JIAN WANG LINA WANG and MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2009] AATA 486

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 486

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1820

GENERAL ADMINISTRATIVE DIVISION		)              2008/1821
Re		JIAN WANG LINA WANG

Applicants

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Mrs Josephine Kelly, Senior Member

Date30 June 2009

PlaceSydney

Decision

In proceedings 2008/1820, I affirm the decision made by the delegate of the Minister for Immigration and Citizenship (the Minister) to cancel Mr Wang's subclass 127 business visa under s 134(1) of the Act.

In proceedings 2008/1821, I affirm the decision made by the delegate of the Minister to cancel Ms Wang's subclass 127 business visa under s 134(4) of the Act.

……………[sgd]…………………..

Senior Member
  Mrs Josephine Kelly

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – Business Skills Visa – Cancellation -  Secondary visa holder cancellation – Held did not obtain substantial interest in eligible business in Australia and did not make genuine effort  – Residual discretion not exercised – Held no extreme hardship in the case of the secondary visa holder - Decisions affirmed 

Migration Act 1958, s 134

Procedures Advice Manual 3

REASONS FOR DECISION

30 June 2009 Mrs Josephine Kelly, Senior Member      

SUMMARY

1. There are two applications before me. In proceedings 2008/1820 Mr Jian Wang seeks the review of the decision made on 10 April 2008 by the delegate of the Minister for Immigration and Citizenship (the Minister) to cancel Mr Wang's subclass 127 business visa (visa) pursuant to s 134(1) of the Migration Act 1958 (the Act). 

2.      In proceedings 2008/1821, his daughter, Ms Lina Wang, who held a subclass 127 business visa as a member of Mr Wang's family, seeks the review of the delegate's decision to cancel her visa on 10 April 2008.  Mr Wang’s wife, Ms Xueji Li, also had her visa cancelled, however that decision is not before the Tribunal.

3.      Mr Wang applied for the visa on 27 February 2003. His visa and those of family members including Ms Wang were granted on 12 November 2004.  Mr Wang first entered Australia on 24 December 2004.  Notice of intention to consider cancellation of the visas was given on 20 December 2007.  Mr Wang had spent 322 days in Australia as of the date of the visa cancellation.

4.      For the reasons that follow, I affirm the reviewable decisions to cancel the visas of Mr Wang and Ms Wang.

ISSUES

5.      The issues in these proceedings are:

(a) Whether I am satisfied, pursuant to subsection 134(1) of the Act at the time of the cancellation of the visa, Mr Wang:

(i) had not obtained a substantial interest in an eligible business in Australia; or

(ii) had not utilised his skills in actively participating at a senior level in the day-to-day management of hat business; or

(iii) did not intend to continue to hold that substantial interest and so utilise his skills in actively participating at a senior level in the day-to-day management the eligible business.

(b) Whether I am satisfied, pursuant to subsection 134(2) of the act, Mr Wang:

(i) has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and

(ii) has made a genuine effort to utilise his skills in actively participating at a senior level in the day-to-day management of that business; and

(iii) intends to continue to make such efforts.

(c) Whether, in the exercise of the discretion conferred by s 134(1) of the Act, Mr Wang’s visa should not be cancelled;

(d) Whether the decision to affirm the cancellation of Ms Wang's visa as a secondary business visa holder, would result in extreme hardship within s 134(5) of the Act.

THE CASE FOR MR WANG

6.      Mr Shi who appeared for Mr Wang put the following matters before the Tribunal in support of  Mr Wang's case.  On 6 January 2005, before Mr Wang's visa was cancelled, he had registered a company, Aussie Century Pty Ltd which he planned to use to set up metal and steel scrap business in Australia. 

