Lee and Ors and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 432
•30 April 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 432
ADMINISTRATIVE APPEALS TRIBUNAL )
)N2002/1773
)N2003/759
)N2003/761
GENERAL ADMINISTRATIVE DIVISION ) Re CHIN WOOK LEE, YUN JA PARK, GWI WEON LEE Applicants
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr S. Webb, Member Date30 April 2004
PlaceSydney
Decision The decisions under review are set aside. The Applicants’ business visas should not have been cancelled and remain valid and effective.
[Sgd] Mr S. Webb, Member
CATCHWORDS
IMMIGRATION - business skills visa - validity of notice of intention to cancel visa - period of notice in which to make representations – effect of defective notice - genuineness of primary visa holder’s efforts to comply with visa obligations – representations – intentions of primary visa holder – relevance of evidence after date of purported cancellation - eligibility of restaurant business – role of primary visa holder in the day-to-day management of the restaurant business – decisions set aside
Migration Act 1958 ss 134, 135, 137, 494A, 494B, 494C, 504
Migration Regulations 1994 r 2.55
Acts Interpretation Act 1901 s 29
Kim v Minister for Immigration and Indigenous and Multicultural Affairs [2004] FCA 31
Re Wong and Minister for Immigration and Indigenous and Multicultural Affairs [2002] AATA 54
Re Griffiths and Migration Agents Registration Authority [2001] AATA 240
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342
Hospital Benefit Fund of Western Australia v Minister for Health (1992) 111 ALR 1
Re Bhyat and Minister for Immigration and Indigenous and Multicultural Affairs [2003] AATA 1051
Tio v Minister for Immigration and Indigenous and Multicultural Affairs [2003] FCAFC 53
Wang v Minister for Immigration and Indigenous and Multicultural Affairs [2002] FCA 167
NAAV v Minister for Immigration and Indigenous and Multicultural Affairs [2002] FCAFC 228
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Re Wisibono and Minister for Immigration and Indigenous and Multicultural Affairs [2004] AATA 145
Re Prawiro and Minister for Immigration and Indigenous and Multicultural Affairs [2003] AATA 1096
Hope v Bathurst City Council (1980) 144 CLR 1
REASONS FOR DECISION
30 April 2004 Mr S. Webb, Member 1. The applications in these proceedings concern the decision of a delegate of the Minister for Immigration and Indigenous and Multicultural Affairs (“the Minister”) on 6 November 2002 to cancel the subclass 127 business skills visa of the Primary Applicant, Mr Lee, and the secondary visas held by his wife, Mrs Yun Ja Park, and his daughter Gwi Weon Lee (Vicky).
factual context
2. The following facts arise from the documentary evidence before the Tribunal and the oral evidence given at the hearing in this matter.
3. Mr Lee, his wife and daughter are South Korean nationals. During the period Mr Lee’s business class visa was on foot prior to 6 November 2002, he owned and operated a pump business in South Korea with his brother-in-law, holding the role of company President. Mr Lee and his wife also owned a restaurant in Seoul for several years prior to 1999, which Mrs Park managed and operated.
4. Mr Lee was granted a subclass 127 business skills visa on 2 December 1999 that was based, at least in part, on a business plan he had prepared concerning the establishment of a business in Australia. Mr Lee first entered Australia on 31 December 1999 accompanied by his wife. Vicky Lee was granted a student visa and first arrived in Australia in 1997. She completed her high school studies in 2001 and commenced a Commerce Degree at the University of New South Wales in 2002. Mr Lee has a son, Tae Weon Lee, who was granted Australian citizenship on 12 March 2003.
5. On 10 December 2001 the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) sent Mr Lee a 24-month survey form. He did not receive or respond to this survey, having changed his address without informing the Department. The survey form was returned to the Department unopened.
6. On or about 13 August 2002, a delegate of the Minister wrote to Mr Lee to notify him of the Minister’s intention to cancel his business skills visa, but dated the notice 13 September 2002. On 13 August 2002 a delegate of the Minister wrote to Mrs Park, Tae Weon and Vicky Lee notifying them of the Minister’s intention to cancel their secondary business visas. The four notices were dispatched by certified mail on 13 August 2002. The date by which representations were invited from the Applicants was stated to be 19 September 2002.
7. On 17 September 2002 written representations were made, purportedly by Mr Lee, in response to the notices of intention to cancel his business visa and the secondary visas of his family members. In those representations it was claimed that Mr Lee had an ownership interest in Manpreet International Trade and Tours Pty Ltd and held the office of Managing Director.
8. On 6 November 2002, the delegate of the Minister cancelled Mr Lee’s business visa and the secondary visas of his wife, son and daughter. During the period his business visa was on foot prior to that date, Mr Lee spent a total of 83 days in Australia.
9. Mr Lee and his wife exchanged contracts for the purchase of a restaurant on 5 December 2002. The purchase was finalised on or about 14 January 2003 and the business, the Asiana Restaurant, was registered on 20 January 2003.
