Lee and Minister for Immigration and Citizenship
[2008] AATA 986
•4 November 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 986
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1645
GENERAL ADMINISTRATIVE DIVISION ) Re SOK KOON LEE Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Ms L R Tovey, Member
Mr W G Evans, Member
Date 4 November 2008
PlacePerth
Decision The Tribunal affirms the decision under review.
…(sgd) Ms L R Tovey…….
Member
CATCHWORDS
IMMIGRATION – business skills visa – eligible business – genuine efforts – exercise of discretion
Migration Act 1958 (Cth), s134
Re Chawla and Minister for Immigration and Citizenship [2008] AATA 715
Hope v Bathurst City Council (1980) 144 CLR 1
Jo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 77
Kok and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 579
Koosasi v Minister for Immigration and Multicultural Affairs (2006) 43 AAR 462
Lau and Minister for Immigration and Multicultural Affairs [2002] AATA 703
Puzey v Commissioner of Taxation (2003) 131 FCR 244
Shi v Migration Agents Registration Authority (2008) 82 ALJR 1147
Tang v Minister for Immigration and Multicultural Affairs [2000] AATA 997
Wong and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 54
Yam v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283.
REASONS FOR DECISION
4 November 2008 Ms LR Tovey, Member Mr W G Evans, Member 1. This is an application for review of a decision made by a delegate of the Respondent ("the Minister") on 26 March 2007 cancelling the business skills (sub-class 128 senior executive) visa of Ms Sok Koon Lee. The applicant is also, and more commonly, known as Constance Koh and it will be convenient in these reasons to refer to her as Ms Koh.
BACKGROUND FACTS
2. The following background facts, which we find by reference to the Section 37 Documents and the written witness statements tendered at the hearing, were not in contention between the parties.
Corporate Governance
3. In August 2003 Ms Koh became a director of Jancom Aus Foods Pty Ltd ("Jancom"), a company incorporated in Australia. On 29 June 2004 the share capital of Jancom was increased to 100,000 shares of $1, of which 10,000 or 10% were issued to Ms Koh in return for a cash advance made by her to the company on that date. Ms Koh was appointed as secretary of Jancom on 8 July 2004.
4. On 23 August 2004 7,000 ordinary shares in Jancom were transferred to Ms Koh, bringing her percentage interest in the company to 17%. The issue of a further 17,000 shares of $1 by Jancom to another investor had the effect of reducing Ms Koh's percentage stake in the company to 14.5%. She has retained that interest in Jancom, and remained secretary and director of the company since that time.
5. In addition to payment of shares, Ms Koh and the other shareholders of Jancom advanced money to the company by way of loans. In Ms Koh's case the total amount paid in loans and for shares was just under $100,000.
The Business of Jancom
6. On 5 August 2003 Jancom entered into a Trade Mark Licence Agreement ("the Licence Agreement") with Prima Food PTE Limited ("Prima Food"), a company incorporated in Singapore. By that agreement Prima Food granted Jancom the exclusive right to operate "the Business" within Western Australia utilising Prima Food's trade marks. The "Business" was defined to be "the business of operating a food and beverage Outlet(s) utilising the Trade Mark(s) and which offers the Services and, among other things, the Food Products prepared in accordance with the Operations Manual and utilising the Food Supplies". The reference to "Services" was to Restaurants, Cafes and any other business whose main business was the provision of ready-cooked food as approved by Prima Food. The reference to "Food Supplies", from which "Food Products" were to be made, was to a list of food pastes, preparations and mixes manufactured by Prima Food.
7. Also on 5 August 2003 Jancom entered into a "Distribution Agreement" with Prima Food. By that agreement Prima Food appointed Jancom as its exclusive distributor for the resale of the Food Supplies to Approved Businesses. The reference to "Approved Businesses" was to restaurants, cafés, clubs, caterers, hotels and any other food and beverage outlet approved by Prima Food.
