Lim and Ors and Minister for Immigration and Citizenship
[2008] AATA 1149
•17 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1149
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5894-5897
GENERAL ADMINISTRATIVE DIVISION ) Re POH YEOH LIM
HEOK LIM
JUNBIN TAN
JUNYEN TANApplicants
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Mr A Sweidan, Senior Member Date17 December 2008
PlacePerth
Decision The Tribunal affirms the decisions under review
.....(sgd) Mr A Sweidan................
Senior Member
CATCHWORDS
IMMIGRATION - cancellation of business skills visa of primary applicant due to non-compliance with visa requirements - whether applicant complied - whether genuine effort made - whether secondary applicants would suffer extreme hardship due to visa cancellation
LEGISLATION
Migration Act 1958, s.134
CASES
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 344
Buljeta v Minister for Immigration and Multicultural Affairs [2003] AATA 10
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634
Re Yam v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283
Re Dainty and Minister for Immigration and Ethnic Affairs (1996) AAR 259
Leo v Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 309
Re Lok Yung (Michael) Wong v Minister for Immigration and Multicultural Affairs [2006] AATA 277
Abbu and Minister for Immigration and Multicultural Affairs [2006] AATA 898
Hook and Minister for Immigration and Citizenship [2007] AATA 1798
Gunawan and Minister for Immigration and Multicultural Affairs [2006] AATA 852
Yam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283
McAlpin and Minister for Immigration and Citizenship [2008] AATA 109
Koosasi and Minister for Immigration and Multicultural Affairs [2006] AATA 179
Ng and Minister for Immigration & Multicultural & Indigenous Affairs [2003] AATA 299
Kim v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCA 31
Reed and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 335
Re Chin Lai and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 152
Dharsiono and Minister for Immigration and Multicultural Affairs [2006] AATA 786
Gunawan and Minister for Immigration and Citizenship [2007] AATA 1110
Lim and Anor and Minister for Immigration and Multicultural Affairs [2007] AATA 1036
Teng and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 715
Nagaria and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 579
Badenhorst and Minister for Immigration and Multicultural Affairs [2006] AATA 742
Padilla and Minister for Immigration and Multicultural Affairs [2006] AATA 922
Tauriandy and Minister for Immigration and Multicultural Affairs [2006] AATA 183
Jo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 469
Haryanto and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 317
Teo v Minister for Immigration and Citizenship [2007] AATA 118
Haman and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1113
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273)
Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481
Siwei Wang v Minister for Immigration and Multicultural Affairs [2000] AATA 961
Salim and Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899
Gilani v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1149
Setiawan & Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 260
Andri v Minister for Immigration and Citizenship [2007] AATA 1375
Dawsonv Minister for Immigration and Citizenship [2007] AATA 1122
Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1023REASONS FOR DECISION
17 December 2008 Mr A Sweidan, Senior Member Decision Under Review
1. This is an application to the Tribunal for review of decisions made by a delegate of the Minister for Immigration and Citizenship (the respondent) on 8 November 2007 cancelling the business skills visas of Poh Yeoh Lim (the primary applicant) and Junbin Tan, Junyen Tan and Heok Lim (the secondary applicants) who are respectively the primary applicant’s two sons and her sister.
2. On 30 June 2004, the primary applicant was granted a sub-class 127 business skills visa. The visa approval also covered the secondary applicants.
3. The further relevant facts will emerge from the Tribunal’s Reasons for Decision.
Legislation and Policy
4. Section 134 of the Migration Act 1958 (the Act) provides that the Minister has a discretion to cancel the visa if satisfied that the visa holder has not obtained a substantial ownership interest in an eligible business in Australia, is not utilising her skills in actively participating at a senior level in the day-to-day management of the business, or does not intend to continue to do these things. The Minister must not cancel the visa if satisfied that the visa holder has made genuine efforts and intends to continue to make such genuine efforts.
5. 'Eligible business' and 'ownership interest' are defined in section 134(1) of the Act and discussed at paragraphs [7.2] - [7.4] of the Departmental Policy contained in PAM3 (T55-T57).
Preliminary Issue
6. The applicants, on page 11 of their Statement of Facts and Contentions, cite section 82 of the Act, which provides that:
(1) A visa that is cancelled ceases to be in effect on cancellation.
(2) A substantive visa held by a non-citizen ceases to be in effect if another substantive visa (other than a special purpose visa) for the non-citizen comes into effect.
7. The applicants then note that:
Madam Lim has had her original SC127 visa ceased by operation of S82 (2) on 11 August 2005[??]…This was when she had the earlier visa re-evidenced in her newly obtained Singapore passport.
8. The applicants then cite the relevant Departmental policy on subsection 82(2) and make the following apparent contention:
Is it not thus the case that since Madam Lim's original SC127 visa has been ceased by virtue of the operation of Section 82 (2) that the cancellation undertaken by DIAC on 8 November 2007 is an error at law and should be declared null and void?
