Gunawan v Minister for Immigration and Multicultural and Indigenous Affairs
[2006] AATA 852
•5 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 852
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2005/183
GENERAL ADMINISTRATIVE DIVISION ) Re AGUS GUNAWAN Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Mr A Sweidan, Senior Member Date5 October 2005
PlacePerth
Decision The Tribunal sets aside the decision under review and directs that the Business Skills visa of the applicant not be cancelled.
........[Sgd. Mr A Sweidan]...................
Senior Member
CATCHWORDS
Immigration - Business Skills Visa - eligible business - genuine efforts - exercise of discretion.
LEGISLATION
Migration Act 1958 (Cth) section 134 (10 (2) (3) (10)
Migration Series Instruction 133 (paragraphs 4.5.1 and 4.5.2)
CASES
Ong v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 178
Commissioner for Superannuation v Scott 71 ALR 408 at 412
Gomaidy v Minister for Immigration and Multicultural Affairs [2006] AATA 75 47:
Kok v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 579 21
Wong v Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 54.
Lau v Minister of Immigration and Multicultural Affairs [2002] AATA 703 29
Juliana Leo v Minister for Immigration [2006] AATA 308
Saleh Leo v Minister for Immigration [2006] AATA 308
REASONS FOR DECISION
5 October 2005 Mr A Sweidan, Senior Member BACKGROUND
1. The applicant has applied for a review of a decision by a delegate of the respondent made on 11 May 2005 cancelling the applicant’s Business Skills Visa under section 134(1) of the Migration Act (1958) (the Act).
2. The applicant is an Indonesian businessman. He was granted a sub-class 127 Business Skills Visa on 15 January 2002 and first entered Australia on 2 February 2002.
3. On 20 January 2004 the applicant was sent a standard 24 Month Survey. The applicant returned the survey on 9 March 2004 advising that he had acquired a 10% interest in Excel Metal International Pty Ltd (Excel) and had been appointed a Director. Excel was said to be involved in the export/import of automotive accessories. The applicant also advised that he had acquired a 14.3% interest in SWA Sarana International Pty Ltd (SWA) and had been appointed Director of Finance. SWA was said to be involved in the export of live cattle from Australia to Indonesia.
4. On 28 January 2005 a notice of intention to cancel the visa was sent to the applicant.
5. The applicant responded on 25 February 2005 and 15 March 2005 advising that he had obtained a 10.1% ownership interest in Gilete G&B Drainage Pty Ltd (Gilete) and had been appointed as a senior manager of Gilete. The applicant also advised that, through his investment company Jessa International Pty Ltd (Jessa), he had secured a contract with Alcan Primary Metal Australia Pty Ltd (Alcan) to export aluminium ingots. He advised that he had withdrawn his investment in Excel and SWA.
6. On 11 May 2005 a notice of cancellation of the applicant’s business skills visa was sent to the applicant.
7. The delegate’s decision is summarised in the respondent’s Statement of Facts and Contentions as follows:
“The delegate noted that the applicant had withdrawn his investment in Excel and SWA and found that the applicant did not hold a substantial ownership in those businesses. Furthermore, on the limited financial information provided the delegate found that the applicant had not made genuine efforts in relation to these businesses.
The delegate found that while there was evidence that the applicant had acquired 30 “A Class” shares in Gilete there was no evidence provided to clarify the nature of the “A Class” shares “specifically in terms of the rights and privileges that ownership of the shares conveys, the level of risk and proprietary ownership that ownership of the shares conveys or the existence of any options attached to “A Class” share ownership”. The delegate found that given two different classes of shares do exist, she was unable to be satisfied that the visa holder had acquired a substantial ownership “with all the implications of personal financial involvement and exposure to risk that that implies” rather than passive investment.
The delegate also found that whilst there was evidence that the visa holder had been appointed as a senior manager of Gilete, the ASIC extract stated that there is only one Director of the company and that position was not held by the applicant. The delegate found that this suggested “that the visa holder is not at the highest level of the business and one to whom others are responsible, or that he has executive control and authority of business activities”. The delegate also noted that the contract with Alcan had not been signed and was for a specific four month period only. The delegate also noted that no documentary evidence had been provided to demonstrate that exports had occurred or would occur in the future.
