Glass and Minister for Immigration, Multicultural and Indigenous Affairs
[2004] AATA 524
•25 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 524
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/779
GENERAL ADMINISTRATIVE DIVISION )
Re KLAUS GLASS Applicant
And
MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date25 May 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
....................(Sgd).....................
RG Kenny
Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Business Skills (Migrant) (Class AD) (Subclass 127) visa – cancellation – notice of intention to cancel – use of address on passenger card –applicant obliged to notify of changes of address - alternative methods of notification available to respondent - whether notice should have been given electronically – notice of intention to cancel visa properly given
IMMIGRATION AND CITIZENSHIP – Business Skills visa – cancellation - grounds exist for cancelling visa - failure to engage in eligible business - decision to cancel visa affirmed
Migration Act 1958 ss 102, 165, 134, 135, 494B, 506
Migration Regulations 1994 rr 1.03, 3.01, 3.02, 2.55
Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001
Migration Amendment Regulations 2001 (No 6)
Customs Act 1901 s 195
Ball v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 699
Re Bhyat and Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 1051
Re Eng and Minister for Immigration, Multicultural and Indigenous Affairs [2004] AATA 76
Re Huang and Minister for Immigration, Multicultural and Indigenous Affairs[2002] AATA 656
Re Kow and Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 973
Osborne v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCA 1113Re Tang and Minister for Immigration and Multicultural Affairs[2000] AATA 997
Re Wong and Minister for Immigration and Multicultural Affairs[2002] AATA 54REASONS FOR DECISION
25 May 2004 Mr R G Kenny, Member Hearing
1. On 12 February 2000, Klaus Glass (the applicant), a German citizen born on 3 July 1954, arrived in Australia in accordance with a Business Skills (Migrant) (Class AD) (Subclass 127) Visa (the visa) which was granted on 7 February 2000. On 23 July 2003, a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs (the respondent) wrote to the applicant advising him that his visa had been cancelled in accordance with the terms of sub-section 134(1) of the Migration Act 1958 (the Act). On 12 September 2003, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
2. The applicant was represented by Mr C Levingston, solicitor, and the respondent was represented by Mr M Steele, solicitor. In evidence were the following:
Exhibit 1- documents prepared by the respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) (the T Documents pp 1–81);
Exhibit 2 - supplementary T Documents (pp 1–168);
Exhibit 3 - further supplementary T documents (pp 1-2);
Exhibit 4- a statement, dated 19 January 2004, by the applicant (with attachments A to E);
Exhibit 5 - a statutory declaration, dated 13 April 2004, by the applicant (with attachments pp 1-45);
Exhibit 6 - an affidavit, dated 7 April 2004, by Christopher Levingston, the applicant’s solicitor (with attachments A and B);
Exhibit 7 - an affidavit, dated 16 April 2004, by Judith Suzanne Wilkins; and
Exhibit 8 - documents relating to the applicant’s activities in Australia.
Issues and Legislation
3. The first issue for determination in this matter is whether or not the respondent complied with the notice requirements for visa cancellation as provided for under the Act and the Migration Regulations 1994 (the Regulations). In the event that the applicant was given appropriate notice, it must then be determined whether or not the grounds for cancellation of his business visa were satisfied. Relevant to the determination of those issues are the following provisions of the Act and the Regulations:
Migration Act 1958:
“134 Cancellation of business visas
(1)Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australia visa, an investment-linked visa or a family member’s visa), by written notice given to its holder, if the Minister is satisfied that its holder:
(a) has not obtained a substantial ownership interest in an eligible business in Australia; or
(b) is not utilising his or her skills in actively participating at a senior level in the day-to-day management of that business; or
(c) does not intend to continue to:
(i) hold a substantial ownership interest in; and
(ii) utilise his or her skills in actively participating at a senior level in the day-to-day management of;
an eligible business in Australia.
(2)The Minister must not cancel a business visa under subsection (1) if the Minister is satisfied that its holder:
(a) has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and
(b) has made a genuine effort to utilise his or her skills in actively participating at a senior level in the day-to-day management of that business; and
(c) intends to continue to make such genuine efforts.
(3) Without limiting the generality of matters that the Minister may take into account in determining whether a person has made the genuine effort referred to in subsection (2), the Minister may take into account any or all of the following matters:
(a) business proposals that the person has developed;
(b) the existence of partners or joint venturers for the business proposals;
(c) research that the person has undertaken into the conduct of an eligible business in Australia;
(d) the period or periods during which the person has been present in Australia;
(e) the value of assets transferred to Australia by the person for use in obtaining an interest in an eligible business;
(f) the value of ownership interest in eligible businesses in Australia that are, or have been, held by the person;
(g) business activity that is, or has been, undertaken by the person;
(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).
…
(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) … 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.
(10) In this section:
business visa means:
(a) a visa included in a class of visas, being a class that:
(i) has the words ‘Business Skills’ in its title; and
(ii) is prescribed for the purposes of this paragraph; or
(b) …
eligible business means a business that the Minister reasonably believes is resulting or will result in one or more of the following:
(a) the development of business links with the international market;
(b) the creation or maintenance of employment in Australia;
(c) the export of Australian goods or services;
(d) the production of goods or the provision of services that would otherwise be imported into Australia;
(e) the introduction of new or improved technology to Australia;
(f) an increase in commercial activity and competitiveness within sectors of the Australian economy.
135 Representations concerning cancellation of business visa
(1) Before cancelling a visa under subsection 134(1), (3A) or (4), the Minister must give its holder a written notice:
(a) stating that the Minister proposes to cancel the visa; and
(b) inviting its holder to make representations to the Minister concerning the proposed cancellation within:
(i) if the notice is given in Australia—28 days after the notice is given; or
(ii) if the notice is given outside Australia—70 days after the notice is given.
(2) The holder may make such representations to the Minister within the time specified in the notice.
(3) The Minister must give due consideration to any representations.
(4) If:
(a) the time specified in the notice ends after the end of the period referred to in subsection 134(9); and
(b) at the end of the period of 90 days commencing at the time specified in the notice, the Minister has not made a decision on whether to proceed with the cancellation;
the Minister is not to proceed with the cancellation.
(5) If the Minister decides not to proceed with the cancellation, the Minister must give its holder written notice to that effect.”