10. Mr Lee applied for review of the decision to cancel his business visa and the matter came on for hearing on 25 and 26 November 2003 and 5 March 2004. Each of the Applicants gave oral evidence at the hearing and documents were taken into evidence. The Tribunal was assisted by a translator in the Korean language.
legal principles
11. These applications rise for consideration under the Migration Act 1958 (“the Act”).
12. The grant of a business skills visa to a person (“the primary visa holder”) and to the members of that person’s immediate family (“the secondary visa holders”) is subject to prescribed conditions (s.41) that are set out in the Migration Regulations 1994 (“the Regulations”). The grant is based, at least in part, on the expectation that the primary visa holder will obtain a substantial ownership in and will utilise their skills in the senior management of an eligible business in Australia within a three year period. Failure to satisfy those expectations may lead to cancellation of the visa (s.134(1)). If the visa of the primary visa holder is cancelled, the visas of the secondary visa holders must also be cancelled (s.134(4)) unless cancellation of the visa would result in extreme hardship to the secondary visa holder (s.134(5)).
13. The power to cancel a business visa under s.134(1) is discretionary but is subject to essential preconditions (s.134(9)) and is limited (s.134(2)). It is essentially preconditioned by the giving to the primary visa holder of a notice of intention to cancel within three years of activation of the visa (s.134(9)). Such a notice must set out the reasons for the intended cancellation and invite representations from the visa holder within a period of 28 days after the notice is given (s.135(1)). Any such representations must be duly considered (s.135(3)). The power is limited to the extent that it must not be exercised if the Minister is satisfied that the primary visa holder has made and intends to continue to make a genuine effort to satisfy the business expectations pertaining to the grant of the visa (s.134(2)). The Minister may take into account relevant matters when deciding whether a person has made a genuine effort (s.134(3)).
14. Nonetheless there is no obligation to exercise the discretionary power to cancel a business visa if the primary visa holder fails to satisfy the business expectations attaching to his or her visa (see Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 31 at pars 19 to 21). Following Kim there is discretion not to exercise the power to cancel a business visa even in the event that the criteria set out in paragraphs 134(1)(a) to (c) are not satisfied.
15. The terms “eligible business” and “ownership interest” are defined at s.134(10).
issues
16. A preliminary issue concerning the admissibility of evidence relating to Mr Lee’s business activities and the restaurant business he purchased after the date of visa cancellation was raised by the Respondent.
17. On the facts of this case the legislation poses five questions for determination, as follows:
(a)Was Mr Lee given a notice stating the Minister’s intention to cancel his business visa and inviting representations with 28 days after the date on which the notice was given pursuant to s.135 of the Act? And if so,
(b)Did Mr Lee obtain a substantial ownership interest in or utilise his skills actively participating at a senior level in the day-to-day management of an eligible business in Australia on or before the date of the decision to cancel his visa? And if not,
(c)Did Mr Lee make and intend to continue to make a genuine effort to obtain such an ownership and to utilise his skills in the requisite manner in an eligible business at that time? And if not,
(d)Was the decision to cancel his business skills visa the correct and preferable decision in exercise of the discretion conferred upon the decision maker by s.134(1) of the Act? And if so,
(e)Would cancellation of the secondary business visas of Mr Lee’s wife and daughter result in extreme hardship to them?
summary findings
18. Evidence concerning Mr Lee’s business activities and the restaurant business he purchased after the date on which the Minister purportedly cancelled his business visa may be taken into account insofar as it is relates to Mr Lee’s intentions and actions or events that occurred before that date.
19. Mr Lee received a notice stating the Minister’s intention to cancel his business skills visa on or about 15 August 2002. The notice was defective. However, the defective notice does not invalidate the Minister’s decision to cancel Mr Lee’s visa.
20. On 17 September 2002 representations were made on Mr Lee’s behalf in response to the Minister’s notice of intention to cancel his visa. Those representations made no reference to activities in which Mr Lee was engaged concerning a proposed pump business or the establishment of a Korean restaurant business, referring instead to Mr Lee’s purported role and shareholding in Manpreet International Trade and Tours Pty Ltd. Whatever Mr Lee’s involvement was with Manpreet International Trade and Tours Pty Ltd prior to 6 November 2002, I am satisfied that that company is not an eligible business and I am satisfied that Mr Lee’s involvement does not constitute a “substantial ownership interest” or participation in the senior management of that company.
21. Mr Lee did not obtain a substantial ownership interest in nor did he utilise his skills in the day-to-day management of an eligible business in Australia prior to 6 November 2002, the date on which his business visa was purportedly cancelled.
22. Mr Lee commenced negotiations to purchase the Asiana Restaurant business in August or September 2002, before the purported cancellation of his visa on 6 November 2002. He contracted for the purchase of the restaurant on 5 December 2002, within the three year period following activation of his business visa. He completed the restaurant purchase on or about 14 January 2003 and undertook refurbishment works thereafter.
23. The Asiana Restaurant business is an eligible business under the Act.
24. I am satisfied that Mr Lee made genuine efforts to comply with the expectations attaching to his business visa prior to its purported cancellation on 6 November 2002 and, at that time, intended to continue to make such genuine efforts. That conclusion is not disturbed by evidence that Mr Lee did not pursue his visa obligations on a consistent basis throughout the period his visa was on foot.
decision
25. It follows that pursuant to s.134(2) of the Act Mr Lee’s business visa must not be cancelled under s.134(1). This being the case, there is no power to cancel the secondary visas of Yun Ja Park and Gwi Weon Lee.
