Chen and Minister for Immigration and Multicultural and Indigenou S Affairs
[2004] AATA 78
•30 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 78
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/699
GENERAL ADMINISTRATIVE DIVISION ) Re CHUNG-YI CHEN Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms J Cowdroy, Member Date30 January 2004
PlaceBrisbane
Decision The Tribunal directs that:
(1) the applicant file with the Tribunal, and serve on the respondent, any further evidence in support of his application for review no later than 4pm on Friday, 20 February 2004;
(2) the respondent file with the Tribunal, and serve on the applicant, any material in response to the applicant’s further evidence by 4pm on Friday, 12 March 2003; and
(3) the matter be listed for a telephone directions hearing at 9.30am on Tuesday, 23 March 2004.
.............(Sgd).............
J Cowdroy
Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – business skills visa – decision to cancel visa – on evidence available, primary visa holder has not obtained substantial ownership interest in an eligible business in Australia nor utilising his skills actively participating in the day-to-day management of an eligible business – no evidence of genuine efforts being made
ADMINISTRATIVE LAW – powers of Tribunal where error of law in original decision – merits review – procedural fairness – no evidence provided to dispute finding that grounds exist to cancel visa – adverse decision likely to be made – opportunity to provide further evidence
Migration Act 1958, s 134
Migration Regulations 1994, reg 2.55Administrative Appeals Tribunal Act 1975
Otter Gold Mines Ltd v Australian Securities Commission (1997) 26 AAR 99
Drake v Minister for Immigration and Ethnic Affairs (1978) 46 FLR 409
Tien v MIMA (1998) 53 ALD 32
Wang v MIMA (1997) 45 ALD 104REASONS FOR DECISION
30 January 2004 Ms J Cowdroy, Member 1. The applicant, Chung-Yi Chen, seeks review of a decision of the respondent, made on 15 July 2002, to cancel his business skill visa. The applicant seeks that the decision under review be set aside as invalid and argues the respondent failed to take relevant considerations into account. The respondent seeks that the decision under review be affirmed.
2. As a result of the cancellation of Mr Chen’s visa, the secondary visas held by Mr Chen’s children, Po-Hsu Chen and Tsan-Yu Chen (“the secondary visa holders”), were also cancelled (pursuant to section 134(4) of the Migration Act 1958).
3. With the consent of the parties, the Tribunal is dealing with the application for review on the papers pursuant to section 34B of the Administrative Appeals Tribunal Act 1975.. The Tribunal has before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) as well as statements of facts and contentions and written submissions prepared by the parties.
Background
4. Mr Chen was granted a business skills visa by the respondent, which came into effect on 24 April 1999, following his first arrival in Australia after the grant of the visa. Mr Chen left Australia on 25 April 1999 and has not returned to the country since (see T26, folio 75). On his incoming passenger card, Mr Chen recorded his contact address in Australia as 1163 Northcote Street, East Brisbane.
5. As part of his application for a business skills visa, the applicant signed a declaration form agreeing to certain conditions attached to the grant of the business skills visa. Those conditions include a requirement that the applicant keep the Department informed of his contact address and that he complete regular survey forms as to his progress in establishing a business in Australia. The respondent wrote to the applicant on a number of occasions seeking information as to his current address (see T27, folio 76 (letter dated 20 December 1999), and T23, folio 72 (letter dated 3 January 2002)). Those letters were sent to the applicant at the address 1163 Northcote Street, East Brisbane and were not responded to.
6. The respondent also endeavoured to send survey forms to the applicant for completion on 16 March 2001 and 3 January 2002 (see T23, folio 72), without success.
7. The applicant contends that the respondent should have been more pro-active in discovering his current address.
8. On 19 March 2002, a delegate of the Minister sent to the applicant, and the secondary visa holders, notices of intention to cancel their visas. These were sent to the visa holders at the East Brisbane address and also to an address in Kangaroo Point (see T15 to T19). The letter to the applicant relevantly reads:
“I am writing to notify you of my intention to cancel your Business Skills visa. …
I consider there are grounds for cancelling your Business Skills visa under section 134 of the Migration Act 1958 (the Act). As a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, I may cancel you Business Skills visa under section 134 of the Act if you:
§ have not obtained a substantial ownership interest in an eligible business in Australia; or
§ have not utilised your skills in actively participating at a senior level in the day-to-day management of an eligible business in Australia; or
§ do not intend to continue to hold a substantial interest in an eligible business and utilise your skills in actively participating at a senior level in the day-to-day management of an eligible business in Australia.
