Kamal and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 982
•6 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 982
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1318
GENERAL ADMINISTRATION DIVISION ) N2004/1332 Re MUHAMMAD KAMAL
FAUZIA KAMALApplicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly Date6 October 2005
PlaceSydney
Decision In proceedings N2004/1318 and N2004/1332 the reviewable decisions dated 15 September 2004 to cancel Dr Kamal’s visa and those of his wife Mrs Fauzia Kamal and their children Muhammad Ahmad Kamal, Muhammad Ahad Kamal, Muhammad Arsalan Kamal and Alina Kamal are affirmed.
[sgd] Senior Member, Mrs Josephine Kelly
CATCHWORDS
BUSINESS VISA – Applicant has a substantial ownership of an eligible business – Applicant did not participate in the day to day management of the business at a senior level – no genuine effort to participate in the day to day management of the business – no extreme hardship to Applicant’s wife or children – decisions under review affirmed.
LEGISLATION
Migration Act 1958 sections 134, 135, 136 and 137
CASELAW
Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409
Tang and Minister for Immigration and Multicultural Affairs [2000] AATA 997
Huang and Minister for Immigration & Multicultural & Indigenous Affairs [2002] AATA 656
Ong and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 178
Ng and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 299
Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 31
Wong and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 54REASONS FOR DECISION
6 October 2005 Senior Member, Mrs Josephine Kelly Background
1. Dr Muhammad Mustafa Kamal (“Dr Kamal”) seeks the review of a decision to cancel his subclass 127 Senior Executive Class visa (“the visa”). His wife, Mrs Fauzia Kamal, also seeks the review of the decision cancelling her visa and those of her children. Dr Kamal is the primary visa holder and she and their children Muhammad Ahmad Kamal, Muhammad Ahad Kamal, Muhammad Arsalan Kamal, Alina Kamal, are the secondary visa holders.
2. Dr Kamal was born in Pakistan on 20 February 1958, graduated in Veterinary Sciences, and completed postgraduate study in animal nutrition from the University of Agriculture Faisalabad, Pakistan. He has substantial business interests in Pakistan in an undertaking called ‘Big Bird’ (T22). The Big Bird group comprises four companies (T7 at p75) all of which are concerned with poultry. He is a director of all the companies. The evidence established that the group had a two billion rupee turnover. On the basis that there are 46 rupees to the Australian dollar, that is a turnover exceeding $A40 million. The group employs 1500 people in Pakistan. The size of the business is also indicated by Dr Kamal in his statutory declaration where he says: “The Big Bird Group includes ‘Big Bird Poultry Breeders’ which has about 10% of the Pakistani market. There is also Grandparents Poultry P/L which has about 60% of the Pakistani market for parent stock.”
3. Dr Kamal’s visa was granted on 23 February 2001 (T14).
4. Both applications before me are made pursuant to s 136 of the Migration Act 1958 (“the Act”) for review of the decision to cancel a visa made pursuant to s 134(1) of the Act. The reviewable decisions to cancel the visas were made on 15 September 2004 (T3 and T4)..
Legislation
5. The statutory scheme for the cancellation of business visas is set out in sections 134 to 137 of the Act. Departmental policy with regard to cancellations under section 134 is contained in Migration Series Instruction 133: Visa cancellation under subdivision G - cancellation of business visas (the MSI). This Tribunal is not bound by that policy (see Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409).
6. Subsection 134(1) relevantly provides that:
(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.
7. Subsection 134(2) provides for circumstances in which a visa must not be cancelled under subsection (1).
(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.
8. Subsection 134(3) provides a list of matters that the Minister may take into account when determining whether a person has made the genuine efforts described in subsection 134(2).
(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 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)….
9. Section 134(10) defines “eligible business” as:
… 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;
Issues
10. The issues in these proceedings are:
·Was the business in which Dr Kamal was involved in Australia an “eligible business” within the meaning of s 134(10) of the Act?
