that you have not obtained a substantial ownership interest in an eligible business in Australia, subsequently you are not involved in the day-to-day management of a business at a senior level. Therefore, I am currently of the opinion that you are not meeting your visa requirements under section 134(1)(a) and 134(1)(b).

I am not satisfied that you:

(a) have obtained a substantial ownership interest in an eligible business in Australia; or

(b) are utilising your skills in actively participating at a senior level in the day-to-day management of that business; or

(c) do intend to continue to:

(i) hold a substantial ownership interest in; and

(ii) utilise your skills in actively participating at a senior level in the day-to-day           management of;

an eligible business in Australia…

I am satisfied that you have not demonstrated that you are making, or intend to make, the above genuine efforts for the following reasons:

·     You have stated that you have held discussions with a few people in regard to purchasing a business in Australia, however, you have not provided sufficient documentary evidence to support these claims;

·     You have not provided evidence of serious business research undertaken by you or evidence that you have explored business opportunities in Australia in general;

·     You have not presented any evidence that you have entered into negotiations, agreements or signed contracts for future business activity or that you have commenced or are close to commencing business activities in Australia;

·     While you have submitted your financial portfolio evaluation, this merely demonstrates that you have made investments in Australia but have not obtained a substantial ownership in an eligible business;

·     There is no evidence that you have bought any real estate or fixed assets in Australia. I am not fully satisfied that you are committed to engaging in business activity in Australia or that you intend to comply with the conditions of your business visa;

·     You have not provided detailed business plan which could be seen as genuine, realistic or achievable;

·     You also stated that you would like to feel confident about making your decision about a business and would not like to be rushed into it. However, at the time of applying for a Business Skills visa, you signed the Business Skills Declaration. This declaration stated that you must fulfil your visa requirements within three years of your initial arrival in Australia.

…”

5.      I have set out the above reasons in order to identify the material then available to the Respondent and upon which the cancellation decisions were made. The evidence tendered before the Tribunal is not only more extensive than that presented to the Respondent but has been the subject of oral evidence and cross-examination. It is also fair to say that the issues to be addressed by the decision maker were more clearly outlined before the Tribunal and the subject of a more detailed examination than was able to be performed by the Respondent. But then, that is why the appeal process to the Administrative Appeals Tribunal is available. Whereas in the present applications, the decision of the Respondent is to be set aside, this is not to say that the original decision based on the material then available was necessarily wrong. Rather that on the basis of the evidence now presented before the Tribunal the correct or preferable decision is to allow the appeals.

the issues

6.      The issues for determination differ application by application. As to the Applicant they relate to whether he:

·has made a genuine effort to meet the requirements of section 134(1) of the Migration Act 1958  (“the Act”) namely:

- made a genuine effort to obtain a substantial ownership interest in an   eligible business in Australia; and

- made a genuine effort to utilise his skills in actively participating at a senior           level in the day-to-day management of an eligible business in Australia.

·should have the benefit of the section 134 residual discretion.

7.      There is no issue in the application that the Applicant had not at the time of the cancellation decision obtained a substantial ownership interest in an eligible business in Australia or utilised his skills in actively participating in a senior level in a day-to-day management of an eligible business in Australia.

8.      As to Mrs Badenhorst the issue relates to the extreme hardship she says she would suffer in the event of her husband’s visa being cancelled and also in the event of her children’s visas being cancelled. The residual discretion should be exercised in her favor.

9.      As to the three children it is maintained on their behalf that:

(i)the purported cancellation of their visas was invalid, no separate notice having been given to them of the intended cancellation or the purported cancellation; and

(ii)they will each experience extreme hardship in the event of their father’s visa being cancelled; and

(iii)the residual discretion in s 134 of the Act should be exercised in their favour.

