Lie and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 159
•18 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 159
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/143
GENERAL ADMINISTRATIVE DIVISION ) Re MARSUDI SINGGIH LIE Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal MS N BELL, Member Date18 February 2004
PlaceSydney
Decision The decision under review is set aside and in substitution therefor the Tribunal decides that the Applicant’s visa should not have been cancelled.
[Sgd] MS N BELL, Member
CATCHWORDS
IMMIGRATION – subclass 127 business visa cancelled – visa cancelled on basis that Applicant had not obtained a substantial ownership share in an eligible business in Australia and had not utilised his skills by actively participating at a senior level in the day to day management of the business- Applicant involved in two businesses in Australia – the business Ozindo Spice an ‘eligible business’ – the Applicant did utilise his skills in actively participating at a senior level in the day to day management of Ozindo Spice – Applicant’s visa should not have been cancelled - decision set aside
Migration Act 1958 section 134
Tang v Minister for Immigration and Multicultural Affairs [2000] AATA 997
Huang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 656
Harlim v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 767
Lau v Minister for Immigration and Multicultural Affairs [2002] AATA 703
Purnama v Minister for Immigration and Multicultural Affairs [2002] AATA 237
Greenstein v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AAT 18
Tai v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 57
Ng v Minsiter for Immigration and Multicultural and Indigenous Affairs [2003]AATA 299
Wong and Minister for Immigration and Multicultural Affairs [2002] AATA 54
Dhanjal and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1120
REASONS FOR DECISION
18 February 2004 MS N BELL 1. Marsudi Singgih Lie (”the Applicant”) is a citizen of Indonesia, and is currently Managing Director of a chain of eight noodle restaurants, owned by his family, in Indonesia known as Bakmi GM. He was granted a subclass 127 business visa on 27 August 1999. His wife and three children were also granted secondary visas. At the time of the grant of the visa the Applicant was General Manager, Operational of his family’s restaurant chain. The Applicant first entered Australia on his visa on 6 September 1999.
2. The Respondent decided on 30 December 2002 to cancel the Applicant’s business visa on the basis that he had not obtained a substantial ownership share in an eligible business in Australia and had not utilised his skills by actively participating at a senior level in the day to day management of that business. These objections stem from the terms of section 134 of the Migration Act 1958 (“the Act”) which provides relevantly:
"134 - Cancellation of business visas
(1)Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australia visa, an investment-linked visa or a family member's visa), by written notice given to its holder, if the Minister is satisfied that its holder:
(a) has not obtained a substantial ownership interest in an eligible business in Australia; or
(b) is not utilising his or her skills in actively participating at a senior level in the day-to-day management of that business; or
(c) does not intend to continue to:
(i) hold a substantial ownership interest in; and
(ii) utilise his or her skills in actively participating at a senior level in the day-to-day management of;
an eligible business in Australia.
(2)The Minister must not cancel a business visa under subsection (1) if the Minister is satisfied that its holder:
(a)has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and
(b)has made a genuine effort to utilise his or her skills in actively participating at a senior level in the day-to-day management of that business; and
(c) intends to continue to make such genuine efforts.
(3)Without limiting the generality of matters that the Minister may take into account in determining whether a person has made the genuine effort referred to in subsection (2), the Minister may take into account any or all of the following matters:
(a) business proposals that the person has developed;
(b) the existence of partners or joint venturers for the business proposals;
(c)research that the person has undertaken into the conduct of an eligible business in Australia;
(d)the period or periods during which the person has been present in Australia;
(e)the value of assets transferred to Australia by the person for use in obtaining an interest in an eligible business;
(f)the value of ownership interest in eligible businesses in Australia that are, or have been, held by the person;
(g) business activity that is, or has been, undertaken by the person;
(h)whether the person has failed to comply with a notice under section 137;
(i)if the person no longer holds a substantial ownership interest in a particular business or no longer utilises his or her skills in actively participating at a senior level of a day-to-day management of a business:
(i)the length of time that the person held the ownership interest or participated in the management (as the case requires); and
(ii)the reasons why the person no longer holds the interest or participates in the management (as the case requires).
….
(4)Subject to subsection (5) and to section 135, if:
(a)the Minister cancels a person’s business visa under subsection (1) or (3A); and
(b)a business visa is held by another person who is or was a member of the family unit of the holder of the cancelled visa; and
(c)the other person would not have held that business visa if he or she had never been a member of the family unit of the holder of the cancelled visa;
the Minister must cancel the other person’s business permit or business visa by giving written notice to that person.