8. The Distribution Agreement established a price list for the Food Supplies, and required Jancom to meet graduated minimum net purchase values within defined periods. If Jancom did not meet those targets Prima Food had the right to withdraw the exclusivity of the rights granted under the Distribution Agreement. Jancom was also required to use its best endeavours to promote and sell the Food Supplies to all Approved Businesses in Western Australia.
9. Jancom leased premises at 127 Barrack Street Perth from early 2004. After extensive renovations and refurbishment of the premises, Jancom opened a restaurant, trading as Prima Taste, at the Barrack Street premises on 7 October 2004. The restaurant offered Singaporean dishes prepared using Prima Food Supplies, mostly pastes. Jancom also distributed Prima Food retail packs to Asian grocery stores and Asian restaurants in Perth.
10. Unfortunately, the business was not a success and the directors took the decision to sell the restaurant business in the beginning of 2006. An agreement for sale of the business was entered into on 30 May 2006 for $62,000, of which only $1,000 was allocated to goodwill. It appears from the agreement that the sale was of the leasehold interest held by Jancom in the Barrack Street premises, plant and equipment and limited stock, not including the Food Supplies of Prima Food. There was no assignment of Jancom's rights under the Licence Agreement or Distribution Agreement with Prima Food. The Prima Taste restaurant closed in June 2006.
11. Following the sale of the restaurant, Jancom retained about $12,000 in stocks of Prima Food pastes. Since the sale of the restaurant Jancom sold some of that stock, to the value of $1,231, to other businesses pursuant to the Distribution Agreement. The means by which those sales came about are considered in greater detail below. Otherwise, Jancom has not engaged in any trading activity since June 2006.
Ms Koh's Visa
12. Ms Koh applied for a business skills visa in February 2003. The visa was granted on 31 October 2003.
13. On 12 August 2005 Ms Koh was sent a 24 month survey form by the Department of Immigration and Multicultural Affairs, to which she responded under cover of a letter dated 6 January 2006. The Department requested further information on 30 August 2006, and Ms Koh responded to that request on 16 October 2006. A Notice of Intention to cancel Ms Koh's business skills visa was issued on 31 October 2006, to which Ms Koh responded by letter dated 12 December 2006.
14. On 26 March 2007 a delegate of the Minister decided to cancel Ms Koh's business skills visa. Ms Koh seeks a review of that decision by this Tribunal.
LEGISLATIVE BACKGROUND
15. Section 134 of Migration Act 1958 (Cth) ("the Act") confers a discretionary power to cancel Ms Koh's visa. Section 134(1) of the Act provides:
“(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.”
16. If the discretion to cancel the visa arises under s. 134(1) of the Act, then s. 134(2) of the Act provides that:
“(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.”
17. In determining whether a person has made a “genuine effort” within the meaning of s. 134(2) of the Act, s. 134(3) of the Act states:
“(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).”
18. Section 134(10) of the Act defines "eligible business" to mean:
"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. By s. 134(10) of the Act, an “ownership interest” in relation to a business is defined to mean:
“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.”
20. Section 134(4) the Act provides that, subject to s. 134(5) and s. 135 of the Act, the Minister must cancel a business skills visa held by another person who is a member of the family unit of the holder of the cancelled business skills visa if that person would not have held the business skills visa but for that membership. Section 134(5) of the Act provides that the Minister must not cancel the other person’s business visa under s. 134(4) if the cancellation of that visa would result in extreme hardship to the person.
FINDINGS IN FAVOUR OF THE APPLICANT
21. There are a number of issues arising out of the above legislation which we would determine in favour of Ms Koh. Because we ultimately find that the Minister's decision should be affirmed, and because most of these matters were not actively contested by the Minister, it is sufficient for us to briefly record our findings in relation to those matters. We make these findings from the oral and documentary evidence adduced in the proceedings.