Overall 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 level, nor had he made genuine efforts to do so.”
Legislation and Policy
8. Section 134(1) of the Act provides as follows:
“(1) Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australia visa, an investment-linked visa or a family member’s visa), by written notice given to its holder, if the Minister is satisfied that its holder:
(a)has not obtained a substantial ownership interest in an eligible business in Australia; or
(b)is not utilising his or her skills inactively 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.”
9. Section 134(2), to which s134(1) is expressly subject provides as follows:
“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.
10. In determining whether a person has made a “genuine effort” for the purposes of s134(2) of the Act, s134(3) provides as follows:
“(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 interests 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).”
11. Section 134(10) of the Act provides that an “ownership interest” in relation to a business means:
An interest in the business as
(a) a shareholder in a company that carries on with business; or
(b) a part owner in a partnership that carries on with business; or
(c) a sole proprietor of the business;
Including such an interest held indirectly through one or more interposed companies, partnerships or trusts”
12. Section 134(10) of the Act further provides as follows:
Eligible business means business that the Minister reasonably believes is resulting or will result in one or more of the followings:
(a)the development of business links with international markets;
(b)the creation or maintenance of employment in Australia;
(c)the export of Australian goods or services;
(d)the production of goods or provisions of services that would otherwise be imported into Australia;
(e)the introduction or new or improved technology to Australia;
(f)an increase in commercial activity and competitiveness within sectors of the Australian economy”.
13. In addition to s134(10) of the Act, in determining whether a person has made a “genuine effort” within the meaning of s134(2) of the Act, it is permissible to have regard to Migration Series Instruction 133, paragraph 4.5.1, of which relevantly provides as follows:
“… decision makers may take account of these notes to guide them in interpretation …
a.business proposal which is considered genuine, realistic and achievable;
b.formal contract with partners or joint venturers;
c.written evidence of details consultations with at least three business advisers (accountant, lawyer, bank/financial institutions, State/Territory government business development office, Austrade, business/trade associations);
d.physical presence in Australia for more than six months since first arrival as a Business Skills migrant;
e.transferred to, and retained in, Australia at least 50% of the funds indicated as available for transfer within two years …
f.minimum A$100,000 or 10% ownership previously held by the person. If the person is no longer in business, the reasons for the lass of ownership are also relevant.
g.minimum A$100,000 business activity as indicated by turnover. This may include other business activity not considered “eligible business” but cannot include passive investment, eg purchase of shares.
h.failure to comply with a notice for information under s137, ie mandatory monitoring of Australian address and return of survey forms.”
14. In addition, Migration Series Instruction 133, paragraph 4.5.2 provides as follows:
“While failure to meet one or more of these indications may normally lead to a visa being cancelled, it will not necessarily mean that a visa will be cancelled. The decision maker must give weight to all relevant factors in a case (of which those set out in subsection 134(3) above may only be some) in reaching a decision on that basis. For example, while the factors in 4.5.1 above may be indicative of “genuine effort”, lack of them will not be necessarily be decisive. The decision maker must decide, in the ordinary meaning of the words, whether the visa holder has made a “genuine effort”. The decision maker may still decide not to exercise the discretion empowered to cancel the business visa even if it is assessed that no genuine effort has been made”.
RELEVANT PRINCIPLES
Substantial ownership
15. The word “substantial” is not defined but has been considered in Ong v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 178 where Commissioner for Superannuation v Scott 71 ALR 408 at 412 was cited with approval. In Commissioner for Superannuation v Scott the Court considered a number of authorities dealing with the question of what constitutes “substantial” and held, (albeit in the context of s45D of the Trade Practices Act 1974 (Cth)) that the word “substantial” means:
“Real or of substance and not insubstantial or nominal”.
16. Whilst the Tribunal is required to consider the position as at the date of the cancellation of the visa, it is entitled to consider subsequent events to the extent that those later events assist in evaluating the relevant intentions and actions of the visa holder as at the date of the cancellation of the visa: Gomaidy and Minister for Immigration and Multicultural Affairs [2006] AATA 75 47: Kok and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 579 21.
