Kok and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 579
•17 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 579
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/445
GENERAL ADMINISTRATIVE DIVISION ) Re CHEE YEN KOK Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal MJ Allen, Member Date17 June 2005
PlacePerth
Decision The decision made on 28 October 2003 to cancel the applicant’s sub-class 127 visa is set aside. The visa remains valid and effective. [sgd. M J Allen]
Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – cancellation of business skills visa – acknowledged failure to satisfy requirements of s 134(1) and, accordingly, powers to cancel visa arose – consideration of whether applicant made genuine efforts to satisfy the requirements of s 134(2) – finding that such genuine efforts had been made – consideration of whether, in the event that genuine efforts had not been made, the residual discretion to not cancel the visa should be exercised in the applicants favour – consideration of what factors are relevant to the exercise of that discretion - finding that, had it been necessary to do so, the residual discretion should be exercised in applicant’s favour – decision to cancel set aside
Australian Citizenship Act 1948 s13
Migration Act 1958 s134
Migration Series Instructions 133
Haman and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1113
Kok and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1271
Permana and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 802
Skoljarev v Australian Fisheries Management Authority (1995) 133 ALR 690
Yam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283
REASONS FOR DECISION
17 June 2005 MJ Allen, Member 1. On 28 October 2003 a delegate of the respondent cancelled the sub-class 127 business skills visas held by the applicant and several of his family members. The applicant has applied for a review of the decision relating to the cancellation of his visa but applications for review have not been made by the family members.
2. On 30 November 2004 I delivered an interim decision on a preliminary issue that arose in the proceedings concerning the question of whether or not notice of the intended cancellation of the applicant’s visa in accordance with the requirements of the Migration Act 1958 (“the Act”) (Re Kok and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1271). The background to the matter is set out in that decision, which should be read in conjunction with these Reasons for Decision.
3. The matter was subsequently relisted for further evidence and submissions concerning the merits of the decision to cancel the applicant’s visa. At the resumed hearing the applicant was represented by his solicitor, Mr Christie, and the respondent was represented by Mr Gerrard, a solicitor with the Australian Government Solicitor.
4. The Tribunal received into evidence the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1 to T48), Exhibits A1 to A6 tendered by the applicant, and Exhibits R1 and R2 tendered by the respondent. After the completion of the resumed hearing the respondent filed written submissions (dated 26 April 2005), to which were attached records maintained by the respondent’s department relating to movements into and out of Australia by the applicant and his family members. For convenience I will refer to those movement records as Exhibit R3. Oral evidence was given at the resumed hearing by the applicant and by his wife, Ms Caw Yen Pang, with the assistance of an interpreter in the Mandarin language.
Statutory Framework
5. Sub-section 134(1) of the Act relevantly provides that a discretionary power to cancel a visa of the kind held by the applicant would arise if he failed to satisfy, in the opinion of the respondent or the Tribunal, any one of the requirements specified in that sub-section, namely that he:
“(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.”
6. The applicant conceded that he had not satisfied the requirements of s 134(1) and that, as a consequence, the power to cancel his visa under that sub-section did arise.
7. If the power to cancel a visa arises under s134(1) then s134(2) relevantly provides that the visa must not be cancelled if the respondent or the Tribunal is satisfied that its holder has done all of the following:
“(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. For the purpose of determining whether a person has made such genuine efforts, s134(3) relevantly provides that any or all of the following matters may be taken into account:
(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 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) provides definitions of some of the terms used in that section. An “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”.
An “eligible business” means a business that the Minister
“… reasonably believe 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”.
The Evidence
10. A large part of the facts in the proceedings were not in dispute between the parties. The applicant expressly accepted (but with some additions) the Statement of Facts set out in the respondent’s Statement of Facts and Contentions. The following summary of the evidence is drawn from the evidence of the applicant and Ms Pang (both of whom I accept as being truthful witnesses) and from the documentary material before me.
11. The applicant is a 42 year old business man and a Malaysian citizen. He decided to migrate to Australia in about 1998 or 1999 although he had been thinking about it for some time before that. Over a number of years the applicant had established and built up several of businesses in Malaysia involving construction, building supplies, transportation and commodity trading. At the time of his application for migration in April 1999 the applicant disclosed that he had ownership interests in a number of Malaysian companies (T18 – T23) and that at the time those businesses employed 36 people. The number of employees had increased to about 50 employees by early 2000 (Exhibit A2).
