Lin and Minister for Immigration and Multicultural and Indigenous Affairs
[2002] AATA 840
•28 August 2002
DECISION AND REASONS FOR DECISION [2002] AATA 840
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/24
GENERAL ADMINISTRATIVE DIVISION )
Re WEN-LUNG LIN
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Senior Member M D Allen
Date28 August 2002
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2002/24
)
GENERAL ADMINISTRATIVE DIVISION )
Re: WEN-LUNG LIN
Applicant
And: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal : Senior Member M D Allen
Date : 28 August 2002
Place : Sydney
Decision: For the reasons given orally at the conclusion of the hearing in this matter the decision under review is AFFIRMED.
(Sgd) M.D. ALLEN
.............................
Senior Member
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2002/880
)
GENERAL ADMINISTRATIVE DIVISION )
Re: HSIN-YU LIN
Applicant
And: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal : Senior Member M D Allen
Date : 28 August 2002
Place : Sydney
Decision: For the reasons given orally at the conclusion of the hearing in this matter the decision under review is AFFIRMED.
(Sgd) M.D. ALLEN
.............................
Senior Member
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2002/881
)
GENERAL ADMINISTRATIVE DIVISION )
Re: SHU-FANG LIN
Applicant
And: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal : Senior Member M D Allen
Date : 28 August 2002
Place : Sydney
Decision: For the reasons given orally at the conclusion of the hearing in this matter the decision under review is AFFIRMED.
(Sgd) M.D. ALLEN
.............................
Senior Member
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2002/882
)
GENERAL ADMINISTRATIVE DIVISION )
Re: MIAO-LIEN LIN
Applicant
And: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal : Senior Member M D Allen
Date : 28 August 2002
Place : Sydney
Decision: For the reasons given orally at the conclusion of the hearing in this matter the decision under review is AFFIRMED.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
IMMIGRATION – Cancellation of Business Skills Visa. Whether Applicant established an eligible business or made a genuine attempt to do so. Future intent not sufficient. Purchase of one item of capital equipment did not amount to engaging in an eligible business.
Migration Act 1958 – s134
Re Wong and Minister for Immigration and Multicultural Affairs (2002) AATA 54
Re Chen and Minister for Immigration and Multicultural Affairs (2002) AATA 477
Hope and Bathurst City Council (1980) 144 CLR 1
REASONS FOR DECISION
Senior Member M D Allen
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.
I certify that this and the preceding four pages are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed: Associate
..................................................................................……………………………….Dates of Hearing 26-27 August 2002
Date of Decision 28 August 2002Solicitor for Applicant Yandell Wright Stell Lawyers
Solicitor for Respondent Blake Dawson Waldron
DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
By MR M.D. ALLEN, Senior Member
Matter Nos N2002/24, N2002/880, N2002/881, N2002/882
WEN-LUNG LIN and MINISTER FOR IMMIGRATION,
MULTICULTURAL AND INDIGENOUS AFFAIRS
HSIN-YU LIN and MINISTER FOR IMMIGRATION,
MULTICULTURAL AND INDIGENOUS AFFAIRS
SHU-FANG LIN and MINISTER FOR IMMIGRATION,
MULTICULTURAL AND INDIGENOUS AFFAIRS
MIAO-LIEN LIN and MINISTER FOR IMMIGRATION,
MULTICULTURAL AND INDIGENOUS AFFAIRS
SYDNEY, 28 AUGUST 2002
MR ALLEN: By application lodged on 10 January 2002 the applicant Wen-Lung Lin sought review of a decision of a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs to cancel his business skills visa with effect from 24 August 2001.
Subsequently, separate applications were lodged in respect of his wife Hsiu-Mei Chang and children Miao-Lien Lin, Hsin-Yu Lin and Shu-Fang Lin and I have the consent of the respondent this day ordered that the time in which to lodge those applications be extended to the actual day they were lodged.
The visas of the applicant's wife and children were as a direct result of the cancellation of the applicant's visas themselves cancelled. I would mention that at the moment the applicant's wife and the child being the second eldest daughter are currently in Taiwan.
Section 134 of the Migration Act (1958) as amended reads inter alia:
Subject to subsection (2) and section 135 the Minister may cancel a business 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 (1) hold a substantial ownership interest in and (2) utilise his or her skills in actively participating at a senior level in the day-to-day management of an eligible business in Australia.
I would interpose to say that the term eligible business is defined with particularity in subsection (10) of section 134 in the following terms:
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 of 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.
Subsection (2) of section 134 then provides:
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.
Subsection (3) of section 134 then sets out, without limiting generality, matters the Minister may take into account, including inter alia:
Business proposals, the existence of partners or joint ventures, research and transfer of assets.
Subsection (4) of section 134 then goes on to provide:
Subject to subsection (5) in section 135 if (a) the Minister cancels a person's business visa under subsection (1) 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.
Subsection (5), section 134, then provides that:
The Minister must not cancel the person's business visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person.