10. It is to be noted however that if the Applicant is able to establish to the satisfaction of the Tribunal that he has made the genuine effort required by s 134(2)(a) and s 134(2)(b) of the Act, the cancellation of the visas of Mrs Badenhorst and the three children would be set aside. It was as a consequence of the cancellation of the Applicant’s visa that the other four visas were also cancelled.

the hearing

11.     At the hearing of the applications, the Applicants were represented by Mr Ray Turner, Solicitor. The Respondent was represented by Mr Tigiilagi Etenati, Solicitor of Clayton Utz Lawyers.

12. The documents lodged with the Tribunal and served on the Applicants pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked T1 to T4 and T1 to T12. Other written material tendered on behalf of the Applicants was also admitted and marked as exhibits. The latter comprise:

Exhibit No	Description	Date
A	Statutory declaration of Michala Guest	21 February 2006
B	Statement of Frederik Badenhorst	26 July 2006
C	ANZ bank statements of F.Badenhorst	various
D	Bundle of docs “World of Golf”	various
E	List of Questions to Toy Traders	29 June 2006
F	Financial report of Toy Traders	various
G	Financial report of Trilwin P/L	various
H	Bundle of docs _- Highgro Inv P/L	various
J	Highgro Inv P/L ANZ bank statement	various
K	Letter from Garry Kellett – Ace Hobby Distributors (Aust.) Pty Limited Director	undated
L	Statement of Mrs Lynette Badenhorst	undated
M	NSW Squash Ranking (2 pages)	various
N	NSW Squash Junior Teams 2006	22 June 2006
O	Grammar School Report 2006	various
P	Statement of Petrus Johannes Badenhorst	22 July 2006
Q	Statement of Hendriena Badenhorst	undated

13.      The Applicant, Mrs Lynette Badenhorst, Mr Petrus Badenhorst (the father of the Applicant) and Mr Kellett (Director of Ace Hobby Distributors (Aust.) Pty Limited) gave oral evidence upon which they were each cross-examined.

relevant legislation and instructions

The relevant provisions of the Act are:

S 134 – Cancellation of business visas

(1) Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australia visa, an investment-linked visa or a family member's visa), by written notice given to its holder, if the Minister is satisfied that its holder:

(a) has not obtained a substantial ownership interest in an eligible business in Australia; or

(b) is not utilising his or her skills in actively participating at a senior level in the day-to-day management of that business; or

(c)  does not intend to continue to:

(i)      hold a substantial ownership interest in; and

(ii)      utilise his or her skills in actively participating at a senior level in the day-to-day management of;

an eligible business in Australia.

(2) The Minister must not cancel a business visa under subsection (1) if the Minister is satisfied that its holder:

(a) has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and

(b) has made a genuine effort to utilise his or her skills in actively participating at a senior level in the day-to-day management of that business; and

(c)    Intends to continue to make such genuine efforts.

(3) Without limiting the generality of matters that the Minister may take into account in determining whether a person has made the genuine effort referred to in subsection (2), the Minister may take into account any or all of the following matters:

(a)   business proposals that the person has developed;

(b)   the existence of partners or joint venturers for the business proposals;

(c) research that the person has undertaken into the conduct of an eligible business in Australia;

(d) the period or periods during which the person has been present in Australia;

(e) the value of assets transferred to Australia by the person for use in obtaining an interest in an eligible business;

(f) the value of ownership interest in eligible businesses in Australia that are, or have been, held by the person;

(g)   business activity that is, or has been, undertaken by the person;

…

(4) Subject to subsection (5) and to section 135, if:

(a) the Minister cancels a person's business visa under subsection (1) or (3A); and

(b) a business visa is held by another person who is or was a member of the family unit of the holder of the cancelled visa; and

(c) the other person would not have held that business visa if he or she had never been a member of the family unit of the holder of the cancelled visa;

the Minister must cancel the other person's business permit or business visa by giving written notice to that person.

(5) The Minister must not cancel the other person's business visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person.

(6) The Minister is taken not to have cancelled a person's business visa under subsection (4) if the Administrative Appeals Tribunal has set aside the decision of the Minister to cancel the business visa of the relevant person to whom paragraph (4)(a) applied.