22. We are satisfied that the business of operating the Prima Taste restaurant, and the distribution of Prima Food Supplies to Asian restaurants and grocery stores in Western Australia, was an eligible business for the period it operated between October 2004 and June 2006. We are satisfied that the interest of Ms Koh in that business (being a 10-17% shareholding in the company that operated the business) was a substantial ownership interest in that eligible business. We are also satisfied that during the period of October 2004 to June 2006 Ms Koh utilised her skills in actively participating at a senior level in the day to day management of that business. Further, we are satisfied that between the date of the grant of her visa in October 2003 and the date of the closure of the restaurant in June 2006 Ms Koh made a genuine effort to obtain a substantial ownership interest in that eligible business, and to utilise her skills in actively participating at a senior level in the day-to-day management of that business.
ISSUES OF TIME
23. In determining this application for review, it is necessary to consider the time at which the questions identified in s. 134 of the Act are to be asked and answered.
24. Section 134(1)(a) of the Act refers to past events: it requires that the Minister be satisfied that an applicant "has not" obtained a relevant interest. However, s. 134(1)(b) refers to the present: the requirement is that the Minister be satisfied that an applicant "is" utilising her skills. It would seem to follow from s. 134(1)(b), if not s. 134(1)(a), that the eligible business must exist at the relevant date for the Tribunal's decision. If there is no eligible business in existence at the relevant date for the decision then an applicant could not, at that time, be exercising her skills participating in the management of that business. That approach is, in our view, consistent with that adopted by Branson J in Koosasi v Minister for Immigration and Multicultural Affairs (2006) 43 AAR 462 at [9].
25. Section 134(1)(c) of the Act is also cast in the present tense, referring to the Minister being satisfied an applicant who "does not intend" to continue to hold a relevant interest or utilise relevant skills. That intention must be assessed at the relevant date for the decision. That paragraph also suggests that the eligible business must exist at the relevant date for the decision. The intention referred to in s. 134(1)(c) relates to a business referred to in s. 134(1)(a), namely a business which the applicant has (in the past) obtained a relevant interest. An applicant could not presently intend to continue ownership and participation in a business established in the past if the business has ceased to exist.
26. By contrast, s. 134(2)(a) and (b) of the Act refer to past events, requiring that the Minister be satisfied that an applicant "has made" a relevant genuine effort. Those genuine efforts may have been made at any point prior to the relevant date for the decision. However, s. 134(2)(c) refers to the present, requiring that the Minister be satisfied that the applicant "intends" to continue to make genuine efforts at the relevant date for the decision.
27. It is then necessary to identify the relevant date for the decision. In the case of the Minister, it must be the date of the Minister's decision, which in this case was 26 March 2007. So in the present case it was necessary for the Minister's delegate to consider whether she was satisfied that:
(a)an eligible business existed as at 26 March 2007;
(b)Ms Koh had acquired an eligible interest in that business prior to 26 March 2007;
(c)Ms Koh was, at 26 March 2007, relevantly utilising her skills in the management of that business;
(d)Ms Koh intended, at 26 March 2007, to continue to hold that interest and utilise those skills;
(e)Ms Koh had, prior to 26 March 2007, made relevant genuine efforts; and
(f)Ms Koh intended, at 26 March 2007, to continue to make relevant genuine efforts.
28. This Tribunal stands in the shoes of the Minister on a review of the decision of the Minister's delegate. However, the question arises as to whether the relevant date for the Tribunal's decision is the date on which the Tribunal determines the application for review or the date on which the Minister's delegate made her decision.
29. The usual approach of the Tribunal, in considering the above matters, is to look only at events, actions and intentions that existed prior to the cancellation of the visa: Wong v Minister for Immigration and Multicultural Affairs [2002] AATA 54 at [37]. In doing so, however, the Tribunal has taken the view that it is also entitled to consider subsequent events to the extent that those later events assist in evaluating the relevant intentions and actions of the visa holder as at the date of the cancellation of the visa: See Kok and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 579 at [21], Jo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 77 at [10]; and Lau and Minister for Immigration and Multicultural Affairs [2002] AATA 703 at [24]. The Statements of Facts and Contentions of both parties accepted the correctness of that approach, which would mean that the relevant questions for us are the same as those identified at paragraph 27 above.