As was pointed out by Deputy President Handley in Re Wong and Minister for Immigration and Multicultural Affairs (2002) AATA 54 at paragraph 37:
The date of the cancellation of the visa is the date at which the Tribunal must consider whether the correct or preferable decision was made.
In this case as at 24 August 2001.
Subsection (2), section 134, sets out various situations in which the Minister must not cancel a visa. As pointed out by Ms Hanstein for the respondent in her submissions, the paragraphs of subsection (2) are linked by the word "and". That is to say they are cumulative. As was stated by his Honour, Blackburn J in Re The Licensing Ordinance 13 FLR 143 at 147, the proposition that "and" can sometimes mean "or" is true neither in law nor in English usage and the authorities do not show otherwise.
As this matter progressed it became clear that the real question before the Tribunal was whether the applicant, Mr Lin, who I will refer to as the applicant, had as at 24 August 2001 established an eligible business or had made a genuine effort to do so.
The words of the Act do not, however, refer to a future intent as being sufficient. I would also point out that although the Tribunal must consider matters as at the date of the decision that is not to say that subsequent events cannot be taken into account as evidencing the intent of the applicant as at the particular time in question.
The applicant, Mr Lin, was granted a business skills visa on 26 May 1998. At document T7 in the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act (1975) there is a declaration signed by the applicant recording the notification to him of the conditions surrounding the grant to him of a business skills visa. The applicant states that his migration agent obtained his signature to this document but did not explain it to him. The agent, however, is not a party to these proceedings.
That the declaration was not explained to the applicant is, if true, unfortunate but does not detract from the objective nature of the test imposed.
The applicant first arrived in Australia on 2 June 1998 and then departed for Taiwan on 10 June 1998. He returned to Australia on 26 November 1998, departing again on 3 December 1998 for Taiwan. He returned to Australia on 29 May 1999 and departed for Taiwan on 30 June 1999. He then returned to Australia on 15 July 1999 and apart from a short period when his mother-in-law died he has been in Australia since that time.
On 19 October 1999 the applicant's migration agent forwarded to the Department of Immigration a notification of change of address showing the applicant's address as 67 Mort Street, Lithgow. Subsequently, the applicant purchased a property at 11 McCauley Street, Lithgow, but complains that although he informed him migration agent of this the migration agent failed to follow his instructions and to notify the respondent department. Consequently, correspondence to the applicant from the Department of Immigration was returned to that department undelivered.
What I do not understand is the applicant's cavalier treatment of the letter dated 25 October 1999 which occurs at document T9 which letter was forwarded to him at his then address at 67 Mort Street, Lithgow. It would appear that the applicant ignored this letter. I found his denial of ever having received the said letter to be unconvincing.
That letter informed him of the requirement to notify the department of any change of address and stated inter alia:
To help you understand your obligations as a business skills visa holder I have enclosed an information sheet which sets out the requirements now that you have arrived in Australia. Hopefully, this sheet will also answer some of the questions you may have.
It was submitted in argument by the applicant's solicitor that there is no proof that any such brochure or information sheet was in fact enclosed or came to the attention of the applicant. That may be so but it strikes me that if the applicant had read the letter or had it taken the opportunity to have it translated to him it would have been readily apparent to him that a document which was said to be enclosed and which would have some importance was not enclosed.
Evidence was given by the applicant and also a Mr Chang of the proposal for a joint venture between Mr Chang's company, known as Chzen Yi Enterprises Pty Ltd which trades under the style or name of Builders Power and the applicant.
Suffice it to say I found the concepts of their agreement and just what was planned as nebulous. No work was in fact undertaken.
So far as the applicant's purchase of a crane from Chzen Enterprises Pty Ltd and on selling it is concerned I do not regard that as engaging in a business. As was pointed out by Deputy President Block in Re Chen and The Minister (2002) AATA 477 at paragraph 7:
The reference in subparagraph 134(1)(b) to the day-to-day management of that business indicates that an eligible business must have some element of continuity and repetition.
In Hope and Bathurst City Council (1980) 144 CLR 1, Mason J considered that the use of the phrase "carrying on the business" as a qualifier of the noun business required that:
There be a commercial enterprise in the nature of a going concern, that is activities engaged in for the purpose of profit on a continuous and repetitive basis.
Similar qualifying words in section 134 would compel a similar result. That decision of Deputy President Block followed the decision of Deputy President McMahon in Re Tang and The Minister (2000) AATA 997.
The applicant's case to the Tribunal is succinctly put in a document which accompanied his application to the Tribunal. In that document he says:
In conclusion, since I decided to come to Australia in 1998 for which all of my businesses and assets were totally finalised and fully sold for the purpose of coming here with an intention to establish a new life and subsequently to develop a solid new future business in Australia within Lithgow, a regional area of New South Wales. I'd like to stress the fact I have constantly participated and is [sic] genuinely conducting business in Lithgow. I have made a substantial commitment to establishing myself in this regional area, having also purchased a home in Lithgow and subsequently purchased one constructions concrete pump machinery for a total amount of $65,000 and this machine is currently in operation. Due to the expansion of the business I am also proposing to purchase or finance one more constructions concrete pump machine with an additional investment etcetera.