·Is Dr Kamal utilising his skills in actively participating at a senior level in the day-to-day management of an eligible business within the meaning of s 134(1)(b) of the Act;
11. In the event that I am satisfied that Mr Kamal fails to meet the latter criterion, then I am to determine:
·Whether Dr Kamal has demonstrated a genuine effort to utilise his skills in actively participating at a senior level in the day-to-day management of that business under s 134(2) of the Act;
Consideration
The business in which Dr Kamal is involved
12. Dr Kamal is a director and 25% shareholder of Oriental Pacific Holdings P/L (“the Company”) which is an Australian listed company with the ACN 096 895 000. The company was registered on 23 May 2001 through an agent arranged by Mr Ramay who is an Australian citizen. This occurred just before Dr Kamal came to Australia for the first time. Dr Kamal is listed as a director of the company and holds 50,000 shares. There are three other shareholders who also hold 50,000 shares each. They are Messrs Basit, Karim and Ramay. Mr Ramay was not a director of the Company until 12 September 2002 (see the ASIC Current Extract dated 31 March 2005 Exhibit A1). Both Mr Basit and Mr Karim are involved in the Big Bird group of businesses in Pakistan with Dr Kamal, but Mr Ramay is not.
13. That Dr Kamal has obtained a “substantial ownership interest” in the Company within the meaning of s 134(1)(a) was not in dispute.
Financial Aspects of the Company
14. The first company bank account was opened by Mr Ramay. Various bank statements for the four accounts held in the name of the Company were in evidence (T documents pp 427 to 680 and Exhibit A5). These accounts are numbered 13-4510, 14-7952, 15-9742 and 15-7763. Dr Kamal remembered only two bank accounts, said that there was no company bank account until 2003 and that he had no recollection of a bank account being opened in 2001 when the Company began. The financial records indicate that there was an account opened by 26 June 2001 at Broadway in Sydney (Exhibit A5).
15. I accept Dr Kamal’s evidence that he invested substantial amounts of money into the business, which increased gradually over time. That is reflected in his statutory declaration:
“My initial share capital was $50,000, which is 25% shareholding. My further investments in the company were loans to the company which was initially $150,00.00 then another approx. $200,000 making my total investment in the company to $376,000.00 as of 30 June 2003.”
“In the second half of 2003, I loaned a further $265,000 to the company for investments and its operation. This meant that my total investment is approx, $692,000.00 which also includes $50,000.00 share capital.”
16. Mr Ramay’s evidence supported that evidence.
17. The evidence established various transfers of funds to the Company, although those from Dr Kamal were not identified precisely. On 8 December 2003, $50,000 was transferred into the Company bank account (T documents p 428). On 26 June 2001 a deposit of $99,985 was made into account 032-249 13-4510 (Exhibit A5). On 15 November 2001, $573,615.00 was transferred from Pakistan into the Company account, apparently by Mr Basit (Exhibit A5).
18. Dr Kamal said that all money transfers from Pakistan do not come from an account. The method of payment is via foreign currency exchange dealers who are paid in local currency. The dealer buys the dollars and remits the funds to the account named on the transfer. He said that this method of transfer explained the transfer on 1 October 2001 by Mr Muhammad Arif of $101,034 into the Company bank account (Exhibit A5).
19. Dr Kamal said that the profits of the Company go straight back into the business and that it is profitable. In his statutory declaration he stated: “The business turnover for OPH was $1 million in the first year of operation, $2 million in the second year and just under $5 million for the third year of operation.” (Exhibit A2).
20. Dr Kamal returned a Business Survey Form 1010 (“the Form 1010”) to the Respondent on 16 June 2004. It was dated 15 June 2004 and signed by him. In it he recorded the annual profit as $100,000.00 (T21 p308). He stated in oral evidence that that this was for the financial year of 2003-2004. In 2002-2003 he said that the net profit was $50,000 and that in 2004-2005 the profit would be in the range of $150,000. In the Form 1010 Dr Kamal has listed the annual income of the business as $2,300,000.00. He explained this discrepancy in values by indicating that the figures of millions referred to turnover whereas the figures of hundreds of thousands referred to profits.