9. The Tribunal accepts that the visa in the primary applicant's old passport was stamped 'Label Inoperative. Reason: s82(2) 11/8/05' and the visa in her new passport appears to have a new number (see Folio 11 of the applicant's statement of further evidence).
10. Whether or not the delegate's decision was tainted with jurisdictional error, the position is that the Tribunal conducts a de novo merits review of the decision to cancel the applicant's visa, and any jurisdictional error would be 'cured' by this de novo review (Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 344).
11. The respondent contends that the visa evidenced on the new passport is the same visa that was evidenced on the old passport, ie. the sub-class 127 visa granted to the applicant on 30 June 2004. The respondent does not concede that the legal effect of the stamp 'Label Inoperative. Reason: s82(2) 11/8/05' was to cancel the applicant's sub-class 127 visa, given the contemporaneous evidencing of the same visa on the applicant's new passport.
12. The Tribunal agrees with the above contentions of the respondent and accordingly finds that the preliminary issue raised by the applicants has no substance.
The Tribunal finds that the primary applicant did not obtain a substantial ownership interest in an eligible business – paragraph 134(1)(a)
13. For the reasons which follow the Tribunal finds that the primary applicant has not obtained a substantial ownership interest in an eligible business in Australia for the purposes of paragraph 134(1)(a) of the Act, on the basis that:
13.1the primary applicant does not hold a substantial ownership interest in Maysun Investments Pty Ltd (Maysun); and, in any event
13.2 Maysun is not an eligible business.
The primary applicant does not hold a substantial ownership interest in Maysun
Legislative and policy guidance
14. There is no statutory definition of 'substantial' in the context of 'substantial ownership interest'. The Tribunal notes that the Departmental policy, PAM3, provides relevantly at T55 that:
Substantial ownership interest is a matter of fact and degree/proportion. Under policy, officers should assess the visa holder's ownership interest of a business in proportion to the value of the company. It is the policy intention that officers consider an ownership interest of at least 10% or a value of at least AUD100,000 as indicative of substantial ownership. Officers, however, are reminded that the substantial ownership must be relative to the size of the business. For example, an ownership interest of AUD100,000 in a company worth AUD10 million would not meet policy requirements, nor would a 10% ownership in a company worth AUD1,000.
15. Whilst the Tribunal is not bound by Departmental policy, the Tribunal should follow Ministerial or Departmental Guidelines unless there is some good reason not to: see Buljeta v Minister for Immigration and Multicultural Affairs [2003] AATA 10 at [58] citing Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634; and Re Yam v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283 at [51] citing Davies J in Re Dainty and Minister for Immigration and Ethnic Affairs (1996) AAR 259.
Applicant's contentions
16. On page 8 of the applicants' statement of facts and contentions, it is asserted that:
Madam Lim has engaged in business in Australia and has indeed "obtained a substantial ownership interest in an eligible business in Australia" - viz Maysun Investments Pty Ltd [as is required by law - S134(1) of the Migration Act 1958] [see T19].
Respondent's contentions
17. The respondent concedes that Maysun is a company registered in Australia. On the basis of the company extract at folio 6 and the share certificates at folio 8, the respondent also concedes that the primary applicant owns one ordinary share out of the total two ordinary shares issued by Maysun, that is, a 50% ownership interest.
18. The Tribunal notes that the primary applicant completed and signed her 24 month business skills visa holder survey on 16 August 2006, claiming to have invested $100,000 in Maysun Investments Pty Ltd (Maysun) and that Maysun had a current net worth of $100,000 (see T518). The Tribunal also notes the receipt at T530 evidencing the deposit of $100,000 into Maysun's bank account at the National Australia Bank on 20 September 2006. The Tribunal further notes the bank statement at T698-T701 evidencing Maysun's transactions between the dates 19 September 2006 and 15 December 2006.
19. The Tribunal makes the following findings:
19.1The primary applicant deposited $100,000 into Maysun's account on 20 September 2006 i.e. more than 2 years after her visa was granted;
19.2there is no evidence to show that this sum was paid as share capital. On the contrary more than 75% of this amount i.e. $50,028 on 13 November 2006 and $25,900 on 22 November 2006 was withdrawn within 2 months. There is no evidence to show that this money was used for the purposes of any Maysun business other than vague claims made by the primary applicant in her evidence to the Tribunal.
19.3The payment in question was nothing more than a sham, designed to give the appearance of compliance with her visa conditions.
20. The Tribunal finds that the primary applicant has not discharged the onus of establishing that the total value of Maysun's business was $100,000. In the absence of such evidence, the Tribunal cannot satisfy itself that the primary applicant's 50% ownership interest by way of shareholding in Maysun was substantial relative to the size of the business for the purposes of the PAM3 policy guidelines.
Maysun is not an eligible business
21. Prior to considering whether Maysun constitutes an eligible business for the purposes of section 134(10), the Tribunal must consider whether it constitutes a ‘business’ at all.
