Hook and Ors and Minister for Immigration and Citizenship
[2007] AATA 1798
•21 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1798
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200600280, 335-340
GENERAL ADMINISTRATIVE DIVISION ) Re EDWARD JOHN HOOK
SHARON ANNE HOOK
JUDAH ERROL HOOK
SETH RONALD HOOK
AARON JOHN HOOK
LUKE EDWARD HOOK
NATHAN KING HOOKApplicants
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Deputy President S D Hotop
Mr W Evans, MemberDate21 September 2007
PlacePerth
Decision The Tribunal decides as follows: Application W 200600280
The Tribunal sets aside the decision under review and, in substitution therefor, decides that the visa of Edward John Hook not be cancelled under s 134(1) of the Migration Act 1958 (Cth) (“the Act”).
Applications W 200600335-340
The Tribunal sets aside the decisions under review and, in substitution therefor, decides that, pursuant to s134(6) of the Act, the visas of Sharon Anne Hook, Judah Errol Hook, Seth Ronald Hook, Aaron John Hook, Luke Edward Hook and Nathan King Hook are taken not to have been cancelled under s 134(4) of the Act.
..........[Sgd S D Hotop]...........
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Business Skills visa – visas granted to primary applicant and members of his family unit – visas cancelled – primary applicant obtained substantial ownership interest in eligible business in Australia – primary applicant has not actively participated at senior level in day-to-day management of that business – ground for cancelling primary applicant’s visa established – primary applicant has made genuine effort to actively participate at senior level in day-to-day management of that business – primary applicant intends to continue to make genuine effort – primary applicant’s visa must not be cancelled – residual discretion – discretionary considerations also militate against cancellation of primary applicant’s visa – decision to cancel primary applicant’s visa set aside – visas of members of primary applicant’s family unit thereby taken not to have been cancelled
Migration Act 1958 (Cth), s 134
Kim v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 38 AAR 304
REASONS FOR DECISION
21 September 2007 Deputy President S D Hotop
Mr W Evans, MemberIntroduction
1. Edward John Hook (“the primary applicant”) and Sharon Anne Hook, Judah Errol Hook, Seth Ronald Hook, Aaron John Hook, Luke Edward Hook and Nathan King Hook (“the secondary applicants”) have applied to the Tribunal for review of decisions, dated 21 August 2006, of a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Citizenship) (“the respondent”) cancelling their Business Skills (Subclass 127 – Business Owner) visas (“the visas”).
The Factual Background
2. The background facts, as found by the Tribunal on the basis of the documents lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (“T Documents”), are as follows.
3. The primary applicant and the secondary applicants are citizens of Zimbabwe.
4. On 28 November 2002 a completed “Application for business skills migration to Australia” form was lodged, on behalf of the primary applicant and the secondary applicants, with the (former) Department of Immigration and Multicultural and Indigenous Affairs (“the Department”).
5. By letter dated 28 April 2003 an officer of the Department notified the primary applicant that the application had been approved and the visas had been issued, and that (inter alia) the primary applicant and the secondary applicants were required to enter Australia on or before 4 August 2003.
6. The primary applicant and the secondary applicants visited Australia from Zimbabwe in May/June 2003 and then returned to Zimbabwe.
7. On 8 March 2005 an officer of the Department sent to the primary applicant’s migration agent a “Survey of Business Skills – 24 months” form for completion by the primary applicant and return by 4 June 2005.
8. By letter dated 26 April 2006 to the primary applicant’s migration agent, an officer of the Department noted that the abovementioned 24-month survey form had been received by the Department on 31 May 2005, and stated that, on the basis of the information provided in that form, there were grounds for cancelling the primary applicant’s visa under s 134 of the Migration Act 1958 (Cth) (“the Act”). In that letter, which was headed “Notice of Intention to Cancel Visa”, the officer invited written representations regarding the proposed visa cancellation to be made by 24 May 2006. Notices of Intention to Cancel the visas of the secondary applicants, dated 26 April 2006, were also sent to the migration agent.
9. On 19 June 2006 the primary applicant’s migration agent lodged with the Department written representations that the primary applicant had satisfied the requirements of s 134 of the Act and that his visa, and the visas of the secondary applicants, should not be cancelled.
10. On 21 August 2006, however, a delegate of the respondent decided to cancel the visas.
The Relevant Legislation
11. Section 134 of the Act relevantly provides:
“(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 (sic) 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).
…
(4)Subject to subsection (5) and to section 135, if:
(a)the Minister cancels a person’s business visa under subsection (1) or 3(A); and
(b)a business visa is held by another person who is or was a member of the family unit of the holder of the cancelled visa; and
(c)the other person would not have held that business visa if he or she had never been a member of the family unit of the holder of the cancelled visa;
the Minister must cancel the other person’s business permit or business visa by giving written notice to that person.
(5)The Minister must not cancel the other person’s business visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person.
…
(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
…
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.
…
ownership interest, in relation to a business, means an interest in the business as:
(a)a shareholder in a company that carries on the business; or
(b)a partner in a partnership that carries on the business; or
(c)the sole proprietor of the business;
Including such an interest held indirectly through one or more interposed companies, partnerships or trusts.
…”
The Evidence
12. The evidence before the Tribunal comprised the T Documents, Exhibits A1-A9 tendered by the primary applicant, and the oral evidence of the primary applicant, Sharon Hook, Aaron Hook, Luke Hook, Nathan Hook and Caroline Munn.
The evidence of the primary applicant
13. The primary applicant confirmed that he had signed 2 witness statements for the purposes of these proceedings and that their contents are true and correct. Those statements, dated 2 March 2007 and 4 June 2007, were tendered in evidence (Exhibits A1 and A2, respectively).
14. In his statement of 2 March 2007 the primary applicant referred to his relevant business activities since the grant of his visa as follows:
“…
8.After receiving our visas, my family and I travelled to Perth in May 2003 and stayed with my sister and her family. During my visit I discussed a number of business opportunities with a company called Crewe Sharp Investments Pty Ltd (which was subsequently changed to Gilete CSI Pty Ltd (‘Gilete CSI’).
9.Ken Sharp the Director of Crewe Sharp/Gilete CSI gave an overview of business opportunities and I looked at different options to invest in various businesses. As I had experience in construction and plumbing in Zimbabwe I was shown a property development in West Perth with a company called KJS Zoks Developments (‘KJS’). Craig Hardman, a representative from Gilete CSI and a shareholder in DEVX Pty Ltd (‘DEVX’), took me to view the property and showed me the building plans.
10.I then met with David Somerville from Lighthouse Business and Accounting Solutions who I engaged as my accountant. We discussed income tax arrangements in Western Australia and I also opened both personal and company bank account (sic) under the name of Henray Pty Ltd (‘Henray’) with the National Australia Bank. My wife, Sharon, and I own both shares of Henray and are Directors.