Migration Regulations 1994:
“2.55 Giving of documents relating to proposed cancellation, cancellation or revocation of cancellation
(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
(b) the giving of a document under subsection 501G (3) of the Act relating to a decision to cancel a visa under subsection 501 (1) or (2) or 501A (2) or section 501B or 501F of the Act; and
(c) the giving of a document to a holder or former holder of a visa relating to the revocation of the cancellation of a visa under the Act.
(2) However, this regulation does not apply in relation to:
(a) a notice to which section 137J of the Act relates; or
(b) a person who is in immigration detention.
(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 handing it to another person who:
(i) is at the person’s last residential or business address known to the Minister; and
(ii) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(iii) appears to be at least 16 years of age;
(c) by dating it, and then dispatching it:
(i) within 3 working days (in the place of dispatch) of the date of the document; and
(ii) by prepaid post or by other prepaid means;
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) e-mail; or
(iii) other electronic means;
to the last fax number, e-mail address or other electronic address known to the Minister.
(4) For a document mentioned in paragraph (1) (b):
(a) if the person has held the visa for less than 1 year when the document is to be given, the Minister must give the document in one of the ways mentioned in subregulation (3); and
(b) if the person has held the visa for at least 1 year when the document is to be given:
(i) Immigration must try to find the person; and
(ii) the Minister must give the document in one of the ways mentioned in subregulation (3).
(5) If the Minister gives a document to a person by handing it to the person, the person is taken to have received the document when it is handed to the person.
(6) If the Minister gives a document to a person by handing it to another person at a residential or business address, the person is taken to have received the document when it is handed to the other person.
(7) If the Minister gives a document to a person by dispatching it by prepaid post or by other prepaid means, the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia — 7 working days (in the place of that address) after the date of the document; or
(b) in any other case — 21 days after the date of the document.
(8) If the Minister gives a document to a person by transmitting it by fax, e-mail or other electronic means, the person is taken to have received the document at the end of the day on which the document is transmitted.”
Giving Notice of Cancellation
Evidence of the Applicant
4. In his evidence, the applicant conceded that he had undertaken, in the initial visa application claim, to provide changes of address within 28 days of any such change. He said that he had done this by forwarding the appropriate document, a Form 922, in February 2000 in relation to his address at 8/34-40 Rose Bay in Sydney and two other Form 922 documents in which he notified his change of address to Agnes Waters and Manly, respectively. He said that he had also provided the Manly address in a passenger card that he completed when re-entering Australia on 30 May 2002. He conceded that he had, in February 2003, moved from Manly to Scarborough in Queensland, and that he had not notified the respondent of that change of address until September 2003. He said that, after sending the first Form 922 in relation to Rose Bay, he had received an acknowledgment from the respondent which included a blank Form 922 and an addressed envelope for use with future address changes. He said that he had not received any other such letters of acknowledgment in relation to the subsequent Form 922 documents that he sent but he said that he had copied the original Form 922 and used this for notifying subsequent changes. He said that he always kept copies of all correspondence and that he carefully maintained the records in which these were filed.
5. The applicant also conceded that, in his initial application for a visa, he had accepted the obligation to respond to 24 month and 36 month surveys but he said that he had not received any formal notification of any such procedure from the respondent. He said that he had received a message on his mobile telephone from a person who identified herself as Liz Cameron. He said that he returned her call on 21 February 2002 and was advised that she was doing some longitudinal surveys for immigration and that she wanted to interview him. He said that he advised her that his address was in Queensland at that time. He said that he realised that she was in Sydney and that it become apparent that she was not intending to travel to Queensland. He said that, although nothing else happened in relation to Ms Cameron, he thought that her involvement had something to do with the 24 month survey requirement referred to in his initial application. He said that he had since learned that the woman he spoke to was not employed by the respondent but by a private organisation, namely, AC Nielsen. The applicant also conceded that he had been interviewed on 22 August 2000 by a researcher from AC Nielsen and that he had provided the researcher with his mobile phone number at that time.
6. The applicant said that he had provided his e-mail address to the respondent in the initial Form 922 that he provided in February 2000 and that this address had been retained by him throughout his period in Australia.
7. The applicant said that he first became aware of the cancellation of his visa when he was visited by an officer from the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA), Mr Wakerley, in September 2003. He said that he had expressed surprise to Mr Wakerley and was able to show him his file copies of the two 922 Forms which he had completed and forwarded to the respondent in relation to his changes of address to Agnes Waters and Manly in Queensland.
Evidence of David Ross Wakerley
8. Mr Wakerley said that he was employed by DIMIA and had made contact with the applicant in September 2003. He said that he was unable to locate him at the Manly address which had been given by the applicant on the passenger card but was able to ascertain his new Scarborough address by researching his name through internet white pages. He said that he went there and advised the applicant that he was in Australia unlawfully. He said that the applicant indicated that he had maintained up-to-date information of his address movements with the respondent and showed him copies of two Form 922 documents. He also said that he assisted the applicant in the completion of an application for a bridging visa to enable him to remain in Australia so as to have the matter dealt with by the Tribunal.
Evidence of Judith Suzanne Wilkins
9. Ms Wilkins said that she had been an officer of the respondent since February 2002 and was a case officer in its Business Skills Section from December 2002 until April 2003. She described her duties as including the following:
·entry and assessment of 24 and 36 month survey forms;
·monitoring compliance by business skills visa holders with the conditions of their visas;
·in cases where applicants did not comply with visa conditions, writing to visa holders to give them notice of the Minister’s intention to cancel their visas (an NOIC);
·assessing submissions from clients/migration agents as to why a visa should not be cancelled after a NOIC is issued; and
·after final assessment, cancelling business skills visas for non-compliance with visa conditions, as a delegate of the Minister, or issuing a withdrawal of intention to cancel where compliance with conditions is apparent.
10. Ms Wilkins said she was able to identify the NOIC which was sent to the applicant as one that she had drafted although she said that she could not specifically recall completing that document in his case. In her affidavit, dated 16 April 2004 (Exhibit 7), she identified the following practices that were followed at the time when the NOIC was sent to the applicant:
“7.The usual practice in the Business Skills section of the Departmental before sending a NOIC to a business skills visa holder is to check through the visa holder’s paper file to find his or her most recent address. Any information which is received relating to a particular visa holder is placed on that person’s paper file.