12. In June 2000 the applicant and his family members were granted their visas to migrate to Australia and the family members first entered Australia under their visas in July 2000.
13. The applicant said that at the time of his application he believed that there were a number of different sub-classes of business skills visa for which he might be eligible, one of which was a sub-class 131 visa - which required an investment in Australian securities of $A750,000 and which did not carry with it the obligation to become involved in a business in Australia. The processing of his application had taken some time and in the course of various interviews he had been advised that he did not have to invest $A750,000 in Australian securities if he applied for a sub-class 127 visa - but he would have to undertake to become involved in the ownership and management of an Australian business. He did not anticipate any difficulty in doing this because his intention in migrating to Australia was to establish and pursue business interests in this country.
14. The applicant said (and I accept his evidence) that he did not appreciate that the rules for setting up a business in Australia were so strict regarding the timeframe within which that was to occur. However, at the time he had not anticipated any difficulties in being able to become involved in a business in this country (Exhibit A2, para 11-13).
15. Between July 2000 and March 2001 the applicant made 5 short visits to Australia and in June 2001 he and Ms Pang came to Australia with the intention of living here thereafter. At the time they were accompanied by 3 children (born in 1987, 1990 and 1994) who were the applicant’s children from a previous marriage and by one child of the applicant and Ms Pang (born 1999). Subsequently, a fifth child was born in August 2001 and a sixth child was born in June 2004. Visa and migration status of the children vary and will be referred to below.
16. On one of his early visits to Australia the applicant purchased a block of land in Karawara for $148,000 and in March 2001 he entered into a contract to build a house on that land, which was completed in early 2002. However, when the family arrived in June 2001 the applicant purchased another house in Brentwood, which was to be the family home.
17. Shortly after arriving in Australia in June 2001 Ms Pang decided to return to Malaysia for the birth of the child (which occurred in August 2001) because she was having a difficult pregnancy and had no family support in Western Australia. She returned to Australia in November 2001. The applicant remained in Australia apart from a few visits to Malaysia and the family again resumed residence in Australia in November 2001.
18. In December 2001 the applicant decided that he had to return to Malaysia with his family for a period because he was experiencing problems with his father that he could not resolve by telephone, and he had found it harder to sell his Malaysian businesses without being in that country. The applicant said that it had taken several months to sort out the problems with his father and he had changed his strategy for the disposal of his Malaysian businesses. Rather than trying to sell the businesses as going concerns in their original structures, he had decided to break the businesses up into smaller entities for sale. For his transportation business he had decided to sell off the individual trucks with their associated business. He had started to sell off the transportation business during 2002 and it took nearly two years to sell all of these operations. He had sold the construction business in April 2003 but the arrangement with the purchaser was that he would remain involved to assist for the first 6 months. The applicant returned to Australia in July 2003 and discovered that the respondent’s department had issued a notice of intention to cancel his visa. He made representations regarding that but the decision to cancel was made on 28 October 2003. The applicant and his family members had returned to Australia to live permanently in November 2003 and have remained here since that time.
19. In the meantime, the applicant completed a 24-month survey form that which he submitted to the respondent’s department in April 2003 (T10). In that form the applicant said that he had not at that time engaged in a business in Australia (T pg 107). He nominated as the main reasons why he had not yet done so as lack of business information post arrival; difficulty sourcing products; still managing business in home country; insufficient research prior to migration; and extended family remained in home country (T pg 112). He provided evidence of the purchase of property. He stated that he was “not sure” whether he would become involved in a business in Australia within the next 12 months, stating that he was “still looking for … better business opportunities to invest” and that he was “still managing business in my home country” (T pg113). The applicant also advised that he had incorporated an Australian company, Sun Point Pty Ltd (“Sun Point”) in September 2000 and that he was the sole director and shareholder of the company (T pg 114).
20. In his response (in August 2003) to the Notice of Intention to Cancel his visa (T16) the applicant said that the delays in engaging in business in Australia were because of his family problems in Malaysia and because, as a genuine and careful businessman, he had to study and accumulate information regarding business prospects because he wanted to choose the right business and did not want to lose money. He said that he had now confirmed that he had sold his Malaysian business and had resigned as a company director from the company but he still needed another 3-6 months to hand over to the purchaser. Some business properties were still being advertised for sale but the number of employees had decreased from 50 to 5 people. The applicant identified a number of business prospects in Australia that he had pursued up until that time, further reference to which will be made below.
