Goh and Minister for Immigration and Citizenship

[2008] AATA 698

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 698

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3773

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SIEW SIONG GOH

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mr A Sweidan, Senior Member

Date8 August 2008

PlacePerth

Decision The Tribunal affirms the decision under review.

.......(sgd) Mr A Sweidan............................

Senior Member

CATCHWORDS

Immigration and Citizenship – Business Skills (sub-class 128) visa – applicant failed to satisfy requirements of Migration Act 1958 – whether applicant made genuine efforts on the facts – whether Tribunal should exercise residual discretion – decision affirmed

LEGISLATION

Migration Act 1958 (C’th) S134(1)

CASES

Re Griffiths and Migration Agents Registration Authority [2001] AATA 240 Freeman v The Secretary, Department of Social Security (1988) 19 FCR 342 Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 54.
Shi v Migration Agents Registration Authority [2007] FCAFC 59
Shi v Migration Agents Registry Authority s522/207
Abbu and Minister for Immigration and Multicultural Affairs [2006] AATA 898
Hook and Minister for Immigration and Citizenship [2007] AATA 1798
Gunawan and Minister for Immigration and Multicultural Affairs [2006] AATA 852
McAlpin and Minister for Immigration and Citizenship [2008] AATA 109
Koosasi and Minister for Immigration and Multicultural Affairs [2006] AATA 179
Ng and Minister for Immigration & Multicultural & Indigenous Affairs [2003] AATA 299
Yonathan v Minister for Immigration and Citizenship  [2007] AATA 1181
Kim v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCA 31
Bakri and Minister for Immigration and Multicultural Affairs [2007] AATA 14
Nagaria and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 579
Pranata and Anor and Minister for Immigration, Multicultural and Indigenous Affairs [2004] AATA 517
Teng and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 715
Ho and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1258
Dharsiono and Minister for Immigration and Multicultural Affairs [2006] AATA 786
Sutoyo and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 604
Reed and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 335
Burg v Minister for Immigration and Citizenship [2007] AATA 1630
Padilla v Minister for Immigration and Multicultural Affairs [2006] AATA 922 Tauriandy v Minister for Immigration and Multicultural Affairs [2006] AATA 183 Jo v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 469
Haryanto v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA
Barnett and Minister for Immigration and Citizenship [2007] AATA 1454

REASONS FOR DECISION

8 August 2008 Mr A Sweidan, Senior Member

BACKGROUND

1.      This is an application to the Tribunal for review of decision made by a delegate of the Minister for Immigration and Citizenship (the respondent) on 6 July 2007 cancelling the business skills visa of Siew Siong Michael Goh (the applicant).

2.      The applicant was granted a sub-class 128 Business Skills visa on 2 February 2004 and first entered Australia on 9 April 2004, on that visa.

3.      On 4 April 2006 the applicant was sent a 24 month survey (Form 1010), which he was to return by 7 May 2006.  Receiving no response, the Department of Immigration and Citizenship (the Department) sent a reminder on 9 June 2006, asking the applicant to return the survey by 28 July 2006. The Department sent a further reminder letter on 7 December 2006 asking the applicant to return the survey by 15 January 2007.

4.      The applicant returned the 24 month survey form on 12 January 2007.

5.      On 15 January 2007 a notice of intention to cancel (NOIC) the visa was sent via air mail to the applicant’s overseas address in Singapore.  The applicant responded on 23 January 2007.

6.      On 6 July 2007 a delegate of the respondent decided to cancel the applicant’s visa to take effect on 3 August 2007.

7.      On 6 August 2007 the applicant made an application to the Tribunal seeking review of the delegate’s decision.  The applicant’s attached reasons for seeking a review of the decision (T23), claiming inter alia, that:

7.1he has considerable business experience and contacts and is currently the Executive Director of an air-conditioning manufacturing company in Singapore, called Daikin Airconditioning Pte Ltd (Daikin);

7.2he spent some A$15,000 applying for his Business Skills visa when he made his application for the visa in 2004;

7.3a major legal dispute arose in 2002 between two groups of shareholders within Daikin; (applicant provided further evidence in this regard at the hearing before the Tribunal, as to which see below)

7.4being the only director of the overseas company, and considering the amounts of money involved, he needed to devote his time to this company, and he was prevented from carrying out his original plans; and

7.5in any event, he did incorporate an Australian company, MLN Pty Ltd (MLN), in mid 2006, has transferred significant assets to Australia in the amount of $250,000, and did have several commercial discussions with potential business associates.