8.Every effort is made to ensure that every document relating to a particular visa holder is placed on that visas holder’s paper file. Separate files may exist in relation to the same visa holder relating to different visa applications. In that case, before sending a NOIC, it is the usual practice in the Business Skills section of the Department to check all of the paper files relating to the visa holder.
9.Paper files relating to business skills visa holders were generally kept in the section in filing cabinets and in a compactus at the time. I remember that the paper file relating to the applicant were kept near my desk. The Business Skills section has now relocated to Perth.
10.In addition, to check the visa holder’s last known address, the usual practice in the Business Skills section is to check the Access Database. The Access Database is a database maintained by the Business Skills section of the Department and is where records of visa holders are maintained.
11.The Database maintains a record of each visa holder, and addresses and correspondence they have been sent. During the time I worked in the Business Skills section, the Database was also used to generate templates for correspondence, using the address in the Database as the preferred address.
12.If additional information about a visa holder was received it would be recorded in the Database. For example:
(a)if visa holders phoned, file notes were made recording the conversation;
(b)notes were entered on the Database showing when mail was received from the visa holders; and
(c)address updates were received they were entered into the Database and selected as the preferred address for correspondence……
13.When a Form 922, Notification of Change of Address, is received in the Business Skills section, the address is entered into the Database on a matter of priority.
14.In addition, when a Form 922 is received, the practice in the Business Skills section is to write to the visa holder acknowledging receipt of the Form 922 and reminding the visa holder to notify the Department of any further change to their address. I have recently perused the Applicant’s paper file, CLF2000/9484, and located only one Form 922 dated 21 February 2000, which appears at p80 of the section 37 documents. The address indicated is:
8/34-40 Spencer Street
ROSE BAY NSW 2029
15.The only Departmental response to a Form 922 which appears on the Applicant’s paper file is dated 25 February 2000 and refers to the address in paragraph 14 above. The document is at p79 of the section 37 documents. The fact that no other letter was sent to the Applicant relating to a Form 922 indicates that no further Forms 922 were received from the Applicant.
16.It was also the usual practice, before sending a NOIC, to check a visa holder’s address on the Integrated Client Services Environment database (ICSE). The ICSE is a database maintained by the Department for the purpose of keeping records relating to visa applications and visa holders. Information relating to visa holders, such as changes to address, is entered on the ICSE as it is received …
17.Apart from checking ICSE, it is also usual practice to check for the visa holder’s address on the Settlements Database. The Settlements database is a database maintained by the Department for the purpose of keeping records relating to visa holders who settle in Australia as permanent residents …
18.The ICSE is available to all Departmental officers. The Access Database is available to all staff in the Business Skills section of the Department. The Settlements Database is available to some staff in the Business Skills section of the Department.”
11. In her evidence, Ms Wilkins confirmed that three separate databases were utilised for keeping information on visa holders and that all incoming documentation was placed on a particular visa holder’s paper file. She also confirmed that, when a Form 922 was received, a blank Form 922 and an addressed envelope were sent by return mail to that person. She identified the attachments to her affidavit, marked “JSW 1” and “JSW 3”, as printouts from the applicant’s paper file and Settlements file, respectively, and as providing the Rose Bay address as the only change of address on those files. She also identified the attachment “JSW 2” as an extract from the applicant’s ICSE file which revealed an entry on 3 October 2003 of a change of address provided by the applicant to 18 Intrepid Court, Scarborough, Queensland 4020. She said that, prior to this entry, the only change of address on that file was in response to the Form 922 that had been received from the applicant in 2000 in relation to Rose Bay.
12. Ms Wilkins said that the practice in the Business Skills Section was to send letters containing a NOIC by registered mail as this provided a means of determining whether or not it had been received by the visa holder. She said that this was not the practice with 24 months survey letters which were sent by ordinary prepaid mail.
13. In cross-examination, Ms Wilkins said that she was not aware of any occasions when visa holders made complaint that Form 922 documents were sent to but not received by DIMIA. She also said she believed that, routinely, when a Form 922 was received, a blank form and an addressed envelope would be returned to the visa holder. Further, she said that, in the applicant’s case, a 24 months survey document had been forwarded to him at his Rose Bay address on 11 January 2002 but that no response had been received from him and that the letter had not been returned as uncollected by Australia Post to DIMIA.
14. Ms Wilkins said that she was aware of the need for the cancellation process to be completed within three years of when a visa holder arrived in Australia. However, she said that, when an NOIC was returned by Australia Post, the procedure was to put in place a visa cancellation process with no particular regard being had to whatever length of time remained within the overall three-year period. She said that it was not the practice in the Business Skills Section to attempt to contact the visa holder by electronic means without the specific authorisation of that person because, unlike registered mail, there was the prospect that it may be received by some other person. She also said that the practice in relation to the sending of letters was for these to be placed in the outgoing mail receptacle where they would be posted on that day or the next day. She said that she was not aware of any occasions where that practice had not been followed.
Submissions
15. Mr Steele submitted that the respondent sent a letter which constituted a notice under the Act and the Regulations by registered mail on 18 December 2002 to the applicant at the following address:
Mr Klaus Glass
8/34-40 Spencer StreetROSE BAY NSW 2029
16. He submitted that the letter complied with the notice requirements of the Act and the Regulations and that DIMIA had acted reasonably in sending this notice to the applicant’s Rose Bay address because this was the contact address provided by the applicant in a Change of Address form (Form 922) supplied to DIMIA in February 2000. He submitted that there was no obligation on the respondent to attempt to locate the applicant at any alternative address before proceeding to cancel his visa.
17. Mr Steele referred to the obligations that the applicant had accepted when he completed, on 27 December 1999, a declaration as part of his application for business skills migration to Australia and, in particular, the obligation to notify changes in his residential address within 28 days of any such change. He also referred to the further obligation accepted by the applicant in that document to fully complete, in relation to his business activities, survey forms which would be sent to him at 24 and 36 month intervals. He submitted that the only notification of change of address that had been received by DIMIA was the Form 922, noted above. He also submitted that an acknowledgment of receipt of this form had been sent to the applicant at the newly notified Rose Bay address by letter dated 25 February 2000, that a 24 month survey had also been forwarded to him on 11 January 2002 at that address and that no response to the survey had been received from the applicant.