21. Mr Ramay gave oral evidence that he could not remember the net profit for the financial year 2003 to 2004. He did say that they were running at a profit but he would need a balance sheet to determine the profit. He then said that for 2002 to 2003 that profit was $80,000 to $100,000, in contrast to Dr Kamal’s evidence.
Activities of the Company
22. The Company has operated four service stations, all of which are located in New South Wales. I will refer to them as Bexley, Wauchope, Port Macquarie and Charmhaven. Now the Company only has two service stations. Dr Kamal stated: “The service station in Wauchope was sold in May 2005 due to the future planning and our view that the competition from Coles and Woolworths. The property at Port Macquarie service station was bought by a new owner and they decided not to continue the lease. This meant that the business had to close in January 2005. (Exhibit A2).
23. Dr Kamal stated that “The Bexley and Charmhaven businesses include a purchase of the business properties. The other two businesses were the businesses alone without purchasing the real estate property.” (Exhibit A2)
24. He also gave evidence that Bexley was purchased in 2002. It was the first property that the Company purchased. Until then the Company had done no business activity. Dr Kamal believed that nothing else was done during that time as they had to get the business set up first. A letter from Smits Leslie Solicitors shows that contracts were exchanged on 3 October 2001 (Exhibit A5). Another letter from the same firm states that the matter was to be settled on 18 February 2002 and it appears that it did settle around this time. All the letters regarding the purchase of the property are addressed to Mr Ramay.
25. When questioned about how the Bexley property was purchased, Dr Kamal said that “they” instructed Mr Ramay to finalise the deal. He could not recall the specifics of how the property was purchased but said that all the directors were involved through conversations on the telephone.
26. Mr Ramay said that in 2001 Mr Karim saw an advertisement for the Bexley petrol station in the paper and they took over possession in 2002. Mr Ramay was “not very involved”. Dr Karim told him to go ahead. There were two sale contracts, one for the business and one or the property. The cost overall was $1,050,000, however, there were some advantages to the owner to delay settlement if the tenant could not be gotten out. The Company finally paid $1,025,000. He did not really remember how this money was gathered, but said that the sum of $800,000 came from Pakistan and some of the money was his.
27. I find that Dr Kamal had little to do with the purchase of Bexley.
28. Dr Kamal described how the Charmhaven service station was purchased. He stated that he was informed by Mr Ramay that there was a property and that the price was good. Dr Kamal was not involved in the negotiations or discussion involving the purchase of the property. He stated that “the business decisions were ours; Mr Ramay was implementing them.” Mr Ramay signed all the documents.
29. Exhibit A5 contains documents relating to the purchase of Charmhaven. A resolution dated 12 September 2002 and signed by all the directors, including Dr Kamal, allows Mr Ramay to be the sole signatory on behalf of the Company regarding that purchase. Settlement occurred on 5 February 2003 (Exhibit A5, letter from Dominic David Stamfords, attorneys, to Mr Ramay dated 11 February 2003).
30. The written evidence of Mr Ramay and Dr Kamal was that the order of acquisition of the service stations was Bexley, Wauchope, Port Macquarie and Charmhaven (Exhibits A2 and A3). I prefer the contemporaneous documentary evidence where it is available on this point and therefore conclude that the order of acquisition was Bexley, Charmhaven at the end of 2002, as set out above, and then Wauchope, also referred to as Timbertown. The only documentary evidence about the acquisition of Wauchope, is a minute of a Company meeting held on 2 March 2003 in Pakistan where the agenda item 7 concerned “To consider and approve to take over the Service Station site at 210-212, High Street, Wauchope, NSW”. The agenda was circulated on 15 December 2002. It is apparent from the resolution that Mr Ramay and Mr Basit owned the property and that the Company decided to take over the operation from Mobil.