As a delegate, I must not cancel your visa if satisfied that you:
§ have made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and
§ have made a genuine effort to utilise your skills in actively participating at a senior level in the day-to-day management of that business; and
§ intend to continue to make such efforts.
…
As you have not notified this Department of a contact address within 28 days of your initial arrival, on 3 January 2002, we wrote to you to the last known address located for you by the Department, requesting the completion of a 24-month survey concerning your business activities. It was requested that this survey be completed and returned to this Department by 9 February 2002. To date, no response has been received from you.
I am therefore considering cancelling your visa because there is insufficient evidence that you have made a genuine effort to:
§ obtain a substantial ownership interest in an eligible business in Australia; or
§ utilise your skills in actively participating at a senior level in the day-to-day management of an eligible business in Australia; or
§ intend to continue to hold a substantial interest in an eligible business and utilise your skills in actively participating at a senior level in the day-to-day management of an eligible business in Australia.
In order to avoid having your visa cancelled, you need to satisfy me that you have made, and/or that you are likely to continue to make, a genuine effort in the future with regard to one or more of the above dot points.
The Act gives you the opportunity to comment on these grounds for cancellation and to give reasons why your visa should not be cancelled. Your representation should say why you think the above grounds for cancellation do not exist and your visa should not be cancelled.
I may take any of the following matters into account when I make a decision on your case and you may wish to address these matters in your response:
(a)business proposals you have developed;
(b)the existence of partners or joint venturers for your business proposals;
(c)research that you have undertaken into the conduct of an eligible business in Australia;
(d)the period or periods during which you have been present in Australia;
(e)the value of assets transferred to Australia by you 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 you;
(g)business activity that his or has been, undertaken by you;
(h)if you no longer hold a substantial ownership interest in a particular business or no longer utilise your skills in actively participating at a senior level of a day-to-day management of a business:
(i)the length of time that you have held the ownership interest or participated in the management; and
(ii)the reasons why you no longer hold the interest or participates in the management.”
9. The letters sent to the secondary visa holders relevantly read:
“On 19 March 2002 Mr Chung-Yi Chen was sent a notice of intention to cancel under section 134 of the Act. As you were granted a visa because Mr Chung-Yi Chen was granted a visa, your visa must be cancelled, unless you would suffer extreme hardship for you as a result of having your visa cancelled.
The Act gives you the opportunity to comment on these grounds for cancellation and to give reasons why your visa should not be cancelled. Your representation should say why you think the cancellation of any visas held by you would result in extreme hardship. …”
10. All visa holders were given until 26 April 2002 to make any representations they wished to make to the respondent on the issue of the cancellation of their visas. On or around 15 April 2002, the following email was sent to the respondent’s delegate (T14, folio 57):
“We are Chung-Yi Chen, Po-Hsu Chen and Tsan-Yu Chen. We are sorry that we haven’t invest in Australia yet, but we already prepare to close our business in Hong Kong and China, then move the company to Brisbane or Sydney, but there is still many things to do (move the company from HK and China to Australia). We hope that u could give us more time (like half year to 1 year).”
11. The delegate responded, on 15 April 2002 (T14, folio 57):
“Mr Chen
As the time to enter into business in Australia and respond to Notices is set by the legislation, I am unable to grant you an extension.”
12. Later that afternoon, Tim Chen (Po-Hsu Chen) emailed the delegate as follows (T14, folio 56):
“…Can you tell me what could we do now? we are still studying in university, can we apply for a student visa if our current visa is being cancel.
Do we still got a chance there? because the letter said the visa will be cancel at 26/04/2002, we have got no time to invest, please tell us how to do next to prevent the visa being cancel.
