Lau and Minister for Immigration and Citizenship
[2007] AATA 1765
•17 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1765
ADMINISTRATIVE APPEALS TRIBUNAL )
) N 200601630
GENERAL ADMINISTRATIVE DIVISION ) Re CHUNG KEONG ROBIN LAU Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member Date17 September 2007
PlaceSydney
Decision The Tribunal sets aside the decision under review to cancel Mr Lau’s Business Skills (Senior Executive) (Subclass 128) visa and in substitution therefor decides that Mr Lau’s visa not be cancelled. The matter is remitted to the Respondent for the appropriate action to be taken.
..................(Sgd)............................
Ms G Ettinger Senior Member
CATCHWORDS
IMMIGRATION – Business Skills Visa - cancellation – whether Applicant made a genuine effort to obtain a “substantial ownership interest” in an “eligible business” in Australia – efforts continued post cancellation - residual discretion - decision set aside.
Migration Act 1958 ss 134(1), 134(2), 134(3), 134(10)
Freeman v The Secretary, Department of Social Security (1988) 19 FCR 342
Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257
Re Purnama and Minister for Immigration and Multicultural Affairs [2002] AATA 237
Re Griffiths and Migration Agents Registration Authority [2001] AATA 240
Re Wong and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 54
Re Lau and Minister for Immigration and Multicultural Affairs (2000) 35 AAR 395
Hope v Bathurst City Council (1980) 144 CLR 1
Kim v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 38 AAR 304
REASONS FOR DECISION
17 September 2007 Ms G Ettinger - Senior Member
BACKGROUND
1. Mr Lau was a prominent business man in Singapore, and told me that he decided to apply for a business visa to come to Australia because his daughter had been accepted to do university studies in Sydney, and he wanted to keep his family altogether. His Business Skills (Senior Executive) (Subclass 128) visa was granted in June 2003, and Mr Lau and his wife Foong Ngor Yap arrived in Sydney in July 2003.
2. He has come to the Tribunal to appeal against the cancellation of his visa in November 2006, and unlike many business visa holders who come before the Tribunal, Mr Lau has spent a substantial amount of time in Sydney, being 971 days as indicated at T20 of the section 37 documents (the T-documents). He has also invested in various business ventures.
3. Mr Lau registered two companies in 2003, Honeycomb Technology Pty Ltd (Honeycomb Technology) on 9 July 2003 with Mr Lau as director, secretary and share holder, and Wild Violet Pty Ltd (Wild Violet) on 17 September 2003, with Mr Lau as director and secretary, and his wife and their daughter Shirley, as shareholders. Within approximately six to seven months, Mr Lau had resigned as a director of both companies, and transferred both his shares and directorships to his wife and other family members. He formed other companies and commercial alliances which are discussed in the paragraphs which follow, some of which are ongoing.
4. A delegate of the Department of Immigration and Multicultural Affairs cancelled Mr Lau’s visa on 2 November 2006, pursuant to section 134 of the Migration Act 1958 after the relevant processes had been carried out. This included the opportunity for Mr Lau to make submissions about why his visa should not be cancelled. Mr Lau then appealed to this Tribunal for review of the cancellation decision which includes the cancellation of visas of his various family members.
5. I have found that pursuant to section 134(1) of the Migration Act1958, (the Act), Mr Lau has obtained a “substantial ownership interest” in an “eligible business” in Australia, and that he has utilised his skills in actively participating at a senior level in the day-to-day management of the business, Wild Pots café, the ANZ franchise, and the Postnet and coffins businesses. I accept he has made genuine efforts to obtain a substantial ownership interest in an eligible business in Australia, made a genuine effort to participate at a senior level on a day-to-day basis, and intends to continue to make such genuine efforts.
6. Accordingly, I set aside the decision of the Respondent, and remit the matter for the appropriate action to be taken to implement my decision. My reasons follow.
ISSUE BEFORE THE TRIBUNAL
7. The issue to be decided was whether, given the Applicants’ involvement in business in Australia on 2 November 2006, the Tribunal would, pursuant to section 134 of the Act, affirm, vary or set aside the decision of the Respondent to cancel Mr Lau’s Business Skills visa.