22. The Tribunal notes in this respect that “[w]hether a particular activity or course of activities constitutes a business is a question of fact and degree that is to be determined by considering matters such as the scale of activity and whether it is conducted continuously and on a commercial basis to derive profit” (Leo v Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 309 at [55] per Member Barton).
23. The Tribunal finds that in the case of Maysun, there is an absence of any transactions (with the exception of one purported order for wine, as to which see below), much less continuous activities conducted on a commercial basis to derive profit.
24. The respondent further notes that, according to the primary applicant’s 24 month survey, Maysun had no income, and no business activity statements, or invoices or other documents to show business activity have been provided by the applicant.
25. The evidence is that Maysun's sole documented transaction, namely the ordering of 128 cartons of wine for the Singaporean company Teochew Restaurant Huat Kee (1998) Pte Ltd (see T549), was never completed. The Tribunal notes that this restaurant is a tenant of the primary applicant.
The primary applicant did not actively participate at a senior level in the day-to-day management of an eligible business in Australia - s134(1)(b)
26. The Tribunal finds that the primary applicant has failed to demonstrate that she has utilised her skills in actively participating at a senior level in the day-to-day management of an eligible business.
27. The Tribunal notes that:
27.1Prior to the cancellation decision, the applicant was only present in Australia for a few short periods i.e. 3-10 August 2004, 1-31 October 2004, 30 May-7 June 2006, 10-20 August 2006 and 6-10 June 2007 (see T927). Only one “business” meeting, on 6 June 2007, coincided with the periods she was in Australia – as with other such meetings held in Singapore and elsewhere nothing came of this.
28. The applicant has not claimed that her continued residence in Singapore from where she claimed she was managing Maysun’s business is beneficial to Maysun (cf. Re Lok Yung (Michael) Wong v Minister for Immigration and Multicultural Affairs [2006] AATA 277 at [38]).
The primary applicant's claimed management involvement from Singapore was Minimal
29. It appears that the primary applicant attended a number of meetings in her capacity as a director of Maysun. All of these, except one, took place outside Australia. These meetings took place over a period of about 2 years from 2005 to 2007.
30. The Tribunal notes that the meeting records are not minutes of meeting of Maysun’s management. The records purport to document discussions that the primary applicant held with other parties concerning prospective deals, transactions and investments. The meetings apparently consisted of representatives of the other party providing information about a particular investment opportunity, with the information generally attached to the meeting records. There is no evidence in the meeting records of the primary applicant or her fellow directors making any comments on or asking any questions about the proposals that have been presented to them. There is no evidence of decisions being taken to invest in or transact with the other parties, other than the wine order from Teochew Restaurant which was never fulfilled. None of these meetings resulted in any business activities by Maysun other than some desultory correspondence.
31. Paragraph 134(1)(b) requires the primary applicant to utilise her skills in actively participating at a senior level in the day-to-day management of an eligible business in Australia. The primary applicant has clearly failed to meet this requirement in the Tribunal’s opinion.
The primary applicant did not make the requisite genuine efforts - s134(2)
32. The Tribunal finds that the primary applicant did not make a genuine effort to obtain a substantial ownership interest in an eligible business in Australia or utilise her skills in actively participating at a senior level in the day-to-day management of such a business.
Genuine efforts - the principles
33. Previous decisions of the Tribunal have established a number of propositions relevant in the present circumstances.
Genuine effort must be given ordinary meaning
34. The phrase "genuine effort" is an ordinary English phrase and the appropriate ordinary meaning of that phrase is "real and sincere endeavour or strenuous attempt" (Abbu and Minister for Immigration and Multicultural Affairs [2006] AATA 898 at [42] per DP Hotop) or "endeavour or exertion which is sincere and real" (Hook and Minister for Immigration and Citizenship [2007] AATA 1798 at [39] per DP Hotop).
35. The phrase "genuine effort" must be given its ordinary meaning within the context of the Act and the Oxford Dictionary of English defines "genuine" to mean "truly what something is said to be; authentic" and "effort" to mean "a vigorous or determined attempt" (Gunawan and Minister for Immigration and Multicultural Affairs [2006] AATA 852 at [46], per SM Sweidan).
Who must make the genuine effort
36. The relevant visa holder must himself or herself have made some real or genuine effort (Re Yam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283 at [53] per SM Dwyer).
The requisite degree of effort
37. The degree of effort made must be beyond that which is purely superficial or token (Yam (supra) at [53]).
38. The effort must involve some exertion or endeavour (Leo (supra)).
39. To constitute genuine effort, the activities must be real and substantial and not in the nature of a pretence or a sham (McAlpin and Minister for Immigration and Citizenship [2008] AATA 109 at [59] per SM Penglis).
Lack of continuous activity
40. Evidence showing "sporadic and desultory activity" by an applicant that "lacks the sustained and continuous quality… implicit in the requirements of s134(2)" points to a lack of genuine efforts (Koosasi and Minister for Immigration and Multicultural Affairs [2006] AATA 179 at [53], per DP Walker).