Please help us, thanks.”
13. The delegate responded on 16 April 2002 (T14, folio 56):
“Mr Chen – you were sent a Notice of Intention to Cancel your visa – to which you have until the 26 April 2002 to respond to. In your response you should outline the genuine efforts you have made to obtain a substantial interest in an eligible business in Australia. We will then make an decsion [sic] whether to cancel your visa or not…”
14. On 15 July 2002, letters were sent to the applicant and the secondary visa holders advising of the decision to cancel their visas (see T2, T8 and T10). The letters to the secondary visa holders were sent to the address in Kangaroo Point, whilst the letter to the applicant was sent to the address in East Brisbane. The letter to the applicant relevantly reads:
“…On 19 March 2002 you were notified of my intention to cancel your visa. At that time you were given an opportunity to make representations about having your visa cancelled. As no representations were made I have decided to cancel your visa and those held by members of your family unit under section 134 of the Migration Act 1958 (the Act). A record of my decision is attached.”
15. The record of decision attached to the notice of cancellation relevantly provides:
“PART C: GROUNDS FOR CANCELLATION
I consider that there are grounds for cancellation under subsection 134(1) of the basis that you:
(a)have not obtained a substantial ownership interest in an eligible business in Australia; or
(b)are not utilising his or her skills in actively participating at a senior level in the day-to-day management of that business; or
(c)do 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.
Evidence of and reasons why grounds for cancellation exist:
…
In order to assess whether you have fulfilled the requirements of your visa the following correspondence was sent to your last known address:
§ a letter dated 3 January 2002 requesting the completion of a 24-month business skills survey;
To date no response has been received and the time for responding has elapsed.
In the absence of any information to the contrary, I am satisfied that you:
(a)have not obtained a substantial ownership interest in an eligible business in Australia; or
(b)are not utilising your skills in actively participating at a senior level in the day-to-day management of that business; or
(c)do not 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.
PART D: DECISION WHETHER TO CANCEL
The Minister must not cancel a business visa under subsection 134(1) if the Minister is satisfied that its holder:
(a)has made genuine efforts 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.
In the absence of any information to the contrary, I am satisfied that you have not demonstrated that you are making, or intend to make, the above genuine efforts. I therefore consider that there are grounds for cancellation under section 134.
PART E: DECISION TO CANCEL
I have decided to cancel your Business Skills (Migrant) visa.”
16. The record of decision in relation to the cancellation of the secondary visa holders’ visas relevantly provides:
“No claims have been made by any members of the family unit that extreme hardship would be suffered as a result of their visas being cancelled. In the absence of any other information, I do not consider the cancellation of their visas would result in extreme hardship to any of the family members.”
17. On 7 August 2002, Australia Asia Migration Consultants Pty Ltd contacted the respondent advising of the appointment of Mr Chan as migration agent for the applicant (T6 and T7). On 8 August 2002, a copy of the cancellation decision, dated 15 July 2002, was sent to the migration agent (T5, folio 43).
18. On 15 August 2002, the applicant applied to this Tribunal for a review of the respondent’s decision to cancel his business skills visa.
Legislative Framework
19. The power to cancel a business skills visa is contained in section 134 of the Migration Act 1958 (the Act), which provides:
“(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;
(h) whether the person has failed to comply with a notice under section 137;
(i) if the person no longer holds a substantial ownership interest in a particular business or no longer utilises his or her skills in actively participating at a senior level of a day-to-day management of a business:
(i) the length of time that the person held the ownership interest or participated in the management (as the case requires); and
(ii) the reasons why the person no longer holds the interest or participates in the management (as the case requires).
(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.
…
(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 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.”