31. Finally, the documentary evidence shows that the Port Macquarie petrol station premises were leased around the end of 2003 (T22 p 385). The Equipment Loan Agreement for those premises is dated 9 December 2003.
32. The business also has a property at Alison, on the New South Wales Central Coast. Letters from Westpac regarding the purchase of that property are addressed to Mr Ramay and settlement occurred on 31 October 2003 (Exhibit A5). It is a fifty one acre property with a farmhouse. Mr Ramay said that Mr Basit saw the farm and thought that in the future it could be developed as a lifestyle resort, as he was impressed by Dooralong Lodge, a rural resort. Mr Basit also thought they could experiment with raising cows or sheep and see if import/export might be feasible.
33. Dr Kamal gave evidence that they were intending to convert the farmhouse into an accommodation facility and are still looking into the feasibility of that. There was no evidence that any inquiries had actually been made. He also said that they have some animals on the property and are planning to increase that aspect of the business. He said that they have sold some of the animals for profit. The documents from Bowe and Lidbury, Preston’s Livestock and another unidentified person reflect the purchase or sale of in the order of about 25 head of cattle including calves during November/December 2003 (p 387 to 390). They are all addressed to Dr Kamal at Jilliby. Mr Ramay moved from Sydney to the property at the request of Dr Karim and the other directors as caretaker (facsimile dated 22 October 2003 in Exhibit A1). Mr Ramay gave evidence that he intended to move back to Sydney.
Employees of the Company
34. When the Bexley service station started, Mr Ramay said they employed two local people from Pakistan who had permanent visas. Other people have been employed using different methods. They have included a few other people who have migrated to Australia. Mr Ramay stated that employment of full time staff is made through consultation with directors.
35. There are some full time and some part time employees. Mr Ramay is now a director and employee of the company but none of the other directors is an employee.
36. Dr Kamal stated that he was involved in discussions with Mr Ramay about the people that they wished to employ. In his statutory declaration he states:
“In relation to the employment of staff, another director of OPH Mr Ramay would do interviews and report back to the other directors regarding the potential staff. We discussed the candidate and the terms of employment, such as salary, and then Mr Ramay would carry out the decision regarding employment of staff.”
37. Exhibit 6 is the Payroll Activity Summaries. Dr Kamal gave evidence that Nasir Abbas still worked for the company. Mr Greg Ballard had been employed as a Manager of Wauchope and Port Macquarie, however those petrol stations were no longer in business at the time of hearing. In total Dr Kamal stated that the company employed 4 to 5 people. These were Rehan Latif, Ali Ramay, Mr Ramay and also Zafar Iqbal. Nasir Abbas is now part time. The Payroll activity statement from 1 July 2003 to 30 June 2004 lists fourteen employees of the company. As the size of the business has decreased by reducing the interests in petrol stations, so has the number of employees.
Is the Company an “eligible business”?
38. Is the Company an eligible business within the meaning of s 134(10) of the Act? The Respondent raised this at the hearing and employment records of the Company were tendered in answer to it. Section 134(10)(b) requires that I am satisfied that the business is resulting in the creation or maintenance of employment in Australia. I did not understand the Respondent’s submission to be pressed following the admission of that evidence. However, as it was raised, I will address it.
39. The evidence establishes that the Company has and does employ people at the petrol stations and Mr Ramay is said to be employed, although the salary was not clear. The number of employees grew with each acquisition and then decreased when the Company ceased its operations at Port Macquarie and Wauchope. That is consistent with the operation of a business which may fluctuate over time in terms of the number of employees. I do not consider that the decrease in employment is inconsistent with the requirements of the Act and accordingly, I find that the Company is an “eligible business”.
Is Dr Kamal utilising his skills in the day to day management of the business??
40. The next question to consider is whether Dr Kamal is utilising his skills in the day to day management of the business.