I would only add that that additional purchase etcetera did not take place due to the cancellation of the applicant's visa.
In cross-examination the applicant revealed that for the first two years he was resident in Australia he did not do any business at all. On 1 July 2001 he incorporated his company Ming De Pty Ltd but before that date he was "researching" the building industry in Australia. He did not contact any Government body although he spoke to some trade bodies. As he put it in cross-examination:
From the time I came to Australia before I formed the company I was collecting information on laws and regulations and also to get to know procedures. Before I formed the company I did not carry out any building work. I did not do any business before I formed the company which was formed on 1 July 2001.
Since 1 July 2001 the applicant has done some of what he termed interior decoration work. He stated, however, that he had not done any building work before his visa was cancelled. However, there was some evidence of work to the vicinity of $10,000 being carried out in the period July to August 2001 although payment was not received until September.
Since that time the applicant has done some other work, namely the fit out of a motel.
The applicant states that he engaged an employee in December 2001. This was because he found out that his visa had been cancelled and he could not work. I note, however, that the income tax declaration contained in exhibit A2 refers to April 2002 as the date of the employment.
So far as this interior decoration or fit out business is concerned I do not see any evidence of it being likely to result in the creation or maintenance of employment in Australia. At present it has one employee because the applicant cannot, by the terms of his bridging visa, work himself. There has been no real evidence of quotes being made on the open market but rather the applicant exists with word of mouth referrals within the Chinese community. There is no evidence of any advertising in order to attract business. There is no evidence of any business plan as such either.
I am satisfied that the activities of the applicant's company do not meet the criteria for it to be adjudged to be an eligible business.
In October 2001 the applicant purchased from Chzen Yi Enterprises Pty Ltd a concrete pump used for laying concrete slabs etcetera. That company imported the concrete pourer on behalf of the applicant. Although it strictly speaking was evidence from the bar table, it was given without objection and I know the applicant's solicitor, Mr Turner, is an expert in customs matters. I therefore accept that the concrete pourer would have been purchased in Japan prior to freighting to Australia some time in August 2001.
The applicant would have contacted Mr Chang prior to that time in order to discuss available equipment so I draw the inference that certainly steps were in hand to purchase the concrete pourer prior to 24 August 2001.
When one looks at the definition of what constitutes an eligible business I believe that definition must be read as a whole. That is to say each paragraph takes its meaning in context. For example, paragraph A reads:
That the Minister reasonably believes business will result in one or more of the following: the development of business links with the international market.
Compare paragraph C which refers to the export of Australian goods or services. So that when paragraph B reads:
The creation or maintenance of employment in Australia.
and paragraph F reads:
An increase in commercial activity and competitiveness within sectors of the Australian economy.
I would not have considered that one item of capital equipment such as a concrete pourer would have come within that definition. At document T5 is a document entitled Migration Series Instruction. These are cancellation under subdivision (g) Cancellation of Business Visas. This apparently represents policy on the part of the respondent department. The respondent submitted that the document is still current although there are certainly strong doubts about that. So far as it might represent policy I would only refer to a series of cases in the Tribunal commencing with Daintey and Minister for Immigration and Ethnic Affairs 6 AAR 259 that statements of policy cannot override the Tribunal's duty to make the correct or preferable decision on the material available to it.
At paragraph 4.3.2 of that document under a general heading of "What is an Eligible Business?" it is said:
Eligibility relates therefore to the achievement of stated objectives through the activities of the business not directly to the size or scale of the business.
Para 4.3.3 then reads:
Legally the eligible business definition may be met by a business whose activities come within the definition although the business may be small. There is no requirement in law for the activities to be on any particular scale. It is sufficient for the business to demonstrate that its activities have achieved one of the stated objectives.
Para 4.5.1 then reads:
If after 24 months a migrant is not in business he/she must establish that a genuine effort has been made to engage in business since arrival.
There is then reference to subsection (3) of section 134 as to what the Minister may take into account. I do not think that this particular instruction takes matters any further. For example, in the definition of eligible business, paragraph F refers to:
An increase in commercial activity and competitiveness.
That is to say there is the joining word "and" and I cannot see how one concrete pourer can achieve this. Likewise, there is no evidence that as at the cancellation date the applicant's business had increased employment. Employment was eventually increased by factors outside the applicant's control, namely his inability to work himself. I note that he carries on business at Lithgow which I know sitting here is a town of decreased economic activity. Again, there was no evidence before me as to any advertising or business plans. On all of the material before me I am not satisfied that at any time the applicant was engaged in an eligible business.
So far as the members of the applicant's family are concerned, subsection (5) of section 134 requires that the visas not be cancelled if they would experience extreme hardship. As I see it the words extreme hardship are normal English words and do not require any judicial gloss. I am satisfied that whereas the cancellation of their visas will cause difficulties to the applicant's individual family members and be personally upsetting to them it cannot be said that they will suffer extreme hardship. The decisions under review are therefore affirmed.
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