Bosomworth and Minister for Immigration and Citizenship
[2008] AATA 283
•9 April 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 283
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0781
GENERAL ADMINISTRATIVE DIVISION ) Re ROBIN BOSOMWORTH Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Ms Robin Hunt, Senior Member Date9 April 2008
PlaceSydney
Decision The decision under review is set aside. ..................[Sgd]....................
Ms Robin Hunt
Senior Member
CATCHWORDS
MIGRATION – business skills visa – cancellation – eligible business – insufficient involvement in day-to-day management – consideration of genuine efforts – nature of residual discretion – exercise of discretion in applicant’s favour – decision under review set aside
Migration Act 1958 ss 134(1), (2), (3), (5), (10), 499
Migration Amendment Bill (No 2) 1992
PAM 3 Visa Cancellation Instructions - Business Visas
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Kim v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 38 AAR 304
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Skoljarev v Australian Fisheries Management Authority (1995) 133 ALR 690
REASONS FOR DECISION
9 April 2008 Ms Robin Hunt, Senior Member summary
1. Mr Robin Bosomworth, the applicant, is a businessman who told the tribunal he has bases in South Africa, Namibia, Mauritius and London as well as his business interests in Australia. Mr Bosomworth was the holder of an Australian Business Skills (subclass 127) visa. A delegate of the Minister cancelled this visa on the grounds that Mr Bosomworth had not met conditions for the visa. This is the reviewable decision of which Mr Bosomworth seeks review.
decision
2. I am satisfied that Mr Bosomworth has made genuine efforts in respect to his eligible business and so his Business Skills (subclass 127) visa must not be cancelled.
background
3. Mr Bosomworth was granted a Business Skills (subclass 127) visa on 30 July 2003. He entered Australia as the holder of this visa on 17 December 2003. Mr Bosomworth departed Australia one month following his entry in December 2003, leaving on 15 January 2004. He has travelled in and out of Australia twice since he was granted the visa. He did not return to Australia for another visit until two years after the first visit, on 5 January 2006. He departed again 15 days later, on 20 January 2006. After the 2006 visit, the Minister’s delegate notified Mr Bosomworth on 10 November 2006 of her intention to cancel his visa and then cancelled his visa pursuant to subsection 134(1) of the Migration Act 1958 (the Act) on 8 February 2007.
Issue
4. The question is whether Mr Bosomworth’s visa should be cancelled. If Mr Bosomworth has satisfied conditions of his visa, it must not be cancelled. The main requirements are that Mr Bosomworth obtain a substantial interest in an eligible business and participate in day-to-day management of that business at a senior level. If Mr Bosomworth has not done this, but I am satisfied he has made genuine efforts in respect to his eligible business, his visa must not be cancelled.
5. The Minister acknowledges that Mr Bosomworth has obtained a substantial ownership interest in an eligible business, namely, Lane Industries Australia Pty Ltd (Lane Industries). The delegate cancelled his visa because Mr Bosomworth had not been involved in the day-to-day management of that business at a senior level as required under subsection 134(1) paragraph (b) of the Act. Further, the Minister’s delegate was not satisfied that Mr Bosomworth had made genuine efforts in this regard.
applicable legislation
6.Section 134 of the Act provides, in part:
(1)Subject to subsection (2) and to section 135, the Minister may cancel a business visa … if the Minister is satisfied that its holder:
(a)…; 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)….
(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;
(h)…;
(i)….