(5)The Minister must not cancel the other person's business visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person.
…
(10) In this section:
business visa means:
(a) a visa included in a class of visas, being a class that:
(i) has the words "Business Skills" in its title; and
(ii) is prescribed for the purposes of this paragraph; or
(b) a visa:
(i)to which a prescribed provision of the Migration Reform (Transitional Provisions) Regulations applies; and
(ii)that is of a kind prescribed for the purposes of this paragraph; or
(c)a return visa that is granted to a person who is or was the holder of a business permit or business visa;
that is or was granted on or after 17 February 1992.
designated investment has the meaning given by the regulations.
eligible business means a business that the Minister reasonably believes is resulting or will result in one or more of the following:
(a) the development of business links with the international market;
(b) the creation or maintenance of employment in Australia;
(c) the export of Australian goods or services;
(d)the production of goods or the provision of services that would otherwise be imported into Australia;
(e) the introduction of new or improved technology to Australia;
(f)an increase in commercial activity and competitiveness within sectors of the Australian economy.
established business in Australia visa means a business visa a criterion for whose grant:
(a) relates to the applicant having an established business in Australia; or
(b)is that the applicant is a member of the family unit of the holder of a visa a criterion for whose grant is as mentioned in paragraph (a).
family member's visa means a business visa held by a person:
(a)who is or was a member of the family unit of another person who held a business visa; and
(b)who would not have held the business visa if he or she had never been a member of the family unit of the other person.
investment-linked visa means a business visa a criterion for whose grant:
(a) relates to the holding of a designated investment; or
(b)is that the applicant is a member of the family unit of the holder of a visa a criterion for whose grant is as mentioned in paragraph (a).
member of the family unit has the meaning given by the regulations.
ownership interest, in relation to a business, means an interest in the business as:
(a) a shareholder in a company that carries on the business; or
(b) a partner in a partnership that carries on the business; or
(c) the sole proprietor of the business;
including such an interest held indirectly through one or more interposed companies, partnerships or trusts.
relevant designated investment, in relation to an investment-linked visa (other than a family member's visa), means the designated investment that was, in deciding to grant the visa, regarded as satisfying the criterion referred to in paragraph (a) of the definition of investment-linked visa.
return visa has the same meaning as in the regulations.”
3. Therefore the issues to be considered in these applications are:
a)Whether the Applicant has obtained a substantial ownership interest in an eligible business in Australia; and
b)If so, whether he has utilised his skills in actively participating at a senior level in the day to day management of the business; and
c)If a) or b) are answered in the negative, whether the Applicant has made a genuine effort to do a) and b) above.
4. It is not in dispute that in November 2000 the Applicant established a company, Grow More Pty Ltd (“Grow More”), of which he had a 80% interest, to purchase flour in Australia and export it to Indonesia for use in his family’s business and for sale to other businesses in Indonesia. A purchase order to the value of $69,230.00 issued in August 2001 through a broker failed due to an anti-dumping duty being proposed by the Indonesian Government. Two more orders to the value of $77,000.00 in January 2002 also failed after fraud by the broker concerned. Finally an order was filled in September 2002 but the shipment was not released by the Indonesian authorities until November 2002 due to the composition of the flour. A further order in January 2003 was cancelled but other orders were exported in May 2003 and July 2003. There have been no further orders since July 2003 but the Applicant expects to make another order in March 2004. The Applicant conceded that, before he established Grow More his family’s restaurants already used Australian flour and there is a monopoly on it’s import into Indonesia. To this extent the business of Grow More was beneficial to his Indonesian business.
5. In early 2002 the Applicant was invited to join in the purchase of a restaurant in Balmain, Sydney called Spice Forest. He visited the restaurant in March 2002 with another interested person, took part in meetings and discussions in July and August 2002 and commissioned a business plan in November 2002. On 21 November 2002, a company, Ozindo Spice Pty Ltd (“Ozindo”) was incorporated in order to purchase the restaurant. The Applicant took a 20% share in Ozindo, which purchased the restaurant in December 2002 for $90,200. He made an initial capital contribution of $25,000 and a further contribution of $30,000 in March 2003.