30. In Re Chawla and Minister for Immigration and Citizenship [2008] AATA 715 at [27]-[29] we considered, but did not decide, whether that approach of treating the date of the Minister's decision as the relevant date for the Tribunal was consistent with the decision of the High Court in Shi v Migration Agents Registration Authority (2008) 82 ALJR 1147. We did not consider it necessary to determine the question in that case because considering the steps taken by Mr Chawla after the Minister's decision did not alter our conclusion.
31. Similarly, in the present case, we have considered the position both at the date of this decision and the date of the Minister's decision. The outcome in each case remains, in our view, the same. Given that, and given the positions adopted by the parties (which means we have had no submissions on the question of law), it is unnecessary for us to determine which of 26 March 2007 and the date of our decision is the relevant date in the present case either.
ELEGIBLE BUSINESS
32. It is then necessary to consider whether there was any relevant eligible business, either as at 26 March 2007 or the date of our decision. In our view there was no such business in existence, either on 26 March 2007 or the date of this decision.
33. The first question is whether Jancom operated any business at all at the relevant date (being either 26 March 2007 or the date of this decision). The second question is whether, if we are satisfied that there was a business, we reasonably believe that:
(a)the business was, as at the relevant date, resulting in one or more of the outcomes identified in (a)-(f) of the definition of ‘eligible business’; or
(b)the business would result in one or more of those outcomes.
34. Ms Koh's evidence was that, after the sale of the restaurant, the "distribution side of the business continued". She said that in June 2006 she appointed Luke Goh to be Jancom's "public officer", so that there would be "someone on the ground" in Perth with respect to the retailing of Prima Food pastes. However, Mr Goh was only paid, at a fixed rate per month, until August 2006. She said that in June 2006 Jancom had stocks of Prima Food pastes to the value of around $12,000. She accepted, however, that distribution sales during the period after the sale of the restaurant amounted to $1,231.45.
35. Tax invoices produced before us show 15 transactions totalling $1256.25 after June 2006. Of those, 13 were for amounts less than $50. Nine invoices are dated in July or August 2006 and 6 (all for amounts less than $50) are dated April 2007 (which was just after the cancellation of Ms Koh's visa).
36. The evidence of both Ms Koh and Mr Goh was that Jancom did not order any further stock from Prima Food after the sale of the restaurant, and was liquidating its existing stock, remaining after the sale of the restaurant, often at drastically reduced prices.
37. In his oral evidence before us Mr Goh explained the difficulties he had in securing sales, and the reasons for those difficulties, in the following terms:
"We called up all our existing retailers and most of them are not keen to take on our stock because all stocks have a life shelf, and most of the stock that we have were slightly less than six months, some of them about a year, but those that were a year were not popular ones, and retailers would like to have at least six months or more of shelf life before they take the stock, otherwise they cannot – they will have excessive stock, and once they expire, they can’t sell it. So that was a bit of a struggle. Up to a certain point of time, we couldn’t depend on the retailers any more to buy in bulk. We had to have personal friends, introduce it to them, and they buy in small quantities like three of four packs at one go and that’s why the sales dwindled in that sense.
Yes?‑‑‑But yet we were able to push and finish up most of the retail packs. The service packs, which is meant for the kitchen, were never good in the first place, and the restaurants were very particular about what they could sell.
Why weren’t they good? Can you clarify that?‑‑‑There were only certain paste that was preferred.
Why was that?‑‑‑Because that’s lucrative and they sell well, because, like, our laksa paste was something which was - in the course of our restaurant, it is known to be one of the best in Perth, and so other restaurants would also order our laksa paste to make and sell, so that was our most popular paste."
38. We find from the evidence referred to above that Jancom entered into 9 transactions for the distribution of its remaining stocks of Prima Food paste in July and August 2006 and 6 transactions (all for amounts less than $50) in April 2007. Jancom was seeking to liquidate its remaining stock left over after the sale of the restaurant. Its difficulties arose because of the expiry dates of the remaining stock and the fact that the remaining stock did not consist of the popular varieties which had been the subject of previous sales. There were no other transactions entered into after the sale of the restaurant.