Legislation and Policy

8. Section 134 of the Migration Act 1958 (the Act) provides that the Minister has a discretion to cancel the visa if satisfied that the visa holder has not obtained a substantial ownership interest in an eligible business in Australia, is not utilising his skills in actively participating at a senior level in the day-to-day management of the business, or does not intend to do these things. The Minister must not cancel the visa if satisfied that the visa holder has made genuine efforts to comply with the requirements and intends to continue to make such genuine efforts.

Information which the Tribunal should consider

9. In conducting its review of the cancellation decision the Tribunal should have regard to all relevant evidence to determine whether the applicant satisfies the requirements of section 134(1) or is making genuine efforts to do so within the meaning of section 134(2) as at the date of cancellation: Re Griffiths and Migration Agents Registration Authority [2001] AATA 240; Freeman v The Secretary, Department of Social Security (1988) 19 FCR 342 and Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 54.

10.     In the Full Federal Court decision of Shi v Migration Agents Registration Authority [2007] FCAFC 59 His Honour Nicholson J at [10] with Tracey J at [58] agreeing held the following in relation to this issue:

The Tribunal is not confined to material which was before the decision-maker or the events which had occurred up till the time of its decision…However, the Tribunal is obliged to address the same question as the primary decision-maker…Where the question to be decided arises under a statute, the relevance of later evidence will depend upon the proper construction of the statute and the particular factual context…If the primary decision had to be made by reference to a particular point of time, the Tribunal will be limited to deciding the question by reference to that point of time…If the decision could only have been made following a certain procedure, it may be that the evidence called on the review cannot be such as would undermine that procedure.  This may preclude calling of evidence of improvements implemented after the date of the decision and in response to the procedure…This does not mean the Tribunal cannot receive as evidence facts that occurred after the date of the decision under review provided that evidence bears on the merits of the decision as at the time that it was required to be made.

11.     However, the decision of the Full Federal Court in Shi was set aside by the High Court on 30 July 2008 in Shi v Migration Agents Registry Authority s522/207. The High Court held that the Tribunal must make its decision on the most up to date material available to it at the time of it’s own decision.

Substantial Ownership Interest in an Eligible Business

12.     The applicant conceded that he has not obtained a substantial ownership interest in an eligible business.

Active participation at a senior level in the day-to-day management of an eligible business - s134(1)(b)

13.     The applicant also conceded that he has not actively participated at a senior level in the day-to-day management of an eligible business.

Genuine efforts - s134(2)

14.     The Tribunal finds that the applicant did not make a genuine effort to obtain a substantial ownership interest in an eligible business in Australia or utilise his skills in actively participating at a senior level in the day-to-day management of that business.

Genuine efforts - the principles

15.     Previous decisions of the Tribunal have established a number of propositions relevant in the present circumstances.

Genuine effort must be given ordinary meaning

16.     The phrase "genuine effort" is an ordinary English phrase and the appropriate ordinary meaning of that phrase is "real and sincere endeavour or strenuous attempt" (Abbu and Minister for Immigration and Multicultural Affairs [2006] AATA 898 at [42] per DP Hotop) or "endeavour or exertion which is sincere and real" (Hook and Minister for Immigration and Citizenship [2007] AATA 1798 at [39] per DP Hotop).

17.     The phrase "genuine effort" must be given its ordinary meaning within the context of the Act and the Oxford Dictionary of English defines "genuine" to mean "truly what something is said to be; authentic" and "effort" to mean "a vigorous or determined attempt" (Gunawan and Minister for Immigration and Multicultural Affairs [2006] AATA 852 at [46], per SM Sweidan).

Who must make the genuine effort

18.     The relevant visa holder must himself or herself have made some real or genuine effort (Re Yam (supra) at [53]).

The requisite degree of effort

19.     The degree of effort made must be beyond that which is purely superficial or token (Yam (supra) at [53]).

20.     The effort must involve some exertion or endeavour (Leo (supra)).

21.     To constitute genuine effort, the activities must be real and substantial and not in the nature of a pretence or a sham (McAlpin and Minister for Immigration and Citizenship [2008] AATA 109 at [59] per SM Penglis).

Lack of continuous activity

22. Evidence showing "sporadic and desultory activity" by an applicant that "lacks the sustained and continuous quality… implicit in the requirements of s134(2)" points to a lack of genuine efforts (Koosasi and Minister for Immigration and Multicultural Affairs [2006] AATA 179 at [53], per DP Walker).