26. The decisions under review are set aside. The Applicants’ business visas should not have been cancelled and remain valid and effective.
reasons for the decision
27. Making this decision I have carefully considered all of the evidence, the submissions of the parties, the relevant case law and legislation.
evidence that was not before the primary decision maker
28. The jurisdiction of the Tribunal in relation to the review of a cancellation decision is to determine the correct and preferable decision at the time the cancellation decision was made (see Re Wong and Minister for Immigration and Indigenous and Multicultural Affairs [2002] AATA 54, Re Griffiths and Migration Agents Registration Authority [2001] AATA 240 and Freeman v Secretary, Department of Social Security (1988) 19 FCR 342). The Tribunal will have regard to all of the evidence before it and is not limited to the evidence that was before the primary decision maker, but must address the same question that was before the primary decision maker (see Hospital Benefit Fund of Western Australia v Minister for Health (1992) 111 ALR 1 at par 11).
29. One of the questions for determination before the primary decision maker in this case concerns the intention of the Primary Applicant, Mr Lee, to continue to make genuine efforts to comply with his visa obligations at the date on which his business visa was purportedly cancelled (s.134(2)(c)). It follows that evidence concerning Mr Lee’s business activities in Australia after the date of visa cancellation may be of relevance to the question of his intentions at that date. Similarly, the definition of “eligible business” is cast in current (“is”) and prospective (“will”) terms relative to the results of the business in question. It follows that evidence concerning the operation of the business after the date of visa cancellation may be relevant to the question of whether the business falls within the definition.
30. In my opinion the Tribunal is entitled to have regard to evidence concerning actions or events after the date of visa cancellation in so far as those occurrences relate to actions or events that occurred prior to the date of cancellation. Such evidence may be germane to the assessment of the genuineness of the Primary Applicant’s efforts and intentions at the date of cancellation, and to the results of the business in question relative to the terms of an “eligible business” as defined (see Re Bhyat and Minister for Immigration and Indigenous and Multicultural Affairs [2003] AATA 1051 at par 37).
defective notice of intention to cancel
31. As will appear the s.135 notice of intention to cancel Mr Lee’s business visa is defective. It was submitted on behalf of the Applicants that the defective s.135 notice invalidated the Minister’s decision to cancel their business visas. I do not agree.
32. In the Respondent’s submission the date of the notice (13 September 2002) was in error. Evidence was adduced that the notice was in fact dispatched by certified mail on 13 August 2002. Notices of the same character that were sent to the secondary visa holders in this matter are in evidence. Each of those notices is dated 13 August 2002. The Respondent contends that the proper period of notice was in fact provided from 13 August 2002, the date the notice was despatched by prepaid post.
33. Mr Lee conceded that he received the notice on or about 15 August 2002.
34. In order to address questions concerning the validity of the notice and consequent actions under the Act it is necessary to consider the relevant legislative provisions in some detail.
35. The form of an s.135 notice is not specified in its terms. However, the giving of an s.135 notice has a temporal element that is essential to the effective operation of the statutory scheme for the cancellation of a business visa. Essentially, the notice must invite the visa holder to make representations “within…28 days after the notice is given” and the visa holder may make such representations within the “time specified in the notice”. The “time specified in the notice” is essential to the calculation of the temporal limit that s.135(4) imposes on the Minister’s discretion to cancel the visa in certain circumstances (see Tio v Minister for Immigration and Indigenous and Multicultural Affairs [2003] FCAFC 53).
36. Regulation 2.55 specifies the ways in which the Minister “must” give documents to a visa holder in relation to the proposed cancellation of a visa under the Act. The regulation is mandatory. S.494A of the Act provides that if a provision of the Act or the Regulations requires the Minister to give a person a document and that section does not state that the document must be given in one of the ways set out at s.494B, or as prescribed in relation to a person in immigration detention, the Minister may give the document by any method he or she considers appropriate. Reg.2.55 makes no reference to s.494B of the Act but specifies the methods by which a document must be given in similar terms to the terms used in s.494B. There is no power to make regulations that are inconsistent with the Act (s.504). However, it is not necessary for me to reach a concluded view about any apparent inconsistency between reg.2.55 and s.494A of the Act as the matter is resolved on other grounds, as will appear below.
37. Clearly if a notice of intention to cancel is not properly given under the Act questions arise concerning its validity and the validity of action consequent upon that notice. Even if I was to find that the notice was given under s.494A or in accordance with one of the methods specified in s.494B or under reg.2.55(3), and I make no such finding, the date on which the notice was given would remain to be determined. The validity of the Minister’s notice of intention to cancel, in these proceedings, turns, at least in part, on the date on which it was given.