20. Regulation 2.55 of the Migration Regulations 1994 is also relevant in this case. That regulation provides:
“(1) This regulation applies to:
(a)the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act; and …
…
(3) For a document mentioned in paragraph (1)(a) or (c), the Minister must give the document in one of the following ways:
(a)by handing it to the person personally;
(b)by it to another person…;
(c)by dating it, and then dispatching it:
(i) within 3 working days (in the place of dispatch) of the date of the document;…
to the person’s last residential address, business address or post box address known to the Minister;
(d) by transmitting the document by:
(i) fax; or
(ii) email; or
(iii) other electronic means; …”
21. The applicant contends that the decision to cancel the applicant’s visa is invalid due to a number of alleged deficiencies in the notice and the cancellation process. The respondent contends the decision to cancel has been validly made.
Consideration
22. The applicant has provided the Tribunal with detailed submissions on the errors of law he contends have been made in the decision under review. The applicant seeks the decision under review be set aside as invalid. Before considering each issue raised in this case, it is important that consideration be given to the role of the Tribunal on review where there has been an error of law established in the decision under review.
23. The Administrative Appeals Tribunal conducts a merit review of decisions. This differs from a judicial review in many respects, the most obvious of which being the fact that the Tribunal, for the purposes of reviewing a decision, may exercise all the powers and discretions conferred by an enactment on the person who made the decision (section 43(1) of the Administrative Appeals Tribunal Act 1975). On review, the Tribunal has the power to (section 43(1)):
(a)affirm a decision under review;
(b)vary a decision under review; or
(c)set aside a decision under review and:
(i) make a decision in substitution for the decision set aside; or
(ii) remit a matter to the relevant Department for reconsideration with any directions or recommendations the Tribunal considers relevant.
24. The role of the Tribunal was considered in Otter Gold Mines Ltd v Australian Securities Commission (1997) 26 AAR 99 at 106, where Merkel J noted:
“When reviewing an administrative decision under section 43(1) the AAT stands in the place, and is empowered to exercise all the relevant powers and discretions, of the decision-maker in respect of the decision under review. The AAT hears the matter de novo in the light of the evidence placed before it.”
25. Bowen CJ and Deane J observed, in Drake v Minister for Immigration and Ethnic Affairs (1978) 46 FLR 409 at 419, that:
“The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before it. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.
Putting to one side the possible different case of a decision-maker who has special expertise, the AAT is neither entitled nor required to place weight upon the fact that the original decision-make had exercised her or his discretion in a particular way...”
26. Where the Tribunal finds that a decision-maker, for example, has failed to consider a relevant factor in the making of the decision under review; the Tribunal will consider that factor, and all other evidence put before it, with a view to making a decision which is correct at law and is the most preferable decision in all the circumstances. Unlike a judicial review of a decision, an error of law in the decision making process will not necessarily result in a decision being set aside. The Tribunal will consider all of the evidence and make a decision on that evidence. That decision will not necessarily be different from the decision reached by the original decision-maker, even where there had been an error in the decision-making process.
27. The applicant in this case appears to be confused about the role of the Tribunal and its powers in relation to the review of decisions. The applicant has only addressed the errors of law he alleges occurred in the decision under review, and has not provided the Tribunal with any evidence on the substantive issue of whether the applicant has complied with the requirements of his visa. There has been no evidence presented that the applicant has obtained a substantial ownership interest in an eligible business in Australia, or that he has made any genuine efforts to do so.
Alleged Deficiencies in The Cancellation Process
28. The Tribunal accepts that the procedure for cancelling a visa, as set out in the Migration Act 1958, is mandatory (see Tien v Minister for Immigration and Multicultural Affairs (1998) 53 ALD 32 and Wang v Minister for Immigration and Multicultural Affairs (1997) 45 ALD 104). Briefly, the procedure for cancelling a business skills visa is as follows:
(a)the Minister must give written notice to the visa holder stating he intends to cancel their visa and inviting them to make representations on the proposed cancellation (the notice of intention to cancel - section 135(1));
(b)the Minister must give due consideration to any representations made by the visa holder (section 135(2));
(c)if, after considering any representations made, the Minister is satisfied that the visa holder has not obtained a substantial ownership interest in an eligible business in Australia (section 134(1)(a)), or is not utilising their skills in actively participating at a senior level in the day-to-day management of that business (section 134(1)(b)), or does not intend to continue to hold a substantial ownership interest in or utilise their skills in actively participating at a senior level in the day-to-day management of an eligible business in Australia (section 134(1)(c)), the Minister may cancel the visa;
(d)the Minister must not cancel a visa, however, where he is satisfied the visa holder has made a genuine effort to obtain a substantial ownership interest in an eligible business, and has made a genuine effort to utilise their skills in actively participating at a senior level in the day-to-day management of that business, and intends to continue to make such genuine efforts (section 134(2));
(e)where the Minister decides to cancel a visa, he must give notice to the visa holder of the cancellation of their visa (section 134(1)), such notice including the reason for the cancellation, and advice as to review rights (the notice of cancellation - section 134(7)).