41. A lack of effort for the majority of the visa period followed by a "flurry of activity" that is "mere window dressing to give the appearance of vigorous and conscientious search for a business investment vehicle" does not constitute genuine efforts (Ng and Minister for Immigration & Multicultural & Indigenous Affairs [2003] AATA 299, per DP Wright QC at [22]). The Tribunal notes that this also appears to be the case in this matter.
Relevance of departmental policy in applying s134(3) factors
42. Section 134(3) provides a list of matters that the Minister may take into account when determining whether a person has made genuine efforts to obtain a substantial ownership interest in an eligible business in Australia and to utilise his skills in actively participating at a senior level in the day-to-day management of that business.
43. Notes to guide the interpretation of these matters are provided at paragraph 9.2 of PAM3 (see T35). The matters that may be taken into account, and the notes to their interpretation provide as follows:
43.1business proposals that the person has developed. PAM3 refers to whether there is a business proposal which is considered genuine, realistic and achievable;
43.2the existence of partners or joint ventures. PAM3 refers to whether there is a formal contract with partners or joint venturers;
43.3research that the person has undertaken into the conduct of an eligible business in Australia. PAM3 refers to whether there is written evidence of detailed consultations with business advisers and whether there is continuous, concerted and genuine research since the 'clock-start date';
43.4 the period or periods during which the person has been present in Australia. PAM3 notes that it is expected that a genuine effort would require significant time in Australia to, for example, explore business opportunities, contacts and sources of supplies, inspect premises/property and goods, develop relationships and gain an understanding of local practices.
43.5the value of assets transferred for use in obtaining an interest in an eligible business. PAM3 refers to the transfer of sufficient funds to ensure that the business meets the requirements of an eligible business, or, if the business has not yet been established, the presence of sufficient assets in Australia to pursue research into an eligible business and to be able to establish such a business when the opportunity arises.
43.6the value of ownership interest in the eligible business in Australia which is or has been held by the person. PAM3 refers to a visa holder with a minor, rather than substantial, ownership interest being able to demonstrate that they are working towards establishing substantial ownership.
43.7 the business activity that is or has been undertaken by the person.
43.8whether the person has failed to comply with a notice under section 137. The MSI refers to whether there has been a failure to comply with a notice for information under section 137, i.e. mandatory monitoring of Australian address and return of survey forms; and
43.9if 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 on the day-to-day management of the business:
43.9.1the length of time the person held the ownership interest or participated in the management as the case requires; and
43.9.2the reason why the person no longer holds the interest or participates in the management as the case requires.
Applying the genuine efforts principles to the primary applicant's circumstances
44. When the principles cited above are applied to the primary applicant's circumstances, the Tribunal concludes that:
The primary applicant's efforts amount to a sham
45. The Tribunal accepts the veracity of Maysun's minutes of meeting and the correspondence issuing to and from the primary applicant but nevertheless finds that her purported efforts amounted to a sham.
46. The Tribunal finds that the meetings and correspondence were not genuine attempts to obtain a substantial ownership interest in an eligible business or to participate at a senior level in the day-to-day management of an eligible business, on the basis that:
46.1None of the proposed businesses were in a field where the primary applicant had any expertise (namely real estate and property development - see T182);
46.2The primary applicant does not appear to comment on, ask questions about, or appear to show interest in, any of the business proposals presented to her at the Maysun 'meetings'; and
46.3The primary applicant did not follow through with any of the business proposals, with the exception of the Wine Export meeting, which in any case signed off on an order made the very same day, which was from the primary applicant’s tenant and was never fulfilled.
47. The Tribunal also notes that the primary applicant “invested” in Maysun over two years after her visa was granted (after being issued with the 24 month survey), and the applicant’s purported efforts picked up significantly after receiving a notice of the respondent’s intention to cancel her visa sent on 16 July 2007.
48. The Tribunal further notes various comments made by the applicant in correspondence, which support the Tribunal’s view e.g.
51.1In an email sent 22 December 2004 to a proposed fellow director concerning the proposed structure of Maysun, the primary applicant writes “[o]ur new company shall ‘piggyback’ on your existing subsidiaries in the Eastern state to save manpower and operating costs”; and
51.2In an email sent 7 May 2007 to her migration agent, the primary applicant writes “[a]gain, information for nurses which for your perusal and do hope it help to support my migration as I do not wish to disappoint my children studying in Perth!”
The primary applicant's activities lacked the requisite degree of effort
49. The Tribunal finds that at best for the applicant the efforts evidenced by the correspondence and minutes of meeting can be characterised as superficial or token, and do not reveal sufficient or genuine exertion and endeavour to meet her visa requirements.
The primary applicant has not developed any business proposals
50. With reference to s134(3)(a) and the PAM3 criteria cited above, the Tribunal finds that the primary applicant has not developed any business proposals that are genuine, realistic or achievable, in the context of Maysun.