8. In deciding this issue, I had to consider whether I was satisfied that Mr Lau:
· had, at the relevant time, not obtained a “substantial ownership interest” in an “eligible business” in Australia; or
· was not utilising his skills in actively participating at a senior level in the day-to-day management of that business; or
· did not intend to continue to hold a “substantial ownership interest” in, and utilise his skills in actively participating at a senior level in the day-to-day management of an “eligible business” in Australia.
9. In doing so, I noted that the Minister, and the Tribunal standing in his shoes, must not cancel Mr Lau’s Business Skills visa under section 134(1) of the Act if it is satisfied that he:
· has made a genuine effort to obtain a “substantial ownership interest” in an “eligible business” in Australia; and
· has made a genuine effort to utilise his skills in actively participating at a senior level in the day-to-day management of that business; and
· intends to continue to make such genuine efforts.
10. I was mindful of the residual discretion which can be exercised pursuant to the decision in Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 31.
APPLICABLE LEGISLATION
11. Section 134 of the Migration Act1958 empowers the Minister to cancel a business visa in certain circumstances. The relevant provisions in the case of Mr Lau are as follows:
“134 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).
…”
12. I also had to consider the implications of section 134(10) which is discussed in the paragraphs which follow.
EVIDENCE BEFORE THE TRIBUNAL
13. The evidence before the Tribunal comprised the documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the T- Documents”), together with the other documents, Exhibits A1 – A6 as tendered. Mr Lau and his son Andrew gave oral evidence at the hearing.
CONSIDERATIONS
14. In coming to the correct and preferable decision regarding whether the decision to cancel Mr Lau’s Business Skills visa should be affirmed, varied or set aside, I must take into account all the evidence, both written and oral, the submissions, case law and legislation.
15. I acknowledge the approach in cases which are relevant to the decision making process as follows: Freeman v Secretary, Department of Social Security (1988) 19 FCR 342, Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257, and a line of Tribunal cases which have followed the above authorities, supporting the proposition that the Tribunal is limited to events at the date of the primary decision in cases of review of decisions cancelling Business Skills visas pursuant to section 134 of the Act (Re Purnama and Minister for Immigration and Multicultural Affairs [2002] AATA 237). This approach was re-affirmed by Deputy President Forgie in Re Griffiths and Migration Agents Registration Authority [2001] AATA 240 at paragraph 39, where the Deputy President said:
“Where the decision under consideration is a cancellation decision, the Tribunal must consider whether or not that decision was correctly made at the time it was made.”
16. I must therefore have regard to all relevant evidence to enable the making of findings of fact with respect to the Applicants’ situation at the date of cancellation. I can however take into account future intentions, genuine efforts, and action taken beyond the date of cancellation (sections 134(1) and 134(2) of the Act). Section 134(2) provides that the Minister, and therefore the Tribunal, must not cancel a visa under subsection (1) if the Minister is satisfied that the person:
“(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.”
17. I moved then to consider the relevant tests in section 134 of the Act.
CONSIDERATIONS RELATING TO SECTION 134 AND 134(10) OF THE ACT
18. The first issue for me to determine was whether or not Mr Lau has made a genuine effort to obtain a “substantial ownership interest” in an “eligible business in Australia”. “Ownership interest” and “eligible business” in Australia, are defined as follows:
“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;
...”
“eligible business” means a business that the Minister reasonably believes is resulting or will result in one or more of the following:
(a) the development of business links with the international market;
(b) the creation or maintenance of employment in Australia;
(c) the export of Australian goods or services;
(d)the production of goods or the provision of services that would otherwise be imported into Australia;
(e) the introduction of new or improved technology to Australia;
(f)an increase in commercial activity and competitiveness within sectors of the Australian economy.”
19. It is well established that a business must be shown to be a commercial enterprise involving activities being pursued for the purpose of profit on a continuous and repetitive basis (Hope v Bathurst City Council (1980) 144 CLR 1).