7. The Minister’s Procedural Advice Manual, PAM 3:- Visa Cancellation Business Visas (PAM 3), explains aspects of the operation of the Act. Chapters 6 - 9 deal with the grounds for cancellation and elaborate on the legislative provisions. The guidelines assist consistency in decision making: Skoljarev v Australian Fisheries Management Authority (1995) 133 ALR 690 at 695 per Davies J. The tribunal is obliged to apply ministerial policy or departmental guidelines unless there is good reason not to do so: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
EVIDENCE ABOUT BUSINESS ACTIVITIES IN AUSTRALIA
8. Mr Bosomworth gave oral evidence about his qualifications and about his business background. He explained that he is an engineer but, in recent years, he mainly has involved himself in management. For around the last 30 years, Mr Bosomworth told the tribunal, he had been engaged in the business of a group of companies headed by Allens Meshco Pty Ltd (Meshco) in South Africa. The group comprises about 21 companies employing about 1500 people. It had been caught up in a takeover which did not proceed. Once he was back in South Africa, Mr Bosomworth was going to be working towards amalgamating all the related companies into a holding company. He then intended to restructure it and prepare for listing. At the time he gave evidence, he said this was only a proposal.
9. As a resident of Namibia, Mr Bosomworth said he was in the process of extracting himself from South Africa. He gave evidence that he probably spent more time at his Cape Town residence, which is where his wife and children reside. However, his status as a resident of Namibia enables him still to carry on business in South Africa. His Cape Town house and office are located in the same grounds. Mr Bosomworth said he walks from his house to his office premises every day and employs a secretary who works out of the office premises. He was lucky that he owned property in Namibia prior to independence which gave him residency because Namibia was previously part of South Africa.
10. During January 2006, Mr Bosomworth acquired approximately 20% of the shareholding in an Australian business, Lane Industries, which operates in Perth. He became a director of that company and invested approximately $200,000. The other shareholders and directors of Lane Industries are Mr David Wyness and Mr Steve Ithier, who are both former South African business associates of Mr Bosomworth and now permanent residents of Australia.
11. Mr Bosomworth gave further evidence that he and Mr Wyness had a 20 year successful commercial association in South Africa. Before Mr Wyness migrated to Australia in 2001, they discussed the possibilities of an Australian venture. Mr Wyness acquired Lane Industries in 2003 and approached Mr Bosomworth, seeking his involvement in the company. Mr Bosomworth said he provided Mr Wyness with commercial advice regarding the development of the business even before he became a shareholder and director of the company. His object was to guide Lane Industries towards the Western Australian wire mesh market. Mr Bosomworth explained he had concentrated his efforts in this regard, advising Mr Wyness and Lane Industries. He had not acquired an interest in the manufacturing business conducted by Mr Wyness, which is a separate entity. However, he had advised Mr Wyness about the development of this business as well. Its operations were part of the overall plan to establish manufacture and sales in Western Australia of heavy duty wire mesh.
12. Mr Bosomworth made three trips to Australia between 2002 and 2006. He described these trips as preparatory to setting up business in Australia. In 2002, he did not hold the now cancelled business visa. The trips in 2003/2004 and in 2006 were as a business visa holder. During the visits, Mr Bosomworth investigated opportunities in the wire mesh industry. In addition, he sent expert staff members to Australia to ascertain more about possible expansion in wire mesh markets.
13. His intention is to establish a mesh plant in Western Australia for the manufacture of a heavy duty mesh product for specific purposes in mining and industry. Mr Bosomworth said this mesh is unlike any produced in Australia. He has particular expertise in making such mesh. Towards setting up manufacture, Mr Bosomworth held discussions with Mr Richard Sobey of Clifford Engineering. Mr Bosomworth said these discussions led to the installation of a mesh plant in Perth involving Lane Industries and South African partners. Clifford Engineering acquired a mesh machine known as a Schlatter, and entered into a lease of premises for the manufacturing enterprise planned. The mesh operation should produce about 500 tonnes of mesh for many industrial applications. Mr Bosomworth said he expects turnover of about $6m per annum initially.