7.      According to Mr Shi, Mr Wang had also registered a company, Globenet Investments Pty Ltd (Globenet), with his business partner, Mr Yu on 27 June 2007. The paid share capital was $200.  Mr Yu was an ideal business partner, as he spoke English and had property development experience. Mr Wang and Mr Yu apparently invested about $550,000 each. The proposed development project was at Carlton Street, Granville. Development approval for the property had been approved by the local Council on 5 January 2007 and consent was obtained to demolish a single storey commercial building and construct a three storey building (seven dwelling units and ground floor commercial / retail) over a single level of basement parking. A feasibility report was prepared by Mr Yu on 12 March 2007. Capital of approximately $2.1 million dollars was required for the project. Mr Yu and Mr Wang agreed to establish a joint venture for the project at a meeting on 28 March 2007 and sought legal advice to that effect. However the project did not eventuate. Mr Yu got into serious financial difficulties “as a result of the real estate market going down in Australia”. He had developed a lot of properties but could not sell them. Mr Yu was to pay Mr Wang back, but had so far only repaid about $50,000. Globenet will not and has not carried out any business.

8.      Mr Shi pointed to other matters he argued supported Mr Wang’s case. Since the visa cancellation, another company, Eastern Trading Pty Ltd, has been registered on 15 August 2008.  At the time of the hearing in 2009, Mr Wang was preparing to purchase land in Granville at a cost of $730,000, on which he would construct seven residential units and one commercial shop. The development proposal has council approval.  Mr Wang and his wife have $400,000 available in their bank accounts to put towards the purchase.  He will borrow a further $300,000 from the Commonwealth Bank, bring more money into Australia and pay off the land and borrow a further 1.5 million dollars from the bank using the land as security. An  uncompleted contract for sale of a unit at Bankstown for $500,000 to be purchased by Mr Wang was also tendered by Mr Shi

9.      Mr Shi argued that having made those efforts, events beyond Mr Wang's control prevented the efforts bearing fruit.  Mr Wang's visa should not be cancelled.  Accordingly, he submitted I should exercise the residual discretion under s 134 of the Act.

CONSIDERATION OF MR WANG’S CASE

10.     I have taken into account the oral evidence of Mr Wang and Mr Yu and the documentary material in evidence, including the documents provided pursuant to s 37 of the Administrative Appeals Act 1975. I have also taken into account the definition of "eligible business" in s 134(10) of the Act and the Procedures Advice Manual 3: Visa cancellation – Business Visas (the PAM 3).

11.     I find that Mr Wang is the sole shareholder in a Chinese company. His shareholding is worth 10 million IMB, that is about $A2 million. The company's business involves the procurement and sale of building materials.  He is the general manager.  He signs contracts, and contacts clients.  He works eight hours a day.  When he came to Australia he authorised his wife to carry out his work.

12.     Mr Wang gave evidence about efforts he had made in relation to the proposed steel scrap business and the developments considered with Mr Yu in 2007 when they registered Globenet.  I understood Mr Wang to say that the proposals involved Globenet entering into a joint venture with Mr Yu's company, which went into liquidation. He claimed that he had given Mr Yu $200,000 and that he was to repay the money by 31 January 2009 and if does not repay the amount, he will be charged interest.   He also said that he had given Mr Yu another sum of $280,000, however, he was not concentrating on that in this case.  Another business he had investigated in 2007, was a restaurant in Chatswood. I do not accept Mr Wang’s oral evidence.

13.     Bank statements in evidence in the name of “Eastern Trading” indicate $70,000 was invested in a term deposit with the NAB, but disbursed on 11 April 2007. The evidence also shows money going in and out of bank accounts held by Mr Wang with the Commonwealth Bank and HSBC Bank between March and May 2007 and in August 2007. Significantly, $320,000 was deposited into the HSBC account on 9 March 2007. There are significant debits to the HSBC account with the transaction detail “STAR CISTAR CITY”, which I infer is a casino in Sydney. In July 2007, alone, $10,000 was withdrawn at Star City. Another debit for $36,388 is to “FERGUSON’S TOYOTA”.  These documents do not  prove any business activity by Mr Wang, nor do they establish any future intention to engage in such activity.

14.     I find that Mr Wang is wholly concerned with running his Chinese business.  His "efforts" in relation to establishing a business in the nature of a going concern in Australia were desultory at best. The documentary evidence relied upon is not persuasive.  There is a lack of documentary evidence from third parties such as town planners, architects, and builders that one might expect if genuine efforts were being made as are required by s 134(2) of the Act.  I am not persuaded by the evidence of Mr Wang and Mr Yu. 