39. Having regard to that evidence we are satisfied that Jancom was not, either on 26 March 2007 or at any time after May 2007, engaged in any business at all. At those times it was not entering or taking any significant steps to attempt to enter into any transactions of a business nature.
40. Ms Koh submitted that to be a business within the meaning of s. 134 of the Act the activities must be "undertaken as a commercial enterprise in the nature of a going concern, that is activities engaged in for the purpose of profit on a continuous and repetitive basis: see Hope v Bathurst City Council (1980) 144 CLR 1 at 8-9 per Mason J: and Tang v Minister for Immigration and Multicultural Affairs [2000] AATA 997 at [20]".
41. Applying that test leads us to the conclusion that there was no business either at 26 March 2007 or the date of this decision. There was no commercial enterprise of a going concern operating at either time, and the sporadic sales which did occur did not occur at either time. In any event, those sales were not made for the profit or as part of a going concern. Rather they were made as part of the sale of stock of a former business, which business had either been sold or had ceased to operate, as part of the attempt to liquidate some of the assets of that former operation.
42. Ms Koh also referred to the following passage of Hill and Carr JJ, with whom French J concurred, in Puzey v Commissioner of Taxation (2003) 131 FCR 244 at 256-7, [46]-[48]:
"The question whether a person is carrying on a business is a conclusion to be drawn from all relevant facts and circumstances. There are some relevant propositions which can, however, be stated. First, as was said by Barwick CJ, in Fairway Estates Pty Ltd v Commissioner of Taxation (Cth) (1970) 123 CLR 153 and it is self-evident, every business must have a first transaction. And there may be a business, even if that business is small in scope: cf Thomas v Commissioner of Taxation (Cth) (1972) 46 ALJR 397 at 401 with Hope v Bathurst City Council (1980) 144 CLR 1 at 10. A person may carry on a business, notwithstanding that the person had some other activity, such as full time employment. It is not necessary in concluding that a business is carried on that the acts to be undertaken are acts of the person seeking to establish he or she is carrying on a business. So a person may appoint another to take the steps which constitute the business activity: Ferguson v Commissioner of Taxation (Cth) (1979) 26 ALR 307 at 319 and, at least if the facts in Commissioner of Taxation v Lau involved a business, that case is another example.
It will be relevant in deciding whether a business is carried on that there is some repetition of acts and that the activities in question have "something of a permanent character"; Hope. What is required is that activities be engaged upon "on a continuous and repetitive basis"; Hope. However, perhaps not too much attention should be given to the concept of repetition where the activity is one, such as plantation operation, where the activity will continue over a relatively long period of time but where there will be significant periods of what may be referred to as inactivity. Business does not mean being busy.
In deciding whether or not a business is carried on, courts have pointed to what have been called in the United Kingdom the "badges of trade", indicia which, while no one of them will be determinative of whether a business is carried on, collectively will demonstrate a business. These include the profit motive (although a non-profit company may still carry on a business), acting in a business-like way (although many businesses may be found which operate in a non business-like way), the keeping of books of account and records (although the fact that there are none will not necessitate the conclusion that a business is not carried on), and repetition (although a fixed term project may still be a business)."
43. Again, assuming those principles to be equally applicable to s. 134 of the Act, we are not satisfied that they lead to the conclusion that Jancom was carrying on a business at any relevant time in this case. Neither at 26 March 2007 nor after the last sales transaction in April 2007 was there any activity, continuous or otherwise. There was no profit motive in the sales which occurred after June 2006. Any such sales occurred well prior to either the date of the Minister's decision or the hearing before us. While the fact that accounts were maintained would count in favour of the existence of a business if any sales activity was occurring, in the absence of that activity we do not consider that the fact that accounts were kept leads to the conclusion that Jancom was undertaking a business.