18. For the applicant, Mr Levingston submitted that the Act imposed a mandatory requirement on the respondent to advise the applicant of its intention to cancel his visa. He submitted that this had not been done in the applicant’s case because documents sent by the respondent in relation to the notice of intention to cancel the applicant’s visa and also in respect of the 24 month survey into his business activities had been sent to an address at which the applicant was no longer living at those times. He said that the applicant had provided, on two separate occasions, notification of the changes of address from Rose Bay to Queensland at Agnes Water and Manly by documents dated 19 February 2001 and 28 December 2001, respectively.
19. Mr Levingston also submitted that the respondent had been aware of the applicant’s e-mail address from the time when he first notified the change of address to Rose Bay and he submitted that, in view of the circumstances including the return by Australia Post of the notice of intention to cancel his visa, there was an obligation on the respondent to act reasonably and, thereby, to utilise that alternative means of communication. He said that this form of contact was specifically authorised by the Regulations. In particular, he said that this was an approach that should have been taken by the respondent because, due to the applicant’s failure to respond to the 24 months survey, it was already on notice that there would be difficulty in contacting him at the Rose Bay address.
20. Mr Levingston referred to subsection 134(9) of the Act which provides that a business visa is not to be cancelled unless a notice under section 135 was given within the period of three years commencing on the day when the person first entered Australia which, in the applicant’s case, was 12 February 2000. He submitted that the notice of intention to cancel which had been returned by Australia Post was received by the respondent on 23 January 2003 and that this meant there was still some 15 working days available for alternative means of contacting the applicant to be explored. In relation to the requirements of reasonableness on the part of the respondent, he cited the Federal court decisions of Osborne v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCA 1113 and Ball v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 699.
21. Mr Levingston referred to the various means nominated in regulation 2.55(3)(c) for giving notice and, in particular, to the need, when utilising prepaid post, for the document to be dispatched within three working days of the date of the document. He said that, in this case, there had been no evidence provided by the respondent that this time-frame had been complied with in the sending of the notice to the applicant at the Rose Bay address. Mr Levingston also submitted that procedures set out in regulation 2.55(3) were not consistent with the mandatory requirements of subsections 134(9) and 135(1) of the Act in that the Regulation purported to enable this mandatory requirement to be met by merely sending a document to the last known address of a person.
Consideration
22. Pursuant to sub-section 134(1) of the Act, the respondent may cancel a business visa by giving written notice to the visa holder that one of the matters listed in that provision has been satisfied. Any such notice must, in accordance with subsection 134(7) of the Act, give the reasons for cancellation and advise the visa holder of the availability of appeal avenues to the Tribunal. Subsection 134(9) of the Act provides that the business visa must not be cancelled unless a notice under section 135 of the Act was given to the visa holder within the three years commencing, if he was not in Australia when it was first granted, when the visa holder first entered Australia. In this case, it is not disputed that the applicant arrived in Australia on 12 February 2000 or that the time for giving the notice of cancellation ended on 12 February 2003. Section 135 of the Act is set out above. It requires that the notice must advise that the visa is to be cancelled and invite the visa holder to make representations concerning the proposed cancellation, in the applicant’s case, within 28 days after the notice is given. Subsection 135(4) of the Act precludes cancellation if the time referred to in the notice ends after the three-year period provided for in subsection 134(9) of the Act.
23. In 2001, the Act was amended by the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 and, as a result, sections 494A-D were enacted. Sections 494A and B relate to the giving of documents, generally, under the Act and they read:
“494A Giving documents by Minister where no requirement to do so by section 494B method
If:
(a) a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and
(b) the provision does not state that the document must be given:
(i) by one of the methods specified in section 494B; or
(ii) by a method prescribed for the purposes of giving documents to a person in immigration detention;
the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).
494B Methods by which Minister gives documents to a person
Coverage of section
(1) For the purposes of provisions of this Act or the regulations that:
(a) require or permit the Minister to give a document to a person (the recipient); and
(b) state that the Minister must do so by one of the methods specified in this section;
the methods are as follows.
Giving by hand
(2)One method consists of the Minister (including by way of an authorised officer) handing the document to the recipient.
Handing to a person at last residential or business address
(3) Another method consists of the Minister (including by way of an authorised officer) handing the document to another person who:
(a) is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and
(b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(c) appears to be at least 16 years of age.
Dispatch by prepaid post or by other prepaid means
(4) Another method consists of the Minister dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents.
Transmission by fax, e-mail or other electronic means
(5) Another method consists of the Minister transmitting the document by:
(a) fax; or
(b) e-mail; or
(c) other electronic means;
to the last fax number, e-mail address or other electronic address, as the case may be, provided to the Minister by the recipient for the purposes of receiving documents.
When the Minister hands a document by way of an authorised officer
(6) For the purposes of sections 494C and 494D, a reference in those sections to an act of the Minister includes, if the act is of a kind referred to in subsection (2) or (3) of this section, a reference to an act of the Minister by way of an authorised officer.”
24. At the same time as the Act was amended, the Regulations were amended by the Migration Amendment Regulations 2001 (No 6) and this introduced regulation 2.55 which is reproduced above. This sets out the procedure to be complied with in the giving of documents which relate to the proposed cancellation of certain types of visa. That Regulation makes provision for giving the document by hand, by prepaid post and by electronic means. In so far as it refers to giving the document by hand or by electronic means, it reflects the methods given in section 494B of the Act. However, in relation to giving the document by prepaid post, regulation 2.55(3)(c) provides that this may be done:
“by dating it, and then dispatching it:
(i) within 3 working days (in the place of dispatch) of the date of the document;
(ii) by prepaid post or by other prepaid means;
to the person’s last known residential address, business address or post box address known to the Minister;”
25. That provision is similar to paragraph 494B(4)(c) of the Act but differs from it in that it refers to the address last known to the Minister whereas the Act refers to the last address provided to the Minister for the purposes of receiving documents. These addresses will not necessarily be the same in a particular case. This means regulation 2.55 does not state that the document must be given in the manner specified in section 494B of the Act and it would seem to follow that, pursuant to section 494A of the Act, the Minister may give the document by any method that he or she considers appropriate.
26. The Explanatory Memorandum to the amending legislation includes the following:
“New section 494A Giving documents by Minister where no requirement to do so by section 494B method
153. New section 494A authorises the Minister to use any method that he or she considers to be appropriate to give a document to a person in circumstances where the method for giving the document has not been specified by the Migration Act or the Migration Regulations. This section does not prevent the Minister from opting to use one of the methods specified in new section 494B or prescribed by the Migration Regulations. However, where the Minister does use a method in section 494B, the provisions of new section 494C may be invoked to determine when the document is taken to have been received.