23.     A lack of effort for the majority of the visa period followed by a "flurry of activity" that is "mere window dressing to give the appearance of vigorous and conscientious search for a business investment vehicle" does not constitute genuine efforts (Ng and Minister for Immigration & Multicultural & Indigenous Affairs [2003] AATA 299, per DP Wright QC at [22]).

Relevance of the subjective beliefs of the applicant

24. Efforts which cannot realistically satisfy either of the criteria in s134(2) cannot be said to be genuine efforts (Yonathan v Minister for Immigration and Citizenship [2007] AATA 1181 at [45], per SM Sweidan).

25.     Deputy President Hotop in Hook (supra at [43]) interpreted the relevance of subjective beliefs differently, holding that where a person has undertaken substantial activities in a sincere endeavour to satisfy the matters referred to in paragraphs (a) and (b) of s 134(2), in the honest and reasonable belief that the activities undertaken have satisfied those matters, that person has made a “genuine effort”, within the meaning of s 134(2), to satisfy those matters, notwithstanding that the activities undertaken could not have satisfied those matters (see also McAlpin (supra) at [58]).

Relevance of departmental policy in applying s134(3) factors

26. Section 134(3) provides a list of matters that the Minister may take into account when determining whether a person has made genuine efforts to obtain a substantial ownership interest in an eligible business in Australia and to utilise his skills in actively participating at a senior level in the day-to-day management of that business.

27.     Notes to guide the interpretation of these matters are provided at paragraph 9.2 of PAM3. The matters that may be taken into account, and the notes to their interpretation provide as follows:

28.1business proposals that the person has developed.  PAM3 refers to whether there is a business proposal which is considered genuine, realistic and achievable;

28.2the existence of partners or joint ventures.  PAM3 refers to whether there is a formal contract with partners or joint venturers;

28.3research that the person has undertaken into the conduct of an eligible business in Australia.  PAM3 refers to whether there is written evidence of detailed consultations with business advisers and whether there is continuous, concerted and genuine research since the 'clock-start date';

28.4the period or periods during which the person has been present in Australia.  PAM3 notes that it is expected that a genuine effort would require significant time in Australia to, for example, explore business opportunities, contacts and sources of supplies, inspect premises/property and goods, develop relationships and gain an understanding of local practices.

28.5the value of assets transferred for use in obtaining an interest in an eligible business.  PAM3 refers to the transfer of sufficient funds to ensure that the business meets the requirements of an eligible business, or, if the business has not yet been established, the presence of sufficient assets in Australia to pursue research into an eligible business and to be able to establish such a business when the opportunity arises.

28.6the value of ownership interest in the eligible business in Australia which is or has been held by the person.  PAM3 refers to a visa holder with a minor, rather than substantial, ownership interest being able to demonstrate that they are working towards establishing substantial ownership.

28.7       the business activity that is or has been undertaken by the person.

28.8whether the person has failed to comply with a notice under section 137.  The MSI refers to whether there has been a failure to comply with a notice for information under section 137, i.e. mandatory monitoring of Australian address and return of survey forms; and

28.9if 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 on the day-to-day management of the business:

28.9.1the length of time the person held the ownership interest or participated in the management as the case requires; and

28.9.2.the reason why the person no longer holds the interest or participates in the management as the case requires.

Applying the genuine efforts principles to the applicant's circumstances

28.     When the principles cited above are applied to the applicant's circumstances, the Tribunal finds that the following conclusions can be drawn.

The applicant's lack of continuous activity points to a lack of genuine efforts

29.     The applicant was granted his business skills visa on 2 February 2004. The company that the applicant claims to have invested in, MLN, appears to have been registered (although the applicant has not provided evidence of the exact date) in "early 2006" (T353) or "mid 2006" (T23), over two years later.

The applicant's activities lacked the requisite degree of effort

30.     The Tribunal finds that the evidence in the T documents and the applicant’s evidence at the hearing of the applicant's activities up to the date of cancellation does not show that the applicant made the requisite degree of effort.

31.     The Tribunal finds that the efforts evidenced by the three advertisements at T358, T359-T360 and T361 can be characterised as superficial or token, and do not reveal sufficient exertion and endeavour. The applicant claims, at T352, that he conducted feasibility studies on importing musical instruments into Australia. The Tribunal is of the view that the collecting of advertisements from musical instrument retailers in Perth does not constitute a 'feasibility study'.

32.     The Tribunal notes that the applicant claims to have contacted travel agents in Perth (T352). The Tribunal notes that there is no other evidence of contact with the travel agents, and the Tribunal concludes that these efforts were superficial or token, and do not reveal sufficient exertion and endeavour. The Tribunal accepts that a business plan was prepared in relation to the proposed travel agent venture at the time of the visa application (T312-T313), but finds that no efforts to pursue this plan were made after the grant of the visa.