11.After our stay in Perth we went to Brisbane and stayed with my brother and his family. My brother took me around to inspect various building sites and introduced me to local business people to assess other business opportunities in Queensland.
12.During our visit in May 2003 we also visited Sydney and stayed with my wife’s sister. During the Sydney visit I met with Simon Tripp, my wife’s sister’s brother-in-law, who has experience with businesses around Australia and discussed various development opportunities in Sydney. I subsequently met Simon Tripp again and we discussed further documents received from Crewe Sharp/Gilete CSI on the West Perth development and I decided further legal advice was needed before any final decision. I also viewed an opportunity to buy shares in a Montessori School owned by my wife’s sister.
…
14.After we came back to Zimbabwe, I subsequently met Craig Hardman in June 2003 who travelled from Perth. I decided not to proceed with my planned investment in KJS mainly because I needed more time to consider my options and also because the transfer of my funds into Australia to purchase my proposed share of KJS was going to take 3 months, instead of the anticipated 6 weeks, due to difficulties in transferring money from overseas. It is impossible, to the best of my knowledge, to transfer foreign currency out of Zimbabwe.
15.After this decision I continued to look at various business opportunities in Brisbane, Sydney and Perth. I also made contact with other families in Zimbabwe who obtained their Business Skills visas to Australia. All 3 families had successfully been granted visas and two are involved with DEVX and forming part of a very successful business in Perth.
16.As I had my own plumbing business in Zimbabwe, I naturally wanted to be involved in a business where I could use my expertise in both plumbing and construction generally. I have experience in both designing plumbing and fire protection systems in large office and apartment buildings. I have also been contracted by many different developers in Zimbabwe and surrounding countries. I had also personally done my own property development in Zimbabwe and Mozambique and done all the plumbing and sewerage. In addition, I have also worked on wet lands and irrigation systems.
17.After meeting Craig Hardman in Zimbabwe in September 2003, I decided to invest in Gilete Burswood Pty Ltd (‘Gilete Burswood’). I was very comfortable with the idea of being involved in a property development business because of my background in the plumbing and general construction business.
18.When I joined Gilete Burswood it was involved in a proposed joint venture property development in Burswood. However, the project did not proceed due to planning hurdles.
19.The company then looked at a joint venture in a multi-storey office/apartment complex in Outram Street, West Perth (‘Outram Street’). The Outram Street site was owned by Gilete Outram Pty Ltd (‘Gilete Outram’) who in turn contracted with Gilete Burswood to be the project manager and financier of the development.
20.Although my funds had not actually been invested in land itself, the loans that Gilete Burswood made (where my funds were invested) and the management role Gilete Burswood had in various developments were related to property. With land being the underlying asset, it gave me enormous comfort and security. I also felt that this was a good business choice as it allowed me to conduct my management role mainly from overseas as I was familiar with the property development process.
21.In October 2003, I formally purchased 15 ‘A’ class shares in Gilete Burswood and invested $250,000.00 in capital, being 15% of the shares. The shares were subject to a put and call option exercisable after 3 years and were capital guaranteed by Gilete CSI (subsequently DEVX) the management company for Gilete Burswood. As this was my first business investment in Australia I felt secure knowing that my capital would be guaranteed for 3 years.
22.My shares entitled me to the same rights as ordinary shares in the company including voting rights. However, my shares had no dividend entitlements and no pre-emption rights to other shares issued or transferred in the company in the future.
23.The following month I commenced regular monthly management discussions with the Directors of Gilete Burswood. Despite being based in Zimbabwe, I have always made a point to comment and contribute to these management discussions. I have always kept up to date with the business, queried and assessed the latest information, researched market trends, and based on this, subsequently contributed whenever I could on the future direction of the business. This level of contribution continued from the commencement of my ownership interest in Gilete Burswood until after the date of cancellation of my visa.
24.Initially, I envisioned that my management role in Gilete Burswood would utilise my plumbing and general construction expertise. Gilete Burswood’s role would be project managing property developments on behalf of the landowner/joint venture partner. The company would secure suitable land for development, develop the necessary infrastructure, engage contractors, set building conditions for the subsequent development and obtain the necessary development approvals from local government and planning department.
25.I saw my role in the infrastructure plumbing of the developments such as connection to water mains and sewerage outlets, and stormwater run off on driveways etc. My role was to oversee the project plans and do quality control.
26.The second role of Gilete Burswood would be to finance the developments by loaning funds to the landowner to develop the land. In return as a shareholder in Gilete Burswood I would receive a 6% return (‘facilitation fee’) from Gilete CSI
27.In February 2004 I met with Craig Hardman in Harare, we discussed Burswood Gilete and the development on Outram Street. I also received various newspaper articles on the property market in Western Australia and felt that I needed to study further the documentation in regards to my business trip to Perth the following month. I have continuously kept up to date and researched the local property market from the commencement of my ownership interest in Gilete Burswood.
28.During this time I also commenced monthly teleconferences with Peter Kretzmann, my business partner, who was also based in Zimbabwe and had invested in Gilete Burswood. Together we had invested $500,000.00 in the company. Both Peter Kretzmann and I maintained regular correspondence with each other, up to two or three times a month, in relation to the business. This was in addition to the monthly meetings. As we were both based in Zimbabwe, we always made a point to brief each other on the developments in Perth upon returning from trips there.
29.In March 2004, I attended a Gilete Burswood company meeting in Perth and I inspected the Outram Street development site and commented on my area of expertise. I also met with my accountant in connection with our proposed move to Australia.
30.In April 2004 I met with Craig Hardman in Harare and discussed the development on Outram Street and Craig conveyed the management meeting (sic) on 4 May 2004. I would continue to have regular meetings in Zimbabwe with Craig Hardman throughout 2004 and 2005.
31.To compensate for delays in the Outram Street development, Gilete Burswood decided to look for alternative projects. Gilete Burswood’s role also now changed in that it became more focussed on financing proposed property developments in Bertram, Gidgegannup and Mandurah (Breakwater).
32.In July 2004 again I met Craig Hardman and my accountant David Somerville in Harare. We discussed the property market and the housing boom in Western Australia and future prospects. We discussed the Gidgegannup development and a new development in Coogee (Palazzo apartments) by Gilete Outram. I also had a teleconference with Mr Kretzmann and discussed the Coogee project.
33.I always kept abreast of the latest developments in property development such as the passing of the Contaminated Sites Act which would affect all property development in Western Australia. I was extremely interested in the impact of the Contaminated Sites Act on the Perth property market particularly given that the Coogee development was on a contaminated site.
34.In September 2004 the company put a closure on the Outram Street development. Though originally approved by Council in December 2003, a revised plan was resubmitted to Council by Gilete Outram for more office space in the building at the expense of apartment space. Council officials, responding to concerns of local residents that there would now be more on-street parking, required that the development have more undercover parking. This had the effect of having one less floor to develop and made the venture unprofitable.