New section 494B Methods by which Minister gives documents to a person
154. New section 494B specifies alternative methods that control the ways in which the Minister is authorised to give documents to any person for the purposes of the Migration Act or the Migration Regulations. One of these methods must be used whenever a provision in the Migration Act or the Migration Regulations requires the document to be given in conformity with this section. However, the Minister is left free to determine which method to use in any given case.”
27. The intended interrelationship between regulation 2.55 and sections 494A and 494B of the Act is not entirely clear either on the face of the provisions or through a reading of the Explanatory Memorandum: see Re Bhyat and Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 1051 and Re Eng and Minister for Immigration, Multicultural and Indigenous Affairs [2004] AATA 76. However, as section 494A of the Act and the memorandum to that provision indicate, the means of giving the document as detailed in regulation 2.55(3) may be utilised and I am satisfied that this was the procedure sought to be relied on by the respondent in the applicant’s case.
28. In evidence, was a copy of the letter, dated 18 December 2002, addressed to the applicant at his Rose Bay address which purported to advise him of the proposed cancellation of his visa and to invite him to forward representations in writing, by 24 January 2003, to the respondent as to why his visa should not be cancelled. It is not disputed and I am satisfied that this letter was sent to the applicant’s Rose Bay address by registered mail, that this was the residential address provided by him in the Form 922 dated 21 February 2000, that it was returned to the respondent by Australia Post on the basis that it had been unclaimed by the applicant, that it was then received by the respondent on 23 January 2003 and that the respondent then proceeded to cancel his visa. I am satisfied that the letter dated 18 December 2002 meets the requirements of section 135 of the Act in that it provided advice relating to the proposed cancellation of the visa and invited representations from the visa holder in respect of that proposal. It set the return date for providing those representations at 24 January 2003 and I am satisfied that this was within the three year period commencing on the date of entry by the applicant into Australia on 12 February 2000.
29. It is not disputed and I am satisfied that the applicant did not receive the notice of 18 December 2002. However, I am also satisfied that the address to which it was posted was his residential address in 2000 and the only residential address on the respondent’s files when the notice was sent. In that regard, I accept the evidence of Ms Wilkins that she searched the respondent’s files relating to the applicant, that this was the only address contained therein and that, after the letter was prepared, it was dispatched by prepaid post from the respondent’s premises and that this was done, in accordance with the usual practice in the Business Skills Section, within three days.
30. In relation to the address on the respondent’s files, it was the applicant’s evidence that he provided two further Form 922 documents to the respondent and copies were in evidence as attachments to Exhibit 4. The first of these is dated 19 February 2001 and nominates a new address at Agnes Water; the second of these is dated 28 December 2001 and nominates Manly as the new address. However, I am satisfied that these were not received by the respondent. It was the applicant’s evidence that he was a meticulous record-keeper and always advised the respondent of changes of address within the 28 day time-frame to which he agreed when completing his initial visa application form. I am not satisfied that this was the case. Indeed, he conceded in his evidence that, when he moved from Manly to Scarborough in February 2003, he did not advise the respondent of this until eight months later and after his visa had been cancelled. In his evidence, the applicant agreed that, after he forwarded the Form 922 in February 2000 with notification of his Rose Bay address, he had received an acknowledgment from the respondent which included a further blank Form 922 and an envelope for notifying future changes of address. He also agreed that no such acknowledgments were received in respect of the subsequent Form 922 documents. In these circumstances, I am satisfied that these additional Form 922 documents were not forwarded by the applicant to the respondent. I accept the evidence of Mr Wakerley that he sighted notices of change of address but this was in September 2003 and they could have been prepared at any time before then. Regardless of whether the applicant sent subsequent Form 922 documents to the respondent, the evidence is that the last residential address contained in the various files pertaining to the applicant’s visa record was the one that he had provided in February 2000 at Rose Bay, Sydney. It was to this address that the notice was sent.
31. Alternative means of notifying the applicant of the proposed cancellation of his visa are given in regulation 2.55(3)(c). This nominates electronic means such as e-mail. It is not disputed that the respondent had been provided with the applicant’s e-mail address in the Form 922 dated 21 February 2000. However, regulation 2.55 makes it clear that these are alternative means of providing the notice of proposed cancellation to the applicant. In relation to business visas, the Regulations do not cast a duty on the respondent to take further steps to locate the applicant. This differs from the obligation cast upon the respondent with some other forms of visa. For example, in relation to a decision to cancel a visa under subsections 501(1), 501(2), 501A(2) or sections 501B or 501F of the Act, regulation 2.55(4)(b) provides that “Immigration must try to find the person”. The processes provided for in those provisions of the Act involve cancellation on character grounds and the Regulations do not make provision for the giving of notices or the means by which notices may be given of a proposed cancellation in such cases. However, the requirement to give notice of intention to cancel a visa and also to take reasonable steps to do so have been implied as a necessary condition for exercise of the power in relation to cancellation on the basis of character: see Osborne v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCA 1113 (at paragraph 18) and Ball v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 91 per Dowsett J at paragraph 18, Jacobson and Bennett JJ at paras 103-105.
32. There was information available to the respondent which, if utilised, may have enabled it to make contact with the applicant. This was the e-mail address which was notified by the applicant on 21 February 2000. I accept the applicant’s evidence that this has remained the same since that time and I also accept the evidence of Ms Wilkins that electronic means may raise potential problems with security. That concern is also implied in the following extract from the Explanatory Memorandum, noted above:
“157. Subsection 494B(5), which provides an electronic method for the giving of documents by the Minister, represents a new dispatch method from that which currently appears in the legislation. As outlined under Schedule 1 of the Explanatory Memorandum, to remain consistent with the ET Act, an administrative regime will be instituted whereby persons will be required to provide their written consent before the Minister may communicate with them electronically.”
33. Whilst those problems might arise in the event that documents were sent by e-mail as attachments, this is less likely to be the case in relation to the sending of a message for the purposes of verifying a person’s address. However, I am satisfied that, unlike the situation where cancellation on character grounds is envisaged, the Regulations do not cast an obligation on the respondent to “find” the applicant in this case. I am also satisfied that, in giving notice to the applicant, it was open to the respondent to utilise any one of the means provided for in regulation 2.55(3).