20. Mr Eteuati who appeared for the Respondent made the point that at the time of cancellation in November 2006, Mr Lau did not have a substantial ownership interest in an Australian company as he had relinquished his shareholding and directorships of both Honeycomb Technology and Wild Violet. That is so, in that at the time of cancellation in November 2006, he was neither a shareholder in a company that carried on a business in Australia, nor a partner in a partnership that carried on a business in Australia, nor the sole proprietor of a business. The café Wild Pots was owned by Wild Violet whose directors and shareholders were Mr Lau’s wife and daughter. However Mr Lau told me he had the responsibility for the financial aspects of the business, the ordering of supplies, and that he himself worked in the café. Mr Lau said that due to the fact his daughter was studying and did not have sufficient time to work in the café, he sold it, and ceased operating it by the end of 2005. There was no evidence before me that Wild Violet was conducting any business or will conduct a business on a continuous or repetitive basis for the purpose of profit since that time.
21. Mr Lau’s activities in regard to Honeycomb Technology were more varied. They included a number of invoices for work with Bowermans, a contract having been signed in March 2005 for consulting work between May and October 2005, and work for Esen Sales Pty Ltd, with a contract date January 2004 (T18). The financial statements provided for 2005/6 indicate that Honeycomb Technology made a loss of $33,587 (Exhibit A2/31). I do not draw any inferences from a business which makes a loss in its early years. Mr Lau said that his consulting work with Esen gave him the idea for the ANZ franchise which he negotiated.
22. Accordingly in March 2005, Andrew was appointed a director of Honeycomb Technology, and on 9 May 2005, Honeycomb Technology, Mr Lau, Andrew and Mrs Lau entered into a Mortgage Solutions franchise agreement with the ANZ Banking Group (Exhibit A2/9). Mr Lau is shown as the Manager on page 10 of Exhibit A2. Mr Lau gave evidence that he carried out the negotiations, and attended interviews with the Bank, and that it was only after those negotiations had been completed did he inform the Bank that his son (then aged 22), was to participate. Mr Lau told me that the Bank agreed on condition that he, Mr Lau, remained at the core of managing the business which he says he continues to do. He also said that he financed the agreement, and that both he and his wife gave personal guarantees. At T10/105 is a an ANZ Mortgage Solutions brochure with photographs of both Mr Lau and Andrew and providing telephone numbers of both.
23. Mr Lau did not have ownership of Honeycomb Technology after the transfer of shares and directorships to members of his family in January 2004, but his evidence is that he continues to operate the franchise with ANZ, meet with ANZ and direct Andrew in his work. The family individuals named above are also parties to the contract in their own names in the contract with ANZ.
24. Mr Lau’s evidence was that since then, and post cancellation, he and his son have taken on another similar franchise for Hurstville. (Exhibit A2/6). Mr Lau says that he manages the business on a day to day basis and that he oversees all financial matters and guides his son who is young and has little experience in business.
25. Mr Lau also told me that before coming to Australia, he had invented cardboard/paper coffins which had been patented in various countries including the USA and England. He said that he has an interest in developing a business of cardboard/paper coffins which could be used for humans and pets, and which he expected would have broad acceptance, be environmentally friendly, and reduce the price of coffins. Mr Lau said that he had been doing market research and the timing for the launch of the business had taken longer than he expected, partly because he discovered that he could not rely on the English patent. He said he had applied for an Australian patent in January 2006.
26. I noted that registration of the other companies, Postnet and Significance Holdings Pty Ltd took place after cancellation of Mr Lau’s visa, but can be taken into account in relation to genuine effort and future intentions. Mr Lau told me that he registered Significance Holdings Pty Ltd of which he is the sole director and shareholder, and that he has made contacts in the funeral industry in Australia, with InvoCare in particular. Pages 36 to 79 of Exhibit A2 is a business plan for the paper coffins, and mentions the patent in the USA, granted in 1998 (Exhibit A2/78). Mr Lau said that he is awaiting patent approval in Australia for which he applied in January 2006.
27. I was satisfied from the above involvement in business, in particular in relation to the ANZ contract that Mr Lau fulfils the requirements for “substantial ownership interest” as envisaged in the legislation.