14. Although he did not have an ownership interest in Clifford Engineering, Mr Bosomworth said it was set up on his advice and in order to provide mesh for Lane Industries. He claimed Clifford Engineering’s directors relied on his expertise and advice in setting up these operations. In a sense, he explained he had financed the business. The other directors and shareholders in Lane Industries were the directors of Clifford Engineering. To acquire his share in Lane Industries, he had paid the directors of Clifford Engineering. This gave them the finance to buy the equipment necessary for the Clifford Engineering enterprise. Mr Bosomworth said he was also involved in the acquisition of a suitable property for the manufacture and with other issues. Mr Bosomworth, however, gave evidence to the effect that he was not very happy about the site Clifford Engineering acquired for their manufacturing activities.
15. In further oral evidence, Mr Bosomworth explained that Lane Industries also produces check out counters and equipment. Mr Bosomworth said he and Mr Wyness have investigated many potential business opportunities since 2003, ranging from joint ventures to export. They have exported or investigated exporting woven meshes from another manufacturer, Wire Mesh Industries in Sydney, and looked at acquiring Ideal Wire (Perth) and Stahl Trading (Sydney). They also made efforts to expand Lane Industries’ check out business to Tasmania, Brisbane and Sydney.
16. In addition to his involvement in the expansion of Lane Industries, Mr Bosomworth claimed involvement in operational issues such as staff recruitment. Mr Bosomworth gave evidence that finding workers was an ongoing problem as qualified and skilled personnel were lacking in Western Australia. Furthermore, he said he is involved in import and export policies of the enterprise and acquisition of supplies. His Australian business partners and associates involve him in all aspects of the business, in general management, planning and strategy issues and finance requirements for Lane Industries.
17. Mr Bosomworth took the tribunal through a bundle of material he produced. He briefly described how these documents related to certain investigations into the wire mesh industry, his ongoing involvement in Lane Industries and in business developments subsequent to his acquisition of a substantial interest in Lane Industries, which was all part of a chain of events demonstrating his business intentions in Australia. The documents Mr Bosomworth relied on to demonstrate his day-to-day involvement at a senior level in Lane Industries consisted of email exchanges, copies of handwritten notes, copies of brochures, copies of typed correspondence to postal addresses, real estate maps and plans, financial records, photographs of sites and buildings and other materials.
18. The first page of the bundle was dated 6 February 2003 and was a lengthy message emailed to “Dermody Ted Wire Mesh Industries”. The message mentioned a meeting that took place at West Ryde in Sydney and dealt with difficulties Mr Dermody was apparently experiencing with a machine purchased to manufacture wire meshes. Mr Bosomworth’s message gave information about current projects and alternatives should the problems with “the machine” not be sorted out shortly. A joint venture was one of the possibilities mentioned. Mr Bosomworth told the tribunal that this exchange illustrated that he and his associates were interested in going into mesh in Australia so they developed this relationship. His letter put out feelers about going into a joint venture with Mr Dermody’s organisation, considering that they didn’t have any knowledge or experience of wire mesh and “it was our forte”. They were looking into the industrial sector of the market involving mining mesh and special purpose sheets. Mr Bosomworth spoke again about the long standing and close business relationship between himself and David Wyness and said they had meetings in both Australia and South Africa which might go for a week and were very intense discussions.
19. The next document is an undated “business plan” with an attached 12 month financial forecast. The document is 3 pages in length and initially explains the reasons for selecting Perth to start “the operation”. This is followed by a copy of what appears to be a brochure about some Clifford Engineering mesh welders. The first page concerns “precision mesh welders” and the next page concerns “QSE mesh welders”. Mr Bosomworth gave oral evidence it was the business plan for the start up of “what we call Australian steel and wire operation, Perth”. He gave further evidence that, if they made a success of what they had already installed, they would bring in a QSE machine which was similar to what Wire Mesh Industries had in Sydney and which was used to manufacture “358” mesh, some of which is installed on “the Sydney bridge”. He said it was unclimbable mesh also used in prisons. He further explained that Clifford Engineering manufactured the equipment in South Africa. The office in Australia was a branch office and the manufacturing operations for plant and equipment was in South Africa.