The time spent by Dr Kamal in Australia
41. Dr Kamal has spent a limited amount of time in Australia (T22 at 681) as the following table shows:
Entered Australia
Departed Australia
Number of Days in Australia
28 May 2001
17 June 2001
21 days
13 July 2003
28 July 2003
16 days
2 July 2004
11 July 2004
10 days
42. That is a total of 47 days in Australia since he was granted the subclass 127 business visa on 23 February 2001.
43. That he was not expected to be in Australia is reflected in the following evidence. There is a “resolution by circulation for approval and signatures of the Directors” of the Company dated 9 December 2002 authorising Mrs Nissa to act as “alternate director to Mr Muhammad Mustafa Kamal (presently in Pakistan) for the purpose of signing any documents for obtaining a loan from Arab Bank or any other banking institution.” There is also a resolution taken at a meeting held on 2 March 2003 in Pakistan, by all the directors allowing Mrs Nissa to act “as an alternate director to Mr Muhammad Mustafa Kamal, when he is not present in Australia, to satisfy the regulations of Australian Securities & Investment Commission” (Exhibit A5)..
Communications with other directors
44. Dr Kamal stated that he communicated with the other directors of the Company once or twice a month. That is because the business in Pakistan takes up most of his time and he does not always get the opportunity to communicate more often. The directors have some meetings face to face in Pakistan. Also some meetings occur with only two directors over the telephone or in person. Exhibit A5 contains business documents including minutes of the meetings of the directors. The minute for the meeting held on 30 October 2001 is signed by Mr Basit. That meeting was held in Pakistan. Mr Ramay said he usually types the minutes of the meetings. The meeting held on 24 July 2002 was in Australia. The minutes state that Dr Kamal was present via “net meeting on Internet.” Dr Kamal could not recall who took the notes or typed them up. The other meeting was on 2 March 2003. Dr Kamal was not in Australia at the time of any of those meetings.
45. Mr Ramay’s evidence was generally consistent with that of Dr Kamal. He said that the other directors keep in touch via personal meetings with each other, telephones and sometimes via faxes. They normally gave him a call if they had questions about the company. Some months they wished to know more details about the business including buying in bulk and he explained what they were doing. These questions came from Dr Karim or Dr Kamal. They accessed his computer via software and could see whatever is on the computer, including all correspondence. Mr Ramay said that the telephone conversations did not occur very regularly but that Dr Kamal and the other directors were asking him to spend more time with the business. Telstra records for the Company were tendered which included the period June 2003 until April 2004, which showed telephone calls and facsimiles being sent to Pakistan (Exhibit A1). However, they are of little assistance as they do not identify to whom the call was made or facsimile sent or why.
Dr Kamal’s role in the Company
46. Dr Kamal gave evidence that when he first came to Australia in May 2001 he wished to establish a poultry business as he has such a business in Pakistan. He visited poultry farms in the Gosford area but he concluded that Australian quarantine laws are such that they could not make a profit in the poultry business.
47. He also gave evidence of looking into the business of Marinas. He did not explore that for long. He decided that it might be possible to have one or two sites but a larger scale business is more difficult to obtain.
48. A reason put forward as a part explanation for his not visiting Australia was that he broke his arm while he was in America. There are copies of various medical records, two of which appear to be on letterhead, relating to that injury over the period 13 August 2002 to 4 September 2002 and also a note that refers to a further admission on 25 September 2002 “after wound complication” (see Exhibit A1). There are also two facsimiles dated 10 September 2003 and 24 September 2003, that is a year later, which on their face appear to have been sent from Big Bird in Pakistan to Mr Ramay in Australia. They refer to Dr Kamal’s breaking his arm in the USA and a fear of complications which prevents his traveling to Australia (Exhibit A1). In his statutory declaration Dr Kamal states that this injury occurred in August 2003 and that he recommenced work in early 2004 (Exhibit A2 paragraph 33). It is not necessary to resolve this inconsistency in the evidence. However, it does cause me to question the accuracy of the documentary evidence that has been tendered in support of the case.