Consideration
21. The principal issue to be determined in the proceedings is whether the applicant has made genuine efforts as referred to in s 134(2) of the Act. In assessing those efforts the Tribunal is entitled to receive and have regard to evidence and other material that relates to relevant events, actions and intentions prior to or at the time of the cancellation decision. The Tribunal can also take into account evidence of prospective developments as they appear at the date of the cancellation decision or of events that occurred after that date but which can be related back to actions taken, events that occurred or intentions held prior to or at that date: see Re Yam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283 at [8] to [14] and Re Permana and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 802 at [15].
22. In relation to the matters set out in s 134(3) and the assessment of genuineness of effort, the respondent’s department has issued policy instructions (Migration Series Instruction 133 or “MSI133”) which contain notes to guide decision makers in the interpretation of those factors. Although such indications of policy are not binding on the Tribunal, there is good reason why they should be considered and applied in the interests of consistency of decision making: see Skoljarev v Australian Fisheries Management Authority (1995) 133 ALR 690 at 695 and 696. However, no weight should be given to the guidelines in MSI133 is they are clearly more restrictive than the words of the section itself, and the factors referred to in s 134(3) cannot be the basis for rejecting relevant efforts which are genuine, simply because they fall short of the examples given in section 134(3). For an effort to be genuine it must not be false or fictitious and the level of effort must be something that is real and beyond that which is purely superficial or token. The efforts must be made by the visa holder him or herself: see generally Re Yam at [51] to [53].
23. It is therefore necessary to consider the efforts made by the applicant prior to the cancellation of his visa to become involved in the ownership and management of a business in Australia.
24. As noted above, when the applicant completed the 24 month survey form he acknowledged that he had not become involved in a business in Australia at that stage. However he provided evidence of some steps that he had taken. In September 2000 he engaged Australian accountants who arranged the incorporation of Sun Point, which was to be the vehicle by which he undertook business activities in Australia. Applications were made for a tax file number and an Australian business number for Sun Point (see T pg 114).
25. After the arrival of the family in Australia in June 2001 with the intention of remaining here, the applicant attended several seminars conducted by business broking agents and also sought advice from the Western Australian Small Business Development Corporation (“WASBDC”) on several occasions, from which he obtained advice about the need to be certain about what he was committing to when considering buying a business or entering into contractual arrangements regarding business. The applicant said that as a cautious investor who wanted to be sure that he was investing in a viable business he adopted a conservative attitude. The validity of this approach was reinforced to him because of his experience in attempting to buy a house, when he was, he believed, dealt with unfairly by an estate agent and he forfeited a deposit of $7,000.
26. In September 2001 the applicant became aware of the opportunity to become involved in a building products business called Our Town Building Products. The applicant made contact with the promoters and established that the proposal was to open a franchise of Our Town in Western Australia based on what was said to be an established business in Sydney. The applicant entered into a Confidentiality Agreement and was given certain financial information, which he discovered consisted of financial projections rather than accounts of past performance. After taking advice from the WASBDC he returned all the papers to the promoters and did not pursue the matter. He subsequently established that the whole business had failed some time ago and that many people had lost considerable amounts of money.
27. In mid-2002 the applicant became aware that a business known as Wong Hawker Foods might be available for sale and he commenced discussions with the owner of that business. He obtained financial statements for the business and in November 2002 spent about 5 days in Perth examining and observing the business. He thereafter had discussions with the owner regarding possible conditions that might be included in an agreement for sale, particularly his requirement that the chef remain working for the business. The applicant said that by about early February 2003 he and the owner had reached in-principle agreement about the terms and conditions of the sale apart from price. The applicant offered $130,000 for the business in February 2003 but the owner counter offered at $160,000. The applicant said that he had told the owner that he would come to Australia to discuss the matter further but he was subsequently told by the owner that he had not been able to wait and had sold the business in March 2003.