6. The restaurant employs two chefs, one kitchen hand and two waiters. The Applicant said he spends approximately 30 minutes three times per week considering ways in which to expand and improve the business of the restaurant. He has a monthly meeting with fellow shareholders and telephones the restaurant twice per week to inquire as to its progress and operations. He has instructed the manager of the restaurant to telephone him whenever a problem arises and this generally occurs about once per month. The Applicant said he is the only shareholder who has any experience in the restaurant business. He said he has responsibility for the following areas of operation:
§ Coordinating the menu, including reviewing the menu every three months and making changes based on those reviews;
§ Ensuring the quality of the food;
§ Ensuring the restaurant is adequately staffed with competent people, finalising recruitment and encouraging long term employment; and
§ Overseeing business expansion and growth.
7. However, he said that Lucy, the wife of one of the shareholders undertakes the day to day management of the restaurant and he acts in a consultant capacity.
8. During the period between the grant of the Applicant’s visa and its cancellation, the Applicant spent 42 days in Australia.
Has the Applicant obtained a substantial ownership interest in an eligible business in Australia?
9. The term “eligible business” is defined in section 134(10) of the Act as including a business that will result in the development of links with the international market or the export of Australian goods or services.
10. There is no dispute that the business of Grow More is to export Australian flour to Indonesia. However, it has done so successfully on only two occasions since its registration in November 2000. I am not satisfied that Grow More is a commercial enterprise in the nature of a going concern or that it has engaged in its activities for the purpose of profit on a continuous and repetitive basis (see Hope v Bathurst City Council (1980) 141 CLR 1). I am also mindful that the materials exported by it to Indonesia are raw materials for use by the Applicant’s Indonesian business. This detracts from a conclusion that its business was engaged in for profit rather than for the provision of raw materials for the Applicant’s Indonesian business. I cannot conclude that Grow More is an eligible business within the meaning of section 134(10) of the Act.
11. However, the term “eligible business” is also defined in section 134(10) as including a business that will result in the creation or maintenance of employment in Australia.
12. There is no dispute that the restaurant owned by Ozindo Spice employed five people at the time of its purchase in December 2002 and continues to do so. On this basis Ozindo Spice, as owner of the restaurant, is an eligible business.
13. As to whether the Applicant has a substantial ownership share in Ozindo Spice, while the business and assets of the company are limited, a 25% share of a business is a substantial ownership interest; the word “substantial” in section 134(1)(a) of the Act relating as it does to the words “ownership interest” rather than to the words “eligible business”.
14. It follows, then, that the Applicant has obtained a substantial ownership interest in an eligible business in Australia.
Is the Applicant utilising his skills in actively participating at a senior level in the day to day management of the business?
15. I had regard to the decisions of the Tribunal in Tang v Minister for Immigration and Multicultural Affairs [2000] AATA 997, Huang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 656, Harlim v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 767, and Lau v Minister for Immigration and Multicultural Affairs [2002] AATA 703. I was also referred by the Respondent to the Tribunal’s decisions in Purnama v Minister for Immigration and Multicultural Affairs [2002] AATA 237, Greenstein v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 18 and Tai v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 57.
16. In Tang (supra) Deputy President McMahon said:
“ 21. … it is certainly clear that Mr Tang has not used his skills in the day-to-day management of that business. Clearly the type of remote association which he has had with Tiproll Pty Limited is not the type of activity contemplated by the statute as appropriate for holders of visas of this type. From its language and from the visa conditions, it is apparent that the Act is intended to benefit business owners who settle here and actively manage that business.”
17. The circumstances in Tang (supra) contrast with the circumstances of this application as in the present application the business in question is an eligible business, within the meaning of the Act. That was not the case in Tang.. However, the Applicant has not settled in Australia and has spent very little time here. His evidence was that he intends, ultimately, to migrate to Australia but must first deal with a number of issues relating to the family’s business in Indonesia. His estimate was that this would take some four to five years.
18. In Huang (supra) Deputy President Muller (as he now is) said:
“ 12.Not only must the eligible business operate in Australia to comply with the Act, the visa holder must participate at a senior level in the day-to-day management of the Australian business in Australia, albeit with trips overseas from time to time.”
19. In the present application, the business owned by Ozindo Spice operates in Australia as an eligible business. However, the Applicant’s participation in day to day management does not, generally, take place in Australia.