49. There is a lack of consistency between some of the documentary evidence and Dr Kamal’s evidence. For example, he gave no evidence of an intimate involvement in the dealings in respect of the Charmhaven service station which are reflected in a memorandum dated 24 February 2003 signed by Mr Ramay (Exhibit A5). His evidence was that his dealings related to the Port Macquarie business and the Alison property. The “inter office” memoranda during 2003 dated 6 and 18 June, 8 August, 10 and 29 September and 22 October support that evidence (Exhibit A1). In the Form 1010 he also stated that he was mainly involved with the business at Port Macquarie, and the farm at Alison, where he also resided (T21, p 304).
50. It is relevant that the Form 1010 was sent to Dr Kamal on 5 December 2003 (T16 at 295) but was not returned until 16 June 2004 after a number of requests for extension of time. He did not complete it until after the notice of intention to cancel his visa was sent to him on 13 May 2004 (T19 at 298).
51. Dr Kamal said that he investigated the petrol station business in 2003 or 2004. He thought that it was a good business with an opportunity to expand. He said that he travelled extensively around New South Wales to look for locations for more petrol stations. His criterion for locations was to ensure that there would be minimal influence from Woolworths or Coles. He also gave evidence of strategies for the Company to combat the unanticipated Coles and Woolworths discounting. The strategy developed was to strengthen the value of the shop that was attached to the petrol station. If the grocery items were good value then the local customers would attend the shop. He said that it had worked well at Charmhaven which went from selling 80,000 litres in a month to 350,000 litres with that incentive alone.
52. The only service station acquisition that Dr Kamal’s efforts could have been directed to is Port Macquarie which was leased in late 2003. All the others had been “acquired” by the Company or a decision to do so made, before Dr Kamal returned to Australia in July 2003. By that time the Company was experienced in the acquisition and operation of service stations.
53. When Dr Kamal was asked in oral evidence “How many hours a week do you work in this business?” he stated that he did not know, but worked whenever he had time available from his other businesses, which he thought was somewhere between six to seven hours a week. When asked why at T21 p 307 he had stated that he worked forty hours a week for the business, he said that was the combined total between the Australian company and Big Bird business in Pakistan.
54. Documents relied upon as reflecting Dr Kamal’s role in the company included the T-documents at pp 320, 322, 323, 378, 385, 387, 388, and 389, 390. They include agreements he signed and invoices and statements that are addressed to him, including those referred to above relating to the Alison property. The Product Supply Agreement is dated 12 December 2003 (pp 324 to 360) and the Product Equipment Agreement is dated 9 December 2003 (pp 361 to 384). Both Agreements relate to Port Macquarie and are signed by both Mr Basit and Dr Kamal Dr Kamal had left Australia on 28 July 2003. I infer he did not sign those documents in Australia.
55. I do not consider that the fact that those agreements and invoices were addressed to Dr Kamal at various addresses in Australia including 174 Oxley Highway, Port Macquarie, 210 High Street, Wauchope, or 34 Jilliby Road, Alison, persuasive in establishing that Dr Kamal was involved in the day-to-day management of the Company when he was residing overseas. Mr Ramay’s evidence was that he took care of the payment of bills and Dr Kamal did not give evidence to the contrary.
56. In his statutory declaration, Dr Kamal stated that “I have also participated in negotiations with Mobil for the badging of the service stations. I had meetings with Mobil and also spoke with their representatives by telephone” (Exhibit A2). I accept that this may have occurred when he was in Australia in 2003, however given the limited time he was here and that there is no supporting documentation such as correspondence between then and the signing of the agreements referred to above in December, any such discussions would have been of a very preliminary nature and I give this evidence little weight. I also infer that the telephone calls only occurred while Dr Kamal was in Australia
57. Dr Kamal gave evidence that his role within the Company was to control the financial records. In Exhibt A2 he states “Myself … Dr Abdul Kairm, have the assigned responsibility to keep an eye on the financial control of the business.” … “I regularly access the company accounts through Internet and keep a day to control for day-to-day performance and profitability of the business.”