17. The question of what is a substantial “ownership interest” of an eligible business is one of fact and degree; Wong and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 54.
18. Commercial realities are to be taken into account. In particular, many genuine business attempts will fails despite the best efforts of participants, Lau and Minister of Immigration and Multicultural Affairs [2002] AATA 703 29.
19. It was submitted by counsel for the respondent that the delegate’s decision to cancel the applicant’s subclass 840 business skills visa should be affirmed because (a) the applicant has failed to obtain a substantial ownership interest in an eligible business in Australia (b) the applicant has failed to utilise his skills and actively participate in a senior level in the day-to-day management of the business, and (c) the applicant has failed to make a genuine effort to obtain a substantial interest in an eligible business in Australia or to utilise his skills in actively participating in a senior level in the day-to-day management of an eligible business.
ISSUES
20. The above are therefore the issues which the Tribunal must determine, subject to the following:
20.1if (a) and (b) are resolved in favour of the applicant, (c) does not arise:
20.2if either or both of (a) and (b) are resolved against the applicant, and (c) is resolved in favour of the applicant, s134 (2) of the Act compels the Tribunal not to cancel the visa;
20.3if either or both of (a) and (b) are resolved against the applicant, and (c) is likewise resolved against the applicant, the Tribunal nevertheless retains a discretion as to whether or not the applicant’s business visa ought to be cancelled.
EVIDENCE
21. The Tribunal heard evidence from the applicant and a number of other witnesses, each of whom confirmed the content of statements tendered to the Tribunal.
22. The applicant testified that his wife and three sons live in a property which he owns in Perth. His two older sons are students at Curtin University. He said that he lives and works in Indonesia but regularly visits Australia.
23. The applicant testified that he had initially acquired a 10% interest in Excel and was a “director of the financial side” of the company.
24. The applicant said that Excel imported 4 containers of aluminium wheels to Australia but that after the fourth container had been imported he withdrew from the company, suffering a small loss as he was of the view that the company would not succeed in the business which it was carrying on.
25. The applicant further testified that he then acquired a 14.3% shareholding in SWA. The business of that company was to export live cattle to Indonesia. He described himself as a “director of finance” of that company as well. However, that business did not work as the applicant had hoped and he sold his interest in September 2004.
26. In his statement the applicant states the following:
“When I come to Australia I always look for business opportunities. I spent more than six months in Australia in 2002. In 2003 I spent four months in Australia. I came into Australia about six times in 2004 but I did not find any suitable business opportunities. I spoke to many people about business opportunities. For example, I spoke to Mr Wong from Blue Travel (a travel agency). I entered into an agreement with Blue Corporation in early 2004. Blue Corporation operates Blue Travel. I direct executives to Blue Travel. Blue Travel organises the trip and accommodation. This is not a profit earning enterprise for me. The purpose is to build a long term business relationship. This has recently led to a business opportunity with Perth Mint. We are in the process of being appointed by Perth Mint as its distributor in Indonesia. We hope to soon have a turnover of around AUD$200,000.
In Indonesia I spoke to Mr Ross Taylor, the chairman of the Indonesian Australian Business Association. I have known Mr Ross Taylor since early 2002. We always discussed how to build a good bridge between Australia and Indonesia. We generally discussed possible business deals or social activities. I did not conclude any business deals with Mr Taylor while he was in Indonesia. I have also been involved in charity activities with Mr Taylor. I have recently arranged for the translation into Indonesian of a book written by Mr Taylor called “Living Simply with Cancer”. The book was displayed and marketed into Indonesian bookshops in April 2005. Mr Taylor’s second book called “Healthy Living” was printed in Indonesia in July 2005 and distributed in Australia. The proceeds of these books go to charity.
Mr Taylor introduced me to Mr Trevor Boughton. Mr Boughton is the representative in Indonesia of the Western Australian Trade Office. Mr Boughton was introduced to me by Mr Taylor when Mr Boughton first arrived in Indonesia. I took Mr Boughton to a few companies in Indonesia. One of those companies needed scrap aluminium or aluminium ingots. We also discussed other businesses such as agribusiness including potatoes, seeds, wineries etc. We also discussed mining and boats. Mr Boughton recommended a few companies to me such as Tomogo and Alcan. Mr Boughton also referred me to various websites to do with business or companies in Australia. He also gave me a list of about 50 items which are imported to and from Australia and Indonesia.