29. Where the Minister sends a notice of intention to cancel or a notice of cancellation to a visa holder, the notice must be given to the visa holder in one of the ways prescribed in regulation 2.55. For example, the notice must be sent either by prepaid post to the visa holder’s last known residential address (reg 2.55(3)(c)), by facsimile (reg 2.55(3)(d)(i)), by email (reg 2.55(3)(d)(ii)) or by personal delivery to the person (reg 2.55(3)(a)).
Issue 1: Whether Notice of Cancellation Complies with Section 134(7)
30. The notice of cancellation sent to the applicant (T2, folio 5) provides:
“On 19 March 2002 you were notified of my intention to cancel your visa. At that time you were given the opportunity to make representations about having your visa cancelled. As no representations were made I have decided to cancel your visa and those held by members of your family unit under section 134 of the Migration Act 1958 (the Act). A record of my decision is attached.”
31. Common sense dictates that this letter is to be read in conjunction with the notice of intention to cancel and the record of decision attached to the cancellation notice. The Tribunal is satisfied that the notice of cancellation provides a reason for the decision to cancel; that is, because the Minister was not provided with any representations in response to the notice of intention, his opinion that there were grounds to warrant the cancellation of the applicant’s visa, pursuant to section 134, remained unchanged. So much may not have been clearly stated in the notice itself, but is implicit when regard is had to the other correspondence in the matter.
32. The applicant further submits that the reason provided in the notice is invalid as the applicant did respond to the notice of intention to cancel and those representations were not taken into account by the decision-maker. In reply, the respondent submits the email correspondence cannot be considered representations since it did not address the kinds of matters specifically referred to in the notice of cancellation (which mirror the legislative provisions in section 134). The respondent further submits that the visa holders were reminded of the matters they needed to address in any representations in the email sent by the decision-maker to Tim Chen (Po Hsu Chen) dated 16 April 2002 (T14, folio 56). Although the email sent by the visa holders was not detailed and did not address the relevant issues, the decision-maker was still required to have regard to it. In any event, the Tribunal in its merits review of the decision can and will have regard to the email in its consideration of this matter.
33. The Tribunal is satisfied that the notice of cancellation advised the applicant of his appeal rights. As such, the Tribunal finds that the notice of cancellation complies with section 134(7) of the Act.
Issue 2: Whether Notice of Cancellation Complies with Regulation 2.55
34. The notice of intention to cancel was sent to the applicant and the secondary visa holders at two addresses, the East Brisbane address and the Kangaroo Point address. The notice of cancellation, however, was sent to the applicant at the East Brisbane address, and to the secondary visa holders at the Kangaroo Point address.
35. The respondent submits that the East Brisbane address is the last known residential address for the applicant. It is the address recorded on the incoming passenger card completed by the applicant on 24 April 1999, and the applicant has not provided any other address to the Department. A condition of the grant of the applicant’s visa was that he kept the Department advised of his current address. There is no documentation before the Tribunal that indicates the applicant contacted the Department to advise them of a different contact address.
36. Regulation 2.55 is clearly designed to save the Department from the onerous task of trying to locate visa holders after their grant of a visa. The regulation allows the Minister to send a notice of intention to cancel or a notice of cancellation to the last known address for a visa holder. This is what the Department did in this case. The fact they did not also send the correspondence to the Kangaroo Point address is unfortunate, but is of little consequence. The Tribunal is satisfied that there is no obligation on the respondent to undertake a search beyond its own records for a current address for a visa holder. As such, the Tribunal is satisfied that regulation 2.55 has been complied with in this case.