…
36.At the beginning of 2005 there was continuing deterioration in Zimbabwe and life there was becoming more and more difficult. My parents decided that they wanted to relocate to Australia having not made adequate preparation for their future due to the rising cost of living caused by hyperinflation and worsening political situation. My parents are both in their early 80s and originally thought that they would live their lives out in Zimbabwe.
37.As it would cost around $100,000.00 in total to resettle my parents in Australia, I had to delay my planned move to Australia, which I had originally intended to be at the same time when my three eldest sons moved. I had to use funds that had been saved for my own eventual relocation to Australia. Most of my income was still coming from my plumbing business in Zimbabwe. However, I had been progressively winding down my business operations in anticipation of the move to Australia. The worsening Zimbabwean economy also contributed to the delay in relocating, as I was unable to get a good price for my business.
38.In February 2005 I travelled to Australia and relocated my three adult sons, Aaron, Luke and Nathan to Queensland. However, as stated above, I had to go back to Zimbabwe to finance my parents’ relocation to Australia. On the way back to Zimbabwe I attended a monthly management meeting in Perth.
39.Around April 2005 I enquired, after studying maps of various northern and coastal suburbs of Perth as a personal interest, into a suitable area to live in Perth for my future relocation. My migration agent forwarded, on my behalf, my Form 1010 24 month survey to the Department.
40.During 2005 I was satisfied with the progress of the developments and noted that there continued to be a very positive property market in Perth despite reports suggesting otherwise. However, I also expressed concern with the negative effects of the labour shortage resulting in poor workmanship and the shortage of materials caused by the boom.
…
43.In April 2006 I travelled to Australia, on business, and visited Sydney, Brisbane/Gold Coast and Perth to assess other business opportunities in Australia. On 9 April 2006 I met with an engineering consultant in Sydney to discuss various business opportunities in plumbing products and services. I also had further meetings in the Brisbane/Gold Coast areas to discuss business prospects in general, including a meeting with a local Carpet Choice owner, Keith Ballantyne. I also attended a seminar on UV purification units.
44.On 26 April 2006 I had a meeting with both Craig and Gary Hardman who had formed a new business venture, Key Migrant Investments (‘KMI’). During the meeting we discussed other potential business opportunities in Perth. Out of the range of businesses discussed, I was most impressed with Terra Firma Capital Pty Ltd (‘Terra Firma Capital’) which was in property development and was part of the Concentric Group. I expressed interest in obtaining a 40% to 50% shareholding in a business and investing $250,000.00. We arranged that I would meet Mark Goldenberg from Terra Firma Capital during my visit.
45.On 2 May 2006 whilst still in Perth for business, I was notified by my migration agent that I had received a Notification of Intention to Cancel Visa. This came as a great shock to me as my family and I had put so much emotional energy in starting a new life in Australia. I discussed with my migration agent the implications of the notice. Up and until (sic) receiving the notification, I had no reason to suspect that I may not have been satisfying the terms of my visa. Despite receiving the Notice of Intention to Cancel I naturally continued with my management meetings.
46.I subsequently had a meeting with Mark Goldenberg from Terra Firma Capital on 5 May 2006. During this meeting I was provided with an overview of the company as well as extensive information on their business activities.
47.I also had a meeting with the directors of Burswood Investments on 4 May 2006 and inspected the Bertram and Coogee development sites. I was particularly concerned with the storm water buffer on the Bertram site and possible liability if somebody drowned. We also discussed other proposed developments and investment opportunities in and around Perth.
48.Finally, I also met the international manager of Sola Hart and discussed the prospects of importing units into Africa. However, I decided not to follow up on this as there were already local suppliers in neighbouring countries.
49.In June 2006 I met Craig and Gary Hardman from KMI in Harare and had a follow up meeting to our previous meeting in April to further discus other business opportunities in Perth.
50.In August 2006 I received notification from my migration agent that I had received a Notice of Cancellation of my visa.
51.Since receiving my Notice of Intention to Cancel my visa in April 2006 to October 2006 I actively continued my management duties with Burswood Investments.
52.My capital in Burswood Investments was subject to a put and call option due on 17 October 2006. The previous month I informed both Mr Dave Lilwall and Paul Ogilvie that I intended to release my capital from Burswood Investments but was interested in another venture with DEVX. I told them that I would like to see them in Perth in October.
53.In October 2006 I travelled to Perth for a business trip to discuss various business proposals in Perth. I enquired into a property development in Boddington with DEVX, however, I felt that this development was too far away from the Perth metropolitan area. I also wanted to be involved in more plumbing/construction rather than solely infrastructure development.
54.On 13 October 2006, I further discussed other business opportunities with Mark Goldenberg in a company called Green Property Development Pty Ltd (‘Green Property’). We discussed a potentially profitable project in the northern suburbs called ‘Mortimer Close’. My capital would be at risk if I bought shares in Green Property.
55.In November 2006 I had separate teleconferences with DEVX and Craig Hardman relating to future business opportunities. I had a telephone conference with my accountant for the release of my funds with Burswood Investments.
56.In December 2006 I formally exercised my put option to release my funds in Burswood Investments/DEVX so that I could proceed with my intended invest (sic) in Green Property.
57.During December 2006 I continued to research other business opportunities within the Perth area and the future of the property market in the region. I also had discussions with my son Aaron. As a quantity surveyor in the Gold Coast he worked on many projects with opportunity in investment in businesses in the Queensland area. Aaron and I looked into warehouse factories and the prospect of opening a small business on removal space storage. However, this business turned out to be too expensive to be viable.
58.In February 2007 I came to Perth to discuss my planned investment in Green Property for a property development in Wanneroo called ‘Ashby Vineyards’. I also discussed other potential developments with Green Property. Prior to the trip I had expected that my capital investment ($250,000.00) in Burswood Investments would have been released for my anticipated investment in Green Property. However, my capital had not been released yet.
59.On 23 February 2007 I was informed by DEVX that my capital would be released on 9 March 2007. David Lilwall from DEVX emailed me and my solicitor confirmation of this on 1 March 2007. At the date of this statement I planned to invest $149,951.00 in Green Property on 19 March 2007.
…”
15. In his oral evidence-in-chief the primary applicant said, by way of updating para 59 of his above statement, that he did not in fact receive a refund of his capital investment of $250,000.00 in Gilete Burswood Pty Ltd (“Gilete Burswood”) following his exercising of the “put option” in December 2006, until 1 June 2007.
16. The primary applicant also said that he intends to settle in Brisbane or Perth and establish his own plumbing business.