28. I next considered what an “eligible business” is in terms of the legislation. Section 134(10) follows as relevant:
“eligible business” means a business that the Minister reasonably believes is resulting or will result in one or more of the following:
(a) the development of business links with the international market;
(b) the creation or maintenance of employment in Australia;
(c) the export of Australian goods or services;
(d)the production of goods or the provision of services that would otherwise be imported into Australia;
(e) the introduction of new or improved technology to Australia;
(f)an increase in commercial activity and competitiveness within sectors of the Australian economy.”
29. I was mindful that the Minister contended that neither Wild Violet nor Honeycomb Technology constituted “eligible businesses” within the terms of section 134(10) of the Act. I considered each of the subsections of 134(10), (a) to (f) in order to make a decision.
(a) the development of business links with the international market;
30. The Respondent submitted that the evidence of Wild Violet and Honeycomb Technology developing or intending to develop business links with the international market was limited. Mr Eteuati submitted that Mr Lau’s only engagement with international markets was as an agent of Bowermans Office Furniture; neither of his own companies had developed international markets in their own right.
31. I was satisfied that there were a number of transactions with Bowermans during the relevant period before cancellation, and I noted the development of the coffin business which Mr Lau had investigated, and which was awaiting an Australian patent. I noted that the development of business links with the international market was not extensive, but was satisfied that Mr Lau had plans for the coffin market, and for Postnet and was expending genuine effort in developing those.
(b) the creation or maintenance of employment in Australia;
32. Mr Lau told me only he and his son were involved with his business activities although his wife is a director and shareholder of Wild Violet and Honeycomb Technology and a guarantor in the ANZ franchise. I noted that the cafe which Wild Violet purchased was for Mr Lau’s daughter, and that they had an employee, but that because the daughter was too heavily committed with her studies to be able to continue with it, it was eventually sold in 2005.
33. Accordingly I accept that Mr Lau’s activities have not substantially added to the creation or maintenance of employment in Australia, although his future activities with his coffin, Postnet and mortgage business may.
(c) the export of Australian goods or services;
34. Mr Lau did not claim that he exported any Australian goods or services.
(d)the production of goods or the provision of services that would otherwise be imported into Australia;
35. The Minister contended that there was no evidence to suggest that Wild Violet or Honeycomb Technology produced goods or services that would otherwise be imported into Australia, or introduced new or improved technology to Australia, or increased commercial activity and competitiveness within sectors of the Australian economy. That is so at present.
36. However the future activities of Post-net and the coffin business fulfil the requirements of this sub-section, and I am satisfied in regard to Mr Lau’s genuine efforts in that area.
(e) the introduction of new or improved technology to Australia;
37. The Minister contended that there was no evidence to suggest that Wild Violet or Honeycomb Technology introduced new or improved technology to Australia.
38. I accepted the Minister’s contention, was satisfied however, that the future activities of Postnet and the coffin business would fulfil the requirements of this sub-section into the future.
(f)an increase in commercial activity and competitiveness within sectors of the Australian economy.”
39. The Minister contended that there was no evidence to suggest that Wild Violet or Honeycomb Technology increased commercial activity and competitiveness within sectors of the Australian economy.
40. I am satisfied that the activities of Significance Holdings is likely in the future to create an increase in commercial activity and competition in the funeral industry. Mr Lau commenced looking into the situation, applied for a patent for the paper coffins in 2006, and produced a business plan, at a date post cancellation. That can however be taken into account in considering whether the Applicant intends to continue to make genuine efforts to obtain a substantial ownership interest in an eligible business, and to utilise his skills in managing the business. I am satisfied he does and these businesses will create an increase in commercial activity and competitiveness within the Australian economy.
41. Having taken into account Mr Lau’s activities since his arrival in Australia, I am satisfied that he has a “substantial ownership interest” in an “eligible business” , particularly in relation to the ANZ business.
42. Accordingly I find that Mr Lau had ownership interest in a business in Australia sufficient to meet the definition in section 134(10) of the Act, or that he was making a genuine effort to do so.