28. In July 2003 a business broker that he used to find out about possible business opportunities informed the applicant that a business known at BBQ Noodle House was for sale. The applicant said that he had a meeting with the owner of the business and learned the asking price for it. The applicant asked for financial information concerning the business and in July 2003 the applicant had a number of meetings with the owner and with the business agent handling the sale. An “agreement to purchase” document was prepared by the agent involving a purchase by the applicant for the price of $280,000 subject to a number of conditions (T pg 197 – 202). The applicant sought additional information (T pg 204) which was not forthcoming to his satisfaction and because of advice that he had received from the WASBDC and from his accountant he did not pursue the arrangement.
29. In late 2002 the applicant saw an advertisement in a newspaper for the sale of a business known as Oasis Petroleum that was apparently for sale via its administrators. He contacted the accountants and obtained a confidentiality deed that was to be signed prior to any information being disclosed to him. He completed the agreement but was not subsequently given any information. Later he contacted the accountants again but could not obtain any significant information as to whether the business had been sold or remained for sale and he had therefore not pursued the matter.
30. In July 2003 the applicant commenced discussions with the principals of a business known as Armani Aluminium Windows regarding the establishment of a factory in Malaysia to manufacture aluminium windows on a joint venture basis. Initially the products would be manufactured in Australia and sent to Malaysia for completion of the manufacturing and glazing. Eventually, a factory would be established in Malaysia. However, after initial discussions the venture did not proceed (see Exhibit A5).
31. Following the cancellation of his visa in October 2003 the applicant continued to make enquiries regarding possible business ventures in Australia. In December 2003 the applicant obtained information from a firm of accountants regarding the possible purchase of a bistro business at a suburban shopping centre in Western Australia. He was then told that the business was in liquidation and was unable to continue trading and so the matter did not progress.
32. In December 2003 the applicant entered into a confidentiality disclosure agreement to obtain information regarding a business known as Bushman Tanks. He thought that the information that was supplied to him was not realistic and did not proceed with the proposal. He also examined financial information regarding a Blockbuster Video Store but again considered that the financial accounts provided to him did not support the kind of sale prices that were sought.
33. These business proposals were submitted to the applicant by a business broker and he became disillusioned with the information that was being supplied to him because he considered it to be unrealistic. Although the broker continued to send him possible businesses for sale he considered that they were not looking after his interests and so he did not pursue them.
34. During 2004 the applicant also investigated businesses involving a Caltex service station and a Subway food franchise, which involved investments of between US$80,000 and US$250,000. The applicant said he was very interested in both of these, but because at this time his visa had been cancelled and his migration position was most uncertain he was reluctant to commit to these possible ventures. He wished to make a substantial investment (in the order of US$250,000) in a business in which he could be personally involved and this would only be possible if he were able to remain in Australia. If he were forced to return to Malaysia then it would not be possible for him to maintain the close involvement that he wanted. Accordingly, he decided that it was not prudent to commit to any of these ventures until his immigration status was resolved.
35. Prior to the cancellation of his visa the applicant had also examined the possibility of establishing a business in Australia selling bitumen that was imported from overseas. He had been made aware of the possibility of establishing such a business by a contact in that industry overseas and he spent some time in Australia looking at the volumes of bitumen products transported from the various outlets in the Perth metropolitan area. However, he had established that all the major purchasers of bitumen products in Australia had longstanding connections with overseas suppliers and it was therefore unlikely that he would be able to find purchasers for a quantity of imported products that would be sufficient for a viable business. Accordingly he had decided not to pursue the possible business opportunity.
36. In relation to s 134(2), the subsection requires a visa holder to satisfy all three paragraphs (a), (b) and (c), but the relationship of the three paragraphs is by no means clear. A visa holder may satisfy s 134(2)(a) by making genuine but unsuccessful efforts to obtain an ownership interest in an eligible business. Section 134(2)(b) refers to genuine efforts to be involved in the management of “that business” and that can only be a reference to the eligible business referred to in s 134(2)(a). However, if no ownership interest in an eligible business has been obtained notwithstanding the genuine efforts to do so, it is difficult to imagine circumstances in which a visa holder will have been able to make genuine efforts to be actively involved in the day to day management of a business that the visa holder had no ownership interest in.
37. Mr Christie for the applicant contended that if a visa holder makes genuine efforts to obtain an ownership interest in an eligible business and has the intention to be involved in the senior management of such a business if the genuine efforts are successful, and intended to continue to make the genuine efforts thereafter, then it could be said that the visa holder would satisfy all three paragraphs of s 134(2). Mr Gerrard for the respondent did not concede that that argument was correct.
