Chen and Ors and Minister for Immigration and Citizenship
[2008] AATA 333
•24 April 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 333
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2713
GENERAL ADMINISTRATIVE DIVISION ) 2007/2832
2007/2833
2007/2834Re LIAN PANG CHEN
CHYE CHNG
FANG-RONG CHEN
FANG-HAN CHENApplicants
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date24 April 2008
PlaceMelbourne
Decision The decision under review is affirmed.
(Sgd) John Handley
Senior Member
MIGRATION – cancellation of business visa – applicant has not obtained nor made any genuine effort to obtain a substantial ownership in an eligible business in Australia or at all – no extreme hardship to applicant or secondary visa holders – decision affirmed
Migration Act 1958 s 134 and s 135
Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961
Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481
REASONS FOR DECISION
24 April 2008 Mr John Handley, Senior Member 1. Lian Pang Chen successfully applied for a Business Skills Visa Sub-Class 128 in January 2003 which was granted on 14 January 2004. Chye-Hong Chng, Fang-Rong Chen and Fang-Han Chen are secondary applicants being the applicant's wife, daughter and son respectively. A delegate of the Minister cancelled the applicant's visa (and consequently the visas held by the secondary applicants) on 8 June 2007. This application concerns a review of that decision.
2. The decision to cancel the visas was made under s 134 of the Migration Act 1958 which is reproduced as follows:
(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 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).
(3A)Subject to section 135, the Minister may cancel an investment-linked visa (other than a family member’s visa), by written notice to its holder, if the Minister is satisfied that the person, or any of the persons, who held the relevant designated investment when the visa was granted has or have ceased, for any reason, to hold that investment within 3 years of that investment being made.
(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.
(8)A cancellation under this section has effect on and from:
(a)if the person applies to the Administrative Appeals Tribunal for a review of the decision to cancel the visa—the 28th day after the day on which the Administrative Appeals Tribunal gives its decision on that review; or
(b)if:
(i)the person’s visa was cancelled under subsection (4); and
(ii)the relevant person to whom paragraph (4)(a) applied has applied to the Administrative Appeals Tribunal for a review of the decision to cancel that person’s visa;
the 28th day after the day on which the Administrative Appeals Tribunal gives its decision on that review; or
(c)the 28th day after the day on which the notice of cancellation is given to the holder of the cancelled visa;
whichever is the latest.
(9)The Minister must not cancel a business visa under subsection (1), (3A) or (4) unless a notice under section 135 was given to its holder within the period of 3 years commencing:
(a)if its holder was in Australia when he or she was first granted a business visa—on the day on which that first visa was granted; or
(b)if its holder was not in Australia when he or she was first granted a business visa—on the day on which its holder first entered Australia after that first visa was granted.
3. At the commencement of the hearing Mr Chen conceded that he had not ever obtained a substantial ownership interest in an eligible business or any interest in any business in Australia since the visa was granted to him.
4. In evidence, Mr Chen said he intended to develop property in Australia when he made his application. Specifically, (refer T‑docs p72 and p97) it was his intention to construct student housing. However he said that there were a number of factors which were not in his favour, being increased property prices and the relative value of the $SGD against the $AUD. He said property acquisition and development was about timing and since 2004 the time has not been right for property acquisition and development. Mr Chen acknowledged that he had been offered other businesses for purchase namely, food and building materials but commodities of that type are beyond his expertise and he preferred to engage only in matters of which he did hold expertise namely, property development.
5. In cross‑examination, Mr Chen agreed that he had not ever developed a business proposal or business plan nor had he engaged in research in the property market in Australia, although he has talked to property agents. He does not have any documentation of the enquiries that he has made of the Australian property market and said it is not his practice to do so. He has not ever entered into any partnership or agency with any other persons in Australia for the purposes of exploring property acquisition or property investment.
6. Mr Chen agreed that a summary of his visits to Australia found at page 145 of the T‑documents was accurate by its recording that he has spent 22 days in Australia since April 2004. The summary indicates that he was here for 4 days in April 2004, 3 days in July 2004, 5 days in July 2005, 3 days in July 2006 and 2 days in December 2006.
7. Mr Chen has acquired property in Melbourne, being an apartment in Lonsdale Street for the sum of $243,000 which is occupied by his daughter who is currently enrolled at Melbourne University.