43. I have noted that the Tribunal standing in the shoes of the Minister must not cancel a Business Skills visa pursuant to section 134(1) of the Act if the Tribunal is satisfied that the Applicant has made a genuine effort to obtain a “substantial ownership interest” in an “eligible business” in Australia, and I have so found. My reasoning follows.
Section 134(2) of the Act and Genuine Effort
44. If I am wrong in having found that Mr Lau has a “substantial ownership interest” in an “eligible business”, then I move to consider the tests in section 134(2) of the Act. The Minister must not cancel a business visa 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.”
45. I have already held in the paragraphs above that I am satisfied Mr Lau has made a genuine effort to obtain a substantial ownership interest and that he has at least one eligible business in Australia. From the evidence which was not challenged by the Respondent, I accept that in transferring his shareholdings and directorships to his wife and daughter (in the case of Wild Violets) and his son in the case of Honeycomb Technology, Mr Lau wanted to provide the children with ownership of the business opportunities he had provided them in Australia. In the terms of the visa he may have been incorrectly advised, or it may be that he did not seek advice on the question of divesting himself of directorships and shareholdings. However, I am satisfied that his involvement in the businesses of the ANZ franchise and the coffins business in particular, satisfy the tests in section 124(2)(a) of the Act.
46. I then considered whether or not Mr Lau was utilising his skills in actively participating at a senior level in the day-to-day management of his Australian business, or was making a genuine effort to do so, and whether he intended to continue to make such genuine efforts.
47. I was satisfied that Mr Lau was actively involved not only in the financial aspects of the various businesses in which he and his family have been engaged since he arrived in Australia, but that he regularly worked in the café Wild Violets owned, negotiated the contracts with ANZ, and not only advises Andrew, but attends meetings and effectively runs the franchise business. Of that business he said: “I drive it”. This was not challenged by the Respondent at the hearing. Mr Lau has been instrumental in negotiating a second franchise with ANZ, and has been actively involved with developing Postnet and the coffin business. I am satisfied that he has demonstrated that he intends to continue to make such genuine efforts. His work towards obtaining a second franchise from ANZ, the negotiations with Postnet, and the continuation of efforts in the coffin business have continued post cancellation of the visa. I am able to take those genuine efforts and intentions into account post cancellation.
48. I accepted Mr Lau’s statement which was given in reply in cross-examination being “I’m calling the shots … I pay the bills”. He had already given evidence that he funded the businesses he had commenced for himself and his children.
49. I was satisfied that Mr Lau meets the tests in sections 134(2)(b) and (c) of the Act in that he has shown with his actions in continuing with the elements of the coffins business and Postnet. I considered section 134(3) of the Act in relation to Mr Lau’s stated intention that he intends to continue to make efforts to continue in business.
Consideration of section 134(3) of the Act and Genuine Efforts
50. I have considered these in more details in relation to the tests in section 134(3) of the Act.
51. I was mindful that section 134(3) of the Act sets out some or all of the matters which can be taken into account when determining whether a person has made “genuine efforts” referred to in section 134(2) of the Act.
“s 134 (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).”
52. In consideration of whether the decision to cancel Mr Lau’s Business Skills visa should be affirmed, varied or set aside, I was mindful of the role of section 134(3) of the Act, and accordingly have considered the indicia raised in that section.I am mindful that in his submissions, the Respondent has referred to departmental documents which provide guidance as to whether a genuine effort has been made for statutory purposes. They are of course only guidelines, and are not binding on me, but they can be of assistance and I have considered them.
Section 134(3):
(a) business proposals that the person has developed;
53. I am mindful that there at pages 36 – 79 of Exhibit A2, there is a business plan in relation to the coffin business. This includes records of approaches to InvoCare which is involved in the funeral industry.
54. Meanwhile in March 2005, Mr Lau negotiated a contract with Bowermans Office Furniture Pty Ltd as their outsourcing officer in China. Mr Lau entered into a business co-ordination consultancy agreement with Esen Sales Pty Ltd dated 30 January 2004 (T18/303, T19/338) to provide international and marketing consultancy services to Esen. He also made inquiries and communicated with Bud-Pak Pty Ltd (2004), Frasers (May 2005), Action Tooling Services (2005/2006 – post cancellation), Parsons Engineering (2005/2006 - post cancellation) and Postnet Master Franchise (Exhibit A6), (June 2007 – post cancellation).