(7) If the Minister cancels a business visa under this section, the Minister must include in the notice given to its holder:

(a)   the Minister's reason for the cancellation; and

(b) a statement to the effect that the holder may, within 28 days after receiving the notice, apply to the Administrative Appeals Tribunal for review of the cancellation.

…

(10) In this section:

…

eligible business means a business that the Minister reasonably believes is resulting or will result in one or more of the following:

(a) the development of business links with the international market;

(b) the creation or maintenance of employment in Australia;

(c) the export of Australian goods or services;

(d) the production of goods or the provision of services that would otherwise be imported into Australia;

(e) the introduction of new or improved technology to Australia;

(f) an increase in commercial activity and competitiveness within sectors of the Australian economy.

…

ownership interest, in relation to a business, means an interest in the business as:

(a) a shareholder in a company that carries on the business; or

(b) a partner in a partnership that carries on the business; or

(c) the sole proprietor of the business;

including such an interest held indirectly through one or more interposed companies, partnerships or trusts.

relevant designated investment, in relation to an investment-linked visa (other than a family member's visa), means the designated investment that was, in deciding to grant the visa, regarded as satisfying the criterion referred to in paragraph (a) of the definition of investment-linked visa.

return visa has the same meaning as in the regulations.

135 Representations concerning cancellation of business visa

(1) Before cancelling a visa under subsection 134(1), (3A) or (4), the Minister must give its holder a written notice:

(a) stating that the Minister proposes to cancel the visa; and

(b) inviting its holder to make representations to the Minister concerning the proposed cancellation within:

(i) if the notice is given in Australia—28 days after the notice is given; or

(ii) if the notice is given outside Australia—70 days after the notice is given.

(2) The holder may make such representations to the Minister within the time specified in the notice.

…

14.     The Migration Series Instructions -133 Visa Cancellation under subdivision G – Cancellation of Business Visa provides what is said to be guidance as to whether a genuine effort has been made for the statutory purpose. The guidelines are not binding upon the Tribunal however, they are of assistance in determining the statutory prerequisites. They are not exhaustive.  The factors to be considered as stated in the instructions are:

“…

(a)  business proposal which is considered genuine, realistic and achievable;

(b)  formal contract with partners or joint ventures;

(c)  written evidence of detailed consultations with at least three business advisers…;

(d)  physical presence in Australia for more than six months since first arrival as a Business Skills class migrant;

(e)  transferred to, and retained in Australia at least 50 per cent  of the funds indicated as available for transfer within two years…;

(f)   minimum A$100,000 or 10 per cent ownership previously held by the person;

(g)  minimum A$100,000  business activity as indicated by turnover. This may include other business activity not considered in “eligible business” but cannot include passive investment, e.g. purchase of shares.

…”

15.     Whilst it may be true, as submitted on behalf of the Applicants, that the Migration Series Instructions are designated for an earlier period they do nevertheless provide guidance for a decision maker.

factual situation relevant to business activity and findings of fact

16.     In about 1984 Mr Petrus Johannes Badenhorst, the Applicant’s father, began to make arrangements to leave South Africa and migrate to Australia.  The motivation to leave South Africa was engendered by reason of the societary changes that were then occurring in that country, and his lack of confidence in the future so far as his children and grandchildren was concerned. The arrangements to relocate took some time to put in place and it was not until 1999 when he was then 63 years of age that he left South Africa and with his wife established a residence in this country at Kenthurst New South Wales. Assets were transferred, real estate purchased and investments made.  The two of them became Australian citizens in 2002.

17.      In his evidence before the Tribunal Mr Badenhorst Senior explained in greater detail his concerns at the time he was living in South Africa. The country no longer maintained values that he respected. He had experienced murder of a member of his family at the hands of thieves and was apprehensive for the physical and emotional welfare of his adult children and his grandchildren (the three children party to these proceedings) the latter having been very close to him and his wife since their births. He maintained a constant concern for his own personal safety and that of his family. Employment prospects were becoming limited as the government sought to ensure ethnic groups were represented in employment proportionate to their numbers in the overall population.