34. It would seem that, during 2002, the applicant was living at Manly. By letter, dated 23 July 2003, a notice of cancellation was sent to the respondent. Clearly, by that time, the respondent had become aware of a new address for the applicant because it was addressed to him at 345 Upper Esplanade in Manly Queensland 4179. While there was no direct contact between the applicant and the respondent from February 2000 until September 2003, he completed a passenger card on his re-entry into Australia on 30 May 2002 and, thereon, gave that Manly address. It was submitted by Mr Steele, in his statement of facts and contentions, that this was a Customs form which enabled Customs officers to obtain information in accordance with section 195 of the Customs Act 1901. That provision reads:
“195 Power to question passengers etc
(1) An officer of Customs may question:
(a) any person who is on board a ship or an aircraft or an installation of the kind referred to in paragraph 187(b), (c), (d) or (e);
(b) any person who has, or who the officer has reason to believe has, got off a ship or out of an aircraft; or
(c) any person who the officer has reason to believe is about to board a ship or an aircraft;
as to whether that person or any child or other person accompanying him has on his person, in his baggage or otherwise with him any:
(d) dutiable goods;
(e) excisable goods; or
(f) prohibited goods.
(2) A person shall answer questions put to him in pursuance of subsection (1).
Penalty: 10 penalty units.
(3) Subsection (2) is an offence of strict liability.”
35. While that provision appears to have no relevance to the passenger card, the following provisions of the Act and the Regulations indicate the significance of the respondent’s role in relation to passenger cards:
Migration Act:
“102 Passenger cards to be correct
A non-citizen must fill in his or her passenger card in such a way that:
(a) all questions on it are answered; and(b) no incorrect answers are given.
…
165 Interpretation
In this Subdivision:
‘clearance officer’ means an officer, or other person, authorised by the Minister to perform duties for the purposes of this Division.
…
506 Regulations about passenger cards
(1) Regulations under paragraph 504(1)(c) may provide for the giving of different information about different classes of people.
(2) The regulations are to provide for the giving of information, in the form of answers to questions on a form, to be known as a passenger card, by non-citizens travelling to Australia, other than non-citizens exempted by the regulations.
(3) The questions for a non-citizen required by subsection (2) may include, but are not limited to, questions about any or all of the following:
(a) the non-citizen's health;
(b) any criminal convictions in Australia or a foreign country of the non-citizen;
(c) the purpose of the new arrival's going to Australia;
(d) any unpaid debts to the Commonwealth of the non-citizen;
(e) any removal or deportation from, or refusal of admission into, Australia or a foreign country of the non-citizen.”
Migration Regulations:
“1.03 definitions
‘passenger card’ means a card of the kind referred to in section 506 of the Act
‘clearance officer’ has the meaning given by section 165 of the Act
…
3.01 Provision of information (general requirement)
(1) In this regulation:
‘officer’ includes a clearance officer. (2) This regulation applies to:
(a) a person who is an overseas passenger:
(i) arriving on board a vessel at a port in Australia in the course of, or at the conclusion of, an overseas flight or an overseas voyage; or
(ii) leaving Australia on board a vessel bound for or calling at a place outside Australia; and
(b) a person on board an aircraft arriving at, or departing from, an airport in Australia, being an aircraft operated by an international air carrier;
other than:
(c) a person included in a class of persons set out in an item in Part 1 of Schedule 9, being an item in which the word "no" appears in column 4; and
(d) a person who, under regulation 3.06, is not required to complete a passenger card.
…
(3) A person to whom this regulation applies must:
(a) complete a passenger card:
(i) in relation to the person and to any other person that person is in charge of on the relevant flight or voyage; and
(ii) in accordance with directions set out on the passenger card; and
(b) give the completed passenger card to an officer.
(4) An officer may require a person to whom this regulation applies to provide to the officer information about that person in respect of any of the following matters:
(a) name;
(b) date of birth and country of birth;
(c) citizenship;
(d) sex and marital status;
(e) usual occupation;
(f) passport number;
(g) if the person is not:
(i) an Australian citizen; or
(ii) a person who is eligible for the grant of a Special Category visa or a Permanent Resident of Norfolk Island visa; or
(iii)a person who will on entry be taken to hold a special purpose visa;
the number of the Australian visa held by the person;
(h) flight number of aircraft or name of ship in relation to the relevant flight or voyage;
(i) country in which the person boarded, or intends to disembark from, the aircraft or ship;
(j) if the person is entering Australia — the intended address of the person in Australia.
3.02 Passenger card
(1) A passenger card must include the following questions, or substantially similar questions:
(a) ‘Do you currently suffer from tuberculosis?’;
(b) ‘Do you have any criminal conviction/s?’.
(2) The questions set out in subregulation (1):
(a) may be printed on the passenger card in any order; and
(b) may be numbered in any way.
(3) A passenger card may include instructions for completing it, including instructions that questions are to be answered by ticks or other symbols.”
36. I am satisfied that the information contained in the passenger card relating to the applicant’s address at Manly was accessed by the respondent in order to ascertain the address to which the notice of cancellation of the applicant’s visa was sent on 23 July 2003. However, I am also satisfied that this was not known to the respondent in December 2002 when the respondent was engaged in the process of ascertaining what the last known residential address of the applicant was for the purpose of sending him the notice of intention to cancel his visa.
37. As noted above, for giving the notice under section 135 of the Act, the respondent sought to rely on the notice procedure in regulation 2.55. Pursuant to regulation 2.55(7), if the notice is dispatched by prepaid post, the visa holder is taken to have received it and to have done so seven working days after the date of the document. I am satisfied that the requirements of subsections 134(9) and 135(1) of the Act have been met.
Cancellation of Visa
Evidence of the applicant
38. The applicant agreed that, in his initial application for his visa completed on 27 December 1999, he had described his intended business activities in the following way:
“My intention is to establish a consultancy business in Sydney, Australia to represent European companies seeking to introduce and market new technology in Australia. The consultancy will seek to identify interesting engineering/planning projects in field of renovation. See business plan for further detail.”