38. The position will, as Mr Christie contended, be somewhat easier to understand when the visa holder is making genuine efforts to establish a new business in Australia because there will usually be evidence as to the steps taken by the visa holder to establish the business and those steps will usually involve participation in the management of whatever business activities are undertaken by the prospective eligible business. That was the position in Re Yam (supra), in which the Tribunal was satisfied that the visa holder had made genuine efforts to establish an eligible business and the involvement in the management of the business activities that were in fact undertaken were sufficient to constitute genuine efforts to be involved in the management of that business. However, where the genuine but unsuccessful efforts are directed toward the acquisition of an existing business it will be more difficult for a visa holder to demonstrate genuine efforts in the participation in the management of such a business.
39. In the circumstances I am inclined to agree with the view contended by Mr Christie that, in circumstances such as the present case, if a visa holder makes genuine efforts to acquire an interest in an existing business or to acquire a franchise operation with the intention of being personally involved in the senior management of that business if the acquisition succeeds then it can be said that paragraphs 134(2)(b) and (c) will also be satisfied.
40. As to whether the applicant’s efforts were genuine efforts for the purposes of s 134(2)(a), I consider first the guidelines contained in MSI133 and the terms of s 134(3) concerning the genuiness of effort.
41. In relation to s 134(3)(a), MSI133 refers to business proposals what are “considered genuine, realistic and achievable”. It is apparent from the above that the applicant did not prepare formal business proposals for any of the matters examined by him, but it is equally apparent that he explored to a greater or lesser extent a number of proposals and he assessed those proposals in the light of his own experience as a successful business man. His objective was to judge how realistic and achievable the purchase of the various businesses might be. I am satisfied that all of the proposals that the applicant examined were genuine.
42. In relation to s 134(3)(b), MSI133 refers to “formal contracts with partners or joint venturers”. With the exception of the Armani Windows proposal no partners or joint venturers were involved and that matter did not proceed past the initial discussion stage.
43. In relation to s 134(3)(c), MSI133 refers to written evidence of detailed consultation with at least 3 business advisers of various descriptions referred to in the MSI. In the present case there is evidence that the applicant engaged a chartered accountant in Australia and sought advice on a number of occasions from him and from the WASBDC. He also utilised the services of a business broker to identify possible business acquisitions although he ultimately lost confidence in that firm.
44. In relation to s 134(3)(d), MSI133 refers to a visa holder having a physical presence in Australia for more than 6 months between first arrival as a migrant and the cancellation date. In the present case the applicant spent 249 days in Australia prior to cancellation, which substantially exceeds the 6 months nominated. The applicant has remained continuously in Australia since that time.
45. In relation to s 134(3)(e), MSI133 refers to a visa holder having transferred to and retained in Australia at least 50% of the funds indicated as available for transfer within 2 years at the time of the application for a visa. In the present case the applicant said that he could invest between A$800,000 and A$1.3 million in a business in Australia. At the time of the hearing the applicant had term deposits in Australia totalling approximately $205,000 and he also owned 2 unencumbered properties in this country. He had purchased land in Karawarra for $148,000 and had built a house at a cost of $240,000 and had bought a property in Brentwood and intended to enter into a building contract for approximately $450,000. In addition, the applicant had purchased another house in Riverton but had since sold it. The applicant said that the bulk of his capital was retained in Malaysia and he didn’t want to convert it to Australian currency until he knew whether he would be allowed stay here.
46. In relation to s 134(3)(f) and (g), MSI133 refers to a minimum investment of $100,000 and business activity of at least $100,000 turnover. As the applicant has not acquired an ownership interest or conducted any business activities these matters are not relevant. Similarly, s 134(3)(i) is not relevant.
47. In relation to s 134(3)(h), there was a delay in the applicant responding to the 24 month survey form and the notice of intention to cancel. The circumstances in which these occurred are set out in the earlier decision in these proceedings and relate to the postal problems and the issue of what was the applicant’s correct address. Nevertheless, it is not in dispute that the applicant did eventually provide the information requested.
48. The question arises as to whether any of the businesses that the applicant investigated would have been or could have become eligible businesses for the purposes of s 134, as that expression is defined in s 134(10). At Exhibit A3 the applicant estimated the likely local employment requirements for several of the businesses that he considered acquiring. These estimates were based on the existing employment in the case of Wong Hawker Food or the applicant’s estimate of the numbers of employees likely to be needed based on his own experience with businesses of that nature.