58. In oral evidence he said that he looks at the business records three to four times a week. He generally looks at the details of the sales and recent purchases with a focus on profits and losses from the MYOB accounting program. He was unable to say how much Mr Ramay was paid because that had only started recently. He uses computer software called PC Anywhere (Exhibit A4). I understand that that software enables him to have access to information held on computer from anywhere in the world.
59. There was no evidence that his checking financial records over the internet resulted in timely interventions in the management of the Company. At highest, that process made him aware of the Company’s activities.
Dr Kamal’s Future Plans
60. Dr Kamal expressed his future plans in two ways. The first was that he expected to spend more and more time in Australia as he shifted his business interest from Pakistan to this country. The second was that that as the business in Australia expands he will need to spend more time here, which left a suggestion that the business in Pakistan would continue. The plans for the future expansion of the business in Australia were vague but included some expansion of animal raising at Alison, discussions with a vaccine manufacturer and further expansion of the service station business. They were exploring a purchase at Bulahdelah and had a general plan to have service stations in locations not affected by Coles or Woolworths. Dr Kamal forecast that turnover would increase “by around 400-500% in the short to medium term”, although no financial analysis was provided in support.
61. He said that “If I did not have a permanent visa, then I think I would have to pull out of the businesses as it would be practically very difficult to conduct a variety of businesses in Australia without being allowed to travel and work in Australia. If I could only get temporary visas, then I would not be able to really contribute to running the business.” He was asked why he needed a permanent visa if he was able to run a profitable business and only be in the country for 47 days. His response was that was that as the business expands he will need to spend more time in Australia. In his statutory declaration he expressed an intention to transfer his assets to Australia gradually “to ensure that when my family moves permanently to Australia, there is a strong business to support them and provide a steady income”.
62. Dr Kamal also expressed concern about disadvantage to his children’s education if his visa was cancelled. It was expressed somewhat differently in his statutory declaration and his oral evidence. However, the gist of it was that his son was doing a course that had a higher level of English which would enable study outside Pakistan, whereas a different course with a lower level of English would achieve higher grades for the purpose of tertiary study in Pakistan. It was not clear why his other children would be disadvantaged.
Evidence of Mr Ramay
63. Mr Ramay explained the decision-making of the company. He said that there were two levels, the micro level and the management level in which Dr Kamal was involved. The management level involved policy directions including how to increase sales, where to develop the business and the purchase of property. Dr Kamal was not involved in the lower level that included everyday banking, ensuring that there were no unauthorised transactions from the bank, or ensuring that the petrol stations have the correct amount of stock.
64. Mr Ramay is the person in the company who signs all the cheques and minutes of the meetings. If Mr Ramay was not present, as at the 30 October 2001 meeting, then one of the directors, perhaps Mr Basit, would call and tell him the minutes and he would type them out. He typed all the minutes on their behalf. He said that the Company meetings were informal.
65. He said that he did not do anything after incorporation as he was running a motel. In May or June of 2001 he was instructed to open up a bank account. This is contrary to Dr Kamal’s evidence. Mr Ramay said that he was also instructed to buy a car.
66. Mr Ramay said that the Company has had as many as five bank accounts but it has varied between 3 and 5. He said that the directors would not know how many back accounts the Company had as it was his responsibility, and he opened the Port Macquarie bank account without telling anyone.
67. In his statutory declaration he stated “I send regular monthly statements for each service station to each director.” He said that these contained a print out of a profit and loss and does not show the bank balance. This would explain why Dr Kamal did not know about the balances of bank accounts. The company has a part time accountant.
68. Mr Ramay’s evidence supported Dr Kamal’s about accessing the financial records of the Company over the internet but went further stating that Dr Kamal also had access to all the accounts and correspondence with supplies.
Findings
69. I have to determine the correct or preferable decision at the time the decision to cancel the visa was taken (Wong and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 54). For that purpose I am to take account of all relevant evidence to make findings of fact with respect to the decision made at that date.