The primary applicant has undertaken insufficient research into conducting an eligible business in Australia
51. With reference to s134(3)(c) and the PAM3 criteria cited above, the Tribunal finds that the evidence of research annexed to the Maysun minutes of meeting is not evidence of research undertaken by the primary applicant and in any event is minimal.
The primary applicant has not spent sufficient time in Australia
52. With reference to s134(3)(d) and the PAM3 criteria cited above, the Tribunal is of the view that the 64 days the applicant spent in Australia during the lifetime of her visa did not give her sufficient time to explore business opportunities, contacts and sources of supplies, inspect premises/property and goods, develop relationships and gain an understanding of local practices. Furthermore there is in any event no evidence that she did or attempted to do any of these things while in Australia. The purpose of her short trips to Australia appears to have been to visit her 2 sons, who were completing their secondary and tertiary education in this country.
Should the Tribunal exercise its residual discretion
53. The Tribunal has a residual discretion not to cancel an applicant’s visa, even if she has not fulfilled the requirements of subsections 134(1) and (2) of the Act: Kim v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCA 31.
54. Although there are no legislative prescriptions regarding the exercise of the residual discretion, various authorities have attempted to offer some guidance on when the Tribunal should or should not exercise the discretion in an applicant’s favour. In summary, they have held that the discretion generally:
54.1may be used in an applicant’s favour where he or she has offered a satisfactory explanation of the inactivity;
54.2may be used if the granting of a little more time would allow the applicant to fulfil his or her visa obligations;
54.3should not be used where an applicant has spent only minimal time in Australia, and has no serious and realistic intention (beyond vague intentions) to spend more time in the near future;
54.4should not be used where an applicant has not permanently moved with his or her family to Australia, and has no serious and realistic intention (beyond vague intentions) to do so in the near future; and
54.5 may be exercised where it is in the best interests of a child.
Has the primary applicant offered a satisfactory explanation for the inactivity?
55. The Tribunal may use its residual discretion to not cancel the primary applicant’s visa if she has offered a satisfactory explanation for the inactivity: Kim (supra) at [21]; Reed and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 335 at [22]; Re Chin Lai and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 152 at [44]; Dharsiono and Minister for Immigration and Multicultural Affairs [2006] AATA 786; Gunawan and Minister for Immigration and Citizenship [2007] AATA 1110 at [21]; Lim and Anor and Minister for Immigration and Multicultural Affairs [2007] AATA 1036.
Discussion of authorities
56. In the matter of Gunawan [2007] (supra), the applicant stated he could not fulfil his visa obligations because his father was seriously ill from having suffered a stroke and becoming virtually incapacitated. The applicant argued that being the eldest son, and in accordance with Chinese culture, it was his primary responsibility to care for his father.
57. The applicant also cited difficulties in disposing of his overseas business, due to difficult economic conditions in his home country, as another reason for delay. The applicant submitted at [11]:
Mr Ty told the Tribunal that in his opinion Mr Gunawan had a genuine intention to do business in Australia but because of personal difficulties with his father's illness and continuing efforts to find a person to take over the family business in Indonesia, the process of setting up business in Australia became difficult, especially taking into account currency fluctuations.
58. Although the Tribunal seemed to believe the truth of these claims, and appeared to sympathise with the applicant’s predicament, it did not believe that this amounted to a ‘satisfactory’ explanation warranting the exercise of the residual discretion. This was in large part because:
Although Mr Gunawan has stated that he plans to settle in Australia and develop the business, his father has been incapacitated since 2000, before the grant of the visa, and Mr Gunawan, on his own admission, is required to accept ongoing responsibility for his father’s welfare (emphasis added).
59. His father therefore became ill before the granting of the visa, and thus the applicant should have reasonably foreseen the difficulties in fulfilling his visa obligations.
60. A similar situation occurred in the matter of Teng and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 715. In that matter at [33], the Tribunal said:
The Tribunal took into account that the applicant’s father died before he was granted the business visa and considers his reliance on this as a humanitarian ground has less force than if the circumstance arose after he was granted the visa.
61. In contrast, the Tribunal in Reed (supra) at [22] was willing to exercise its discretion when an applicant, after his visa was granted, became suddenly incapacitated by an unforeseen illness.
62. The Tribunal is of the view that where humanitarian grounds are relied upon, and where those grounds arose before the granting of the visa and were thus foreseeable, they should be given no or little weight, and generally do not justify the Tribunal exercising its residual discretion in an applicant’s favour.
Application to primary applicant's circumstances
63. In her Statement of Facts and Contentions filed on 2 May 2008 the primary applicant asserts that:
the reason none of the projects she has considered have advanced very far is because her estranged spouse [Tan Kian Kee] - with whom she and the children have had some rapprochement, and now have significant contact - is seriously ill. He is suffering from chronic kidney failure because of diabetes and is on a daily dialysis regime. This has demanded a very significant amount of her time and resources [physical and financial] in Singapore.