38. S.494A is silent on the date on which a document is given. However, if the Minister dispatches a document to a person by prepaid post, as in this case, then reg.2.55(7) specifies that the person is taken to have received the document seven working days after the date of the document. S.494C, which applies to the giving of documents under s.494B and purportedly s.494A, is in similar terms. As noted, the 28 day period specified by s.135(1)(a)(i) commences after the day on which the notice is given (Tio’s case above).
39. The validity of notice, contended by the Respondent, relies on the date of dispatch of the notice as the trigger for commencement of the seven working day period provided for by reg.2.55(7) rather than the date of the notice as specified in that regulation. That proposition is not made out. As already noted, the regulation stipulates the day on which a document, that has been given by prepaid post, is taken to have been received. It specifies that the date of the document is the trigger for commencement of the seven working day period whereupon the document is taken to have been received. In this case the date on the document is 13 September 2002 and the seven working day period would commence after that date.
40. I pause to note that the provisions applying to the means of giving a document by prepaid dispatch under s.494B and reg.2.55(3)(c) specify that the document must be dated and despatched within a period of three days thereafter. However, that did not occur in this case and no such temporal stipulation applies to the Minister’s broad power under s.494A.
41. Is there a difference, for present purposes, between the day on which a notice is given and the day on which it is deemed to have been received?
42. In common parlance a material thing is “given” when it is placed into the hands of another (Oxford English Dictionary, 2nd edition, 1989) and there is no discernible temporal difference between the giving and the receiving. The words used in the reg.2.55(7) -
“If the Minister gives a document to a person by dispatching it by prepaid post or by other prepaid means, the person is taken to have received the document…
… - 7 days after the date of the document;
…”
clearly links the act of the giving and the deemed receipt. It is clear that the action of giving precedes the deemed receipt of the document but is not concluded until receipt is deemed to have occurred. That approach is discernible in the words used in comparable parts of s.494C and in the words used in s.29 of the Acts Interpretation Act 1901 (“the Interpretation Act”). Consideration of the means by which a document may be given under reg.2.55(3) and under s.494B and pursuant to s.28A of the Interpretation Act reveals a similar construction. However, it is clear that the underlying purpose of these provisions is to specify when the act of giving takes effect and such effect does not occur until the deemed time of receipt. That time is when the item in question is “given”. On that construction it follows that the notice cannot be found to have been given on the date of its dispatch by prepaid post as contended for by the Respondent.
43. S.29 of the Interpretation Act provides that the giving of a document by post, where that is properly provided for, is taken to have been effected “unless the contrary intention appears” “at the time at which the letter would be delivered in the course of the ordinary post”. In the present case the contrary intention does appear in reg.2.55(7) and s.494C of the Act and those provisions must be applied.
44. The central question remains: when was the s.135 notice given in this case? It seems to me that there are four possibilities. First, when Mr Lee actually received the notice on or about 15 August 2002. Second, seven working days following the date of the notice (13 September 2002). Third, seven working days from the date on which the notice was actually dispatched, on which day it can be inferred that it was written and erroneously dated. Fourth, the notice was not properly given under the Act.
45. It is not necessary for me to form a concluded opinion about which of those possibilities is the correct and preferable answer and nor do I intend to do so. The existence of those possibilities serves to demonstrate the defectiveness of the notice issued by the Minister’s delegate and the consequential difficulty in determining, with certainty, the day on which the notice was given. Without clearly being able to determine the day on which the notice was given, it is not possible to calculate with certainty the 28-day period within which representations may be made. The notice is defective and cannot stand.
46. Nonetheless, in actual fact the Primary Applicant, by his own account, received the notice on or about 15 August 2002. The notice informed him that he had until 19 September 2002 to make representations about the intended cancellation of his business visa, that is a period of 35 days. Written representations were made on his behalf on 17 September 2002.
Does the defective notice invalidate the Minister’s purported decision to cancel the visa?
47. Consistent with the case of Wang v Minister for Immigration and Indigenous and Multicultural Affairs [2002] FCA 167 and the dicta of Black J concerning that case on appeal (NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 (15 August 2002) at par 37) the power to cancel a business visa is not enlivened unless the Minister has taken the essential preliminary step of issuing a notice having a particular quality. In all such cases that precondition must be satisfied. The particular quality of the notice, in this case, includes but is not limited to the provision of a period of at least 28 days from the day on which it was given during which time the visa holder may make representations in response. In this case the notice, on its face, did not provide such a period and was defective.
48. In Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 the High Court said:
“91 An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances…
…
93 …That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales…. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute"….”
49. Under s.134(1) of the Act cancellation of a business skills visa cannot proceed unless the visa holder has been given written notice and afforded a 28 day period in which to make representations. The clear legislative intention is that the visa holder should have 28 days or more in which to make representations concerning the intended cancellation (see Re Wibisono and Minister for Immigration and Indigenous and Multicultural Affairs [2004] AATA 145 and Re Prawiro and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1096).
50. In my opinion, even though the date on the notice was in error, the notice did not omit relevant information and was not misleading. It is headed “Notice of Intention to Cancel Your Visa” and makes reference to grounds for cancellation pursuant to s.134 of the Act. The notice is a notice under s.135 of the Act, albeit defective. It was, in actuality, despatched by the Minister’s delegate on 13 August 2002 and was received by Mr Lee on or about 15 August 2002. It follows that his ability to make representations within the period specified in the legislation was not impaired by the defective notice. In the circumstances, the intention of the legislation and the purpose of the operative sections were not frustrated.
