Lu & Ors And Minister For Immigration, Multicultural and Indigenous Affairs

[2003] AATA 954

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 954

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/391-396

GENERAL ADMINISTRATIVE DIVISION		)
Re		MING FA LU SU CHEN CHAN YA TING LU CHIA-CHI LU YI LING LU CHENG TSE LU

Applicants

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms J Cowdroy, Member

Date26 September 2003 

PlaceBrisbane

Decision The Tribunal affirms the decisions under review. 

....................(Sgd)....................

J Cowdroy
  Member 

CATCHWORDS

IMMIGRATION – business skills visa – whether decision to cancel visa properly made – whether secondary visa holders would suffer extreme hardship if their visas were cancelled

Migration Act 1958

Migration Regulations 1994

Re Widjojo and Minister for Immigration and Multicultural Affairs [2001] AATA 774
Re Tang and Minister for Immigration and Multicultural Affairs [2000] AATA 997
Hope v Bathurst City Council (1980) 144 CLR 1
Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961

REASONS FOR DECISION

26 September 2003  Ms J Cowdroy, Member

Background

1. This is an application for review by Ming Fa Lu (herein referred to as “the primary applicant”) for review of a decision made on 9 April 2002 by a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs to cancel the applicant’s Business Skills (Migrant) (Class AD) visa and the contingent secondary Business Skills (Migrant) (Class AD) visas of the applicant’s wife, Su Chen Chan, and children, Ya Ting (“Heidi”), Chia Chi (“Sue”), Yi Lang and Chen Tse (herein referred to as “the secondary applicants”). The decision under review was based on the respondent’s findings that the primary applicant did not meet the provision of sections 134(1)(a) and 134(1)(b) of the Migration Act 1958 (“the Act”).

2.      On 30 November 2001, the primary applicant was notified of the respondent’s intention to cancel his visa and those of the secondary visa holders and the respondent gave him the opportunity to make representations on that issue. In December 2001, a response to the notice of intention to cancel was received from Ms Heidi Lu. On 9 April 2002 a delegate of the respondent decided to cancel the visas of the primary and secondary visa holders. On 7 May 2002 the applicant lodged an application with the Tribunal to have that decision reviewed.    

Hearing

3.      The matter was heard on 5 March 2003. Mr Rangiah represented the applicants and Mr Gallo appeared for the respondent. Ming Fa Lu and his daughters, Chia Chia Lu (“Sue”) and Ya Ting Lu (“Heidi”), gave evidence.  The Tribunal was assisted by an interpreter in the Mandarin language.

4. Before the Tribunal were the “T-Documents” lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. These were admitted into evidence as Exhibit 1, as well as the following exhibits:

§Exhibit 2       Supplementary “T-Documents”

§Exhibit 3       Affidavit of Ming Fa Lu dated 24 October 2002

§Exhibit 4       Affidavit of Ya Ling Lu dated 27 September 2002

§Exhibit 5       Affidavit Chia Chi Lu dated 27 September 2002

§Exhibit 6       Affidavit David Melville Winder dated 27 September 2002

§Exhibit 7       Order and Invoice –Yon Tay Antenna Co Ltd

Evidence Before the Tribunal

5.      The primary applicant gave evidence at the hearing, and provided the Tribunal with a statement (Exhibit 3). 

6.      Mr Lu was granted a business visa on 13 January 1999.  The secondary applicants, Mr Lu’s wife and children, were also granted visas on that day.  Their visas are contingent on Mr Lu’s continued holding of his business visa.

7.      The primary applicant first entered Australia on 26 January 1999.  He said that he set up his business shortly thereafter, operating as a sole proprietor. From January 1999 to September 1999, he worked in that business for approximately 15 hours per week.  His efforts encompassed the formulation of business plans, sourcing products for import/export, negotiating with purchasers and customers, and overseeing the financial and marketing aspects of his business. 

8.      In around September 1999, the primary applicant suffered severe and debilitating pain, which prevented him from working. The cause of his pain was identified as tumours in his lower spinal cord.  He underwent surgery, in Taiwan on 9 December 1999 to remove the tumours from his spine and he was discharged from hospital on 21 December 1999. After discharge from hospital, he returned for regular check-ups and he was required to wear a back support for six months as part of his rehabilitation program. 

