Greyling and Minister for Immigration and Multicultural Affairs

[2007] AATA 1704

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1704

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W 200600013

GENERAL ADMINISTRATIVE DIVISION		)
Re		RUDOLPH THEUNIS GREYLING

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal Mr A Sweidan, Senior Member

Date24 August 2007

PlacePerth

Decision The Tribunal affirms the decision under review.

............[Sgd Mr A Sweidan].............

Senior Member

CATCHWORDS

Immigration – Business Skills Visa – applicant failed to obtain substantial ownership interest in an eligible business in Australia or to utilise his skills in actively participating at senior level in day to day management of such a business or make a genuine effort to do so – decision under review affirmed.

legislation

Migration Act 1958 (Cth) s 134

cases

Ong v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 178

Commissioner for Superannuation v Scott 71 ALR 408 at 412

Ng v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 299

Jo v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 77

Legana v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1166

Lau v Minister for immigration and Multicultural Affairs [2002] AATA 70

Yam v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283

Wong v Minister for Immigration and Multicultural Affairs [2002] AATA 54

Leo v Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 309

REASONS FOR DECISION

Mr A Sweidan, Senior Member    

background

1.      On 19 June2002 the applicant was granted a sub-class 127 business skills visa.  He first entered Australia on 11 July 2002.  The applicant was in Australia for a total of 23 days during the period from that date to 5 December 2005, when his visa was cancelled.

2.      On 17 August 2004 the applicant was sent a standard 24 month survey but did not return it.

3.      On 7 June 2005 a notice of intention to cancel the visa was sent to the applicant.

4.      The applicant’s authorised representative responded on 5 September 2005.  The response included a completed 36 month survey which claimed, inter alia:

(a)the applicant had obtained a 50% ownership interest in an eligible Australian business, Thordrillstar Pty Ltd (Thordrillstar), in which he had invested $200,000; and

(b)the applicant was involved in the day-to-day management of Thordrillstar and had the role of technical product development advisor.

5.      On 5 December 2005 a delegate of the respondent decided to cancel the applicant’s business skills visa and the visas held by the applicant’s family unit.  The applicant now seeks a review of that decision.

6.      The delegate found that the applicant had not obtained a substantial ownership interest in an eligible business, was not utilising his skills in senior management on a day-to-day basis, nor had he made genuine efforts to do so, as required by the relevant legislation and Ministerial policy outlined in Migration Series Instruction MSI-133.

Legislation and Policy

7. Section 134 of the Migration Act 1958 (Cth) (the Act) provides that…