51. This being so I am satisfied that the defective s.135 notice does not invalidate the action taken by the Minister’s delegate to cancel Mr Lee’s business visa. In reality, Mr Lee was provided with more than 28 days in which to make representations and representations were made on his behalf within that period. Had Mr Lee not been provided with at least 28 days in which to make representations, I would be persuaded to a different conclusion. The intention of the Act is to provide for a minimum period in which a business skills visa holder may make representations concerning the intended cancellation of his or her visa. The provision of any lesser period in consequence of a defective notice would, in my opinion, frustrate that object and intention, potentially invalidating any consequent action of the Minister to cancel a business visa in those circumstances.
s.134(1) criteria for cancellation of a business visa
52. Mr Lee conceded that he did not obtain a substantial ownership interest in an eligible business prior to 6 November 2002.
53. Nonetheless there is evidence that representations were made on Mr Lee’s behalf to the Minister’s delegate in response to the defective notice of intention to cancel his visa. In those representations it was alleged that Mr Lee had obtained a substantial ownership interest in Manpreet International Trade and Tours Pty Ltd and was actively participating in the senior management of that company. It appears that those representations were duly considered by the Minister’s delegate when deciding to cancel the business skills visas in question.
54. Confronted with the documents in T8 concerning Manpreet International Trade and Tours Pty Ltd, Mr Lee denied any knowledge of that company. He denied purchasing shares in the company and denied signing or authorising any letter or representations concerning that company to the Minister’s delegate. It would appear that Mr Lee is the registered holder of 40 shares in that company (T8 folio 49). There is insufficient evidence to make any conclusive determination concerning the validity of the share certificate.
55. Mr Lee’s evidence was that following receipt of the Minister’s notice of intention to cancel his visa, he consulted a migration agent and was advised that the agent could not assist in his case. In his submission he was subsequently given the name of another person. Mr Lee’s evidence was that he consulted a person called “Maria” who agreed to work on his case for a fee of $40,000. Mr Lee stated that he paid the fee in two cash instalments and obtained a copy of the “Maria’s” driver’s licence (Exhibit A21).
56. In the Respondent’s submission, the payment of $40,000 by Mr Lee to a purported Departmental official constitutes a bribe. However, there is insufficient evidence to determine whether the person involved was, in reality, a Departmental official or a person with any legal responsibilities in relation to migration matters, such as a migration agent. Mr Lee indicated that he paid the money because that is what he was told it would cost for the person “Maria” to take up his visa cancellation. There is no evidence before me concerning the value of the 40 shares Mr Lee purportedly purchased in Manpreet International Trade and Tours Pty Ltd. On the evidence before me I accept Mr Lee’s submission that he did not know what he could do to address the notice of intention to cancel his visa and relied on the advice of others. I accept that he paid for and relied on the advice he was given. The allegation of bribery or wrong doing on Mr Lee’s account is not made out on the available evidence.
57. I note that the representations made on Mr Lee’s behalf do not make reference to his alleged efforts and activities in relation to a proposed pump business or the establishment of a Korean restaurant business. I am satisfied that the signatures on the letter of representation (T8 folios 47-8) and the facsimile transmission sheet (T8 folio 46) under which it was transmitted to the Minister’s delegate are not Mr Lee’s signature.
58. There is insufficient evidence to reach any final conclusions about the identities of third parties with whom Mr Lee consulted. Nor is there sufficient evidence to prove that Mr Lee authorised or understood the nature of the representations that were made on his behalf. I note that he does not speak or read English.
59. Nevertheless, the information contained in the representations made on Mr Lee’s behalf was duly considered by the Minister’s delegate pursuant to s.135(3). The delegate concluded that the information was insufficient to support a conclusion that Mr Lee’s interest in Manpreet International Trade and Tours Pty Ltd was a “substantial ownership interest” or that the company was an “eligible business” or that Mr Lee was involved at a senior level in the day-to-day management of the company. I agree with that conclusion.
60. Whatever Mr Lee’s involvement in Manpreet International Trade and Tours Pty Ltd I am satisfied that it was not sufficient to satisfy his visa obligations.
61. I am satisfied that Mr Lee did not obtain a substantial ownership interest in an eligible business or participate at a senior level in the management of such a business during the period his business visa was on foot prior to 6 November 2002.
62. It follows that the s.134(1) discretion to cancel Mr Lee’s business skills visa may be exercised subject to the limits set out in s.134(2) (see Kim v Minister for Migration and Indigenous and Multicultural Affairs (above)). Questions concerning the existence of the essential preconditions applying to the discretionary power have been addressed above.
genuine effort - ownership and management of an eligible business
63. It is necessary to determine whether Mr Lee’s efforts during the period his visa was on foot prior to 6 November 2002 are within the terms of s.134(2) of the Act.