20. Some handwritten notes addressed to “David” follow. This sheet is headed “Lane Industries” and lists 22 points. Next is an email exchange between “David@laneind” and someone with whom the sender apparently has a verbal agreement, which David says he is happy to continue. Part of the message from the other party to Lane Industries deals with a new check-out counter that is being developed. The end of the first message in the series refers to “legs” bought from the other party and quantities Lane industries requires. It is signed off by David Wyness although no actual signature appears. Mr Bosomworth is named on the copy line of the last email response from “David” to the supplier. This exchange took place in March 2006 and Mr Bosomworth gave evidence it was about the procurement of checkouts. He said a fair proportion of Lane Industries’ business was import due to severe labour shortages in Western Australia. They had been struggling to get cabinet makers so they imported checkouts and shelving. The emails were to do with import of checkouts from suppliers in Turkey.
21. A four page record, which ends in the form of an unaddressed letter signed by Ian JD McFall, Relationship Manager, is headed Lane Industries (Australia) Pty Ltd and dated 16 February 2006. This document details an offer Lane Industries placed on a commercial block and analyses approximate funding for the purchase and improvements. A loan proposal is set out with comparisons of total debt to value. The writer seeks confirmation of the proposal and points out that there is no legally binding offer.
22. An email from Mr Bosomworth addressed to Meshco, concerned the problems Lane Industries had to secure staff. He said he tried to shop around in the Cape Town market for cabinet makers and production managers and interviewed a couple of people but eventually decided that the Philippines was the best place and Lane Industries managed to get four or five people from there. As well as importing some products from Turkey, Mr Bosomworth said they import some goods from China and “tweak” them in Australia.
23. Some later handwritten notes, Mr Bosomworth said, were a record of discussions with David on the operational and organisational structure of Lane Industries. A computer printout with a handwritten note, Mr Bosomworth described as “just a couple of ideas”. He said a lot of pilferage occurs and this was basically checkouts designed to reduce pilferage “I passed on to David” but nothing really happened.
24. Chronologically, Mr Bosomworth said, in about January 2006, when he bought shares in Lane Industries, he and his co-directors decided to buy a block of land and make provision for a mesh factory and for Lane Industries to move its current operations over to Perth so that they could rationalise the operations. The parties had to get going so factory premises were leased. That factory was in a different suburb from Lane Industries with the result that they were about 10 kilometres apart. Mr Bosomworth thought this was unsatisfactory and it was set up on the wrong block of land as far as he was concerned.
25. Further documents indicate discussions between Mr Bosomworth and the other Lane Industries directors about related projects and ongoing developments. Another set of documents concerned discussions or dealings with FibreCorp and Stahl Trading. Without going into more detail, the documents supplied confirm Mr Bosomworth’s claims that he is in regular contact with David Wyness and various people about the affairs of Lane Industries and associated enterprises in Australia as well as organisations involved in steel manufacture and mesh industries in South Africa and other businesses or locations.
26. As to “Fibre Corp”, Mr Bosomworth told the tribunal that he or his associates bought this enterprise in Perth. However, “when we realised it would never be a viable operation in Perth we took the machines to South Africa and we set them up in Durban with a joint venture with Hendoks and Iscor which was Metal Steel.” As to “Stahl Trading”, Mr Bosomworth gave evidence to the effect that this was another option which was not “coming through” so far as the Minister’s deadline was concerned. He gave further evidence to the effect that discussions and acquisitions of which he spoke were made towards establishing a joint venture here. Events started in earnest about 2002-2003, and “the approaches that we made were essentially though Ari Amoils at Stahl Trading, and through Wire Mesh Industries. He said another entity investigated was Hurricane Wire in New Zealand which had a factory in Queensland. Another factory he visited with his wife was Newman Industries in Queensland. His dealings with Mr Dermody of Wire Mesh Industries stretched over about two years, starting when they came to Cape Town in about the middle of 2002. He and his wife had also checked out schools in Australia for his children.