64. The primary applicant provided Mr Tan's medical records to the Department (see T587-T622) and the Tribunal. The primary applicant also filed with the Tribunal a witness statement dated 20 June 2008 which was tendered in evidence. On page 2 of that statement, the primary applicant states that:
Mr Tan is also a diabetic, and as a result of these health complications, he suffered kidney failure. He is currently still on dialysis. Mr Tan now needs constant round the clock assistance in his daily routine. He has to undergo dialysis procedures four times daily, and as a result of the stroke he needs assistance in normal activities like showering, getting changed, going to the toilet, etc. This I provide full time.
In her evidence before the Tribunal she stated that Mr Tan has recently passed away.
65. The primary applicant's evidence indicated that the full-time assistance she provided to Mr Tan was attributable to the stroke he suffered, rather than the health issues resulting from his renal failure.
66. The Tribunal notes that Mr Tan appears to have suffered his stroke in November 2002, i.e. close to 2 years before the grant of the primary applicant's visa, while the renal failure first occurred after the grant of the primary visa.
67. It also appears that Mr Tan suffered a second stroke after the visa was issued. However, the Tribunal notes that in cross-examination the primary applicant acknowledged that when she applied for her visa she knew that she would have to spend a “fair amount of time” in Singapore looking after Mr Tan.
68. It is clear therefore that this is not a case of a sudden supervening illness occurring after the visa was granted that prevented the applicant from complying with her visa requirements and the evidence is that:
68.1The applicant did make several trips to Australia and Malaysia while Mr Tan was ill;
68.2 During those absences she arranged nursing care for Mr Tan; and
68.3Mr Tan’s illness did not prevent the primary applicant from holding the meetings referred to earlier.
69. To the extent that the care of Mr Tan explains the primary applicant's failure to comply with her visa obligations, the Tribunal finds that the circumstances were reasonably foreseeable prior to the grant of the visa, and that therefore the Tribunal should not exercise its discretion in the applicant's favour.
Granting a little more time to the applicant would not necessarily result in compliance with her visa obligations
70. The Tribunal may exercise its residual discretion in order to give the applicant a little more time to fulfil his or her visa obligations: Kim (supra); Nagaria and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 579 at [17]; Badenhorst and Minister for Immigration and Multicultural Affairs [2006] AATA 742.
Application to primary applicant's circumstances
71. The applicants at page 9 of their statement of facts and contentions contend as follows:
In particular we draw the Tribunal's attention to her proposed sale of a commercial property in Singapore, which Madam Lim advises will then give her significant cash assets for remittal to Australia.
72. The applicants have filed documents showing that an agent has been engaged to sell a Singapore property apparently owned by the primary applicant.
73. The Tribunal accepts that if and when this property is sold, funds would be released that could possibly be invested in an Australian business. However, the Tribunal notes that the authorisation was only signed after the cancellation of the primary applicant's visa. Furthermore, the Tribunal finds that the primary applicant's failure to satisfy her visa obligations is not limited to a failure to adequately fund Maysun. Releasing funds by selling a Singaporean property would not necessarily ensure that the primary applicant actively participates at a senior level in the day-to-day management of Maysun or any other business in Australia.
The primary applicant has spent only minimal time in Australia and it appears has no serious and realistic intention to spend more time in Australia in the near future
74. The Tribunal should not exercise its residual discretion where the applicant has only spent a minimal amount of time in Australia, and it appears has no serious and realistic intention (beyond vague intentions) to spend more time in Australia in the near future: Padilla and Minister for Immigration and Multicultural Affairs [2006] AATA 922 at [53]; Abbu v Minister for Immigration and Multicultural Affairs [2006] AATA 898 at [47]; Tauriandy and Minister for Immigration and Multicultural Affairs [2006] AATA 183 at [66]; Jo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 469 at [120]; Haryanto and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 317.
75. It is clear from the cases cited that the Tribunal should only exercise its residual discretion in an applicant’s favour where she has at the very least, a significant and tangible future commitment to residing in Australia. The primary applicant has not demonstrated any such commitment, although the Tribunal notes that she did purchase a house in which her 2 sons lived while they completed their secondary and tertiary education in Perth. It appears to the Tribunal that this (ie the education of her children in Australia) was the reason for her obtaining a business skills visa and that the primary applicant never had any serious or genuine intention of establishing a business in Australia.
76. The Tribunal notes that the primary applicant has spent a total of only 64 days in Australia since her visa was granted.
The primary applicant has not permanently moved with her family to Australia and has in the Tribunal’s view no serious and realistic intention to do so in the near future
77. It is also clear from the cases cited that the Tribunal should not exercise its residual discretion where an applicant has not permanently moved with his or her family to Australia, and has no serious and realistic intention (beyond vague intentions) to do so in the near future: Teo v Minister for Immigration and Citizenship [2007] AATA 118 at [88]; Abbu (supra) at [47]; Padilla (supra) at [53]; Tauriandy (supra) at [64]; Jo (supra) at [120].