20. In Harlim (supra) the Tribunal said:
“29. Section 134(1)(b) refers to whether the visa holder is utilising his or her skills in actively participating at a senior level in day-to-day management of that business. For business such as Vanwin, the day-to-day management involved in developing an export market for Australian metering systems will involve personal representations in Indonesia, securing orders and facilitating the provision of technical support by Energex. The Tribunal accepts the applicant's evidence and Dr Chan's evidence, that the applicant has substantial experience in Indonesia and has applied his knowledge and contacts consistently and continuously in actively promoting the business plan developed by Energex.
30. In Hope v Bathurst City Council (1980)144 CLR 1 the Court held that carrying on a business denotes activities for the purpose of profit undertaken on a continuous and repetitive basis, even if the business is conducted in a small way. Therefore the Tribunal finds that the relatively small turnover reported by Vanwin does not necessarily prevent the applicant from satisfying the indicators in MSI N°133. It is clear that the management of Vanwin is undertaken almost entirely by the applicant on behalf of the company, so the Tribunal finds that he participates at a senior level and s134(1)(b) does not apply.”
21. In Lau (supra) the Tribunal said:
“33. The day-to-day management of a company like Corcom, involved in developing an export market for Australian grocery goods in South East Asia, will involve researching products, securing orders and suppliers, transacting shipping. It will also involve ideas and planning. This is clearly evidenced by the applicant's activities in this case. The applicant had substantial commercial experience in Malaysia on which to develop Corcom as an export vehicle for sale of Australian goods into Asia. He developed Australian contacts through the proposed venture with Unipole and (T22, exhibit A31). While some of the activities undertaken by the applicant might be viewed as unsophisticated, there is nothing to suggest that they were inappropriate for the nature of the proposed business. The activities relied on the applicant's considerable experience directly in this field in the Asian market and on his business acumen. There may not be extensive notes, or records of activity occurring every day. As Ms McKenzie submitted, the diary notes showed only entries 30 days. However, the use of the term day-to-day management does not require that that activity be recorded every day, and the input at a senior level by someone of the experience of the applicant will often be intangible.
34. The Tribunal is satisfied that the applicant has substantial commercial experience in the field and has applied his knowledge, contacts and business acumen consistently and continuously in the development of Corcom's business. The Act requires that the focus be on participating at a senior level in the day-to-day management of that business. This does not require that comparison be made with senior levels of management in another business or in business generally. It is clear that the management of the Corcom is almost entirely undertaken by the applicant on behalf of the company: he is its senior management. The Tribunal is, therefore, not satisfied of the matters set out at s134(1)(b); that is, that he is not utilising his skills in actively participating at a senior level in the day-to-day management of Corcom.”
22. In this case the Applicant has relevant and extensive experience at a senior level in the restaurant industry and I accept his evidence that he spends time in relation to the restaurant, problem solving, planning and reviewing performance. He does not engage in routine management of the restaurant, with the possible exception of human resources matters, but that would not be appropriate to a manager of his status and experience. His skills and experience are at the senior level of management.
23. In the decision of Deputy President Wright in Ng v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 299 the Deputy President said:
12. The question whether or not an individual is participating in the day to day management of a business in Australia involves two principal issues:
(1) To be carrying on a "business" it must be shown that the relevant undertaking is a commercial enterprise in the nature of a going concern involving activities being pursued for the purpose of profit on a continuous and repetitive basis (Hope v Bathurst City Council (1980) 144 CLR per Mason J at p.89). See also Tang and Minister for Immigration and Multicultural Affairs (2000) AATA 997 at paragraph 20; Huang and Minister for Immigration and Multicultural Affairs (2002) AATA 656 at paragraph 11; Ong and Minister for Immigration and Multicultural Affairs (supra) at paragraph 34(a).
(2)The relevant business must be carried on "in Australia". See Huang (supra) at paragraph 12 and Ong (supra) at paragraph 29 - 33 where Senior Member M D Allen said:
"29. At the outset the question arises whether the applicant was participating in the business in Australia. In Re Huang and Minister for Immigration and Multicultural and Indigenous Affairs (2002) AATA 656, Senior Member Muller a she then was said at paragraph 12:
´Not only must he eligible business operate in Australia to comply with the act, the visa holder must participate at a senior level in the day-to-day management of the Australian business in Australia, albeit with trips overseas from time to time.'
30. The applicant submitted that it was not necessary for the applicant to participate in the business in Australia and this submission received some support from the decision of Deputy President McMahon in Re Tang and Minister for Immigration and Multicultural and Indigenous Affairs (2202) AATA 997 where at paragraph 25 he said:
´There is no evidence that the applicant actively participates at a senior level from overseas.'