8. Mr Chen presently is engaged by contract to T C C Capital Land Limited ('Capital Land') a property investment corporation based in Singapore, until 2010. A corporation known as Australand Holdings Limited ('Australand') is a wholly owned subsidiary of Capital Land and trades in property in Australia. Mr Chen did have the opportunity to apply for secondment to Australand which he thought would assist in a Permanent Resident application but chose to remain in Thailand. Capital Land is presently negotiating the purchase of real estate property in Vietnam.
9. Mr Chen is also the Director and Shareholder of Sitiawan Pty Ltd (Sitiawan), a corporation registered in Australia. That corporation has not traded. Mr Chen said it was his intention to use that corporation for the purposes of acquiring property or materials but by reason of the absence of any commercial activity by him since the date of the granting of the business visa, Sitiawan, whilst remaining registered, has not been engaged.
10. Mrs Chen gave evidence. She said their son, who is presently aged 17 years, is enrolled as a boarding student at the Geelong Grammar School where he commenced a two year International Baccalaureate program in July 2007. He was then regarded by her as being more mature and independent. She acknowledged that her son commenced his enrolment after the visas were cancelled.
11. Mrs Chen said if the decision under review is affirmed and her son is required to return to Thailand, he would probably qualify for enrolment at the International School but would not be able to transfer credits from the subjects he has completed at Geelong Grammar. That is say, he would be required to commence the International Baccalaureate program. She said his enrolment at the International School in Thailand would also be dependent on she and her husband remaining residents of Thailand. That may be an issue because Mrs Chen said her husband may be transferred to work in Vietnam by Capital Land and in those circumstances, her son would not qualify for enrolment in the International School.
12. Fang-Rong Chen, the applicant's daughter, is currently enrolled at Melbourne University, undertaking the second year of a Bachelor of Arts degree. Mrs Chen said her daughter found schooling in Singapore to be stressful but since being a student in Melbourne she has noticed her daughter had become independent and well adjusted and has satisfactorily undertaken her studies in the 18 months since commencement of enrolment. Mrs Chen was unsure whether in the event that her daughter was required to return to Singapore or Thailand, she would be given credit for the subjects that she has completed to date. Additionally, Mrs Chen said that her daughter does not speak the Thai language.
conclusion and reasons for decision
13. The decision under review in these proceedings must be affirmed.
14. The applicant does not satisfy s 134 (1) of the Act and quite properly he makes that concession. He has not obtained a substantial ownership interest in an eligible business since 14 January 2004 when the business visa was granted to him. Indeed he has not obtained any ownership interest in any eligible business (as defined at s 134 (10)). Mrs Chen acknowledged that her husband could have purchased a newspaper stand or a corner store but he is qualified as a property developer, it is his passion, but property prices in the last five years have made entry into the Australian real estate market too expensive. Accordingly, a decision was made by Mr and Mrs Chen not to enter into real estate purchase in Australia.
15. Mr Chen does not have an interest in any other business in Australia nor is he engaged in the management of any eligible business in Australia. He did not apply for secondment to Australand which he thought may have assisted in an application that was intended for permanent residency but he declined. Instead he chose to remain working in South East Asia to gain more invaluable experience and business skills (refer T‑docs, p146).
16. It also follows that I am not satisfied that the applicant satisfies s 134 (2) and (3) of the Act namely, there is nothing that points to the applicant having made any genuine effort to obtain a substantial ownership interest in an eligible business in Australia. Indeed it would appear from the evidence that the applicant has positively refrained from making any genuine effort. I accept that he has made enquiries of property prices in Australia and became satisfied that prices were expensive. But he has not ever developed or held a business proposal or plan and he does not have partners. He has not entered into a joint venture nor has he sought assistance or advice from appropriately qualified professionals or government agencies. He has not undertaken research, he has spent 22 days in the last 5 years in Australia and has not undertaken any business activities personally or by others on his behalf. He has not transferred assets into Australia other than to purchase an apartment for occupation by his daughter in the Melbourne CBD. At page 147 of the T‑documents he recorded that in order to demonstrate sincerity he was prepared to park a minimum of $500,000 or $750,000 in the Commonwealth Bank in Australia. He has not done so. Mrs Chen said in evidence that she holds three overseas accounts totalling in excess of $2,500,000SGD but which she is reluctant to transfer to Australia or use for capital expenditure or investment in Australia on behalf of her husband or at all whilst the exchange rate currently stands at 1.29AUD. Only when the rate reduces to 1.25AUD would she consider investment. I acknowledge that Mrs Chen is not the primary visa holder but there was nothing from the evidence of Mr Chen to indicate that he would seek access to his wife's funds – nor was there any evidence on the part of Mrs Chen that she would make her funds available to her husband – for the purposes of acquisition of an ownership interest in an eligible business in Australia.