17. In cross-examination the primary applicant gave the following evidence in relation to his shareholding and role in Gilete Burswood:
· he chose to acquire “A Class” shares rather than ordinary shares because, although they would provide him with a lower return, they represented a lower risk;
· although his “A Class” shares carried no dividend entitlements, he did receive a monthly payment of 6% of his $250,000.00 investment;
· his role in Gilete Burswood was to provided “technical input” but he had no “official title” within the company;
· he provided input to the monthly management meetings of Gilete Burswood, usually by e-mail from Zimbabwe;
· he felt that his input was necessary but acknowledged that the meetings would have proceeded without any input from him;
· he felt that the management team of Gilete Burswood took his advice “on board” but he could not recall any instance when his advice resulted in a change of plan;
· as regards the monthly management meetings, he made comments, queries, suggestions etc but he had no decision-making role as such;
· as a shareholder he had voting rights but never exercised them because “matters did not go to a vote”.
He was referred to a Gilete Burswood document which purported to list his “responsibilities” within that company as follows:
“
· Assist the Managing Director in the preparation of strategic plans and business planning
· Assist in the tracking of actual performance to budget, including the monitoring of construction expenditure to a fixed price contract on a weekly basis and monitoring the sales of lots to budget on a weekly basis
· Monitor and amend where necessary monthly cash flow through to the end of the project
· Appraisal, analysis and recommendation of new development prospects and acquisitions
· Update of the strategic plan and business plan, review of its progress and modification in accordance with the company’s present and planned resources
· Co-ordinate policy formulation and review, including evaluation of policy options
· Oversee the implementation of organizational directives and policies
· Special assignments.” (T25, p205)
He said that the 4th dot point in that list reflected his role within the company.
The evidence of the secondary applicants
18. Sharon Hook, Aaron Hook, Luke Hook and Nathan Hook provided witness statements (which were tendered in evidence – Exhibits A4, A5, A7 and A8, respectively) and gave evidence about the economic, education, public health, social and political situation in Zimbabwe and the adverse consequences which they would suffer as a result of cancellation of the primary applicant’s visa and their visas. It is unnecessary, however, to refer to their evidence in detail in these reasons.
The evidence of Caroline Munn
19. Caroline Munn, the fiancée of Aaron Hook, provided a witness statement (which was tendered in evidence Exhibit A6) and gave brief oral evidence. It is unnecessary to refer to her evidence in detail in these reasons.
Additional material
20. The primary applicant tendered in evidence a signed witness statement of Paul Ogilvie, dated 27 February 2007 (Exhibit A9). Mr Ogilvie was not required by the respondent for cross-examination. The contents of Mr Ogilvie’s statement are as follows:
“1.I am a Director of Burswood Investments Pty Ltd formerly known as Gilete Burswood Pty Ltd (‘Burswood Investments’).
2.Burswood Investments was incorporated in September 2003 for the purpose of both managing and financing property projects.
3.When Mr Hook purchased his 15% shareholding in Burswood Investments in September 2003 the company was planning to be involved in a proposed joint venture property development in Burswood.
4.Shortly after, the company pulled out of the above venture and moved its attention to another joint venture development with a company called Gilete Outram Pty Ltd (‘Gilete Outram’). The development was a multi-storey/apartment complex in Outram Street, West Perth (‘Outram street’). The Outram Street site was owned by Gilete Outram.
5.As Mr Hook was a successful businessman in Zimbabwe, being manager (sic)director of his own business, I saw that his experience would contribute to the overall strategic management of the company and his managerial background at senior levels would enhance the company profile, especially in Southern Africa where there are many potential investors.
6.Given Mr Hook’s plumbing and general construction experience I also saw that he could oversee the plumbing works on the project plans and do quality control on Outram Street.
7.In March 2004, Mr Hook attended a company meeting in Perth where we discussed the Outram Street project. The following day Mr Hook inspected the Outram Street site with my assistant Craig Hardman. Mr Hook had studied the Outram Street plans and provided valuable input on the project.
8.Burswood Investments was in the business of supplying loaned funds to the following four property developments at commercial rates:
·Gilete Outram ($100,000.00).
As outlined above, a multi-storey building consisting of over 3,000 square metres of apartment, office and undercover parking on Outram Street. The site was owned by Gilete Outram.
·Gilete Bertram ($150,000.00).
A 136 lot residential sub-division in Bertram. The site was owned by Gilete Bertram Pty Ltd.
·Gidgegannup ($150,000.00).
This development was situated in Gidgegannup and consisted of varying rural and residential allotments improved with differing quality residential and farming accommodation. The site was owned 50% by Devx Pty Ltd.
·Breakwater ($100,000.00).
This project was situated in Mandurah and was a four level residential townhouse development comprising five units all with double garages. Each townhouse comprised three bedrooms, two bathrooms with marina views. The site was owned by Seamoon Pty Ltd in which Devx held a 50% shareholding.
9.The Outram Street development was initially approved by the City of Perth in December 2003. However, the company subsequently decided to resubmit a revised plan catering for more office space. Responding to concerns of Outram Street’s neighbours, the City of Perth imposed development conditions on the resubmitted plan which were too onerous.
10.The City had required that extra parking space be given over in the building, as we had decided to increase office space at the expense of residential space. The City did not grant us a corresponding increase in the building’s height. We subsequently decided to pull out of the Outram Street joint venture as it now became unprofitable.
11.Originally, it was envisioned that Mr Hook’s management interest would focus on the Outram Street and Gidgegannup developments. However, as we pulled out of Outram Street, and as time progressed, Mr Hook’s management role also encompassed Bertram, Breakwater and another project by Gilete Outram in Coogee (Palazzo apartments).
12.The role of Burswood Investments also changed during this time as we now focussed more solely on financing projects and less on project managing.
13.On 4 May 2006, Mr Hook attended our monthly management meeting and he inspected the Bertram development site with my assistant Doc Casely. Mr Hook was particularly concerned with the stormwater buffer on the Bertram site and possible liability issues. We also discussed other proposed developments around an (sic) investment opportunities in and around Perth.
14.Mr Hook, although based in Zimbabwe, always queried latest developments, researched market trends and provided management input wherever he could on the future direction of the business. However, given the nature of project financing and management there were significant ‘quiet’ periods where management input was not required. Overall I was satisfied with the management input that Mr Hook provided to Burswood Investments.
15.In addition, as I was also busy with other businesses, a lot of direct liaising between Mr Hook and I was done via my assistants Craig Hardman and subsequently Doc Casely. Mr Hardman would visit Zimbabwe regularly and provide regular updates to Mr Hook in addition to the monthly management meetings.
16.Finally, in December 2006 Mr Hook decided to seek other business opportunities and exercised his put option on his shares. Around this time I also discussed other potential property developments with Mr Hook including one located in Boddington.”
21. The primary applicant also tendered in evidence a bundle of some 107 documents which included minutes of monthly management meetings of Gilete Burswood (whose name, the Tribunal notes, was changed to Burswood Investments Pty Ltd (“Burswood Investments”) in or about September/October 2005), and written comments provided by the primary applicant to 12 of those meetings, in the period from March 2004 to October 2006 (Exhibit A3, documents 1-23). The Tribunal notes, furthermore, that the minutes of a further 11 monthly management meetings of Gilete Burswood/Burswood Investments, and written comments provided by the primary applicant to 6 of those meetings, in the abovementioned period are included in the T Documents (T25, pp 207-231; T27, pp 294-296; T28, pp 439-443, 452-455).