64. As will appear, considering all of the evidence I am persuaded to conclude that Mr Lee made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia and, pursuant to that acquisition, made a genuine effort to utilise his skills at a senior level in the day to day management of such a business and intended to continue those genuine efforts on and after 6 November 2002.
65. There is no limit on the relevant matters than may be taken into account when determining whether “genuine effort” of the kind referred to in s.134(2) has been made, as exemplified by s.134(3). It is to those matters I now turn.
66. It appears that Mr Lee developed two business plans concerning the development of business in Australia. The first concerned the importation of pumps and the second concerned a restaurant business specialising in Korean cuisine. I so find. The fact is Mr Lee’s original business plan to establish a pump business in Australia, and his efforts and research to that end, came to nought within the first year of his business visa in 2000. It is clear that Mr Lee’s efforts at that time did not result in any measure of business activity in consequence of which, it was submitted, he did not pursue his original business plan any further. Consequently, in the alternative, in Mr Lee’s submission, he and Mrs Park commenced planning to open or acquire a Korean restaurant business in 2001. There is evidence that Mr Lee met his accountant Mr Jonson Yoo on 28 September 2001 to discuss plans for the acquisition or establishment of a Korean restaurant business. On that evidence I accept Mr Lee’s claim that he and Mrs Park developed an unwritten business plan for a restaurant specialising in Korean cuisine in or about September 2001 and accept that it was that business plan that ultimately gave rise to their joint purchase and redevelopment of the Asiana Restaurant.
67. There is scant evidence before the Tribunal of Mr Lee’s investigations and market research prior to 6 November 2002. In Mr Lee’s submission, however, his investigations in relation to his pump business plans were conducted through personal contacts with Korean businessmen and were not documented. While that approach may accord with a Korean cultural norm I must be satisfied on the substantive evidence of the genuineness of Mr Lee’s efforts. The evidence of Mr Kum and Mr Seo appears to corroborate Mr Lee’s claims concerning his investigations in 2000 and 2001. On that evidence I accept that Mr Lee’s efforts investigating the viability of his proposed pump business were genuine.
68. Subsequently, in Mr Lee’s submission, he and his wife commenced research activities in relation to their Korean restaurant business plan after meeting with Mr Jonson Yoo in September 2001. It is alleged, that Mr Lee and Mrs Park conducted a “food tasting” of a trial Korean menu on 31 January 2002. However, Mr Lee’s travel records indicate that he was not in Australia at that time. On the evidence of alleged participants I accept that the food tasting took place for the reasons claimed and that Mr Lee may have been involved in its planning. The fact that Mr Lee was not in attendance does not lead me to conclude that the activity either did not take place or was not relevant to the development of the planned Korean restaurant business. Mr Lee asserted that he conducted informal research into Korean dishes in restaurants in South Korea. His evidence was that he would telephone Mrs Park with information about the dishes and she would experiment with ingredients in preparation of a suitable menu. Mrs Park gave evidence confirming these communications and experiments.
69. Both Mr Lee and Mrs Park asserted that they visited and assessed a number of restaurants that were advertised for sale during 2002, in Eastwood and Burwood for example. In their submission these investigations led to their identification of the Asiana Restaurant in Campsie as a potentially suitable business in or about August 2002. There is scant evidence before me to support this submission. However, I accept that such investigations could reasonably be expected to precede the purchase of such a business.
70. Much of the evidence supporting Mr Lee’s case is in the form of oral evidence without supporting documentation which, in many instances, lacks corroboration by persons other than Lee family members. It follows that little weight can be placed upon such uncorroborated evidence unless it finds support in the substantive facts arising from the whole of the material before me.
71. During the period his visa was on foot prior to 6 November 2002, Mr Lee was involved in the management of his Korean business and spent only short periods in Australia in pursuance of his visa obligations (a total of 83 days). Mr Lee visited Australia on three occasions for periods of approximately 10 days duration in February, May and August 2002 and subsequently arrived in Australia on 23 August 2002 and remained here until 24 November 2002. The evidence before me indicates that, thereafter, Mr Lee spent more time in Australia than overseas. This is consistent with his contention that he and Mrs Park commenced serious negotiations for the purchase of the Asiana Restaurant in Campsie in or about August 2002.
72. I accept Mr Lee’s evidence concerning his acquisition of the Asiana Restaurant business and find that he commenced negotiations to that end in August or September 2002 and so find. It is a fact that contracts for the purchase of that restaurant were exchanged on 5 December 2002 and the purchase, in the amount of $85,000, was finalised on or about 14 January 2002. Clearly, on this evidence, it cannot be said that his efforts to acquire the restaurant business were not genuine.
73. Mr Lee transferred amounts of money to Australia for the purpose of obtaining ownership of the Asiana Restaurant business. Mr Lee’s bank records reveal that he transferred significant amounts of money during the period his business visa was on foot prior to 6 November 2002. However, money transferred for the purchase of the Asiana Restaurant business cannot easily be distinguished from money transferred for other purposes. Nonetheless, I accept that Mr Lee transferred and expended at least $130,000 for the purchase and refurbishment of the Asiana Restaurant a significant proportion of which, at least, was transferred prior to 6 November 2002.