27. When asked about his methods of communication, Mr Bosomworth said it was difficult to say. There was a nine-hour gap between Cape Town and Australia so the period in which you have to talk is first thing in the morning. His most important discussions with David Wyness took place in person in Cape Town or in Perth. If issues cropped up, he would phone David. Usually he phoned him at home rather than at the office because of the time difference. He phoned on the cell phone or the landline bearing in mind they both travelled a lot. He might be in London or in Namibia or Mauritius or at home. He had email contact, and face to face contact with Mr Wyness either in Cape Town or in Australia about three times a year.
28. Mr Bosomworth gave a great deal of further oral evidence about his objectives in Australia and his various contacts in South Africa. He said he did not have any assets or any income in South Africa and even the house in which he lived, in Cape Town, was owned by a Namibian company. This was part and parcel of the extraction process. The reason he had not come to Australia earlier was that it takes quite a few years of structuring “to be able to extricate yourself”.
29. Asked why he did not draw a salary from Lane Industries, he said he did not need a salary and “I don’t even draw a salary out of Allens Meshco”. When he came to Australia, depending on how the business was going, he might draw some income and pay some dividends.
30. When questioned about Lane Industries, Mr Bosomworth gave evidence that shopfitting was a cursory interest, so far as he was concerned. It formed a large part of keeping Lane Industries afloat but the bigger part of Lane Industries was the importing side, the shelvings and the checkouts. He was more involved in setting up “our trading company which we’ll be able to source out of China and one day everything is going to come from China”. The other side was the wire market which was “very much my interest”. In this connection, he gave evidence that Lane Industries had acquired 25% in Australian Steel and Wire (ASW), as the corporate vehicle to move Lane Industries into the wire mesh manufacturing business. Mr Bosomworth was not clear about the amount of time he allocated to his various business interests and enterprises.
31. The purpose of his initial discussions with the shareholding in Lane Industries was to expand the horizons for Lane Industries. Certain goods had been forwarded to Australia to start the operation. The goods were sent to ASW and came from Meshco in Cape Town. These goods were meshes in order to get the business going and to get some income until the manufacturing operation started up. They imported whatever orders they could, like mining mesh. They made the goods in Cape Town, sending it across here in containers. Rick Allen, Mr Bosomworth’s partner in South Africa, thought the stock was worth about 2.5 million rand which is about AUD$400,000. The machinery had arrived in Perth and had been set up in order to manufacture wire mesh. Some goods were stored in the premises of ASW. The machinery would commence operation once electricity was connected. They had been waiting for three weeks now for the electricity and it was otherwise all ready to go. He gave further evidence that he had put $120,000 into the venture. Some of the machines were not yet paid for and he and his partners were still discussing who would pay for what.
32. Mr Bosomworth expressed the view that, “if you have to put in a mesh factory in order to be able to get into Australia at my stage of life, well, then that’s what you have to do”. He added that Australia benefits from the machines and the factories and the jobs created, technology and port replacement and all that sort of thing. He added: “I think we scored five and a half out of six. So I think that’s the deal that Australia benefits and we benefit by being able to sleep peacefully at night in a civilised country.”
findings
33. The Minister accepts that the applicant has obtained a substantial ownership interest in an eligible business in Australia, being Lane Industries. I agree that this is the case considering Mr Bosomworth’s investment in Lane Industries and find that Lane Industries is an eligible business. He therefore meets the requirements of subsection 134(1) paragraph (a). I have considered further requirements of section 134 below.