70. I am not persuaded that the evidence in this case establishes that Dr Kamal has satisfied the day to day management requirement of s 134(1)(b) of the Act. While he had some involvement in the purchase of businesses and properties, on his own evidence, his principle involvement was with the Port Macquarie acquisition. The Alison property was purchased at the suggestion of Mr Basit. Mr Basit had plans for developing animal grazing and a rural resort on that property and Dr Kamal repeated the same “plans”. The only evidence of anything actually being done is transactions involving about 25 head of cattle. The only “expansion” of which there is evidence is of the business carried out at Charmhaven. That has arisen from the implantation of a strategy to combat Woolworths and Coles. Dr Kamal had an input into the development of that strategy.
71. Dr Kamal was and is very much involved in managing the business in Pakistan and had little time to devote to the relatively small business activities in Australia which was competently handled by Mr Ramay. This is also reflected in the time that he spent visiting Australia. I would not be satisfied that Mr Kamal’s activities satisfied the provision even if he had been residing in Australia.
72. Having made that finding, it is unnecessary to consider the competing arguments about the extent to which the provision requires the management to take place in Australia rather than overseas as was discussed in Tang and Minister for Immigration and Multicultural Affairs [2000] AATA 997, Huang and Minister for Immigration & Multicultural & Indigenous Affairs [2002] AATA 656 and Ong and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 178 and Ng and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 299.
73. Has Dr Kamal made a genuine effort to utilise his skills in actively participating at a senior level in the day to day management of the Company as required by s 134(2)(b) of the Act? Dr Kamal’s activities relevantly are set out above. I do not consider that what he has done or the plans that he has made satisfies this provision.
The residual discretion
74. In Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 31, Kiefel J found that the power to cancel a visa under subsection 134(1) is a discretionary power. She found that the Tribunal’s failure to consider whether or not to exercise the residual discretion after determining that the applicant satisfies the criteria in subsection 134(1) amounted to jurisdictional error. She said:
Whilst the discretion given in s 134(1) is not as broad as that considered in Samad, in the sense that it does not involve more choices, it cannot be said that a decision not to cancel a visa could serve no purpose. The Minister might be satisfied of the matters referred to in subs (1) and not be satisfied as to the efforts made as referred to in subs (2) but nevertheless consider in a particular case that further time should be given to the visa holder to undertake what was required of them. [paragraph 21]
75. I am not persuaded that I should exercise the discretion not to cancel the visa in this case. Mr Kamal has had sufficient time and opportunity to satisfy the requirements that I have considered. His case was argued on the basis that he satisfied those requirements, not that he requires further time to do so. There was no other ground put forward in support of a submission that I ought to exercise the residual discretion. Accordingly, I find that Dr Kamal’s visa should be cancelled.
Mrs Fauzia Kamal
76. In the case of Mrs Kamal and their children, I did not understand a submission to be pressed that they would suffer extreme hardship if their visas were cancelled as required by s 134(5) of the Act. Rather, it was contended that Dr Kamal satisfied the requirements of s 134 and therefore the secondary visas ought not be cancelled. In case I have misunderstood the submission put on that question, I deal with the question briefly because there was evidence that Dr Kamal’s son and perhaps his other children would be disadvantaged in terms of their education. I do not consider that evidence established “extreme hardship”. Section 134(5) has not been satisfied and the visas of Mrs Kamal and the children must also be cancelled.
Decision
77. In proceedings N2004/1318 and N2004/1332 the reviewable decisions dated 15 September 2004 to cancel Dr Kamal’s visa and those of his wife Mrs Fauzia Kamal and their children Muhammad Ahmad Kamal, Muhammad Ahad Kamal, Muhammad Arsalan Kamal and Alina Kamal are affirmed.
I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly
Signed: Miss Sacha Keady
AssociateDate/s of Hearing 22 July 2005 and 29 July 2005
Date of Decision 6 October 2005
Solicitor for the Applicant Craddock Murray Neumann
Solicitor for the Respondent Phillips Fox
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