9.      In November 2000, he began experiencing pain at the back of his neck and in December of that year, he was diagnosed with a bulging disc. He underwent surgery for its removal on 1 January 2001, and he was discharged from hospital on 8 January 2001. That surgery was also conducted in Taiwan. Following the surgery he was required to wear a neck brace for approximately four months. After the neck brace was removed, he suffered from weakness and numbness in his right hand and as a result he is unable to lift heavy items with that hand.

10.     As a result of those two medical conditions and the surgery, the primary applicant was limited, from September 1999 until December 2001, in his ability to work, his ability to remain in Australia for any extended periods of time (due to the necessity to visit the hospital in Taiwan on a regular basis), and his ability to take overseas flights throughout the period. 

11.     Since the last operation, the primary applicant has worked an average of 10 hours per week.  He has been unable to work longer hours due to his need to rest and recuperate after his operations.

12.     As a result of the operations, the primary applicant now experiences difficulties controlling the function of his bladder and bowels.  Nor can he sit for lengthy periods, or walk at a fast pace.  These complications prevent him from investing substantial time in attending to the business affairs of his company.

13.     The primary applicant has spent 12 days in Australia during which he undertook investigations in respect to market opportunities.  From 26 to 30 January 1999, he visited stores in Brisbane to investigate the types of car accessories being sold in order to ascertain whether a niche exists in the Australian market for his products. 

14.     From 6 May to 12 May 1999, the primary applicant visited local manufacturers of car accessories in Sydney and attended a car accessories exhibition.  As a result of the investigations made in those two trips, he formulated a business plan for the further development of his business.

15.     On 22 February 2001, the primary applicant incorporated his business.  The company name of the business is An Feng International Pty Ltd (ACN 095 994 219) (hereinafter referred to as “An Feng”). Initially, An Feng was engaged in the importation of car antennas and accessories manufactured in Taiwan, however, since early 2000, Mr Lu has been investigating the possibility of An Feng exporting Australian health products to Taiwan.

16.     Audioxtra International Pty Ltd (“Audioxtra”) purchased products from the primary applicant’s company in Taiwan, Yon Tay Antenna Co Ltd (“Yon Tay”) in 1998.  In mid August 2001, the primary applicant instructed Heidi Lu to provide Audioxtra with a quote for blister packs of antennae products manufactured by Yon Tay.  Subsquently, in November 2001, an order to the value of US$11,963 (A$23,139.26) was received and the primary applicant arranged with his daughter for the direct shipping of the antennas from Yon Tay to Audioxtra. 

17.     In April and November 2001, An Feng exported blankets, health and underwear products to Goldpark Industrial Corporation as samples. The total value of those goods was A$5,060.26.

18.     An amount of A$54,000 had been invested in An Feng for its establishment and continuing operation on 1 May 2001. The primary applicant had intended to purchase a property in Australia when he was first granted his visa. However, due to ill health, the decline of his business in Taiwan due to the Asian economic crisis, (partially contributed to by his lack of involvement in the business), and limited financial resources, this had not occurred.

19.     The primary applicant indicated his plans for developing his business included participation in international shows, placing advertisements for his products in magazines and other media, buying a residential property and stabilising his business activities. In terms of long-term strategic plans, he anticipated exporting health products to Taiwan as well as automotive parts and accessories. 

20.     He stated that if his visa were reinstated he intended to spend half of his time in Australia and the other half in Taiwan.

21.       During the 15 months the primary applicant was incapacitated by his neck condition, he was able to work in his company in Taiwan in light simple tasks, however he was not capable of undertaking any physical work. He provided two certificates in Mandarin which were said to provide diagnoses of his neck and back condition and which confirm the dates of hospitalisation. He indicated that he was not able to obtain a report from a medical practitioner in Taiwan.

22.     The document prepared by Dr Brett Halliday was provided without Dr Halliday examining him.

23.     The primary applicant had little knowledge of the orders placed by Audioxtra or Goldpark, as his daughter, Heidi, handled the business activities whilst he was unwell.

24.     The primary applicant was cross-examined in respect of the response provided in the 24-month survey, which, he said, either his daughter or wife completed, and he signed on 8 August 2001.  In that document he indicated that he had not yet engaged in a business in Australia.  It was put to the primary applicant that this information is inconsistent with his oral evidence at the hearing that quotes had, by that time, been given to Goldpark and Audioxtra and a trial order had been sent to Goldpark. He indicated that he did not regard those activities of a business type nature. He indicated that the information in the 24 month survey was probably provided in error.