Was the Decision to Cancel Properly Made?
37. The fundamental question before the Tribunal is whether the decision to cancel the applicant’s visa is the correct and preferable decision having regard to the material before the Tribunal.
38. The Tribunal had before it the submissions and contentions of the parties and the T documents. The T documents contain the email correspondence that passed between the visa holders and the decision-maker, which the applicant contends should be treated as representations in response to the notice of intention to cancel (see T14, folios 56-7). That correspondence relevantly provides:
“…We are sorry that we haven’t invest in Australia yet, but we already prepare to close our business in Hong Kong and China, then move the company to Brisbane or Sydney, but there is still many things to do (move the company from HK and China to Australia). We hope that u could give us more time (like half year to 1 year).”
39. This correspondence provides little information about the activities the applicant has undertaken in pursuance of his business skills visa. At best, it can be said the email advises that the applicant has not yet obtained a substantial ownership interest in an eligible business in Australia but that he intends to do so in the next six to twelve months.
40. Apart from the above email correspondence, the Tribunal was not provided with any evidence from the applicant which would allow it to be satisfied:
§that the applicant has obtained a substantial ownership interest in an eligible business in Australia; or
§that he is utilising his skills at a senior level actively participating in the day-to-day management of that business; or
§that he intends to continue to hold a substantial ownership interest in and participate at a senior level in the day-to-day management of an eligible business in Australia.
41. Further, the Tribunal has not been provided with any evidence that the applicant:
§has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and
§has made a genuine effort to actively participate at a senior level in the day-to-day management of that business; and
§intends to continue to make such genuine efforts.
42. Section 134(3) sets out the types of matters the Minister (and therefore the Tribunal on review) may take into account when determining whether a visa holder has made the genuine efforts referred to in section 134(2). These include any business proposals developed (section 134(3)(a)), the existence of any partnerships or joint ventures (section 134(3)(b)), any research undertaken (section 134(3)(c)), the time a visa holder has spent in Australia (section 134(3)(d)), the value of assets that have been transferred to Australia (section 134(3)(e)), the value of any ownership interest held by a visa holder (section 134(3)(f)) and any business activity undertaken by the visa holder (section 134(3)(g)). None of these matters is addressed in the applicant’s email correspondence of 15 April 2002 (T14).
43. On the material before it, the Tribunal could not be satisfied that the applicant has obtained a substantial ownership interest in, or actively participates in the day-to-day management of, an eligible business in Australia, or that he has made a genuine effort to do so. Ordinarily, the Tribunal would at this point affirm the decision under review, however, out of an abundance of fairness to the applicant, given his misunderstanding of the role of the Tribunal on review (as discussed earlier in these reasons), the Tribunal will afford the applicant the opportunity to submit some further evidence in support of his case. That evidence should address the issue of whether the applicant has obtained a substantial ownership interest in, or actively participates in the day-to-day management of, an eligible business in Australia or whether he has made a genuine effort to do so.
44. Therefore, the Tribunal directs that:
(1)the applicant file with the Tribunal, and serve on the respondent, any further evidence in support of his application for review no later than 4pm on Friday, 20 February 2004;
(2)the respondent file with the Tribunal, and serve on the applicant, any material in response to the applicant’s further evidence by 4pm on Friday, 12 March 2003; and
(3)the matter be listed for a telephone directions hearing at 9.30am on Tuesday, 23 March 2004.
45. If the applicant fails to comply with the first direction above, the Tribunal may make a formal order affirming the decision under review at the directions hearing. Otherwise, at the directions hearing, a decision will be made as to whether the Tribunal can proceed to determine the remaining issue in this case on the papers, or whether the respondent requires the opportunity to cross-examine the applicant on any further evidence provided.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member
Signed: S Oliver
Associate
This matter was heard on the papers
Date of Decision 30 January 2004
For the Applicant Mr Chan, Migration Agent
For the Respondent Mr Cramer, Blake Dawson Waldron
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