49. MSI133 makes clear (in clause 4.3) that satisfaction of the requirement that a business be a “eligible” one refers to the achievement of the stated objectives in the definition of an eligible business and is not directly related to the size or scale of the business. A business may be an eligible one if its activities come within the definition even though the business may be small or not on any particular scale. I am satisfied on the evidence before me that the maintenance of employment for the existing businesses that the applicant considered buying or the creation of employment had he established new businesses would have resulted in those businesses being eligible businesses for the purpose of s 134(2).
50. In reviewing the efforts made by the applicant overall, the first observation that must be made is that all his efforts were unsuccessful in the sense that at no stage did he finalise any arrangements to purchase an existing business or to establish a new one. Notwithstanding that, I am satisfied that all of the enquiries and negotiations undertaken by the applicant, some of which were more protracted and detailed than others, were genuine in the sense that they were all in relation to real (as opposed to fictitious) business opportunities. Mr Gerrard for the respondent acknowledged that the efforts made by the applicant were genuine but he contended that the efforts were not sufficient to satisfy a requirement that they be something more than superficial or token.
51. I am satisfied on the evidence that the efforts made by the applicant in relation to proposals such as the Oasis and Our Town were essentially superficial even though they were genuine. The same cannot, in my opinion, be said about the efforts made by the applicant in relation to the Wong Hawker Foods and BBQ Noodle businesses. In those cases the applicant negotiated with the vendors and obtained information about them in a genuine attempt to conclude agreements. Consideration must be given to the fact that the applicant was, quite reasonably, a cautious investor in a new country and was considering investing substantial amounts of money. It is not surprising that he chose to be cautious in his approach to the business opportunities - but his efforts were no less genuine for that reason. Accordingly, I am satisfied on the evidence that the applicant made genuine efforts to obtain a substantial ownership interest in businesses that would have been eligible businesses for the purposes of s 134.
52. I am also satisfied that the applicant conducted all the negotiations on his own behalf (albeit with some professional advice) and that his intention at all times was that he would be personally involved in the day to day senior management of any businesses that he was able to invest in. I am also satisfied that he maintained at the relevant times an intention to continue to make genuine efforts to obtain a business in Australia and be involved in its management – as evidenced by his continued efforts after the cancellation of his visa. I accept that it was not unreasonable for him to eventually adopt the view that he needed to sort out his immigration status before committing to a business such as the Caltex or Subway franchises that he explored.
53. It follows from the above that I find that the applicant did make genuine efforts to do the things required by s 134(2) and, accordingly, it was not therefore possible for the respondent to cancel his visa. However, I have also considered the possible outcome of this case on the basis that the applicant did not make the genuine efforts required by s 134(2). In such a situation the Tribunal has a residual discretion to not cancel the applicant’s visa and for the reasons referred to below, had it been necessary, I would have been prepared to exercise that discretion to not cancel the visa.
54. Neither the Act nor the respondent’s department’s instructions or guidelines identify the kinds of factors that may be relevant when considering whether or not to exercise the discretion. Mr Christie for the applicant contended that there were several principal issues relevant in the present case. The first was that cancellation of the applicant’s visa would cause considerable hardship, both financial and emotional, to the applicant and his family given that the applicant has made a very significant sacrifice by moving to Australia and disposing of the greater part of his business interests in Malaysia. It would be difficult for him to resume those business interests if he had to return to Malaysia. The children would be deprived of the opportunity to be educated in Australia and it would be in their interests to remain in Australia with the applicant and Ms Pang to look after them. In this context it is noted that the applicant’s youngest child is an Australian citizen and that several of the other children have visas that would continue even if the applicant’s business skills visa is cancelled. It was also contended that it is in Australia’s interests to have the applicant stay here and pursue a business career in this country. The applicant is a relatively young man with substantial financial backing and a successful business career in Malaysia. As such he is well placed to build up businesses in this country. The third matter contended by Mr Christie was that there was no suggestion that the applicant had not been genuine in his intention to migrate to Australia and to re-start his business career in this country. It was only that circumstances beyond his control involving the time taken to dispose of his Malaysian business interests had delayed his ability to establish in this country. There had been no attempt to flout the migration regulations.