44. Even if we were incorrect about the existence of a business, any business which did exist did not, in our view, constitute an eligible business. We are not satisfied that any such business was resulting or would result in any of the outcomes identified in s. 134(10) of the Act at any time after the sale of the restaurant business in June 2006. We see no evidence which satisfied us that any such business was resulting or would result in business links with the international market at that time. Jancom did not have any paid employees after August 2006, and any business it operated after the sale of the business in June 2006 was not and would not result in the creation or maintenance of employment in Australia. Jancom never exported Australian goods or services, or produced goods or services that would otherwise be imported into Australia, and we are not satisfied on the material before us that it would do so in the future. Jancom never introduced any new or improved technology into Australia, and we are not satisfied on the material before us that it would do so in the future. The material before us does not satisfy us that there was or would be any increase in commercial activity and competitiveness within sectors of the Australian economy resulting from any business operated by Jancom after June 2006.
PARTICIPATION IN THE MANAGEMENT OF AN ELIGIBLE BUSINESS
45. It follows from our conclusion that there was no eligible business at any relevant time that Ms Koh could not have been utilising her skills in actively participating at a senior level in the day to day management of such a business at the relevant date: s. 134(1)(b) of the Act.
46. It follows that our discretion to cancel Ms Koh's visa is enlivened unless we are satisfied of all of the matters specified in s. 134(2) of the Act.
INTENTION TO CONTINUE TO MAKE GENUINE EFFORTS
47. We have previously indicated that we are satisfied that, prior to the sale of the restaurant business in June 2006, Ms Koh made the genuine efforts referred to in s. 134(2)(a) and (b) of the Act. The question is then whether we are satisfied that at the relevant date Ms Koh intended (if the relevant date is 26 March 2007) or intends (if the relevant date is that date of our decision) to continue to make those genuine efforts. If we are not satisfied of that matter, referred to in s. 134(2)(c) of the Act, then our discretion to cancel Ms Koh's visa is enlivened. For the reasons that follow, we are not satisfied that Ms Koh intended to make those genuine efforts at either time.
48. In our view a "genuine effort" must be more than a superficial or token effort: Yam v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283. The use of the word "genuine" implies that it must be a real and honest effort and not one which is false, fictitious or a pretence. The use of the word "effort" implies that some exertion or endeavour must be involved on behalf of the visa holder. It must, in our view, involve more than mere expressions of interest or inquiries.
49. Ms Koh's written statement of evidence indicated that:
"…I fully intend to maintain both my ownership and management interest in Jancom. The business fully intends to continue the sale of Prima Food pastes. In addition, I am also looking out for other business opportunities for Jancom in Australia".
50. While we accept that Ms Koh intends to continue her interest in Jancom, that is of little significance if Jancom does not, and does not propose to, engage in an eligible business. Indeed, it is difficult to see what saleable value Ms Koh's interest in Jancom could have, given Jancom's current financial position, in any event.
51. We do not accept that, either at 26 March 2007 or the date of this decision, Jancom or Ms Koh intended to continue the sale of Prima Food pastes. There have been no prior sales at all at any time proximate to either date. There is no evidence which satisfies us as to the undertaking of any trading activity other than the liquidation of some of the stock left over from the restaurant business. Jancom did not import any food pastes after June 2006, which is difficult to reconcile with an intention to carry on a distribution business. That is particularly so when the sales were slow due to the expiry dates of the stock left over from the restaurant business and the absence of varieties which Mr Goh referred to as the "popular ones". Jancom did not comply with its obligations under the Distribution Agreement as to maintaining minimum purchase values or using its best endeavours to sell the relevant products. Jancom did not have any paid staff after August 2006, and the evidence does not satisfy us that it or, more importantly, Ms Koh engaged in any genuine efforts to market Prima Food Supplies after that time.
52. Ms Koh's written statement did not give any particulars of the conduct which amounted to "looking out for" other business opportunities for Jancom in Australia. Her oral evidence in relation to that matter was as follows:
"Can you please briefly outline your future intentions?‑‑‑I have actually contacted several parties to see whether they would like to use Jancom for – to inject another business in. And my friend, Peggy Lee, her husband has some business in Sydney, so I am exploring this option with her.