Active participation at a senior level in the day-to-day management of an eligible business
34. Mr Bosomworth has spent only 46 days in Australia since he arrived on his business skills visa. While it is not essential to spend the majority of one’s time in Australia in order to manage an Australian business, such a short period does not indicate day-to-day management of the business. In the absence of frequent periods spent in Australia, other evidence supporting the contention that Mr Bosomworth manages the business day-to-day is particularly relevant. Mr Bosomworth’s oral evidence and his documentary evidence indicate close involvement with the business but not day-to-day. As detailed in the PAM 3:
Business skills migration is intended to attract to Australia highly skilled business people who will use their skills to engage in business in Australia. While some aspects of business management may occur while the visa holder is overseas, the visa holder must provide satisfactory documentary evidence that the time spent overseas has been to the benefit of the business in Australia.
35. What documentary evidence there is suggests that Mr Wyness, not Mr Bosomworth, is responsible for the day-to-day management of the business. Virtually all business documentation produced, such as correspondence, invoices and leases, is in Mr Wyness’ name. This suggests that it is Mr Wyness who utilises his skills in actively participating at a senior level in the day-to-day management of the business and leaves little to Mr Bosomworth.
36. Mr Bosomworth claimed he was utilising his skills in actively participating at a senior level in the day-to-day management of Lane Industries. The email records produced taken with his oral evidence does suggest ongoing involvement by Mr Bosomworth at a senior level. However, I am not satisfied that he actively participates at a senior level day-to-day in the management of Lane Industries.
37. Mr Bosomworth claimed in the 24 month survey to work 5 hours a week on his Australian business interests. These hours are not sufficient to demonstrate day-to-day management. I agree with the Minister’s contention that this level of commitment indicates involvement on an occasional rather than day-to-day basis. When questioned about the kind of activities these five hours per week involved, he was unable to actually identify what five hours worth of work in a week would entail. Even if he was conducting five hours work a week, this is not sufficient as a senior manager. Mr Bosomworth gave oral evidence which was vague when it came to accounting for his time on Australian business as opposed to South African business. He did not explain how he divided his time between his various business activities. To some extent this may be explained by the interrelationship between manufacture in South Africa of material used in the Australian operations. The impression I have formed from Mr Bosomworth’s evidence is that he acts more in the role of consultant on some issues arising in Australia or involves himself in a problem based or mentoring role.
38. Mr Bosomworth also gave oral evidence of his involvement with the directors and their decision making in associated business which would affect Lane Industries’ operations in due course. This is not evidence which establishes that he actively participates at a senior level in the day-to-day management of Lane Industries. While the two entities may be inter-dependent, Mr Bosomworth has no actual monetary investment in the factory enterprise although he had supplied funding through his acquisition of shares in Lane Industries. He further said that he had input about the location but then added that he was unhappy about the location finally chosen. This situation indicates less than a leadership role in that enterprise. In any event, this is not the eligible business in which Mr Bosomworth holds a substantial interest. I therefore conclude that Mr Bosomworth is not involved in active participation at a senior level in the day-to day management of an eligible business. Accordingly, I find that Mr Bosomworth has not shown that he has utilised his skills in actively participating at a senior level in the day‑to‑day management of the business for the purposes of subsection 134(1) paragraph (b).
Genuine effort to participate at a senior level in the day-to-day management of eligible business
39. As already conceded by the Minister and so found by me, Mr Bosomworth has already obtained substantial ownership interest in an eligible business. He therefore satisfies the first requirement of subsection 134(2). A further step towards satisfying visa requirements is demonstration of genuine efforts to participate at a senior level in the day-to-day management of that eligible business. He must also show he intends to continue those efforts.
40. There is no doubt that Mr Bosomworth maintains involvement at a senior level in his eligible business, Lane Industries. From the point of view of genuine efforts, Mr Bosomworth suggested that he did not want a direct stake in the factory enterprise as this might alert potential competitors to his involvement. As further evidence of his involvement and the importance of this business to that of Lane Industries, he produced documents indicating ongoing telephone and electronic contacts and the extent of his communications and guidance. The volume of letters and email correspondence that Mr Bosomworth produced is substantial and Mr Bosomworth claims this is a fraction of his dealings with his Australian partners. On balance, I am satisfied Mr Bosomworth plays a role in the potentially related business when giving the benefit of his experience. His further evidence went to his investment in Australian based businesses by sourcing and producing the essential product of the business and by providing his management and guidance.