In 2004 it became clear that the businesses I had purchased an interest in were not doing well. That is why I withdrew from those businesses. I then began looking for other opportunities.
In February 2005 I set up an investment company called Jessa International Pty Ltd (“Jessa”). My wife and I are the shareholders in Jessa. I invested AUD$500,000 in the company. This included a loan for working capital. My wife, Suzanne, and I are the directors of the company.
Jessa was used to enter into contracts with Alcan Primary Metal Australia Pty Ltd (“Alcan”). I negotiated a contract with Alcan to purchase 200 tonnes of aluminium ingots. I commenced the negotiations with Alcan in late 2004. The first contract was signed on 23 February 2005. The cost of the aluminium ingots was approximately US$200,000 per shipment (“T” Documents pages 206‑215). Each shipment was 100 tonnes. Jessa then sold the aluminium ingots to an Indonesian company in Jakarta called Alcarindo Prima. Jessa made approximately US$2,500 per shipment. The ingots were shipped on 8 April 2005 and 5 July 2005.
I provided my 24 Month Survey to the Department of Immigration and Multicultural and Indigenous Affairs in February 2004. I did not receive any response to that survey until I received a Notice of Intention to Cancel my visa in February 2005. I had commenced my investigations into and negotiations for the export of metals to Indonesia before the issue of the Notice of Intention to Cancel.
On 21 July 2005 I signed another contract with Alcan for deliveries in August and October 2005. The first shipment was made on 26 August 2005. The second will take place about 7 October 2005.
In October 2005 I will negotiate fresh contracts. I have chosen to operate the business in this way rather than locking Jessa into long term contracts. By having short term or one‑off contracts I can buy the ingots when the price is right.
The price payable to Alcan for the aluminium ingots is based on the LME (London Metal Exchange) price. Jessa pays Alcan the LME price plus a premium of a certain amount of US dollars per metric tonne. Because metal prices go up and down, from a business point of view, it is best to operate short term contracts and negotiate the prices along the way. For similar reasons, a customer does not want to be locked in to one price over a long period of time.
My background is in finance in the metals industry. I understand finance and international trade. I believe I should be able to increase the export of metals in the future to Indonesia and to companies other than Alcarindo Prima.
In February 2005, through Jessa, I injected $175,000 into Gilete G & B Drainage Pty Ltd (“G & B Drainage”). This capital was injected in two instalments: $100,000 on 17 February 2005 and $75,000 on 24 February 2005. I obtained a shareholding of 10.1% in the company. I was allotted 30 “A” Class shares.
G & B Drainage is a contracting company that undertakes mainly drainage, sewerage, road works and earthmoving. The company’s main base is in Bunbury but it also undertakes work from its Broome branch and the Pilbara region of Western Australia.”
27. In his statement the applicant claimed that his role in G & B Drainage involved management of the financial operations of the company, including the formulation and implementation of financial policies, monitoring project costs and monthly cash flow figures, preparing financial budgets in accordance with strategic plans and monitoring the financial performance of projects and the business.
28. He further said in his statement that:
“There is a shareholders’ meeting of G & B Drainage every month. While I do not attend every meeting, each time I come to Australia I attend a shareholders’ meeting. I often contact the G & B Drainage office in Bunbury so I can keep informed about the financial position of the business. I manage the cash flow of the business. The financial reports are sent to me each month.
When I first came to Australia I was not familiar with Australia or its business practices. That was the main reason I became involved in other companies as one of the shareholders, rather than the outright owner. When those businesses did not perform as I anticipated, I decided it was best to do things myself because I was too dependent on other parties in those businesses. Once I had spent more time in Australia I became more confident with the way business was run here and I used Jessa for aluminium ingot exports to Indonesia. I am solely responsible for the management of Jessa’s business. I also used Jessa to purchase an interest in G & B Drainage.