No evidence of the subjective beliefs of the applicant

33.     The applicant has filed no evidence relating to the foundation of any beliefs he may have had regarding his compliance with his visa conditions.

The applicant has not developed any business proposals

34. With reference to s134(3)(a) and the PAM3 criteria cited above, the Tribunal notes that the applicant has not developed any business proposals that are genuine, realistic and achievable, in the context of MLN or otherwise.

The applicant has not signed formal contracts with joint venturers

35. With reference to s134(3)(b) and the PAM3 criteria cited above, the Tribunal notes that the applicant has not signed any formal contracts with joint venturers or partners.

The applicant has undertaken insufficient research into conducting an eligible business in Australia

36. With reference to s134(3)(c) and the PAM3 criteria cited above, the Tribunal finds that there is insufficient documentary evidence of research into Australian businesses that the applicant claims to have carried out (see above).

The applicant has not spent sufficient time in Australia

37. With reference to s134(3)(d) and the PAM3 criteria cited above, the Tribunal finds that the 13 days the applicant spent in Australia during the lifetime of his visa (se T73) did not give him sufficient time to explore business opportunities, contacts and sources of supplies, inspect premises/property and goods, develop relationships and gain an understanding of local practices.

38.     Furthermore, the Tribunal notes that applicant has not provided sufficient evidence to support his claim that he intends to permanently settle in Australia once the Singapore litigation has concluded.

Residual discretion

39. The Tribunal has a residual discretion not the cancel an applicant’s visa, even if he has not fulfilled the requirements of s134(1) and s134(2) of the Act: Kim v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCA 31.

40.     As Deputy President Hotop at [51] in Hook (supra) noted, neither the Act nor specific Department policy guidelines provide specific guidance as to what considerations may, or may not, be taken into account in exercising the discretionary power. The Tribunal did note however that “Attachment 2 - NOICC - section 134” stated that Departmental officers will consider the following factors in deciding whether to cancel an applicant’s visa, including in effect:

40.1 the applicant’s engagement in the day-to-day management at a senior level in an eligible business;

40.2any evidence of genuine effort that the applicant made to engage in the day-to-day management at a senior level in an eligible business;

40.3    the length of time spent in Australia since the applicant’s initial arrival;

40.4the degree of hardship which may be caused to Australian citizens or permanent residents if an applicant’s visa is cancelled;

40.5any unreasonable hardship the applicant might suffer if his or her visa was cancelled;

40.6    any ties (including family, social and business) to other countries;

40.7    the circumstances in which the ground/s of cancellation arose;

40.8    the seriousness of the ground/s for cancellation; and

40.9the applicant’s behaviour to the Department, including efforts made to comply with requests for information.

41.     The residual discretion is a power that should be used sparingly and only in unforeseen and unusual situations: Bakri and Minister for Immigration and Multicultural Affairs [2007] AATA 14 at [74] per Penglis SM, regarding the exercise of the residual discretion in "highly unusual circumstances".

42.     The applicant outlined in his letter to the Department dated 6 April 2007 (T374) and in his evidence before the Tribunal the reasons why he has been unable to commence business activities in Australia. He pointed to the extensive litigation involving the Singaporean company Daikin, of which he is an executive director and the demands which this made on his time. The applicant states that due to these “extenuating and unforeseen circumstances”, he was forced to abandon some of his original plans.  On this basis he believes that he should be given more time and that his visa should not be cancelled. 

43.     The Tribunal acknowledges the applicant's circumstances, but makes the following findings in this regard:

43.1It is not a satisfactory explanation or excuse that an applicant had to spend substantial amounts of time on his or her overseas business, even where such a decision makes commercial sense: Nagaria and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 579 at [40]; Pranata and Anor and Minister for Immigration, Multicultural and Indigenous Affairs [2004] AATA 517 at [26]. The fact that the litigation made the applicant feel he needed to devote almost all his time to his overseas business does not justify in the Tribunal’s view the Tribunal using its discretion in his favour.

43.2An excuse is not satisfactory where it involves facts and events that arose before the visa was granted, and thus was reasonably foreseeable to the applicant: Gunawan (supra) at [11]; Teng and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 715 at [33].