Analysis and Findings
Did Gilete Burswood/Burswood Investments constitute a “business”?
22. On the basis of the evidence before the Tribunal relating to the activities of Gilete Burswood/Burswood Investments in managing or financing various property development projects in the period from the date of the primary applicant’s acquisition of his shareholding in that company to the date of cancellation of his visa (“the relevant period”), the Tribunal is satisfied that, by reason of those activities, that company constituted a business in that its activities comprised “activities undertaken as 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”: Hope v Bathurst City Council (1980) 144 CLR 1 at 8-9 (per Mason J).
23.
Accordingly, the Tribunal finds that, throughout the relevant period, Gilete Burswood/Burswood Investments constituted a “business” within the meaning of
s 134 of the Act.
Did Gilete Burswood/Burswood Investments constitute an “eligible business in Australia”?
24. The phrase “eligible business” is exhaustively defined in s 134(10) of the Act (see paragraph 11 above). On the basis of the evidence before it, the Tribunal is satisfied that Gilete Burswood/Burswood Investments, throughout the relevant period, fulfilled at least one of the criteria specified in paras (b) and (f) of s 134(10), namely, that its property development activities would result in:
“the creation or maintenance of employment in Australia”, and/or
“an increase in commercial activity and competitiveness within sectors of the Australian economy”.
The respondent, the Tribunal notes, did not strongly contend otherwise.
25. It is common ground that Gilete Burswood/Burswood Investments was registered under the Corporations Act 2001 (Cth) on 23 September 2003 and that its property development and related activities have been undertaken entirely within Western Australia.
26. Accordingly, the Tribunal finds that, at all material times, Gilete Burswood/Burswood Investments constituted an “eligible business in Australia” within the meaning of s 134 of the Act.
Did the primary applicant obtain a “substantial ownership interest” in Gilete Burswood/Burswood Investments?
27. The phrase “ownership interest”, in relation to a business, is exhaustively defined in s 134(10) of the Act. That expression is relevantly defined for present purposes as:
“an interest in the business as … a shareholder in a company that carries on the business … including such an interest held indirectly through one or more interposed companies”.
The word “substantial” is not defined in the Act and, being an ordinary English word, it should be given its ordinary meaning. In the Tribunal’s opinion, the following dictionary definitions of the word “substantial” provide the appropriate meaning of that word for the purposes of the present case:
Macquarie Dictionary
“2 of ample or considerable amount, quantity, size, etc.: a substantial sum of money.”
“6 of real worth or value: substantial reasons.”
The New Shorter Oxford English Dictionary
“3 Of ample or considerable amount or size; sizeable, fairly large.”
“4 Having solid worth or value, of real significance; solid; weighty; important, worthwhile.”
28. In the present case it is common ground that on 17 October 2003 Henray Pty Ltd – a company of which the primary applicant and Sharon Hook have been the directors, and in which each of them has held a 50% shareholding, at all material times – acquired 15 “A Class” shares in Gilete Burswood (T25, pp 178-180, 232-234). According to the uncontradicted evidence before the Tribunal, furthermore, those shares were acquired for a consideration of $250,000.00 and constituted a 15% shareholding in that company. It is also common ground that Henray Pty Ltd continued to hold that 15% interest in Gilete Burswood/Burswood Investments as at the date of cancellation of the primary applicant’s visa.
29. On the basis of the evidence before it, the Tribunal is satisfied, and finds, that the primary applicant, as at the date of cancellation of his visa, had obtained, and continued to hold, an “ownership interest” (as defined in s 134(10) of the Act) in Gilete Burswood/Burswood Investments (being an “eligible business in Australia”) for the purposes of s 134 of the Act.
30. The question whether the primary applicant’s “ownership interest” in Gilete Burswood/Burswood Investments was “substantial” (as defined in the abovementioned dictionary definitions) is somewhat more problematic, having regard to the fact that the relevant shareholding was held by Henray Pty Ltd, a company in which the primary applicant held 50% of the issued shares – that is, not a majority shareholding. The Tribunal notes, however, that the other 50% of the issued shares in Henray Pty Ltd were held by the primary applicant’s wife, Sharon Hook, and the Tribunal is prepared to infer, from the evidence before it, that the primary applicant was the “controlling mind” of Henray Pty Ltd and that he himself effectively controlled that company. That being the case, the primary applicant effectively held a 15% shareholding in Gilete Burswood/Burswood Investments comprising 15 “A Class” shares (fully paid) purchased for $250,000.00. The Tribunal notes that the share structure of Gilete Burswood/Burswood Investments consisted of 30 “A Class” shares issued and fully paid (the total amount paid being $500,000.00), and 70 ordinary shares issued and fully paid (the total amount paid being $70.00) (T25, pp 179-183). Having regard to those circumstances and to the fact that “A Class” shares carried voting rights, and notwithstanding that “A Class” shares did not carry dividend entitlements or pre-emption rights to other shares in the company issued or transferred in the future, it cannot fairly be said, in the Tribunal’s opinion, that the ownership interest which the primary applicant held (through Henray Pty Ltd) in Gilete Burswood/Burswood Investments was insubstantial or of no real significance. On the contrary, that ownership interest was, in the context of the share structure of, and the total amount paid for issued shares in, Gilete Burswood/Burswood Investments, of considerable size and of real significance – that is, substantial.
31. Accordingly, the Tribunal finds that the primary applicant obtained, and continued to hold at all material times, a “substantial ownership interest”, within the meaning of s 134(1)(a) of the Act, in Gilete Burswood/Burswood Investments.
Did the primary applicant “utilis(e) his … skills in actively participating at a senior level in the day-to-day management” of Gilete Burswood/Burswood Investments?
32. The evidence before the Tribunal in relation to the primary applicant’s participation in the business activities of Gilete Burswood/Burswood Investments chiefly comprises his witness statement (set out in paragraph 14 above), his oral evidence (referred to in paragraph 17 above), the witness statement of Paul Ogilvie (set out in paragraph 20 above), and extracts from Exhibit A3 and the T Documents relating to the monthly management meetings of Gilete Burswood/Burswood Investments and the written comments provided by the primary applicant to those meetings (referred to in paragraph 21 above).
33. Although there is material before the Tribunal indicating that, following the primary applicant’s acquisition of a 15% shareholding in Gilete Burswood in October 2003, the directors of that company proposed that he would join the management team as “Strategic and Project Manager” in relation to the Outram Street and Gidgegannup property development projects and that he would “have a senior management role in the day to day operations” of that company (see T25, pp 205-206; T27, p 276), the Tribunal notes that:
· there is no evidence that he was ever appointed to the position of Strategic and Project Manager;
· the primary applicant’s evidence was that he had no “official title” within the company.