39. He also agreed that he described the nature and extent of research he had undertaken in the following way:
“Exploratory business visits to Sydney (12.10.99 – 25.11.99) to meet with potential business partners in building, engineering industries. Obtained current information from Australian taxation specialist re Australian taxation obligations and most appropriate form of business entity to establish in Australia. Located suitable premises in Sydney to establish consultancy operation.”
40. In his affidavit (Exhibit 4), the applicant said that he could not recall having submitted a business plan but referred to the following statement which appeared in a submission completed on his behalf by a registered migration agent on 31 January 2000:
“Klaus Glass intends to apply his business acumen to a new business enterprise in Sydney, Australia. The applicant will establish an engineering consultancy, specialising in identification and implementation of renovation projects in the building/construction industries.”
41. The applicant continued:
“21. Although I did not have a business plan, I did have a clear sense of what it was that I intended to achieve. I intended to identify and exploit business opportunities arising out of the unique skills that I had acquired over my professional life. I did not intend to lead the same life that I led in Germany which involved me working about up to 16 hours a day 7 days a week.
22. The strategy that I sought to adopt was to in effect explore the city and seek out big development projects and identify the people and organisations undertaking those developments. I would photograph the site and the display boards which would give me a sense of the project and who the major participants were. I would then either ring or attend the site or the main players business premises and introduce myself and attempt to make personal contact with them so that they might consider utilising my expertise. It was at about that time that I realised that I had a lot to learn about facade construction in Australia and thereafter I spent a lot of time reading about the Australian standards as they applied to building and I also did a lot of research online about companies, systems and statistics.
23. With the benefit of hindsight I now realise that this approach was perhaps naïve. I did not have either the contacts or the local reputation to translate my being so up front. I was never able to translate my skills and experience into a serious business opportunity in Sydney.
24. Over the last three years I have applied myself to the identification and conception of a unique approach to a DIY (do-it-yourself) system of window and transparent wall construction and creation. The system would bring within the reach of the home handyman a completely unique system of window and wall construction. This realisation of a niche in the market place arose out of my systems research referred to in paragraph 22 above.
25. The intellectual property that I have developed is called ‘System IFT D2003’.
26. The intellectual property related to paragraph 25 above will be the subject of a patent to protect my intellectual property so that I might further develop and market it in Australia and the Pacific. It is intended that the product would have its initial market penetration in Australia as the system I have designed is overall in conformity with Australian design standards.
27. The development of intellectual property has always been a fundamental which has underpinned my professional career. The career that I enjoyed in Germany, always had a significant component of intellectual property in that I was called upon as a consultant engineer to design and develop ‘one-off’ engineering solutions to engineering problems. To that extent ‘System IFT D2003’ represents the recognition that my stated business objectives which formed the basis of my application for migration to Australia could not be bought to fruition.
28. I am and remain enthusiastic in my commitment to Australia. I recognise the limitations that I have imposed upon myself by deciding to conduct business in Australia which arise out of the relatively remote geographical location of Australia to the world’s markets. However, the decision to pursue the realm of ideas and to develop intellectual property simply reflects an adjustment of my expectations and an enhancement of my existing skills set.
29. Since taking up my residence in Australia I have continued to pursue my business contacts in Germany but always with an eye to the development of business opportunities in Australia. Further, I have also utilised the time that I have spent in Australia to pursue my former firm’s trade debtors which I have reduced from $A1.4m down to about $A200,000. I am confident that good opportunities abound in Australia and it is only a matter of time before the fruits of my efforts are available to me.”
42. In his oral evidence, the applicant said that, during his working life in Germany, he had developed solutions to many problems associated with the fitting of glass facades to buildings but that, as he had always been involved as a contractor to another company, he had not been in a position where he could apply for a patent for any of his ideas. He said that, with System IFT D2003, most of his time was spent on a computer and that, therefore, it did not matter where he was located provided he had computer facilities available to him. He said that he had a reasonable grasp of technical English although he had prepared the documentation relating to System IFT D2003 in German and was in the process of having it translated into English. He said that he had attempted to sell the product and did this by speaking to various companies. He said that his product was suited only to the Australian market because of the proliferation of wooden houses for which his system was adapted.
43. The applicant said that all of the work involved in developing System IFT D2003 had been done by himself and that he believed that the product was consistent with the objectives he had declared in his initial visa application. He said that he had seen a patent attorney in October 2003 in relation to System IFT D2003 and said that it would not have been appropriate for him to do so at any earlier time.
44. The applicant said that, when he had come to Australia, he had transferred his capital assets from Germany and that these amounted to approximately $A1.8m. He also said that he had not engaged in any employment during his time in Australia.
45. In cross-examination, the applicant said that he had lived in Agnes Waters for about one year and, while he agreed that it was a small community, he said that it was within easy reach of towns such as Gladstone and Bundaberg. He also agreed that he wanted to obtain Australian citizenship and that he enjoyed the lifestyle in Australia but denied that he had not been involved in business activities. When asked about the companies he had contacted in relation to the possible marketing of his system, the applicant said that he had called in at a Bunning’s Hardware shop in Morayfield where he spoke to someone in the office about the product. He said that he had been made aware that Bunning’s Hardware did not involve itself in developing or manufacturing products but only with their marketing. He also said that he had tried to talk to someone at another hardware shop in the Mitre 10 group.
Submissions
46. Mr Levingston submitted that, on one view, the applicant had been filled with a “surfeit of optimism” when he first came to Australia but that he had complied with the obligations that he was under in respect of his visa in devoting his time to preparation of the documentation relating to his window installation system. He referred to the transfer of capital to Australia by the applicant and submitted that this represented a high level of commitment by him. He submitted that the documents which constitute the intellectual property in his system were the result of his own endeavours since arriving in the country and, whilst conceding that the applicant had not sought to consult a patent attorney until after the decision was made to cancel his visa, he said that this was due to the stage of development of the intellectual property and submitted that there was no point in taking such advice until the project was well advanced.
47. Mr Steele submitted that there was no evidence before the Tribunal to indicate that the applicant had been making genuine efforts to engage in an eligible business in Australia or to make genuine efforts to utilise his skills in the management of any such business. He submitted that it was difficult to see how a person would be making such genuine efforts while living in a place so remote from business activities as Agnes Waters. He also submitted that it was unlikely that a person who was attempting to develop the kind of system envisaged by the applicant would wait as long as he did to get any advice about obtaining a patent. He also submitted that there was no evidence of any other documentation such as taxation returns or bank statements which would provide any guidance on whether the applicant was making a genuine effort to be engaged in business activities.
