Kim and Minister for Immigration, Multicultural and Indigenous Affairs

[2005] AATA 626

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 626

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          Q2004/116,117,  

GENERAL ADMINISTRATIVE  DIVISION		)         and 118
Re		JONG HAK KIM, CHANG SOON KO KIM, GWAN JUN KIM, HYUN JI KIM, HYUN MI KIM

Applicants

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Deputy President Don Muller

Date30 June 2005

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and determines that at all times relevant to this matter JONG HAK KIM satisfied the provisions of subsection 134(2) of the Migration Act 1958, and his subclass 127 Business Skills (Migrant) Visa should not have been cancelled.  

................SIGNED..............................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

MIGRATION – business visa – applicant made genuine effort to obtain a substantial ownership in eligible Australian business – decision set aside

Migration Act 1958: s134

REASONS FOR DECISION

Deputy President Don Muller        

1.      JONG HAK KIM (now deceased), a Korean national was granted a Subclass 127 Business Skills (Migrant) Visa (a “Business Visa”) on 26 February 1999.  The visa permitted Mr. Kim to travel to and from Australia for a period of five years from the date of grant.

2.      Secondary visas of the same subclass were issued to Mr. Kim’s wife, Chang Soon Ko Kim; his son, Gwan Jun Kim and his two daughters Hyun Ji Kim and Hyun Mi Kim.

3.      Mr. Kim travelled to Australia on 10 March 1999.  After that he travelled to and remained in Australia for three or four months each year.

4.      The declaration completed by Mr. Kim when applying for the visa stated that he would be required to complete surveys at two points.  The first survey was due on 6 April 2001.  A form for completion in connection with that survey was sent to Mr. Kim on 2 February 2001.  It does not appear that he responded to it.  Another form was sent under cover of a letter on 15 November 2001.  On 30 January 2002, Notices of Intention to Cancel the primary and secondary visas were sent to Mr. Kim and his family.  After receipt of responses to that notice the Minister’s delegate decided to cancel the visas.  Mr. Kim and his family were so advised on 5 August 2002.

5.      The Administrative Appeals Tribunal affirmed that decision on 24 April 2003.

6.      Mr. Kim successfully appealed the decision of the AAT to the Federal Court which, on 3 February 2004, set aside the decision of the AAT and remitted the matter to the Tribunal, differently constituted, for determination according to law.

7.      This is the rehearing by the Tribunal, following upon the remittal from the Federal Court.

8.      At this hearing the family Kim was represented by Mr. Rangiah of Counsel and the Respondent was represented by Mr. Steele, solicitor.

9.      Mr. Kim did not give oral evidence at the first AAT hearing but he did at this re-hearing.  He gave evidence by telephone from Korea, with the aid of an interpreter.  He affirmed the written statements he had made and then answered questions during a searching cross-examination.

10.     I have no reason to doubt the veracity of Mr. Kim’s evidence and I accept what he said as truthful and accurate.  Consequently, I find as follows:

·Mr. Kim had been in the tile manufacturing business in Korea for over 30 years.

·He had built up a large business and had become wealthy.

·He had first become interested in the idea of doing business in Australia in 1993 when he met a Korean by the name of Kie Myung Lee who was a Director of an Australian company, Tradeport International (Aust) Pty Ltd.  Tradeport was importing tiles from Korea and distributing them in the Australian market.  Mr. Lee spoke good English and he appealed to Mr. Kim as being a potential business partner in an expansion of his tile business into the Australian market.

·Between 1993 and 1998, Mr. Kim and Mr. Lee visited Hong Kong on a number of occasions with the intention of building a factory in China.  The venture did not proceed due to the then unstable social and economic situation in China.

·They also looked at Vietnam as a possible country in which to set up a tile manufacturing operation but this idea was also cancelled because of difficulties in negotiating with the Vietnamese government and its bureaucracy.

·Between 1995 and 1999, Mr. Kim organised lines of credit, as a guarantor, on behalf of Tradeport and Mr. Lee to pay for Korean tiles for export to Australia.  One transaction involved a $AUD500,000 line of credit to purchase Korean tiles.  Another transaction involved a $AUD600,000 line of credit to purchase Korean tiles.

·Mr. Kim was doing business with Tradeport and assisting Tradeport to do business in Korea on the assumption that a joint venture would eventually be entered into between Tradeport and his own company.

·Mr. Kim provided significant sums of money to Tradeport.  He regarded the money as part investment and part loan, although he expected to be repaid in full.  He wanted Tradeport to expand and strengthen its position in Australia.

·Mr. Kim was to be disappointed in the Tradeport venture.  He was not offered shares in Tradeport and he was not repaid in full.

·Mr. Kim had not sought to have the business dealings with Tradeport reduced to writing because he wanted to show that he trusted Mr. Lee, with a view to building mutual trust between them.  He felt that he had been used by Mr. Lee.

·Mr. Kim originally came to Australia with the intention of purchasing a large tile manufacturing operation.

·During his trips to Australia he met with business people on the Gold Coast who were involved in the building industry, the restaurant industry, tourism and accommodation.

·Mr. Kim also arranged for several people involved in the Korean tile industry business trips to Australia.

·Mr. Kim was conscious of the fact that he was “getting old” and that his English was poor.  It was his hope that his family would quickly develop their English skills.  He believed that if his family developed the ability to communicate in English and to understand the Australian business scene, he would be able to combine those skills with his business acumen to create a sound business which his family could keep going and he would be able to eventually retire.

·Unfortunately, 1999 was a bad year for business in Korea.  Mr Kim’s tile business was badly affected.  His business was eventually declared bankrupt.  He lost the equivalent of many millions of dollars (Australian).

·Thereafter Mr. Kim was attempting to sell his real estate in Korea.  He believed that he was too old to start up a new business in Korea.  At the time of this rehearing he was hoping to raise enough money from the sale of his assets to purchase a motel in Australia and run it with the aid of his family.

11.     Unfortunately, Mr. Kim passed away about one month after the rehearing.

12. The legislation relevant to this review is contained in section 134 of the Migration Act 1958, which provides:

“Cancellation of business visas

(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 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).”

Subsection (5) of the section applies to the secondary visas.  It provides:

“(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.”

13.     There is no doubt that at the date of the decision to cancel his business visa, Mr. Kim had not obtained a substantial ownership interest in an eligible business in Australia.  The Minister was clearly entitled to cancel Mr. Kim’s business visa pursuant to subsection 134(1) of the Act.

14.     However, I take the view that Mr. Kim had made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia and it was his intention to use his business skills in actively participating at a senior level in the day-to-day management of that business and that he continued to make those genuine efforts at least until the decision was made to cancel his business visa.

15.     Mr. Kim’s endeavours were thwarted by the misunderstanding he had with Mr. Lee about Mr. Lee’s intentions, the disastrous loss of his business in Korea, and probably to some extent the fact that his age was catching up with him.

16.     Nevertheless, Mr. Kim had regrouped to some extent and was in the process of selling his assets in Korea with a view to purchasing a motel business in Australia.

17. I find that Mr. Kim satisfied the provisions of subsection 134(2) of the Act.

18.     Consequently, I find that Mr. Kim’s business visa should not have been cancelled.

19.     The decision under review is set aside.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................
           R. Link, Associate

Date/s of Hearing  20.12.04, 30.5.05
Date of Decision  30 June 2005
Counsel for the Applicant         Mr. D. Rangiah
Solicitor for the Applicant          Plastiras-Meredith-Mohr Lawyers
Solicitor for the Respondent     Blake Dawson Waldron