What type of business?‑‑‑Food business. They also have a restaurant – he has a cousin who has a restaurant there. Then, I am meeting up with this guy called Cameron Reynolds on 1 February in Singapore. He happens to be coming down to Singapore, but he is in London right now. Otherwise I would have met him these few days that I am here. He runs ‑ ‑ ‑
So who’s Cameron - sorry?‑‑‑Cameron Reynolds. He runs Roast on the Run. I don’t know whether you have heard of it, in Perth. They deliver roast beef to your house. It’s like a home delivery service here. So I am going to see him, to see whether there is any possibility of teaming up with him. And the other contact is another gentleman called Lim Mah Tat. He has a supermarket at home in Singapore. He also has a business selling fresh fruits and vegetables, and a lot of his produce comes from Australia. So I have just spoken to him, whether I could be his contact point to get supplies for him in Australia. And he has agreed actually, in principle, but we have not tied up anything as yet. I am going to pursue these leads."
53. That evidence is rather vague and does not disclose any genuine effort having been taken by Ms Koh to establish or acquire an interest in a new eligible business after June 2006. The evidence as to that matter by Ms Koh's partner Lee Hoe Hin is similarly vague. In the absence of Ms Koh being able to point to having made any genuine efforts to do so after June 2006, we are not satisfied that she intends to make those efforts in the future, or intended to do so on 26 March 2007.
54. Ms Koh gave evidence as to her activities, such as correspondence with ASIC, to ensure compliance with Jancom's tax and company obligations. She also had dealings with Jancom's creditors. However, that was activity undertaken for the purpose of winding up the business of Jancom which had been sold, by tying up loose ends, rather than making an effort to establish or acquire a new eligible business.
55. Having regard to the above matters the material before us does not satisfy us that Ms Koh intended to make the relevant genuine efforts at any time after June 2006, or that she now intends to continue to make those efforts.
EXERCISE OF DISCRETION
56. It is clear that there remains what is sometimes referred to as a "residual discretion" not to cancel a visa if the circumstances warrant such exercise: see Kok and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 579 at [53]. Perhaps a better way of expressing the requirement is that, the discretion having been enlivened, we must consider how the discretion should be exercised.
57. We consider that the discretion should be exercised to cancel Ms Koh's visa. A condition of the grant of the visa was that Ms Koh either establish and manage an eligible business or make genuine efforts to do so. Those conditions have not been met since June 2006, which counts in favour of the cancellation of the visa. We are not satisfied that giving Ms Koh more time would lead her to satisfy those conditions. We also note that Ms Koh does not reside in Australia, and has continuing business interests in Singapore. The cancellation of her visa would not occasion her any hardship.
58. Ms Koh points to the fact that her sons have been educated in Western Australia and wish to continue their education in Australia. While we have regard to that fact it does not lead us to the view that we should decline to exercise the discretion to cancel Ms Koh's visa. Two of her sons are over 18, and the other is 17 and in the final year of school. Their family home remains in Singapore. We would expect her youngest son to be in a position to complete the assessment requirements of his final school year by the time this decision takes effect, which is 28 days after our decision: see s. 134(8)(a) of the Act. We also note that Ms Koh's children have not sought review of the decision to cancel their visas, or asserted that they would suffer extreme hardship if their visas were cancelled: see s. 38(5) of the Act. If her sons wish to continue their studies in Australia then the appropriate course would be for them to seek student visas to enable them to do so, and their future study intentions do not appear to us to be a sufficient ground for declining to exercise our discretion to cancel Ms Koh's visa.
59. Having regard to all of the above circumstances, we consider it appropriate to exercise our discretion to cancel Ms Koh's visa.
DECISION
60. For the above reasons we would affirm the decision under review:
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Ms LR Tovey, Member and Mr W G Evans, Member
Signed: ... (sgd) T Freeman...............................................
AssociateDates of Hearing: 29 and 30 January 2008
Date of Decision 4 November 2008
Representative for the Applicants Mr D Barich
Representative for the Respondent Mr S Thackrah
Solicitors for the Applicants Fiocco's Lawyers
Solicitors for the Respondent Australian Government Solicitor
0
16
0