55. As noted above, the respondent’s Departments’ MSI133 makes no reference to the kinds of factors that would be relevant to the exercise of the discretion. At the time that Deputy President Hotop decided the matter of Re Haman and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1113 the MSI contained a pro forma notice of intention to cancel visas that informed visa holders whose visa was at risk of cancellation that the decision maker would take into account matters that related to whether or not the requirements of s 134(1) and (2) had been satisfied - but also specified other relevant matters such as unreasonable hardship (both to the visa holder and to Australian citizens or permanent residents), the visa holder’s ties to other countries, the circumstances in which the grounds for cancellation arose, and the seriousness of the grounds for cancellation: see Re Haman (Supra) at [60].
56. In the notice of intention to cancel that was sent to the applicant in the present proceedings the statement was made that the decision maker “may take any of the following matters into account when I make a decision on your case and you may wish to address these matters in your response”. There followed a statement of the various matters relating to genuiness of effort that are set out in s 134(3). It is my view that the factors that are relevant and must be taken into account by a decision maker when considering whether to exercise the discretion available in s 134(1) are much wider than those referred to in s 134(3) and in the notice that was sent to the applicant in this case. Although they are not referred to in any of the departmental publications, I see no reason why the factors that were relevant at the time of the notice of intentional to cancel in Re Haman should not be equally relevant today. The nature of the discretion and the circumstances in which it is exercised have not changed in the years since Re Haman was decided. Accordingly, I consider that it is appropriate to take into account the factors referred to by Deputy President Hotop in Re Haman.
57. In relation to hardship to the applicant, I am satisfied that the disposal of most of his business activities in Malaysia was a protracted exercise and I accept his evidence that if he were now to attempt to re-establish businesses in Malaysia it would be very difficult for him to do so and that his credibility would suffer given that he is known to have disposed of businesses in the fairly recent past. On the other hand, as the applicant acknowledged, he remains a Malaysian citizen, there would be no language difficulties for him or his family members if they returned to live in Malaysia and he has substantial financial assets in that country. In relation to the factors of seriousness of the grounds for cancellation of the applicant’s visa and the circumstances in which those grounds arose, I have concluded above that the applicant made genuine efforts to satisfy the requirements of his visa. Even if it could be said that his efforts were not genuine ones, it remains the case that he made considerable efforts to establish himself in this country and his failure to do so was, in my opinion, more a result of him having to spend much of the relevant 3 year period in Malaysia attending to his business interests there. There is no suggestion (as was the case in Re Haman) that the applicant was prevented from satisfying his visa obligations because of the commission of crimes that resulted in imprisonment. There is no suggestion that the applicant in any way has acted dishonestly or has deliberately attempted to flout the Australian migration regulations. As noted above, Mr Gerrard acknowledged the applicant’s efforts were genuine, but insufficient.
58. A very important aspect of the present case is a consideration of the position of the children of the applicant and Ms Pang and of the applicant from his previous marriage. In determining whether cancellation of the applicant’s visa is the correct or preferable decision, the Tribunal must have regard to the interests of the children as “a primary consideration” in accordance with Article 3.1 of the United Nations Convention on the Rights of the Child.
59. The 3 children of the applicant’s previous marriage (Swee Ann Kok, Swee Hou Kok and Rui Wei Kok) are now aged 18, 14 and 10 years respectively and all entered Australia on, and continue to hold, sub-class 101 visas, which give them the right of permanent residence in this country. Those visas are not subject to cancellation. The 3 children of the applicant’s marriage with Ms Pang (Rui Ying Kok, Rui Xuan Kok and Swee Sam Kok) are now aged 6, 3 and 1 year respectively. Swee Sam Kok is an Australian citizen and Rui Xuan Kok also holds a sub-class 101 visa. Only Rui Ying Kok holds a sub-class 127 visa and that visa is subject to cancellation under s 134(4) of the Act if the applicant’s visa is cancelled.
