Legana v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 1166

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1166

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   W2004/132

GENERAL ADMINISTRATIVE DIVISION		)
Re		NORMAN LEGANA

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms L Savage Davis, Member
Ms L Tovey, Member

Date24 November 2005  

PlacePerth

Decision The Tribunal affirms the decision under review.

(sgd) Linda Savage Davis.

Member

CATCHWORDS

MIGRATION - business skills visa subclass 127 - cancellation of visa - applicant's failure to obtain a substantial ownership interest in an eligible business in Australia - active participation in day to day management at a senior level of business - whether genuine effort made - discretion not to cancel visa

Migration Act 1958 s134 and s137

Migration Series Instructions 133

Wong v Minister for Immigration and Multicultural Affairs [2002] AATA 54

Lau v Minister for Immigration and Multicultural Affairs [2002] AATA 703

Hope v Bathurst City Council (1980) 144 CLR 1

Jo v Minister for Immigration and Indigenous Affairs [2004] AATA 77

Ng v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 299

REASONS FOR DECISION

Ms L SAVAGE DAVIS
Ms L TOVEY         

1. This is an application by Mr Norman Legana (the applicant) for a review of a decision dated 24 March 2004 by the Minister for Immigration, Multicultural and Indigenous Affairs, (the respondent), to cancel the business visa issued to the applicant pursuant to section 134 of the Migration Act 1958 (the Act).

2. At the hearing Mr Legana was represented by Mr M Rothstein of M Rothstein and Co., Lawyers and Migration Agents. The respondent was represented by Mr Arran Gerrard of the Australian Government Solicitor. The Tribunal was assisted by Ms Jeane Kongras an interpreter of the Indonesian language. The Tribunal had before it the T- documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (T1 – T 36 / 1 – 568).  In addition the Tribunal had before it the following documents which were marked as follows;

Exhibit A1 – The Applicant’s Statement of Facts and Contentions filed 23 August 2004.

Exhibit A2 – Witness Statement of Norman Legana dated 20 August 2004 and Supplementary Witness Statement of Norman Legana dated 20 September 2005 with Attachments A to H.

Exhibit A3 – Applicant’s Submissions dated 20 September 2005.

Exhibit R1 – The Respondent’s Statement of Facts and Contentions filed 7 October 2004

Oral evidence was given by the applicant Mr Norman Legana, Mr Peter Nichols and Mr Clark Johnson.

3.      By way of background the Tribunal notes that on the 15^th of October 2000 the applicant was granted a sub-class 127 business skills visa and first entered Australia on 26 November 2000. On 20 September 2002 the applicant was sent the standard “Survey of Business Skills Migrant – 24 month” survey form. The applicant provided a response dated 16 December 2002 advising him of his interest in Gumano Proprietary Limited (Gumano) which was involved in exporting Australian hide products. The respondent in…