The Tribunal also notes the material before it regarding the regular monthly management meetings of Gilete Burswood/Burswood Investments which the primary applicant was always invited to attend and to which he regularly provided input, usually by e-mail but occasionally in person. Having considered the contents of that material, together with the evidence of the primary applicant and of Paul Ogilvie (a director of the company), the Tribunal is not satisfied that the input provided by the primary applicant to the monthly management meetings, together with his associated activities (including occasional visits to development sites and meetings with company representatives), constitute active participation at a senior level in the day-to-day management of the company, within the meaning of s 134(1)(b) of the Act. Rather, in the Tribunal’s opinion, the primary applicant’s input and activities comprised the making of general comments, queries and requests for information on a monthly basis and the occasional provision of technical advice. In short, the primary applicant’s input and activities were, in the Tribunal’s opinion, merely of an advisory, consultative and inquiring nature and did not constitute active involvement in actual decision making or strategic planning or otherwise in the senior management of the company.
34. Accordingly, the Tribunal, having regard to the whole of the evidence before it, finds that the primary applicant has not, at any material time, “actively participat(ed) at a senior level in the day-to-day management” of Gilete Burswood/Burswood Investments, within the meaning of s 134(1)(b) of the Act.
The discretionary power to cancel the primary applicant’s visa is enlivened
35. It follows from the lastmentioned finding that, as at the date of cancellation of the primary applicant’s visa, the ground for cancellation of a visa specified in para (b) of s 134(1) of the Act was established in the primary applicant’s case and that, accordingly, the discretionary power, conferred by s 134(1), to cancel the primary applicant’s visa is enlivened.
Is the exercise of the discretionary power to cancel the primary applicant’s visa prohibited by s134(2) of the Act?
36. Pursuant to s 134(2) of the Act, if the Tribunal is satisfied that the primary applicant has fulfilled the requirements specified in paras (a), (b) and (c) of that subsection, his visa “must not” be cancelled under s 134(1) of the Act.
37.
The Tribunal has found that the primary applicant did not, at any material time, actively participate at a senior level in the day-to-day management of Gilete Burswood/Burswood Investments. The question thus arises, for the purposes of
s 134(2) of the Act, whether the Tribunal is satisfied that he made a “genuine effort” to do so, within the meaning of para (b) of s 134(2).
38. Section 134(3) of the Act lists (non-exhaustively) matters that may be taken into account in determining whether a person has made a “genuine effort” for the purposes of s 134(2). Departmental policy guidelines regarding, inter alia, the requirements specified in s 134(2) of the Act are set out in PAM 3 : Act - Visa cancellation – Business visas (which has replaced MSI : 133: Visa cancellation under Subdivision G : Cancellation of business visas), issued on 15 March 2007, which relevantly states:
“9.2 Genuine effort
Under policy, genuine effort means that there should be evidence that the visa holder has exerted themselves to get into business in Australia or be involved in the management of the business at a senior level on a day-to-day basis. There is also the expectation that the visa holder will continue to make sustained and continued efforts to meet visa requirements throughout the 3 year period. If the visa holder claims to be seeking to establish a business that would not come to fruition until after the 3 year period, it is expected that the visa holder be able to demonstrate progress, eg evidence of business plans, meetings and negotiations.
A business visa holder who has not met their visa requirements must demonstrate that a ‘genuine effort’ has been made to establish an eligible business in Australia. Section 134(3) lists some of the factors that may be considered …”
It seems to the Tribunal that the matters listed in s 134(3), and the policy guidelines in relation thereto, are, for the most part, of greater relevance to the issue of genuine effort to obtain a substantial ownership interest in an eligible business (para (a)) than to the issue of genuine effort to utilise skills in actively participating at a senior level in the day-to-day management of that business (para (b)).
39. The phrase “genuine effort”, in s 134(2) of the Act, is an ordinary English phrase and should be given its ordinary meaning. In the Tribunal’s opinion, the appropriate meaning of that phrase for present purposes, having regard to dictionary definitions, is: endeavour or exertion which is sincere and real: see the Macquarie Dictionary; The New Shorter Oxford English Dictionary.
40. The respondent submitted that efforts which “cannot realistically satisfy” the matters referred to in s 134(2) of the Act cannot be said to be genuine efforts, for the purposes of that subsection. It was submitted that the primary applicant “was at all times aware of his obligations to actively participate in the day-to-day management at a senior level” and that his “limited involvement … could not be reasonably expected to satisfy the senior management criteria”. It follows, the respondent submitted, that the primary applicant’s relevant activities do not constitute a “genuine effort”, for the purposes of para (b) of s 134(2) of the Act.
41. The question whether, for the purposes of s 134(2) of the Act, a person has made a “genuine effort” in relation to the matters referred to in that subsection raises, in the Tribunal’s opinion, both subjective and objective considerations. The essential issue is whether the person has made a relevant effort which is genuine – that is, an effort which has been made sincerely and which is real and not in the nature of a pretence or a sham.
42.
The Tribunal accepts the proposition that relevant activities undertaken by a person, which could not satisfy the matters referred to in paras (a) and (b) of
s 134(2) of the Act, and which the person knew, or had good reason to know, could not satisfy those matters, will not constitute a “genuine effort”, for the purposes of s 134(2).
43. The Tribunal, however, does not accept the proposition that relevant activities undertaken by a person, which could not satisfy the matters referred to in paras (a) and (b) of s 134(2) of the Act, but which the person did not know, or have good reason to know, could not satisfy those matters, will necessarily not constitute a “genuine effort”, for the purposes of s 134(2). In the Tribunal’s opinion, where a person has undertaken substantial activities in a sincere endeavour to satisfy the matters referred to in paras (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.
44. In the present case, the Tribunal, on the basis of the evidence before it, is satisfied that:
· the primary applicant’s activities in contributing to the regular monthly management meetings of Gilete Burswood/Burswood Investments, and his associated activities, in the period from November 2003 to the date of cancellation of his visa in August 2006, were undertaken by him in the honest belief that he was thereby actively participating at a senior level in the day-to-day management of that company in satisfaction of the relevant requirement of his visa;
· those activities were real and substantial and were not in the nature of a pretence or a sham;
· the primary applicant had been advised by his registered migration agent that, in undertaking those activities, he was satisfying the relevant requirement of his visa;
· the primary applicant’s belief that, by undertaking those activities, he was satisfying the relevant requirement of his visa was reasonable.
45. Accordingly, the Tribunal finds that the primary applicant, by undertaking the abovementioned activities, “made a genuine effort to utilise his skills in actively participating at a senior level in the day-to-day management” of Gilete Burswood/Burswood Investments, for the purposes of para (b) of s 134(2) of the Act.
46. Having regard to the evidence that the primary applicant was continuing to undertake the abovementioned activities as at the date of cancellation of his visa, and continued to do so for some months thereafter, the Tribunal is, furthermore, satisfied that, as at that date, the applicant intended to continue to make such a genuine effort, for the purposes of para (c) of s 134(2) of the Act.