78. The Tribunal notes that the primary applicant has not permanently moved to Australia and finds that, other than authorising an agent to sell a property in Singapore and claiming that the proceeds will be used to set up a business in Australia, the primary applicant has not evinced a serious and realistic intention to do so in the near future.
There are no children the best interests of whom the Tribunal needs to take into account
79. The Tribunal held, in the matter of Teo (supra) at [81], the residual discretion may be exercised where it is in the best interests of an applicant’s children. The Tribunal held in Haman and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1113 at [72], that this factor is a matter of primary consideration, and should be given much weight.
80. The Tribunal notes that in this context, 'children' means persons under 18 years of age, as the requirement is based on Australia being a signatory to the United Nations Convention on the Rights of the Child (Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273).
81. The Tribunal further notes that the primary applicant’s 2 sons Junbin Tan and Junyen Tan are both over 18 years of age, and therefore their best interests are not required to be taken into account as a primary consideration. The Tribunal accepts that the interests of Junbin Tan and Junyen Tan may still be relevant and can be taken into account. However the Tribunal is of the view, after due consideration, that the circumstances of the 2 children do not warrant the exercise of the Tribunal’s residual discretion in favour of the primary applicant.
The visa cancellation does not result in extreme hardship to the secondary applicants
82. The secondary applicants seek to rely on the extreme hardship provisions of subsection 134(5) of the Act. The applicants asserted (at page 10 of the applicants' statement of facts and contentions) that "S134 (5) of the Migration Act 1958 applies to the two children specifically" (ie. Junbin Tan and Junyen Tan). The applicants do not contend that subsection 134(5) should be applied by the Tribunal to the remaining secondary applicant, Heok Lim and no evidence was provided on her behalf. The applicant’s representative acknowledged that the fate of her application would be determined by the outcome of the primary applicant’s application.
83. The Tribunal finds that the applicants have not provided sufficient evidence to establish that the cancellation of the primary applicant's business skills visa will cause extreme hardship to Junbin Tan and Junyen Tan.
84. Jun Bin gave evidence that he resides in Singapore. He has a job in the telecommunications industry there. He works for Hewlett Packard but he said that he wants to move back to Australia after his father’s death because he wants a change of lifestyle. The Tribunal can sympathise with his position but wanting a change of lifestyle does not constitute extreme hardship for the purposes of the Act. The cases make it very clear that extreme hardship is toward the higher end of the scale, utmost or exceedingly great in degree. It is clear that the denial of an opportunity to come to Australia in the context of stable employment in Singapore simply because the secondary applicant wants a change of lifestyle is not extreme hardship.
85. Jun Yen Tan gave evidence that he has completed his university degree in Australia at UWA. That is a combined degree in law and commerce and he admitted that with these qualifications he could obtain employment in Singapore. Indeed, he gave evidence that he is returning to Singapore soon to carry out his two year National Service requirements after which he would like to reside in Australia. The only consequence that follows from the cancellation of his visa is the frustrated ambition to return to Australia at the end of the National Service. Mr Galloway referred to the death of the boy’s father as evidence of extreme hardship and, obviously, this is a sad circumstance but it is not a circumstance or a hardship that results from the cancellation. So it cannot be taken into account in considering whether there is extreme hardship.
Legislative and Tribunal guidance
86. Consideration of whether a secondary visa holder will suffer extreme hardship as a result of the cancellation decision necessarily requires an assessment of what constitutes extreme hardship for the purposes of subsection 134(5).
87. The meaning to be ascribed to the words "extreme hardship" was considered by the Federal Court in Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481. Foster J stated at [25] - [26]:
… it is, in my opinion, important to approach the phrase "extreme hardship" in a broad way. Clearly, it imports a high degree, perhaps a very high degree of hardship, but it must be applied in the context of the facts of the particular case. "Hardship" is in itself a relative term. What may be a "hardship" to a sensitive person, or one in a particularly vulnerable situation, may be no great burden at all to a person of more stoical disposition or in a more protected situation. Similarly, the word "extreme" must be evaluated against the facts of the particular case. Such an evaluation cannot, consistently with the duties imposed upon the decision-maker by the Act, be approached in a dismissive or perfunctory fashion. A full and proper consideration of the person allegedly suffering the hardship or prejudice must be undertaken. In addition to what I have already said, I consider that the application of the word "extreme" must also be approached with caution. Obviously there are varying degrees of hardship which may be suffered by any particular individual. "Trivial", "minor", "moderate" are adjectives which spring to mind as conveying such varying degrees. Clearly enough, "extreme" hardship must find itself at the very high end of the scale. This does not mean, however, that in any given case, "extreme hardship" means, in effect, a particular point on a continuum of hardship. It obviously connotes an area within which an ascertainable burden of hardship may fall and properly merit the description "extreme" (emphasis added).