43.3The Tribunal notes that the applicant claims at T23 that "my current predicament … began in 2002". The Tribunal also notes that the Singaporean Court document S58/2004/WA naming the applicant’s overseas business as a defendant is dated 19 January 2004 (T393).  In contrast, the applicant's visa was granted on 2 February 2004 (T319). The applicant therefore knew before his visa was granted, or knew very shortly thereafter, that this litigation would be a significant barrier to him satisfying his visa conditions.

43.4An excuse is not satisfactory where the applicant failed to raise it earlier with the appropriate authorities: Teng (supra) at [33]. The Tribunal notes that the Department specifically sent a letter dated 14 January 2004 to the applicant asking him if there had been any changes in circumstances.

43.5The applicant notably failed to inform the Department of the litigation involving his overseas company when it arose on 19 January 2004 (if it did not arise earlier).  The applicant also failed to respond to and inform the Department when asked numerous times to fill out his 24 month survey.  The first time the Department heard about this situation appears to be on or about 12 January 2007, some three years later. The Tribunal accepts that confidential information relating to the litigation need not have been provided to the Department (as the applicant contends at T23), but the Department clearly ought to have been at least informed of the existence of the litigation.

43.6The residual discretion should not be exercised where giving the applicant more time would be of little practical benefit:  Gunawan at [24]; Ho and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1258 at [37]; Dharsiono and Minister for Immigration and Multicultural Affairs [2006] AATA 786 at [73]; Sutoyo and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 604 at [20]; and Reed and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 335 at [22]. While the Tribunal can give applicants more time to fulfil their visa requirements, it cannot simply absolve them of these obligations altogether.

43.7The Tribunal notes that the applicant has not provided any evidence that the Singapore litigation is going to cease at a known date in the near future. The Singapore Court has reserved it’s decision and there may well be an appeal. In these circumstances the Tribunal cannot conclude that, even if the applicant was given more time, he would begin satisfying his visa conditions as required.

43.8The applicant only spent 13 days in Australia during the lifetime of his visa and in the Tribunal’s opinion has not demonstrated a serious and realistic intention to spend more time in Australia in the near future (Burg v Minister for Immigration and Citizenship [2007] AATA 1630 at [63]; Padilla v Minister for Immigration and Multicultural Affairs [2006] AATA 922 at [53]; Abbu (supra) at [47]; Tauriandy v Minister for Immigration and Multicultural Affairs [2006] AATA 183 at [66]; Jo v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 469 at [120]; Haryanto v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 317)

43.9The applicant has not moved permanently to Australia with his family members, nor does he seem to have a realistic intention of doing so in the near future: Burg (supra) at [63]; Teo (supra) at [88].

43.10 It appears that no hardship, other than possibly ‘lost dreams’, will affect the applicant or his family if their visas are cancelled: Teo (supra) at [79]. The Tribunal notes the letter from the applicant's daughter, Natasha Goh Shu Hui, to the Department dated 7 April 2007 (T392) to the effect that upon graduating from school in early 2008, she intends to "sign up for a Medical Course in Australia". The Tribunal notes that such an option remains available to Ms Goh through the student visa regime, and that any denial of such an opportunity through the business skills visa regime does not constitute hardship.

43.11The Tribunal has previously pointed out that business skills visas have no preclusion period.  The Tribunal therefore should not exercise its residual discretion where it would be more appropriate for the applicant and his or her family members to take other more appropriate avenues, such as finding more suitable visas under a different visa regime, or simply reapplying at a more appropriate time in the future: Barnett and Minister for Immigration and Citizenship [2007] AATA 1454 at [37]; Nagaria (supra) at [46].

43.12It appears that  the applicant clearly does not have the capacity or the intention to satisfy his visa obligations in the near and foreseeable future.  This being the case, it may be more appropriate if he applied under a different visa regime that does not have the same requirements, or reapplies in the future when the current litigation involving his overseas company has actually ceased.

Decision

44.     The Tribunal affirms the decision under review because:

44.1The applicant has by his own admission failed to obtain a substantial ownership interest in an eligible business in Australia;

44.2The applicant has also by his own admission failed to utilise his skills in actively participating at a senior level in the day-to-day management of such a business;

44.3The applicant has failed to make genuine efforts to obtain a substantial interest in an eligible business in Australia or to utilise his skills in actively participating at a senior level in the day-to-day management of an eligible business; and

44.4This is not an appropriate case for the exercise of the Tribunal's residual discretion.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member

Signed: ........(sgd) T Freeman.........................
  Associate

Date/s of Hearing  17 and 18 July 2008
Date of Decision  8 August 2008
Counsel for the Applicant           Self represented
Counsel for the Respondent       Mr S Thackrah
Solicitor for the Respondent       Australian Government Solicitor