47. Accordingly, the Tribunal is satisfied that the primary applicant has fulfilled the requirements specified in paras (b) and (c) of s 134(2) of the Act. It necessarily follows from the Tribunal’s earlier finding that the primary applicant had obtained a substantial ownership interest in an eligible business in Australia, namely, Gilete Burswood/Burswood Investments, that para (a) of s 134(2) has also been satisfied by the primary applicant.
48. The Tribunal concludes, therefore, that, by reason of s 134(2) of the Act, the primary applicant’s visa must not be cancelled under s 134(1).
The residual discretion not to cancel a visa under s134(1) of the Act
49. The power conferred by s 134(1) of the Act is discretionary – that is, it includes a residual discretion not to cancel a visa in circumstances where one or more of the grounds for cancellation specified in s 134(1) is or are established, and the matters specified in s 134(2) are not satisfied: Kim v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 38 AAR 304.
50. By reason of the Tribunal’s conclusion, in paragraph 48 above, that s 134(2) of the Act precludes the cancellation of the primary applicant’s visa, it is unnecessary for the Tribunal to determine whether it is appropriate, in the circumstances of this case, to exercise the residual discretion conferred by s 134(1) not to cancel the primary applicant’s visa. For the sake of completeness, however, the Tribunal will consider that issue.
51. Neither s 134 of the Act nor the text of the abovementioned Departmental policy guidelines (PAM 3: Act – Visa cancellation – Business visas) provides specific guidance in relation to the considerations that may, or may not, properly be taken into account in exercising the discretionary power, conferred by s 134(1), to cancel, or not cancel, a visa. The Tribunal notes, however, that the abovementioned policy document includes an attachment – namely “Attachment 2 – NOICC Section 134” – which comprises a form of “Notice of intention to consider to cancel (sic) a Business Skills Visa under section 134 of the Migration Act 1958” which, according to the policy guidelines (section 12), should be sent to the “main visa holder” in appropriate circumstances, pursuant to s 135 of the Act, before cancelling that person’s visa. That form of notice states (inter alia):
“It has come to the Department’s attention that there may be a ground/grounds for cancellation of your business skills visa under section 134 of the Migration Act 1958 because [state grounds].
The Migration Act 1958 gives you the opportunity to comment on this ground/these grounds for cancellation and to give reasons why your visa should not be cancelled.
You should now provide this office with a written answer explaining why your visa should not be cancelled. Your answer should say:
· why you think the ground(s) for cancellation does or does not exist in your case and
·why you think your visa should not be cancelled.
You must provide your response by [date]. If you do not respond within that time, a decision on whether to cancel your visa will be made using the information already held by the Department.
…
Deciding whether to cancel your visa is a two-step process. An officer will decide whether there is a ground for cancellation of your visa. The information provided by you in your written response to this letter will be taken into account. If the officer decides that there is no ground for cancellation, your visa will not be cancelled and the Department will advise you accordingly.
In making the decision, the officer will take into account matters such as:
·your engagement in the day-to-day management at a senior level in an eligible business (as defined in subsection 134(10) of the Migration Act 1958);
·any evidence of genuine effort that you have made to engage in the day-to-day management at a senior level in an eligible business. (In assessing ‘genuine effort’ the officer will have regard for definition in subsection 134(10) of the Migration Act 1958 (sic);
·the length of time spent in Australia since your initial arrival in Australia;
·the degree of hardship which may be caused to Australian citizens or permanent residents if your visa were cancelled;
·any unreasonable hardship you might suffer if your visa were cancelled;
·your ties (including family, social and business ties) to other countries;
·the circumstances in which the ground/s for cancellation arose;
·the seriousness of the ground/s for cancellation;
·your behaviour in relation to the Department, including the effort you have made to provide information to the Department when reasonably requested to do so under section 137 of the Migration Act 1958.
You may address any of these matters in your response.
…”
[The Tribunal notes that the words in parenthesis in the abovementioned 2nd dot point should contain a reference to subsection 134(3), and not subsection 134(10), of the Act.]
52. In the Tribunal’s opinion, the matters specified in the abovementioned form of notice, together with the matters specified in s 134(3) of the Act, may appropriately be taken into account for the purpose of exercising the discretionary power, conferred by s 134(1) of the Act, to cancel or not cancel a visa. The Tribunal notes, furthermore, that the list of relevant matters set out in the form of notice is not expressed to be exhaustive.
53. The Tribunal will now consider such of the abovementioned specified matters, and any other matters, that it regards as relevant to the exercise of the residual discretion conferred by s 134(1) of the Act.
54. In the Tribunal’s opinion a major factor militating in favour of cancellation of the primary applicant’s visa is that, in the period from the grant of his visa in April 2003 to the cancellation of his visa in August 2006, he spent a total of only 69 days in Australia (17 days in May 2003, 5 days in March 2004, 15 days in February 2005, and 32 days in April/May 2006) (T2, p11). In his evidence, however, the primary applicant stated that he had initially intended to settle in Australia in February 2005, and he explained the reasons for his failure to do so (see paras 36 - 38 of his statement of 2 March 2007, set out in paragraph 14 above). In his statement he also explained why he has continued to reside in Zimbabwe, as follows:
“Reasons why still in Zimbabwe
60. Despite not having relocated to Australia at the date of this statement, my wife and I originally planned to relocate, at the time [of] being granted the visa, after our three eldest sons graduated. We had an overall strategy to gradually divest my business and other assets in Zimbabwe as it is very hard to sell up a 52 year family business and other assets overnight, whilst obtaining a fair price, particularly amidst a collapsing local economy and rampant inflation. As the economy progressively got worse, it in turn became progressively harder to divest myself from the business without committing financial suicide.
61. My wife and I also had to maintain the Zimbabwean business in the short term as we were going through a stage in our life of pressing financial burdens such as relocating and establishing our three young adult sons in Australia, our eldest son’s medical costs in South Africa and planning for both our and, subsequently, my elderly parents’ relocation to Australia.
62. In 2003 I began laying off workers because of both the downward economic trend in Zimbabwe as well as making preparations for relocation to Australia.
63. During that time in 2003 my eldest son, Aaron was in his fourth and final year at University for (sic) Cape Town. My second eldest son, Luke was in his second year at International Hotel School in Cape Town. My third son, Nathan who was 17, was attending High School in Harare. I was financing my children’s study and getting them ready to relocate to Australia which they all eventually did, after their respective graduations, in early 2005.
64. Most of my saved funds had to be used to secure my interest in Gilete Burswood and I had very little over for other commitments including relocating to Australia in the short term. As it is very difficult to secure foreign currency in Zimbabwe to pay my overseas commitments, I began looking for work in neighbouring countries such as Mozambique to meet the financial obligations for the children’s tertiary education and to make provision for our future in Australia. Zimbabwe’s neighbouring countries do not have the same restrictions on transferring foreign currency overseas. I also had to assist my parents to move to Perth, which will cost me around $100,000.00 Australian dollars in total. This figure includes migration agent’s fees, payment to the Commonwealth Government, removal of furniture, my parents’ 3 month trip to Australia to finalise the application and air tickets.