31. Reference can be made to the Second Reading Speech of the Minister for Immigration introducing the Migration Amendment Bill (No 2) 1992 which introduced the new section 134 into the Migration Act 1958. It is clear from that speech (Hansard, House of Representatives, 7 May 1992 at p2678) that it was understood that migrants who arrived in Australia on a business skills visa would remain resident in Australia, That such a purposive interpretation of the legislation can be adopted cannot be doubted: see Spiegleman CJ in Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc & Others 48 NSWLR 548 at 575:
´The Australian law of statutory interpretation requires a court to consider context in the first instant, not merely after ambiguity is identified ...' (and see the authority cited at 575-6)
31. I am therefore satisfied that Senior Member Muller in Re Huang was correct and it is the business activities of the applicant in Australia that must be examined, not his business activities whilst he is residing overseas.
32. In this matter it is clear that the applicant did not exercise his skills in actively participating at a senior level in the day-to-day management of an eligible business in Australia at the time of cancellation of his visa."
12. This does not mean that the visa holder is confined to working within the geographical limits of Australia. Obviously overseas trips may be a vitally important part of fostering and expanding the business. However the Act does not contemplate an absentee entrepreneur directing operations from afar. Direct "hands on" involvement within the Commonwealth of Australia is essential. A business skills visa carries with it the right of permanent residency in Australia during its existence and by departing from Australia and joining family members as secondary applicants they too can obtain this privilege. It would be strange indeed if an overseas entrepreneur could secure these advantages by directing business operations from abroad within a day or two of his first arrival and never setting foot in this country again.”
24. I also had regard to the decision of Deputy President Handley in Wong and Minister for Immigration and Multicultural Affairs [2002] AATA 54 in which the Deputy President found that an applicant, experienced in business in Hong Kong, who had not visited Australia other than for a holiday, was nevertheless making a genuine effort to utilise her skills in the management of the relevant business in satisfaction of section 134(2)(b) of the Act.
25. In Dhanjal and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1120 the Tribunal said:
“82. During the relevant period Mr Dhanjal only spent 3½ months in Australia and he spent the rest of time in Kenya.
83. I accept that the very nature of an export business requires a significant part of the business, especially marketing, to take place overseas. The requirement to be overseas is inherent in the nature of such a business. There is no bar in the legislation to a visa holder being overseas as long as they are managing the business in Australia.
84. Mr Turner submitted that it was not necessary for Mr Dhanjal to participate in the business while physically present in Australia. While there is nothing in the Act precluding an applicant from travelling overseas, it was held in Re Tang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 997 at paragraph 21:
"The Act is intended to benefit business owners who settle here (in Australia) and actively manage that business. "
85. Mr Turner's submission however does receive some support in Re Tang where, at paragraph 25, the Tribunal considered whether there had been active participation in the business from overseas.
86. As to whether a visa holder must participate at a senior level in the day-to-day management of the Australian business in Australia I also considered Re Huang where the Tribunal said:
"Not only must the eligible business operate in Australia to comply with the Act, the visa holder must participate at a senior level in the day-to-day management of the Australian business in Australia, albeit with trips overseas from time to time. (My emphasis)"
87. In Re Huang however all of the company's business transactions had been organised from Taiwan. For most of the transactions, Mr Huang had "attached himself" to other companies which have had exclusive rights to market the products he has dealt with. In this case however Mr Dhanjal had arranged his partner Sandeep to transmit orders to Jasdip in Australia because he, Mr Dhanjal, does not know how to use a computer. Jasdip then conveyed the orders on behalf of DMW. Another feature of Huang was that the company operated on a "revenue neutral" basis and hence was found not to be a business according to Hope v Bathurst City Council. In this case, DMW operated profitably in the relevant period and this profit was increased in the subsequent financial year.
88. The Tribunal in Ong also was of the view that the business activities that must be examined are those in Australia. In that case, however, the Tribunal had already decided that the applicant had not, by the relevant date, obtained a substantial ownership interest in an eligible business. Having come to that decision, it is difficult to see how the Tribunal could have come to a view other than that the applicant was not utilising his skills in actively participating at a senior level in the day-to-day management of an eligible business. Furthermore in that case there appeared to be little evidence of business endeavours at all before the visa was cancelled. This therefore is quite different to Mr Dhanjal's situation.