Consideration
48. Section 134 of the Act enables the respondent to cancel the applicant’s visa if satisfied of the factors listed in that provision. The relevant date to consider the applicant’s circumstances is the date of cancellation: see Re Wong and Minister for Immigration and Multicultural Affairs[2002] AATA 54 and Re Kow and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 973. In this case, that date was 23 July 2003. Pursuant to subsection 134(1) of the Act, the visa may be cancelled if the applicant had not obtained a substantial ownership interest in an eligible business in Australia; or was not utilising his skills in actively participating at a senior level in the day-to-day management of that business; or, in the event that either of those two requirements were met, that he did not intend to continue.
49. The term eligible business is defined in subsection 134(10) of the Act and set out above. It must be a business resulting or which will result in one or more of the following:
(a) the development of business links with the international market;
(b) the creation or maintenance of employment in Australia;
(c) the export of Australian goods or services;
(d) the production of goods or the provision of services that would otherwise be imported into Australia;
(e) the introduction of new or improved technology to Australia; or
(f) an increase in commercial activity and competitiveness within sectors of the Australian economy.
50. That definition has, as its focus, characteristics which, if at least one is satisfied, will make a business eligible for the purposes of the Act. However, it presupposes the existence of a business. In the applicant’s case, there is no evidence of any business entity or organisation, of any financial accounting of his activities for taxation or any other purpose or of any commercial activity whatsoever. In Re Huang and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 656, the Tribunal observed (at paragraph 11):
“One of the most significant factors to be taken into account in determining whether or not an activity amounts to carrying on a business is whether or not there is an intention to make a profit. If an activity has not and is not likely to result in a reasonable return for energy and money expended, then it is more likely than not that the person so engaging in the activity does so for motives other than the carrying on of a business.”
51. In Re Tang and Minister for Immigration and Multicultural Affairs[2000] AATA 997, the Tribunal held that the entity in question in that case was not carrying on a business and that, therefore, it was not an eligible business and said (at paragraph 20):
“The reference in subparagraph 134(1)(b) to the 'day-to-day management of that business' indicates that an eligible business must have some element of continuity and repetition. In Hope v Bathurst City Council (1980) 144 CLR 1, Mason J considered that the use of the phrase ‘carrying on the business’, as a qualifier of the noun ‘business’, required that there be a commercial enterprise in the nature of a going concern ‘that is activities engaged in for the purpose of profit on a continuous and repetitive basis’. Similar qualifying words in section 134 would compel a similar result.”
52. I am satisfied that the applicant’s activities did not constitute a business and that, therefore, they do not meet the description of being an eligible business for the purposes of the Act.
53. Subsection 134(2) of the Act precludes the cancellation of a business visa where the visa holder has made a genuine effort to obtain a substantial ownership interest in an eligible business and to utilise his skills in actively participating at a senior level in its day-to-day management and where he intends to continue to make such genuine efforts. As I understand the submission made on behalf of the applicant, reliance was placed on this provision on the basis that the applicant's activity in developing his system constituted genuine efforts by him to complete patentable intellectual property which, at some time in the future, would enable him to be involved in some form of eligible business. Even if it could be relied upon in that manner, I am not satisfied that the applicant's activities amount to a genuine effort to achieve either of the goals referred to in the provision. Guidance is provided in subsection 134(3) of the Act by the listing of matters that may be taken into account in determining whether genuine efforts have been made. These are listed above and I have had regard to them.
54. The applicant gave evidence that he saw a patent attorney in October 2003 which is after the date of the cancellation of his visa. As noted above, the applicant's circumstances are to be assessed as at the date of cancellation although I accept that activities undertaken after that date may be considered for the purpose of examining what light they throw upon circumstances at the time of cancellation: see Re Kow and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 973. In his evidence, the applicant said that he had made the appointment with the patent attorney at a time when he had developed his system to what he described as the “end stage”.
55. There is no evidence before the Tribunal that the applicant has continued his association with the patenting process or that he went further than the preliminary inquiry he made in October 2003. Also, there is no evidence to indicate that the applicant had undertaken any form of market research into the viability of the system that he is developing. In his evidence, he said that he had attempted to contact someone in one hardware group and had spoken to one person in another suburban hardware store about the manufacturing of his system. He also said that he was advised that the store was involved only in the sale of manufactured product and there is no evidence that there was any further follow-up by the applicant in respect of any prospects of production of the system that he was developing. I am satisfied that his activities did not constitute a genuine effort to meet either of the goals referred to in subsection 134(2) of the Act.
56. One other matter should be noted. In evidence was a letter, dated 11 January 2002, written to the applicant at his Rose Bay address which required him to complete a 24 month survey form and return it to DIMIA. The applicant did not return the form and his evidence was that he did not receive it. Nevertheless, he conceded that, from when his visa was granted, he was aware that he would be required to respond to DIMIA surveys about his business activities on a 24 and 36-month basis. No attempt was made by him to contact DIMIA at any time in that regard. The applicant said that he was under the impression that the contact from AC Nielsen was associated with the 24 month survey. The interview with the AC Nielsen representative took place on 22 August 2000 and, as this was only seven months after his arrival in Australia, I do not accept that he associated this with a 24 month DIMIA survey. The telephone contact with Liz Cameron occurred on 21 February 2002. While this was approximately 24 months after the applicant’s entry into Australia, he was advised that she was doing some longitudinal surveys for immigration. Further, he did not receive any material relating to the 24 month survey and made no attempt to contact DIMIA in relation that matter. In his case, that had particular relevance because of the significant change in the nature of the activity that he was engaged in when compared with that which he originally declared that he would undertake. In the statement of intention that the he made in his initial visa application, his business proposal was to establish a consultancy business in Sydney in premises that he had previously located. Not only did the applicant leave Sydney, he was not involved in construction projects or in any form of consultancy and became involved in designing his window system.
57. I am satisfied that the applicant’s visa was properly cancelled in accordance with section 134 of the Act.
Decision
58. The Tribunal affirms the decision under review.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Sarah Oliver
AssociateDate of Hearing 29 April 2004
Date of Decision 25 May 2004Solicitor for the Applicant Mr C Levingston, Christopher Levingston & Assoc
Solicitor for the Respondent Mr M Steele, Blake Dawson Waldron
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