I have also been involved with the Australian Institute of Management (“AIM”) and the Securities Institute of Australia (“SIA”). I helped organise a conference in Jakarta. While nothing has been finalised I am hopeful that something will happen in the future.
I intend to carry on business in Australia and I will continue to expand and maintain my involvement in my present businesses. I also intend looking for other business opportunities.”
29. The applicant’s evidence regarding his dealings with Mr Ross Taylor and Mr Meng Wong was confirmed by them in evidence.
30. Mr Cullen of the Australian Institute of Management (AIM) also gave evidence confirming that the applicant has been instrumental in arranging seminars and courses for AIM in Indonesia and Australia.
31. Under cross-examination the applicant stated that he lives in Indonesia and works on a full-time basis in Indonesian business and companies in which he has interests and that this is the main source of his income.
32. The applicant acknowledged that he had only visited Australia on average once every 2 months and that his role in Excel and SWA had been limited to “looking after the financial side of the business” and it is clear from his evidence that his role in both businesses was not substantial and, in the Tribunal’s view, did not meet the requirement of active participation at a senior level in the day-to-day management of the business of those companies.
33. With regard to Jessa the applicant acknowledged that this company was set up in February 2005 at about the same time that he received the notice of intention to cancel his visa.
34. The business of Jessa according to the applicant was to purchase aluminium ingots from Alcan and export them to Indonesia. The applicant acknowledged that he was associated with an Indonesian company, Voksel, and that initially he had negotiated with Alcan to supply Voksel with aluminium ingots.
35. In the Tribunal’s view it is clear that Jessa’s role was to act as an intermediary between Alcan and the Indonesian company which was the ultimate purchaser of the ingots. On the applicant’s evidence the ultimate purchaser was Voksel, although another Indonesian company, Alcarindo, was interposed. The applicant acknowledged that Jessa only made a profit of about $800 on each shipment.
36. Also, in February 2005, as noted above through Jessa the applicant invested $175,000 in Gilete.
37. Mr Sharp testified that this company was a member of a group of companies forming the Gilete group. The applicant’s investment through Jessa entitled him to 10.1% of the shareholding in the company and he was allotted 30 “A” class shares in the company. Those shares carried voting rights but had no rights to a dividend, although interest was paid on the amount invested. Mr Sharp further testified as to the terms of a Deed of Indemnity and Put and Call Option Agreements regarding Jessa’s shareholding. It was clear from that evidence that the terms on which the shares were acquired are unusual. Further reference to this is made below.
38. The applicant was not a director of Gilete. Contrary to what was said in his witness statement in cross-examination he acknowledged that his involvement with Gilete was limited to looking at the accounts of the company and making recommendations. He further said that due to Gilete having been placed in liquidation, his investment in that company is now being transferred to another company. This was confirmed by Mr Sharp.
DECISION
39. The Tribunal is satisfied that each of the companies in which the applicant was directly or indirectly involved i.e. Excel, SWA, Jessa and Gilete, are eligible businesses. The Tribunal is also satisfied that the applicant acquired a substantial ownership interest in SWA and Jessa although the Tribunal notes that in relation to the latter company this was only acquired in February 2005 at around the same time that the applicant’s visa was cancelled.
40. In relation to both Excel and Gilete the Tribunal is not satisfied that the applicant had acquired a substantial ownership interest in either of those companies.
41. The Tribunal notes that in the recent Tribunal decisions in Juliana Leo v Minister for Immigration [2006] AATA 308 and Saleh Leo v Minister for Immigration [2006] AATA 308 similar arrangements involving shareholdings in other companies in the Gilete group were considered by Associate Professor Barton, a Member of the Tribunal. In Juliana Leo the Tribunal found as follows in relation to those arrangements:
‘‘Substantial ownership interest’ is not defined in the Act. ‘Substantial’ means “1.of considerable importance, size, or worth. 3. real and tangible rather than imaginary;” Oxford Dictionary of English, second edition, 2003.