89. Further, I do not accept that the Second Reading Speech (introducing the Bill amending section 134(1)(b) of the Act; Migration Amendment Bill (No 2) 1992) was quite as clear as was suggested in re Ong, namely that business activities must be in Australia.
…
91. Ms Goodman submitted that because Mr Dhanjal retained substantial business interests in Kenya this was a further indication of his business efforts being expended in respect of those businesses, and not DMW. Mr Dhanjal stated that he has been attempting to sell his assets in Kenya. Although there is only one letter attesting to this, I accept Mr Dhanjal's evidence as to his attempts. There was evidence from all family members of the deteriorating economic and social situation in Kenya and I find Mr Dhanjal's intention to dispose of his assets there before finally leaving (as have many members of his extended family) to be entirely reasonable. This differs from the applicants in Re Huang and Re Tang who apparently were making no efforts whatsoever to sever financial ties with their country of origin.
92. I therefore find that Mr Dhanjal was utilising his skills in actively participating at a senior level in the day-to-day management of an eligible business in Australia.
93. I also find that Mr Dhanjal intends to continue to hold a substantial ownership interest in, and utilise his skills in actively participating at a senior level in the day-to-day management of an eligible business in Australia.”
26. I agree with the views expressed in Dhanjal (supra) that the Second Reading Speech (introducing the Bill amending section 134(1)(b) of the Act; Migration Amendment Bill (No 2) 1992) does not clearly indicate that business activities must take place in Australia. I am mindful of the Applicant’s evidence of his intention to ultimately settle in Australia once his Indonesian business allows that. I accept that he has begun a process, albeit a long term one, of extricating himself from the family business in Indonesia. I also note the Applicant’s undisputed evidence that he owns a house in Burwood, Sydney, purchased in 1994 and currently occupied by a friend.
27. I accept that the Applicant’s intention has been, since he applied for his visa, to open a restaurant in Australia similar to the restaurants he operates in Indonesia (see application for visa, p.41 of Exhibit A2). I also accept that the Applicant decided to trial a restaurant not affiliated with his Indonesian business first but became somewhat distracted from this purpose by his activities with Grow More. I do not consider that the registration of Ozindo and its purchase of the restaurant in Balmain was prompted solely by the impending cancellation of his visa, given that the Applicant first visited the restaurant in March 2002 and met with his fellow shareholders and engaged in planning and negotiation throughout the year. In this respect I consider that he utilised his skills and experience in the preparation for the purchase of the restaurant throughout most of 2002.
28. It is problematic that the restaurant was only purchased, and then only began to be managed by the Applicant, a very short time before the cancellation of his visa because it follows that the Applicant was utilising his skills in actively participating in the management of the restaurant for a very short period before the cancellation of his visa. However, I am mindful that the Applicant actively participated in the inspections, deliberations and negotiations leading up to the purchase of the restaurant and that he has played an active role in the management of the restaurant to the present time. Events and the activities of the Applicant following the time of the cancellation of his visa can only be taken into account by the Tribunal to the extent that they shed light on the circumstances as they stood at the time of the cancellation. I consider that the Applicant’s continued active participation in the management of the restaurant to date indicates a commitment to its development and success at the time of its purchase by Ozindo.
29. It was submitted on behalf of the Applicant that he “wasted time” in the two years after the grant of his visa, on the Grow More enterprise. I agree that this is the case. However, he brought to fruition, with his fellow shareholders, the work he had done throughout 2002 in preparation for the purchase of the restaurant.
30. For these reasons I consider that the Applicant did, at the relevant time, utilise his skills in actively participating at a senior level in the day to day management of the business.
31. I therefore consider that section 134(1)(a) and (b) do not apply and, given the absence of any evidence that the Applicant does not intend to continue with his ownership and management of the restaurant, section 134(1)(c) similarly does not apply. Therefore the Applicant’s visa should not have been cancelled.
Decision
32. The decision under review is set aside and in substitution therefor the Tribunal decides that the Applicant’s visa should not have been cancelled.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of MS N BELL
Signed: A. Krilis Associate
Date/s of Hearing 27 January 2004
Date of Decision 18 February 2004
Counsel for the Applicant Nick Poynder
Solicitor for the Applicant Margaret Tan and Associates
Solicitor for the Respondent Jodie Maurer
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