60. In written submissions filed by the respondent after the hearing up-to-date information regarding the lengths of time spent by the children in Australia was provided. Swee Ann Kok spent 179 days in Australia prior to the cancellation of the applicant’s visa and has spent 444 days since that time for a total of 623 days. For Swee Hou Kok the figures are 179 and 443 days for a total of 622 days. For Rui Wei Kok the figures are 179 and 350 days for a total of 529 days. For Rui Ying Kok the figures are 110 days and 384 days for a total of 494 days and for Rui Xuan Kok the figures are 26 and 344 days for a total of 370 days. Swee Sam Kok has spent all of his life in Australia. Swee Ann Kok will, in August 2005, satisfy the requirements of s 13(1) of The Australian Citizenship Act and will be eligible to become an Australian citizen. The other children on sub-class 101 visas would become eligible to obtain Australian citizenship pursuant to s 13 when they attain the age of 18 years if they remain in Australia. At the time of the hearing Rui Wei Kok had been living in Malaysia with her mother for a few months but she was expected to return to Australia in the middle of 2005.
61. As to what would happen to the children’s living circumstances if his visa and that of Ms Pang were to be cancelled, it was not surprising that the family’s future was unclear. The applicant said that the eldest 3 children would stay in Australia and the younger ones might stay here for a while. They all want to stay here and that it is greatly in their interests to remain in Australia where they are well settled in their respective schools. Swee Ann Kok is completing his TEE in 2005 and it would be gravely disrupting to his schooling, and that of his siblings’, if they had to move back to Malaysia and again commence schooling in the Malay language. I accept the applicant’s evidence in that regard and also that Ms Pang has been able to develop a good close relationship with her step-children. It would be unfortunate if that relationship were broken or strained. I also accept the applicant’s evidence that he is not happy with the arrangement under which his daughter Rui Wei Kok has spent the first half of 2005 in Malaysia. This came about because Rui Wei broke her arm badly in December 2004 and, after spending the summer holidays with her mother in Malaysia as usual, her mother and the applicant’s mother decided that she should spend more time in Malaysia. The applicant said that he had gone along with this only because he did not want to cause difficulties with his ex-wife or with his mother.
62. I have no doubt that the best interests of all the children would be served by them continuing to live in Australia with the applicant and Ms Pang, but continuing to maintain a relationship with their extended family in Malaysia. It would be unfortunate if the elder children were forced to remain in Australia on their own if the applicant and Ms Pang were forced to return to Malaysia and it would be equally unfortunate if they were, thereby, separated from their siblings. I am conscious of the fact that Swee Ann Kok is no longer a minor, but he turned 18 only this year and his interests, in my opinion, coincide with those of the other children. My conclusion regarding what is in the best interests of the children must of course be considered as a primary consideration and deserving of great weight in relation to the making of this decision in this case.
63. In relation to the question of the applicant’s overall behaviour in relation to the Department, including the provision of information when requested to do so, there is no evidence at all before me to suggest that he has not honoured his obligations in this regard. There were problems in responding to the original survey form and in service of the notice of intention to cancel but the applicant did respond and provided information as requested in an honest fashion. He has not, in my opinion, attempted to exaggerate the level of his efforts to satisfy his visa requirements.
64. My conclusions in relation to whether or not the discretion should be exercised in favour of the applicant by not cancelling his visa is of course subject to the finding above that he made genuine efforts to satisfy his visa requirements and that his visa cannot therefore be cancelled. However, on the basis that my findings in that regard may be found to be incorrect, I have considered the possibility of whether or not the discretion that is available should be exercised in the applicant’s favour. I am satisfied that the circumstances of the applicant’s attempts to satisfy his visa requirements and his acknowledged genuine intentions and actions to migrate with his family to Australia, plus the primary consideration relating to my assessment of the best interests of the children involved, all point to a conclusion that the discretion that is available should be exercised in the applicant’s favour. Accordingly, if it were necessary for me to exercise the discretion, I would do so in favour of the applicant and not cancel his visa.
65. My decision is, therefore, that the applicant has satisfied the requirements of s 134(2) of the Act and that, accordingly, it is not possible to cancel his visa. However, if cancellation were permitted then my decision is that the discretion not to cancel the visa should be exercised in the applicant’s favour. Accordingly, the decision made on 28 October 2003 to cancel the applicant’s visa is set aside.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Allen, Member.
[sgd. June Rainey]
Associate
Date/s of Hearing 30 July 2004 and 6 April 2005
Date of Decision 17 June 2005
Solicitor for the Applicant Mr H ChristieSolicitors for the Respondent Messrs D Blades and A Gerrard
Australian Government Solicitor
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