65. This financial commitment, together with the difficulties in divesting my assets due to the worsening economy, had the effect of postponing my plans to relocate with my three eldest sons in early 2005.
66. Amidst our exit strategy there has been harassment from workers and government controlled unions of our family business. At the same time the political, economic and social problems continued to escalate at an alarming rate. The future education system is threatened in Zimbabwe due to hyperinflation.
67. In 2005 and 2006 I sold my property interests in Zimbabwe in anticipation of my move to Australia. I sold 8 acres of land in Inyanga Downs (by selling my land holding company) and also sold land in Mazveikaday Dam. Both sales were at a loss. I also have reduced my business staff from 110 to 15 staff.
68. As part of my exit strategy, I have also been in discussions since December 2006 with two other plumbers who will gradually take over the day to day running of my business. To that effect, we have formed a company, each of us being a co-director, called Heinblow Investments trading as Alliance Plumbing. Subsequently, I discussed this arrangement and the business’ future plans with my parents at a meeting of John Hook & Sons.
69. Documents are currently being drawn up for leasing my business in Zimbabwe from April 2007 to the new entity. A market appraisal has been carried out on the business premises in anticipation of the lease. In the present climate it is impossible to sell a plumbing business and relocate financial assets for 30 years out of Zimbabwe without significant financial loss.
70. In February 2007 my parents received confirmation from the Department that they had received their visas and have been accepted into Australia. They will be moving to Perth this year. My parents’ house had been on the market since September 2005 and was not sold until February 2007 for around US $50,000.00 below the market price before the collapse in the economy.
71. Upon the Department’s decision being overturned I intend to relocate myself and the remaining members of my family still residing in Zimbabwe to Perth permanently in January 2008. This will enable my son Judah to commence Year 11. I also intend to start my own small plumbing business and utilise my skills and contacts that I have developed in Perth.
72. During my visit to Perth in February 2007 I enrolled my son Judah in Hale School for the 2008 academic year. I have also applied to enrol my youngest son Seth into St John’s School in Scarborough.”
55. The Tribunal accepts the primary applicant’s evidence regarding his reasons for failing to relocate himself and the other relevant members of his family unit from Zimbabwe to Australia since the grant of their visas in April 2003, and it regards his explanation as reasonable in the circumstances. The Tribunal also accepts the primary applicant’s evidence that he proposes to relocate himself and those family members permanently to Australia early in 2008 and thereafter to establish his own plumbing business in Australia. The Tribunal, furthermore, is confident that, in the event that the cancellation of their visas is set aside, he will implement that proposal.
56. The Tribunal is satisfied that the cancellation of the primary applicant’s visa, and the consequential cancellation of the visas of the secondary applicants, would cause each of them substantial hardship. In the case of the primary applicant’s 3 adult children – namely, Aaron, Luke and Nathan – who have resided in Australia since February/March 2005, cancellation of their visas would cause each of them considerable hardship involving the loss of existing employment in Australia, in the case of Aaron and Luke, and the discontinuation of university studies in Australia, in the case of Nathan, together with the loss of the social network which each of them has established since their arrival in Australia. As regards to the primary applicant’s other children – namely, Judah and Seth – who are both under the age of 18 years and who both presently reside, and attend a “Trust School”, in Zimbabwe, the Tribunal, having considered the voluminous material before it concerning the adverse economic, political and social circumstances in Zimbabwe, has no doubt that the cancellation of the visa of the primary applicant, and the consequential cancellation of the visa of their mother, Sharon Hook, and of their own visas, would be contrary to their best interests in that it would defeat the primary applicant’s proposal to relocate them (together with himself and their mother) to Australia in early 2008 and it would thereby deny them the opportunity to have a better quality of life in Australia. In the Tribunal’s opinion it would clearly be in the best interests of Judah and Seth if the primary applicant’s visa were not cancelled.
57. In the case of the primary applicant himself, although he has property and business interests in Zimbabwe, he has, according to his evidence (which the Tribunal accepts), been taking steps towards ultimately divesting himself of those interests, or at least the management of them, in anticipation of relocating himself and his relevant family members to Australia. Although, as the Tribunal has found, a ground for cancelling the primary applicant’s visa under s 134(1) of the Act is established in this case, the primary applicant has, in the Tribunal’s opinion, at all material times acted on the advice of his migration agent and in good faith as regards his visa obligations and in his dealings, through his migration agent, with the Department. Furthermore, his abovementioned actions towards divesting himself of his property interests, and removing himself from the management of his business interests, in Zimbabwe were, in the Tribunal’s opinion, taken by him in the reasonable expectation that his visa would not be cancelled and that he would be able to complete the relocation of his family to Australia during the currency of his visa. In those circumstances the Tribunal is satisfied that substantial hardship would be unreasonably caused to the primary applicant by the cancellation of his visa.
58. The Tribunal is likewise satisfied that the cancellation of the primary applicant’s visa, and the consequential cancellation of the visa of Sharon Hook, would cause substantial hardship to Sharon Hook.
59. Having regard to the abovementioned matters, the Tribunal concludes that they, on balance, militate against the cancellation of the primary applicant’s visa, and that, accordingly, the primary applicant’s visa should not be cancelled under s 134(1) of the Act.
The visas of the secondary applicants
60. It follows from the Tribunal’s conclusion that the primary applicant’s visa must not, by reason of s 134(2) of the Act, be cancelled under s 134(1) of the Act, or, alternatively, should not be cancelled in exercise of the discretionary power conferred by s 134(1), that there is no basis for cancelling the visas of the secondary applicants under s 134(4) of the Act. It is, therefore, unnecessary for the Tribunal to consider and determine whether cancellation of each of those visas “would result in extreme hardship” to the relevant visa holder, for the purposes of s 134(5) of the Act.
Decision
61. For the above reasons, the Tribunal:
Application W200600280
·Sets aside the decision under review and, in substitution therefor, decides that the visa of the primary applicant not be cancelled under s 134(1) of the Act.
Applications W200600335-340
·Sets aside the decisions under review and, in substitution therefor, decides that, pursuant to s134(6) of the Act, the visas of the secondary applicants are taken not to have been cancelled under s 134(4) of the Act.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Mr W Evans, Member
Signed: ..........................[Sgd Y Maker]..............................
AssociateDates of Hearing 5-6 June 2007
Date of Final Submissions 28 June 2007
Date of Decision 21 September 2007
Counsel for the Applicants Mr M Solomon
Solicitor for the Applicants Fiocco’s Lawyers
Counsel for the Respondent Mr A Gerrard
Solicitor for the Respondent Australian Government Solicitor
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