74. It is a fact that Mr Lee did not respond to an s.137 notice in the form of a 24 month survey form. I accept that he did not receive the notice because he was not living at his previous address but had not, at that time, informed the Department of his family’s new address. He subsequently did so and received the notice of intention to cancel his business visa at that new address.
75. Considering all of the evidence and the submissions of the parties I am satisfied to the requisite degree, on the balance of probabilities, that Mr Lee made a genuine effort to obtain a substantial ownership interest in an eligible business, and ultimately did acquire joint ownership of the Asiana Restaurant business with Mrs Park in January 2003 after a period of negotiation which commenced in August or September 2002.
76. In the Respondent’s submission the Asiana Restaurant is not an “eligible business” as defined. I do not agree. At all relevant times the restaurant was a “going concern” that operated as a business for profit (see Hope v Bathurst City Council (1980) 144 CLR 1 at par 14). In Mr Lee’s submission the restaurant business complies with s.134(10)(b) and (f), that is concerning “the creation or maintenance of employment in Australia” and “an increase in commercial activity and competitiveness within sectors of the Australia economy”. The s.134 definition requires consideration of current (“is”) and prospective (“will”) results of the requisite kind. In that regard it is appropriate to consider evidence concerning the performance of the Asiana Restaurant business after 6 November 2002. I note that the business was purchased after Mr Lee’s visa was purportedly cancelled and there is no evidence before me concerning the detailed operations of the business prior to 6 November 2002. The evidence of its operation by the Lee family in 2003 indicates that the business employs Lee family members as well as three other employees in carrying out its functions. There is some evidence that the restaurant business is growing and its turn-over is increasing. While the amount expended on salaries and wages is small and the number of employees is low it cannot be said that the restaurant has not created and maintained employment. It is reasonable to expect that if the business grows then additional employment will result. On the basis of these factors I am satisfied that the Asiana Restaurant business complies with the terms of the definition at s.134(10)(b).
77. No evidence was adduced before me concerning the economy of the region or the sector of the economy in which the restaurant operates. On the available evidence it is not possible to make a detailed assessment or quantification of the actual or likely result of the Asiana Restaurant business in terms of an increase, if any, in commercial activity and competitiveness in the region or sector of the economy in which it operates. However, at all relevant times the Asiana Restaurant was a going concern, trading and competing for customers. Under Mr Lee’s ownership the restaurant has been redeveloped and specialises in Korean cuisine. These factors are suggestive of an increase in commercial activity and competitiveness. The definition does not specify any degree of increase that is required to result from the business in order for the business to be considered an eligible business. That being so, I am satisfied that the Asiana Restaurant business is within the terms of the definition of “eligible business” and so find.
78. Did Mr Lee make a genuine effort to utilise his skills actively participating at a senior level in the day to day management of an eligible business prior to 6 November 2002? I am satisfied on the evidence that he did.
79. It is established that Mr Lee did not have an ownership interest in the Asiana Restaurant or any other eligible business in Australia on or before 6 November 2002. It is a fact that he contracted to purchase the Asiana Restaurant, which was an eligible business, on 5 December 2002 and concluded that acquisition on or about 14 January 2003. Clearly, on the evidence it cannot be said that Mr Lee actively participated in the day to day management of an eligible business prior to 6 November 2002. The simple fact is he did not. He did not have an ownership interest in an eligible business in which to participate at that time. That, however, does not preclude him from satisfying the terms of s.134(2).
80. In the Respondent’s submission Mr Lee’s efforts were not genuine or sufficient to satisfy the test set out at s.134(2) of the Act. I do not agree. S.134(2) contains three conjunctive paragraphs that require, in effect, on-going “genuine effort” on the part of a visa holder to obtain an ownership interest in an eligible business and to utilise skills in the day to day management of that business. It is not necessary to establish that a visa holder has, in actuality, obtained an ownership interest in or participated in the day to day management of an eligible business in order to satisfy the “genuine effort” test. S.134(2) must be read in relation to s.134(1). The purpose of the two sections is to preclude the decision maker from cancelling a business visa in cases where the visa holder has not in actuality satisfied one of the requirements of s.134(1) but has made and intends to continue to make genuine efforts to satisfy each of those requirements consistent with s.134(2).
81. I have concluded that Mr Lee made a genuine effort to obtain a substantial ownership interest in an eligible business prior to 6 November 2002 pursuant to an unwritten business plan he devised with Mrs Park in or about September 2001 concerning a Korean restaurant business. I am persuaded that Mr Lee also made a genuine effort to utilise his skills actively participating in the day to day management of that business.
82. In relation to that issue it is necessary to consider the steps Mr Lee took to establish the Asiana Restaurant business. I am satisfied that the original concept of establishing a Korean restaurant business was discussed with Mr Lee’s accountant in September 2001. There is scant evidence of Mr Lee’s intended role in that restaurant business at that time. Evidence of his ultimate role and involvement in that business once established in 2003 was placed before the Tribunal. That evidence is germane to Mr Lee’s intentions prior to 6 November 2002.