88. In Siwei Wang v Minister for Immigration and Multicultural Affairs [2000] AATA 961 at [30] Deputy President McMahon also considered the significance that should be ascribed to the word "extreme" as used in the statute:
…The meaning of words will always be taken from the context in which they appear. However, the deliberate choice of the word "extreme" by Parliament, requires one to understand what was meant by the use of that particular degree of hardship. There are many meanings of the word "extreme" offered in the Macquarie Dictionary. Some of the more helpful suggestions are "of a character or kind farthest removed from the ordinary or average", "utmost or exceedingly great in degree", "farthest, utmost or very far in any direction", "going to the utmost lengths, or exceeding the bounds of moderation", "the utmost or highest degree, or a very high degree" (emphasis added).
89. The test for extreme hardship is therefore an onerous one. Clearly, hardship involves more than inconvenience or detriment. The effect suffered must be to a considerable degree before it can properly be called hardship: see also Salim and Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899 at [44] - [47].
90. Hardship must be judged subjectively by reference to the applicant. Generic information about the conditions that may apply to a whole class or country of people is generally not relevant: Gilani v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1149 at [8]; Kim (supra) at [25] - [26]; and Salim (supra) at [44] - [47].
91. It is clear that the onus appears to be on the applicant to provide evidence that he or she will suffer extreme hardship: Setiawan & Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 260 at [22] - [23].
92. The Tribunal has previously made comments that it should not find in an applicant’s favour where another visa option may be available for an applicant to remain in Australia, or where the applicant is likely to be able to obtain a visa to a third country: Andri v Minister for Immigration and Citizenship [2007] AATA 1375 at [15] and [21]; Dawsonv Minister for Immigration and Citizenship [2007] AATA 1122 at [12]; Lee at [31]; Gilani at [22].
93. The hardship must actually result from the cancellation: Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1023 at [37]. Therefore, where the hardship is likely to occur regardless of the Tribunal’s decision, there is little practical benefit in finding in favour of an applicant.
94. There must be an almost certainty that the cancellation will cause the hardship, with a mere possibility not being enough: Dawson at [10]; Andri at [16]; Salim at [44] - [47]. Therefore even if the hardships claimed were generally true for the majority of returnees, this is not enough. The visa holder must prove that it will almost definitely follow.
95. Finally, the Tribunal has generally held that extreme hardship will not occur where the visa holder is resilient and the hardship is not exceptional or unexpected: Dawson at [12] - [14]. This will particularly be the case where the applicant is a young and capable individual. In Salim Deputy President Purvis stated at [44] - [47]:
Each of the Applicants will experience emotional hardship if required to leave Australia, they having spent a part or whole of their formative years in this country, having received a part or whole of their secondary education and tertiary education at Australian schools and universities and having consequently formed a bonding with those with whom they came in contact whilst holding their visas. There is evidence as to each of them being held in high regard by their peers, social friends and academic acquaintances.
However, it would be strange or unusual and unexpected if three relatively young, intelligent and capable persons had not in the years developed such relationships. It will be hard to leave these people. It will be hard to readjust to a life outside Australia and the university environment. But this hardship is one within the contemplation of the legislature when it chose to insert the word “extreme” as to qualify the hardship. And it must be “extreme” to the particular individual.
The Tribunal does not consider that the hardship that will undoubtedly be experienced by each one of the Applicants is exceptional, unexpected or of such a nature as to qualify for the description of exceedingly great in degree. Unfortunate yes, emotional yes, financial yes to a degree. But not extreme (emphasis added).
The facts and circumstances of the 2 sons in this case are very similar to those in the Salim case.
Applying the test to the secondary applicants' circumstances
96. The basis for the extreme hardship claims for Junbin Tan and Junyen Tan is that "[t]heir move to Australia has been severely set back because of their father's grave illness; and their mother's need to focus on this more actively rather than pursuing her business interests in Australia" (applicants' statement of facts and contentions page 10).
97. While the Tribunal can sympathise with Junbin Tan and Junyen Tan in dealing with their father's illness, any hardship they are suffering is not a result of the cancellation of their visa.
98. The secondary applicants have not filed any evidence that the cancellation has caused disruption to educational or employment opportunities, or articulated any alternative grounds to base a claim for extreme hardship.
DECISION
99. The Tribunal finds that the decisions under review should be affirmed on the basis that:
99.1The primary applicant does not have a substantial ownership interest in an eligible business in Australia;
99.2The primary applicant has not actively participated at a senior level in the day-to-day management of an eligible business in Australia;
99.3 The primary applicant has not made the requisite genuine efforts;
99.4This is not an appropriate case for the exercise of the Tribunal's residual discretion; and
99.5The cancellation of the primary applicant's visa would not result in extreme hardship to the secondary applicants.
I certify that the 99 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member.
Signed: ...(sgd) T Freeman............
AssociateDate/s of Hearing 20 November 2008
Date of Decision 17 December 2008
Applicants’ Representative Mr J Galloway
Migration Agent
Respondent’s Representative Mr S Thackrah
Australian Government Solicitor
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