18.      Even be it Mr Badenhorst Senior had been a frequent visitor to Australia, he did at first experienced “immigration shock” and it “took some time” for him and his wife to adjust as much to the absence of fear as anything else.

19.     The Applicant was born in South Africa and has for a number of years carried on business in that country. He is married with the three Applicant children.

20.     On 13 June 2001 the Applicant applied for a Business Visa covering himself and his family. The visas were granted on 14 February 2002. On 9 August 2002 in order to arrange their relocation to Australia the Applicant and his family first entered Australia and shortly thereafter returned to South Africa.

21.     It was not until January 2004 that the Applicant and his family did relocate and began to reside in an extension built upon the home owned by the Applicant’s parents at Kenthurst. The family has continued and intends to continue to reside with the Applicants parents.

22.     As with Mr Badenhorst Senior, so with the Applicant, he was, according to his father, disoriented in direction and location upon his arrival in Australia. Since about 1990 he had carried on the business in South Africa as a wholesaler and retailer of Hobby Models. The business was and is successful. It was and is the Applicant’s intention in due course to dispose of his interest in the South African business. This was not however a practical course to adopt until he had established a reliable source of income in Australia with which to support his family. In the meantime, he was to manage the South Australian business by constant telephone contact and occasional visits to that country whilst endeavouring to locate and invest in a business in Australia similar to that in South Africa. According to Mr Badenhorst Senior the Applicant “has entrepreneurial skills” which had led to his “building up the second biggest toy business in South Africa”. He is “a conservative investor” but there was “never a lack of intent on his part, the capital is there” to invest. Whilst he, Mr Badenhorst Senior might have made a speedy decision, his son, the Applicant had “to run his own race”.

23.     The business carried on by the Applicant in South Africa deals in hobby items, especially model racing cars and accessories on a wholesale and retail basis. It has 15 employees as well as a general manager with an annual turnover of not less than $6 million. The retail business operates from two shops. It is number two staff-wise in South Africa having a greater range of items than any other similar company in that country.

24.     The Applicant is still involved in organising the activities of the South African enterprises, is in constant contact with staff and travels to South Africa every few months. As has already been indicated, it is his intention to dispose of his interest in the business. He has no intention of returning to live in South Africa. At present this business is the family’s major source of income.

25.     The motivation for the Applicant to leave South Africa and live in Australia was similar to that of his parents who had by then established themselves in this country and had made arrangements to accommodate their son and his family. The Applicant took about two years to effect the transfer to Australia, this on account of the children’s schooling, the need to dispose of real estate and reorganize the management arrangements for his business; “to get more done referable to sale of the business”.

26.     The Applicant had no need to move with haste in investing funds in Australia. He had income from South Africa and accommodation provided by his father. The children were enrolled in the Hills Grammar School and Mrs Badenhorst, the Applicant’s wife, soon became involved in the school and local activities.

27.     The Applicant did however, shortly after his arrival in Australia, begin to seek opportunities to invest, if possible, in a business similar to that which had been and still was being carried on by him in South Africa. He researched through magazines and the internet. When visiting a Hobby Cars Race meeting he was introduced to a Mr Garry Kellett, the owner of a business trading under the name Ace Hobby Distributors (Aust.) Pty Limited (“Ace Hobbies”) which business carried on activities not dissimilar to that of his own in South Africa. Following discussions, Mr Kellett indicated an interest in selling the whole or a part of his business to the Applicant.

28.     The Applicant considered it necessary for him to become familiar with local business practices and conditions, and more specifically those of Ace Hobbies and accordingly made arrangements to work for Mr Kellett generally two days a week.  His work activities related to “whatever needed to be done in order to get to know the business”. By May 2005 the Applicant was prepared to commence negotiation with Mr Kelett in order to buy an interest in Ace Hobbies which Mr Kellett tentatively valued at $1 million. He asked to see current financial information. He was provided with figures relating to past periods and told that current financial accounts would be available to him after the end of the then financial year. As at the time of the cancellation decision, the accounts had not been made available, they not having as yet been prepared by the company’s accountants.