41. Mr Bosomworth also gave extensive evidence about his research into possible acquisitions and expansion in Australia. While he has not set up a joint venture as such, I accept that he had many meetings and discussions with potential partners and investigated many avenues in Australia. While much of Mr Bosomworth’s evidence concerned his intentions rather than actual achievements in Australia, I was struck by his perseverance. I was also concerned that one of the Australian acquisitions resulted in the industry acquired being relocated to South Africa. Some of his explanations for the paths towards the hoped for wire mesh industry in Australia were complex but, overall, I formed the impression that his aims to establish a viable business in Australia are sincere.
42. I am satisfied, in view of Mr Bosomworth’s oral evidence that his various activities display genuine efforts to utilise his skills in participating in the business of Lane Industries directly and by involving himself as a mentor or interested adviser in another entity which will assist his plans for Lane Industries. His inclusion in email messages and letters originating from Lane Industries and other sources shows Lane Industries and the owners and directors of associated entities welcomed his inclusion on this basis. Not only is he making direct efforts as to Lane Industries but he is working towards securing its operations through assisting the setting up of manufacture in Perth. After listening to his oral evidence, I am satisfied he intends to continue to make genuine efforts towards the success of the business of Lane Industries.
43. In making my findings about Mr Bosomworth’s efforts, I have taken into account several of the matters indicated in PAM3. As to business proposals that Mr Bosomworth has developed, I note the progress made towards factory production in which the email correspondence shows his involvement or at the least, the keeping up of information readily supplied to Mr Bosomworth by his colleagues. While Mr Bosomworth has not demonstrated the existence of partners or joint venturers for the business proposals in the form of a written agreement, he has given extensive oral evidence of the intentions of Lane Industries to work with the entity he described which is setting up in Perth to carry out manufacture of products which Lane Industries requires. In addition, Mr Bosomworth gave evidence about his investigations in 2000, 2001 onwards before and after he became the holder of a subclass 127 business skills visa. In my view, these meetings and discussions, supported by his email exchanges and oral evidence of his intentions, demonstrate his genuine efforts to enter the wire mesh market in Australia. Since he obtained the visa, his efforts have been directed to developing operations in Perth.
44. Mr Bosomworth’s oral statements also indicate considerable research he has undertaken into the conduct of an eligible business in Australia. While he provided no independent confirmation from the persons he has discussed the wire mesh industry with in Australia, he did name several companies and persons he has dealt with. I also take into account the value of assets transferred to Australia for use in obtaining his interest in the eligible business, Lane Industries. Mr Bosomworth also gave evidence that he had invested around $120,000 in products sent to Australia for the proposed manufacture of goods in Perth.
45. The evidence persuades me of Mr Bosomworth's continuing attention to conduct business in Australia but, presently, he gives more of his time to his affairs in South Africa than in Australia. Nevertheless, while his main interest is based in South Africa, Mr Bosomworth convinced me of his long term plans to establish a viable wire mesh business in Australia. The issue at the time of the reviewable decision to cancel the visa turns on whether Mr Bosomworth’s efforts warrant exercise of discretion.
46. The Minister contends that, if the tribunal is satisfied that Mr Bosomworth's visa may be cancelled pursuant to subsection 134(1) of the Act, there is nothing which would lead me to exercise the residual discretion (as discussed in Kim v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 38 AAR 304) in Mr Bosomworth's favour.