A share in a registered company has been described as an indivisible bundle of rights and the obligations that attach to it, as burdens or incidents of the shareholding. It is a species of transferable personal property which does not include a legal or equitable interest in the assets of the company; Re Rose, Rose v Inland Revenue Commissioners [1952] Ch 499, 513, 514; Archibald Howie Pty Ltd v Commissioner of Stamp Duties (NSW) (1948) 77 CLR 143, 154, 157. The nature of a share is variable from corporation to corporation, from share to share and from time to time. So where, as in this application, the business visa holder’s ownership interest in an eligible business is an interest in the business as a shareholder in a company that carries on the business, the issue as to whether that interest is substantial, for the purposes of the Act, is to be determined not only by considering the number or percentage of issued shares held and their cost but also by reference to the rights that constitute the shares and the circumstances in which they are held.
The circumstances in which the applicant became a member of Optel, the nature of her shares in Optel, including the manner in which she is excluded from participating in its profits, and the terms of the contractual arrangements by which she acquired and holds her shares, are set out fully above. These matters, when considered as a whole, lead irresistibly to the conclusion that her underlying ownership interest in the business of Optel is severely attenuated, especially in light of the rights that ordinarily accrue to the proprietors of a private company.”
42. The Tribunal agrees with those conclusions in relation to this applicant, insofar as Gilete is concerned.
43. In relation to Excel, SWA and Gilete the Tribunal is also not satisfied that the applicant participated actively at a senior level in the day-to-day management of the business of those companies.
44. In relation to Jessa, while the Tribunal is satisfied that the applicant did participate at a senior level in the day-to-day management of the business of the company, the Tribunal is of the view that this company was not a genuine business and that the transactions referred to in the evidence regarding the export of aluminium ingots were not genuine business transactions, but were entered into primarily for the purpose of avoiding the cancellation of the applicant’s visa.
45. Under s 134(2) of the Act the applicant’s visa must not be cancelled if the respondent is satisfied that the applicant has made a genuine effort 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 and intends to continue to make such genuine efforts.
46. “Genuine effort” is not defined so must be given its ordinary meaning within the context of the Act. 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.
47. Section 134(3) of the Act sets out an inclusive list of the matters that the respondent may take into account in determining whether the applicant has made the genuine effort referred to in s 134(2).
48. The applicant’s endeavours to meet the requirements of his visa after his first entry into Australia and up to the hearing of the application are set out in the evidence as outlined above. In the Tribunal’s view, with the exception of the purported export business of Jessa, there is nothing in the evidence to suggest that the applicant’s efforts were not genuine. Accordingly, the issue is whether those efforts were “vigorous and determined” and if so, whether the applicant intends to continue to make them.
49. The Tribunal notes that although s 134(2) requires the respondent to be successively satisfied in relation to the matters set out in sub-paragraphs (a), (b), and (c) where, as in this matter, the finding is that the applicant has not obtained a substantial ownership interest in an eligible business in Australia, s 134(2) (b) does not have practical application and therefore the visa must not be cancelled if the respondent is satisfied in relation to the matters set out in sub-paragraphs (a) and (c).
50. Taking into account all of the transactions entered into by the applicant, the discussions he had with the various parties referred to and the actions that he undertook in light of those discussions, the Tribunal has formed the view that the applicant has made and intends to continue to make a genuine effort to obtain a substantial ownership interest in an eligible business in Australia and that if he succeeds he intends to make a genuine effort to utilise his skills in actively participating at a senior level in the day-to-day management of such a business. Accordingly, under s 134 (2) the business visa of the applicant should not be cancelled.
51. The Tribunal notes that even if it had formed the view that the applicant had not made a genuine effort as required by s 134 (2), nevertheless the Tribunal retains a discretion as to whether or not the applicant’s business visa ought to be cancelled. The Tribunal would, in the event that the requirements of s 134 (2) were not met, under the exercise of the residuary discretion which it has nevertheless have determined that the visa ought not to be cancelled.
52. Accordingly, the Tribunal sets aside the decision of the respondent’s delegate made on 11 May 2005 to cancel the applicant’s business visa.
I certify that the preceding 52 paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member
Signed: .......[Sgd. Ms R Riberi].......................................
AssociateDates of Hearing 15 & 16 May 2006
Date of Decision 5 October 2006
Solicitor for the Applicant Mr Goldfinch
Solicitor for the Respondent Mr A Gerrard
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