15. I understood Mr Shi's submission that I should exercise the residual discretion under s 134(1) of the Act to implicitly concede that the evidence does not support findings favourable to Mr Wang pursuant to s 134(1) or s 134(2) of the Act.

16.     In any event, taking into account all the evidence Mr Shi relied upon, I find that:

(a)Mr Wang had not obtained a substantial ownership interest in an eligible business in Australia, at the time of the visa cancellation or at the time of hearing, therefore the criteria in s 134(1)(b) and (c) do not arise.

(b)Mr Wang has not made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia, at the time of the cancellation decision or at the time of the hearing.  In coming to that conclusion I have taken into account the matters set out in s 134(3).   It follows that it is unnecessary to consider the criteria in s 134(2)(b) and (c).

(c)It is unnecessary in this case to determine whether s 134(1) confines the primary decision maker and the Tribunal on review, to events and circumstances occurring within the three year period referred to in s 134(9) of the Act.

17.     I am not persuaded to exercise the residual discretion in s 134 of the Act. I find that Mr Wang has never had and does not presently have any intention to obtain a substantial ownership interest in a business in Australia.  I find that the "efforts" made have been for the purpose of giving the appearance of doing something to satisfy the statutory requirements of the Act.  

18.      Accordingly, I affirm the reviewable decision to cancel Mr Wang's business visa.

THE CASE FOR MS WANG

19.     Mr Shi relied on the following matters to support Ms Wang's case.  She started her Australian education in Year 10 in February 2006 when she was 14 years old.  She sat for the Higher School Certificate in November 2008 and proposes to attend university. She has spent four years at school in England from Year 6 to Year 9.  She can understand spoken Chinese but cannot read or write Chinese.  Her Chinese language skills are those of a Year 4 primary school student.  It will be a disaster for her to return to China.  It will take her eight years to develop her Chinese language skills to a standard which would allow her to study and work competently in China.  She will suffer extreme hardship if her visa is cancelled.

20.     Mr Shi asserted at the end of the hearing that normally the cancellation of such a visa would exclude Ms Wang  from obtaining a student visa.  The matter was adjourned to allow the parties to provide written submissions on that question.  Mr Shi could not find anything in the Act to support his assertion.  However, he argued that it may take some time, up to six months, for Ms Wang to obtain a student visa and if she misses the spring intake she may have to wait until 2010 and her studies will be disrupted.  He acknowledged that her UAI result of 39.5 was "rather low" but specified a package course that would enable her to enrol in an Australian university by paying a full fee.

CONSIDERATION OF MS WANG’S CASE

21.     I have taken into account Ms Wang's oral evidence and the documentary material provided in support of her case. I am not persuaded that Ms Wang will suffer extreme hardship within the meaning of s 134(5) of the Act if her visa is cancelled.  She has not commenced tertiary education and has the option of applying for a student visa. She communicates with her family in Chinese.  If she returns to China, she will have the support of her family.

22.     I have had the assistance of the written submission prepared by Ms McDonald who appeared for the Minister in relation to any disadvantage Ms Wang might suffer if her visa were cancelled. Those submissions support Mr Shi's concession that there is nothing in the Act to prevent Ms Wang immediately applying for another visa.

23.     Accordingly, I affirm the decision to cancel Ms Wang's visa.

DECISION

24. In proceedings 2008/1820, I affirm the decision made by the delegate of the Minister to cancel Mr Wang's subclass 127 business visa under s 134(1) of the Act.

25.     In proceedings 2008/1821 I affirm the decision made by the delegate of the Minister to cancel Ms Wang's subclass 127 business visa under s 134(4) of the Act.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member.

Signed: …..…[sgd]….....….

Steven Mulipola, Associate

Date of hearing:  14 January 2009

Date of final submissions:  18 February 2009

Date of decision:  30 June 2009

Representative for the Applicant:             Southern Hemisphere Trading & Consulting Centre Pty Limited

Solicitors for the Respondent:                  DLA Phillips Fox