29.     Provided that the financial information was acceptable, the Applicant intended at the time of the cancellation decision and presently intends to pursue arrangements to acquire a significant interest in the business, if not the whole. Some of the products dealt with are the same as in his South African business others different. It would not be difficult he says to introduce the latter South African items into the Australian market.

30.     Mr Kellett in his oral evidence told the Tribunal about the negotiations he had had with the Applicant commencing in about the middle of 2005 and his willingness to sell a part or the whole of the business of Ace Hobbies. If he was to sell a part of the business, the proportion would be between 20 per cent and less than 50 per cent. He said that he was “fairly keen” to sell.  If a sale was effected the Applicant’s expertise would warrant his acting in a managerial role so far as the business was concerned.  He confirmed the Applicant’s request for up to date financial information before he could give appropriate consideration to the offer made by Mr Kellett. He also confirmed that the Applicant had been regularly asking for the up to date figures and believes that when they are available the Applicant will act.  In the meantime he had employed the Applicant on a casual basis in order that he could obtain an awareness of how the business was managed and operated. The business maintained wholesale and retail divisions, the former retaining four full-time and one part-time employee, the latter five full-time and six part-time employees.

31.     The Applicant’s intent to acquire an interest in a business in Australia has not however been restricted to Ace Hobbies. He has maintained his intention up until the time of the cancellation decision and beyond. Whilst in South Africa he developed interested in and became a member of, an organisation trading as "World of Golf". He became aware of a proposal to establish a similar body in Australia and that the promoters looking for investors at $1 million each. He was provided with financial/promotional information. His involvement would be mainly as an investor. The negotiations are continuing. 

32.     Consistent with his interest in Ace Hobbies and whilst waiting for the financial information, the Applicant in March 2006 attended the Australian Hobbies Fair. He inquired as to businesses that might be on the market. He was introduced to an organisation “Toy Traders” and its management. He met with the company executives and was provided with financial statements on a confidential basis. After examining the material he put a number of questions to the management. Toy Traders is longer established and larger in turnover than Ace Hobbies and is said by the Applicant to have “some of the best agencies in the industry”. The Applicant has expressed interest, in the event of the Ace Hobbies acquisition not eventuating, in acquiring Toy Traders. He has tentatively offered $2.5 million for stock, goodwill and debtors. He would not take over any liabilities. He would need to sell the South African business in order to fully finance the acquisition, even be it he has brought funds, as shortly to be mentioned, to Australia, these being available to finance a down payment.

33.     The Applicant had at the time of the cancellation of his business visa brought into Australia funds in the vicinity of $300,000, most of which he has now invested in a family company Highgro Pty Limited of which company the Applicant  is a director and shareholder. The funds are available for the acquisition of the interest in Ace Hobbies if negotiations should be fruitful, or if not, in World Traders or another venture. He says that the funds were not placed with Highgro Pty Limited at an earlier date on account of his confidence in the Ace Hobbies “deal” sooner eventuating. If the latter is to come to pass the family company will probably now acquire the interest. At the time of the hearing of the present application the Applicant had transferred to Australia not less than $500,000. Highgro Investments Pty Limited had funds of $514,780 at the relevant time available for investment.

genuine effort and discretion – submissions and decision

34.     As was stated in Malcov v Minister for Immigration and Multicultural Affairs [2005] AATA 1290, at paragraph 41, the Tribunal may have regard to all relevant evidence to enable the making of findings of fact in relation to the cancellation of the Applicant’s, Mrs Badenhorst’s and their three children’s visas as at the date of the decision that is 28 November 2005 (Freeman v Secretary, Department of Social Security (1988) 19 FCR 342; Re Griffiths and Migration Agents Registration Authority [2001] AATA 240.) The Tribunal is also entitled to look to future intentions (Re Lau and Minister for Immigration and Multicultural Affairs [2002] AATA 703; Re Halim and Minister for Immigration and Multicultural Affairs [2002] AATA 767). It is true to say however, that whilst activities and transactions entered into after the date of cancellation of the visas may be relevant to establish intention they may also be of assistance if they represent the outcome of preparatory activities commenced prior to cancellation.