83. I accept Mr Lee’s evidence that he was actively involved in the planning of the Korean restaurant business and that his efforts in that regard were genuine. His claimed involvement in the identification and assessment of potentially suitable business premises is open on the evidence and it is more likely than not that he actively pursued the acquisition of the Asiana Restaurant on his return to Australia on 23 August 2002. Mr Lee’s evidence that he changed his Korean business arrangements in June 2002 in order to concentrate on the development of his Australian business interests was not disturbed in cross examination or by evidence to the contrary. Mr Lee’s travel records indicate that he has spent more time in Australia than overseas since August 2002. These factors are persuasive of his genuine efforts and intentions with regard to the establishment of the planned Korean restaurant business at the requisite time.
84. Mr Lee’s claims concerning his day to day management role in the business, perhaps unsurprisingly, find support in the statements of other family members. The evidence indicates that Mr Lee works in the restaurant six days per week when he is in Australia, especially in front of house duties including receiving payments from customers and placing advertisements in the Korean press. I accept that he is also involved in other operational duties such as cooking and purchasing supplies and stores from time to time. Essentially, the evidence suggests that Mr Lee and Mrs Park manage the business together and he is actively involved in that management on a day-to-day basis. I so find. It must be accepted that the business is not a large corporation or a multifaceted business that requires a complex hierarchical management structure. I accept Mrs Park’s evidence that she is able to cope with operational matters during Mr Lee’s absences overseas, but that they confer daily about operational matters, management decisions and business issues during such absences. Mr Lee’s evidence is that he and his wife have previous involvement in the restaurant industry in Korea and that he maintains an active interest in his Korean pump business. If that is the case, and I have no reason to doubt it, the continuance of Mr Lee’s business interests in Korea does not disturb the genuineness of his efforts in relation to developing and managing his Australian restaurant business prior to and after the day on which his business visa was purportedly cancelled.
85. I am persuaded to conclude that during the period his business visa was on foot prior to 6 November 2002 Mr Lee made a genuine effort, in the first instance, to develop a pump business and, in the second instance, to establish a Korean restaurant business in which he could utilise his skills actively participating in the day to day management and development of the business. That effort was in pursuance of an unwritten business plan he and Mrs Park agreed upon in September 2001 and resulted in the purchase and redevelopment of the Asiana Restaurant as a Korean restaurant which Mr Lee subsequently managed on a day to day basis with Mrs Park.
86. I am satisfied that Mr Lee made a genuine effort to comply with his visa obligations to obtain an eligible business and to utilise his skills in the day to day management of that business prior to 6 November 2002, and that he intended to continue to make such genuine effort thereafter. I accept that Mr Lee did not make a genuine effort on a consistent basis throughout the period his visa was on foot. However, the test to be applied does not concern the consistency of effort but goes to whether the effort was genuine and prospectively ongoing. I am satisfied that Mr Lee’s claims that his efforts were genuine and his intentions were on-going in relation to his acquisition and active participation in the management of an eligible business are made out on the evidence.
87. It follows that Mr Lee’s visa must not be cancelled pursuant to s.134(1) and I so find.
88. That being the case, it is not necessary for me to determine whether the s.134(1) discretion not to cancel Mr Lee’s visa should be exercised. I note, however, if I had found differently in relation to s.134(2) or was wrong in that regard I would be persuaded on the evidence before me to conclude that it would not be appropriate to exercise the discretion to cancel Mr Lee’s visa and that it would be appropriate to exercise the underlying discretion not to cancel his visa in the circumstances.
conclusion
89. Mr Lee received a defective s.135 notice of intention to cancel his business visa. That notice did not impede the intention of the Act to provide Mr Lee with 28 days in which to make representations. As such the defective notice did not invalidate the Minister’s subsequent action. Mr Lee did not obtain a substantial ownership interest in an eligible business prior to 6 November 2002, in consequence of which the discretion to cancel his business visa may be exercised subject to the limit on that power set out at s.134(2) of the Act. Pursuant to that subsection I find that Mr Lee made a genuine effort to obtain a substantial ownership interest in an eligible business and to utilise his skills in the day to day management of that business prior to 6 November 2002. His intention to continue to make such genuine efforts is supported by his subsequent purchase and active participation in the management of the Asiana Restaurant, which is an eligible business. I am satisfied that Mr Lee’s efforts pursuant to his business visa comply with each of the conjunctive requirements of s.134(2) of the Act. It follows that Mr Lee’s business skills visa must not be cancelled pursuant to s.134(1) of the Act.
90. That being the case there is no power to cancel the secondary business visas of Mrs Yun Ja Park and Gwi Weon Lee. It is not necessary for me to determine questions concerning the likelihood of extreme hardship being caused to any of the secondary visa holders in consequence of cancellation of their visas.
91. The decisions under review are set aside and the business skills visas of Chin Wook Lee, Yun Ja Park and Gwi Weon Lee remain valid and effective.
I certify that the 91 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member
Signed: A. Krilis
AssociateDate of Hearing 25 November 2003 & 5 March 2004
Date of Decision 30 April 2004
Solicitor for the Applicant Mr M. Chahoud
Solicitor for the Respondent Ms S. Goodman
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