17. Additionally, there is nothing from the evidence or from the documents read which would indicate that there is any intention on the part of the applicant to commence to make any genuine effort to obtain a substantial ownership interest in an eligible business.
18. Section 134 (5) prohibits cancellation of the visa of other persons if such a decision would result in extreme hardship to that person.
19. The applicant and his wife would not suffer extreme hardship. They both remain residents of Thailand. For reasons given earlier they have no real or personal property interest in Australia other than a freehold apartment in the Melbourne CBD which they can continue to hold whilst resident overseas. Their children however will be affected by the decision to cancel because they will not be permitted to remain in Australia and continue their education. They may apply for student visas which I recommended that Mr and Mrs Chen consider and make enquiries as to eligibility whilst they were presently in Australia. However, I am unable to find in fact, or in law, that affirmation of the decision of the Minister would cause the children extreme hardship.
20. Having to end education in Australia and return to Thailand would be unfortunate and would probably cause unhappiness. It would result in a disruption to education and disassociation with friends acquired in Australia. But even if those consequences amounted to hardship I could not find that it would be extreme. Parliament deliberately inserted that word into the legislation and its use clearly points to a degree of hardship of a particular type and degree. Extreme has been found to be exceedingly great or high in degree (refer MacQuarie Dictionary; Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961).
21. I could not find that leaving Australia and returning to Thailand to resume education in the circumstances of this case amount to hardship of the children which is extreme.
22. Fang-Rong Chen the applicant's daughter has completed 18 months of a Bachelor of Arts Degree at Melbourne University. She has apparently adjusted well to the academic, cultural and social environment and no longer suffers stress that she endured in Singapore. Mrs Chen was unsure whether her daughter would be given credit for the subjects that she has completed to date but there is nothing which points to any prohibition on resuming study in Singapore or Thailand. Fang-Rong speaks both English and Mandarin, she has family members residing in Singapore (where she may decide to return) or she can live with her parents who both presently reside in Thailand.
23. Fang-Han Chen, the applicant's son, commenced his enrolment at the Geelong Grammar School after notice was received by Mr Chen that his business visa was cancelled. I am disturbed that he was allowed to commence that course despite a very great risk that the decision to cancel the business visa would be affirmed, no less in circumstances where Mr Chen conceded that he did not ever obtain a substantial ownership interest in an eligible business being a major criteria of continuing eligibility. Fang-Han is undertaking a two year International Baccalaureate Program at Geelong Grammar. If he is required to return to Thailand to live with his parents he may enter the International School in Thailand whilst his parents remain residents but would be required to recommence it that is to say he would not be given credit for the work done to date. That is of course unfortunate but it would not amount to hardship which is extreme.
24. There is nothing which would cause me to find that the children are vulnerable or have special needs giving rise to hardship (refer Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481) that would result from the decision under review being affirmed.
25. In conclusion I am satisfied that relevant time limits under s 134 (9) and s 135 have been satisfied namely, the visa was granted on 14 January 2004, the applicant first entered Australia on 10 April 2004, the notice of intention to cancel the visa was issued on 9 February 2007, the applicant's representations to the Minister in response to the notice was received on 27 April 2007 (6 days overdue) and the decision to cancel the visa was made on 8 June 2007 within the 90 day period which would have otherwise expired on 20 July 2007 (refer s 135 (4) (b) of the Act).
26. In all of the circumstances and for the above reasons I am satisfied that the decision under review must be affirmed.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: Grace Carney, Personal Assistant
Date of Hearing 14 April 2008
Date of Decision 24 April 2008
Solicitor for the Applicant Self Represented
Solicitor for the Respondent Ned Rogers, Australian Government Solicitor
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