35.     The Applicant had not at the relevant time obtained a substantial ownership interest in an eligible business in Australia nor utilised his skills in actively participating at a senior level in the day-to-day management of an eligible business. There is not any issue as to this being so.  However, the Applicant maintains that he has made a genuine effort to obtain a substantial ownership interest and made such an effort to utilise his skills in actively participating at a senior level in the day-to-day management of an eligible business in Australia.

36.     It is maintained on behalf of the Applicant that his decision to participate in the activities of Ace Hobbies is preparatory to his ownership of and participation in the management of the business, one that he intends to take over if negotiations are successful. He will acquire the interest or ownership if he is able to negotiate an acceptable acquisition price. The finance is available. The evidence is such as to satisfy the Tribunal that the Applicant not only intended to acquire an interest in an eligible business but that his efforts in this regard are ongoing.

37. Even if the statutory prerequisites have not been established it is maintained that in all the circumstances of this application, the discretion available to the decision-maker pursuant to section 134(1) of the Act should be exercised in the Applicant’s favour. The explanation afforded as to why there has not been completion of negotiations to the point of assessment of value and carrying into effect of offer and acceptance is accepted by the Tribunal. The power to cancel is a continuing one and the ongoing motivation is such as would warrant the discretion being exercised (see Kim v Minister for Immigration and Multicultural Affairs [2004] FCA 31). The Tribunal has a discretion not to exercise the power to cancel a business visa even if the criteria set out in s 134(1)(a)(5)(c) are not satisfied (Best and Minister for Immigration and Multicultural Affairs AATA [2005] 348(2005/386) at paragraph 47; Negaria and Minister for Immigration and Multicultural Affairs [2004] AATA 579). A common ground on which that discretion can be exercised in favour of an Applicant is that further time should be given to the visa holder to undertake what was required of him or her (Kim v MIMIA) (supra) paragraph 21). That is the situation in the present application.

38.     The Tribunal is satisfied that the circumstances outlined in Kim (supra) and Best (supra) are relevant to the present decision. Whilst it cannot be said that in every instance time should be given, where efforts are found to be genuine and directed to the statutory intention and sufficient to warrant more time being made available to meet the statutory requirements then the discretion should be exercised. As maintained on behalf of the Applicants the discretion is unfettered. However it is to be exercised having in mind the ends sought to be achieved by the statutory provisions.

39.     Consistent with the exercise of the discretion is heed being paid to events after the cancellation of the visa and as to whether there are continuums of earlier efforts. The Tribunal is satisfied that the Applicant intends to continue to make efforts to achieve the relevant acquisition. The efforts made so far have been genuine and are beyond that which may be described as purely “superficial or token” (Yam and Minister for Immigration and Multicultural Affairs [2004] AATA 283, paragraph 53.) The Tribunal does not accept a submission made on behalf of the Respondent that the Applicant has “continued involvement in the South African business” and that this may have affected his capacity to make a genuine effort to obtain a substantial ownership interest in an eligible business in Australia. The Tribunal is satisfied that the Applicant has sought to obtain a relevant interest and has continued involvement in the South African business only in order to maintain his ability to realise that investment and in the meantime take care of his family. The Tribunal does not accept that the Applicant intends to continue his South African business activities once he has acquired a relevant business interest in Australia.