47. I have examined the judgment of Justice Kiefel in the Kim case and note that her Honour [at 14] observed that most relevant to the considerations under section 134 is the requirement of clause 127.216 that an applicant have a genuine realistic commitment as the holder of the visa to either establish or participate in an existing eligible business in Australia. Justice Kiefel went on to observe that there may be circumstances where the Minister will be obliged to cancel a visa even though the power to cancel is expressed in discretionary terms. The judgment then notes at [19] that “(S)ection 134 is directed to a subsequent assessment of what has been undertaken by a business visa holder and what their further intentions are. The grant of a business visa is based, in large part, upon a person’s commitment to establish, participate in or own an eligible business in Australia.” I have no doubt that Mr Bosomworth has a commitment to participate in the business he has helped to maintain in Australia through his investment in shares and continuing participation as demonstrated in his email and documentary exchanges and the extent of his oral evidence about his intentions. Justice Kiefel then says:
The reporting conditions are connected with the assessment and may trigger it [cancellation]. It is of some importance, I consider, that the Minister may exercise the power given by s 134 at any time. At any time during the currency of the visa, if the Minister is satisfied that the visa holder’s obligations have not been met and the Minister is not persuaded that there have been genuine efforts to do so or that it is intended to continue to make those efforts, then s 134 permits cancellation of the visa. The question is whether the Minister is obliged to do so.
48. Justice Kiefel then observes [at 20], some factors weigh against the likelihood that that might be intended. The judgment continues:
No words indicative of obligation are used and the section is not structured in such a way as to suggest that cancellation is to follow automatically. The prohibition in subs (2) is a limit upon the power to cancel given by s 134(1) if the Minister is satisfied of the matters there listed. Those matters are not expressed as conditions for the maintenance or non-cancellation of the visa.
49. At [21], Justice Kiefel makes some remarks which I think are particularly pertinent to Mr Bosomworth’s situation. Her Honour, having acknowledged the differences between conditions attached to a visa class and the considerations that may justify cancellation or not, according to section 134, notes it is obvious that cancellation is the only possibility. There is no option such as attaching further conditions to the visa.
50. On the other hand, cancellation may be considered from time to time and a finding of genuine intentions on one occasion does not mean that the visa holder cannot be investigated again. I agree with Justice Kiefel when she observes it cannot be said that a decision not to cancel a visa could serve no purpose. Further, I agree with Justice Kiefel when she remarks that the Minister might be satisfied of the matters referred to in subsection (1) and not be satisfied as to the efforts made as referred to in subsection (2) but nevertheless consider in a particular case that further time should be given to the visa holder to undertake what was required of them.
51. I consider Mr Bosomworth’s explanation of his actions while the holder of a subclass 127 visa is satisfactory. He has not been guilty of inaction up to the point of assessment. Further, as Justice Kiefel notes, the nature of the power to cancel is a continuing one. Having undertaken an assessment of what has been done by the visa holder in Australia and having found his explanation satisfactory, I consider it inappropriate to cancel Mr Bosomworth’s visa at this time, when he is still in the process of establishing a new industry for his business entity in Australia. Following Justice Kiefel’s comments again, I note that section 134 of the Act does not suggest that the Minister is obliged to cancel a business visa if not satisfied at a particular point during the currency of the visa of the matters in subsection 134(2). The Minister or the tribunal may take various matters into account according to subsection 134(3). Further, the Minister retains the right to cancellation under subsection 134(1) at all times.
CONCLUSION
52. On balance, I find that Mr Bosomworth satisfies the statutory criterion in that his efforts towards the matters set out in subsection 134(2) were genuine at the time of the cancellation. For all these reasons, the decision to cancel the applicant’s visa should be set aside.
Decision
53. The decision under review is set aside.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member
Signed: .......................[Sgd]............................
Jennifer Wong, AssociateDate of Hearing: 30 November 2007
Date of Decision: 9 April 2008Solicitor for the Applicant: Mr Arnold Conyer, Diamond Conway Lawyers
Solicitor for the Respondent : Ms Alice Linacre, Clayton Utz Lawyers
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