55. The above contacts and business ventures satisfy me that Mr Lau has developed certain business proposals within the terms of section 134(3) of the Act.
(b)the existence of partners or joint venturers for the business proposals;
56. As to (b); the ANZ franchise business which according to Mr Lau is growing, and to which he and his son are now adding another, satisfies me in relation to genuine effort, that there is a partner. Postnet is another business where correspondence in the T-documents indicates Mr Lau is investigating starting a franchise.
(c)research that the person has undertaken into the conduct of an eligible business in Australia;
57. Initially Mr Lau invested in a café through Wild Violet, then established a consultancy and Honeycomb Technology, which currently holds, along with the family members, a franchise with ANZ for mortgage business. A second franchise at Hurstville is under negotiation.
58. I noted that Mr Lau has done research into the market for coffins, made contact with InvoCare, and has also entered into an agreement with Postnet.
59. Apart from the café, the consultancy and the ANZ venture, these negotiations have taken place mainly after the cancellation of the Business Skills visa. They are therefore of limited relevance, but can be taken into account in terms of Mr Lau making a genuine effort, and may be taken as an indication of his future intentions.
(d)the period or periods during which the person has been present in Australia;
60. Mr Lau moved his residence to Sydney in July 2003 following the grant of the visa, purchased the house in which he now lives, and from where he works. Unlike many other holders of business visas, Mr Lau, significantly, has spent a substantial amount of time in Sydney, being 971 days (T20).
(e)the value of assets transferred to Australia by the person for use in obtaining an interest in an eligible business;
61. Mr Lau claimed to have invested $100,000 to set up the franchise business. Other documents before the Tribunal show deposits made by Mr Lau (Exhibits A4 for Wild Violet & A5 Honeycomb Technology).
(f)the value of ownership interest in eligible businesses in Australia that are, or have been, held by the person;
62. The Respondent submitted that the Applicant did not, at the relevant time, have a substantial ownership interest in eligible businesses in Australia, whereas I have found in the paragraphs above that Mr Lau did have an “eligible business” pursuant to the legislation at the relevant time.
(g) business activity that is, or has been, undertaken by the person;
63. I have already expressed views with regard to Mr Lau’s business activities in the paragraphs above. They ranged from a café in 2003/4 – 2005, to early attempts at consultancies such as Esen and Bowermans, to the ANZ franchise businesses which are ongoing, to development of the coffins business, (awaiting an Australian patent), and Postnet.
(h) whether the person has failed to comply with a notice under section 137;
64. I have no indication that Mr Lau has failed to comply with a notice.
Conclusions
65. Having considered the above indicia in section 134(3) of the Act, of which I may take into account some or all in assessing whether the “genuine effort” referred to in section 134(2) of the Act has been satisfied, I find that Mr Lau satisfies the majority. I find that he has made a “genuine effort” as envisaged under the Act, and that accordingly the discretion to not cancel his Business Skills visa should be exercised.
66. Even though I have found that Mr Lau has a “substantial ownership interest” in an “eligible business in Australia”, and that he has made genuine efforts as envisaged under the Act and intends to continue to develop business in Australia, in case I am wrong, then I am satisfied if it is necessary, that the residual discretion available in Kim be exercised in his favour.
DECISION
67. The Tribunal sets aside the decision under review to cancel Mr Lau’s Business Skills (Senior Executive) (Subclass 128) visa, and in substitution therefor, decides that Mr Lau’s visa not be cancelled. The matter is remitted to the Respondent for the appropriate action to be taken.
I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed:
………………………………………………
AssociateDate of Hearing: 10 July 2007
Date of Decision:17 September 2007Solicitor for the Applicant: Mr A Conyer, Diamond Conway Lawyers
Solicitor for the Respondent: Mr T Eteuati, Clayton Utz Lawyers
0
9
0