40.     The Tribunal is satisfied that the business intent expressed by the Applicant referable to Ace Hobbies and Toy Traders is genuine, realistic and achievable once the Applicant is appraised of reliable financial information. No formal contract with partners or joint venturers has yet emerged, but on the evidence of Mr Kellett a tentative proposal has been made, an agreement is yet to be reached. Again, whilst written evidence of detailed consultations is not available, the oral evidence is sufficient to establish that the Applicant is sincere and genuine in his endeavours to obtain a relevant business interest. A genuine effort had been undertaken by the Applicant up until the date of cancellation and is continuing in order for him to obtain a substantial ownership interest in an eligible business. He had made genuine effort up until and as at the date of cancellation and he has maintained that effort in order to participate at a senior level in the day-to-day management of an eligible business. He is presently equipping himself to this end. The evidence before the Tribunal as to the Applicant’s involvement in Toy Traders is relevant as it “casts some light on the position at the relevant cancellation date”. That is, it confirms the Applicant’s intention to become a participant in an eligible business in Australia at a management level. His activities are indicative of a genuine effort on his part to satisfy the threshold test. It has not been superficial or token. It has been progressed to the extent that funds are available, negotiations are maintained and completion could well shortly eventuate. The Tribunal is satisfied that the Applicant has anything but “remained in-active up to the date of cancellation” as contended on behalf of the Respondent.

41.     It is true to say that the prospective investment in “World of Golf” was more in line with seeking a return on funds made available than active participation by the Applicant in a business itself. However this situation was and is not the position referable to the prospective investment in Ace Hobbies or Toy Traders.  This is not to say that the Applicant may not have become involved in a senior management position with World of Golf. However the evidence is not available at this time to that effect. On the other hand so far as Ace Traders is concerned the Applicant has satisfied the Tribunal that he has engaged in “a pro-active pursuit of business activity” this evidenced by his preparedness to work with the company and thereby familiarise himself with the nature of its business and the management of it. He undoubtedly took and has taken time to locate a suitable investment opportunity. However the Tribunal is not satisfied that this was as a result of a lack of enthusiasm or interest on his part, but rather that he sought to familiarise himself with the business and commercial environment in Australia. He did start working with Ace Hobbies shortly after his initial discussions with Mr Kellett. The Applicant’s involvement and continuing involvement with his business interest in South Africa is not such as to impact upon his intention to acquire a relevant interest in a business activity in Australia. It is merely to ensure that sufficient funds will arise from a realisation of his South African business activity to effect acquisition of the business interest in Australia and that there is continued income for his family pending his acquisition of such a relevant interest. The fact that he has not as yet concluded his negotiations with Mr Kellett does not impinge upon his intent. The Tribunal is satisfied that the efforts he has made to the date of cancellation and continuing are genuine.

42.     Accordingly the Tribunal is satisfied that the Applicant has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia and that he has made a genuine effort to utilise his skills in actively participating at a senior level in the day-to-day management of an eligible business in Australia. This being so, it is not necessary for the Tribunal to determine whether the discretion available to it should be exercised. If, however, the situation had arisen, where the exercise of the discretion would have been relevant then having in mind all of the circumstances of this matter and the involvement of the Applicant in the various business activities earlier identified in these reasons the Tribunal would have exercised the discretion in the Applicant’s favour. 

43.     The Tribunal accordingly will set aside the decisions under review and remit the matter to the Respondent for such further consideration as may be appropriate. This being so it is not necessary for it to consider the other issues that were raised on behalf of the applicants.

44. However it may be of value to indicate that it is the view of the Tribunal that with reference to the question of Notice being given to the child applicants, it would be in accord with the express provisions of the Act for separate notices to have been addressed to the children. The Act says so in unequivocal terms. Even be it, the recipients are under the age of 18 years, nevertheless their interests are distinct from those of their parents, especially when considering the issue of “extreme hardship”. The legislation requires that a notice is to be given to them and a notice addressed to a parent alone is not sufficient.

45. The decisions under review are set aside To the extent that it may be necessary, the applications are remitted to the Respondent for such further consideration as may be warranted. The Applicant has satisfied the requirements of s 134(2).

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis, AM QC, Deputy President

Signed:         Jarni C Simpson
  Associate

Date/s of Hearing  26 & 27 July 2006
Date of Decision  28 November 2005
Solicitor for the Applicant          Mr R. Turner
Solicitor for the Respondent     Tigiilagi Eteuati