25.     Based on the hours of work referred to the primary applicant’s statement and his oral evidence, the respondent suggested to the primary applicant that in the years 1999 to 2001 he had worked approximately 1,200 hours or the equivalent of seven month’s work, as a result of which he had achieved approximately A$30,000 in sales.  It was put to him that this represented a very minimal return, given the hours of work involved. 

26.     The primary applicant indicated that progress in the business was slow but that he was optimistic of developing the business further if he were able to have his visa reinstated.  Since his visa had been cancelled, he had less incentive to build up the business. He had not prepared business plans, goal statements or cash flow statements.

Ya Ting Lu

27.     Ya Ting Lu (“Heidi”) gave evidence at the hearing, and provided the Tribunal with a statement (Exhibit 4).  Heidi is the primary applicant’s eldest daughter.  She is currently completing a Bachelor of International Business at Griffith University, which she expects to complete by November 2003.   Ms Lu hopes to remain in Australia so that she can complete her undergraduate course, and possibly complete honours or postgraduate studies in accounting or business administration.

28.       Ms Lu  has been in Australia since August 1997, and has returned to Taiwan for holidays on the following dates:

§13 November 1999 to 11 February 2000;

§19 June 2000 to 15 July 2000;

§11 November 2000 to 11 February 2000;

§18 June 2001 to 14 July 2001;

§23 November 2001 to 20 February 2002; and

§23 June 2002 to 30 July 2002.

29.     Ms Lu had been working for An Feng since its inception under the direction of her father.  When her father was ill, he relied heavily on her to assist in running the business, especially during the period September 1999 to December 2001.  Her duties included handling the correspondence sent to An Feng and to her father, liaising with suppliers, customers, lawyers and accountants on her father’s behalf, and maintaining An Feng’s office on a day-to-day basis. Ms Lu worked approximately 20 hours per week at An Feng.  

30.      Ms Lu gave evidence of her observations as to her father’s back and neck condition at the times she visited Taiwan.  She said before his first operation he could walk a very long distance but after the operation he “can’t move”..  When she left on 11 February 2000 his condition had not changed.  When next in Taiwan, in June 2000, her father’s physical condition was better but he still could not move very well or walk very far. However, he could walk in the garden. When she visited Taiwan in June 2001, six month’s after her father’s surgery, his neck support had been removed, although his neck movements were still quite rigid.

31.     Ms Lu agreed that she had provided a quotation to Audioxtra for the supply of blister packs manufactured by Yon Tay.  The order was subsequently filled, although she did not arrange for the shipping of the order.  The quotation to Goldpark dated 14 April 2001 (MFL8) was sent by facsimile, as was the order from Goldpark dated 20 April 2001. The secondary applicant contended that the documents were copies of facsimiles, which had transmission details on it.  When questioned as to the reason why there were no transmission details on the documents, she stated that she had cut them off, so “it looks better”.

32.     The trial order from Goldpark for blankets and health products was taken to Taiwan by her and her sister, when they travelled to Taiwan on holiday.    

Chia Chi Lu

33.     Chia Chi Lu (“Sue”) was born on 4 May 1983 and is aged 19 years.  Ms Lu arrived in Australia in August 1997 and is currently studying for a Bachelor of Commerce Degree at the Queensland University of Technology.  She expected to complete the course in December 2004.  If her visa were cancelled, it would cause her extreme hardship as, since leaving Taiwan in 1997, she has only returned to Taiwan for short holidays. 

34.     She stated that she had lost contact with her friends in Taiwan, having lived in Australia for more than five years.  Her studies will be affected if she has to return to Taiwan.  She will not be able to apply for a student visa in Australia in order to complete her studies.  Ms Lu stated that she had intended to seek employment in Australia upon completion of her degree.

David Melville Winder

35.     Mr Winder produced a statement which was admitted into evidence as Exhibit 6. He is the managing director of Audioxtra located in Sydney.  The business is primarily involved in the import and distribution of mobile electronic products to trade dealers in Australia.  An Feng has been a supplier of Audioxtra since November 2001. 

36.     In his dealings with An Feng, he deals with the primary applicant through either his daughter, Heidi, or the primary applicant’s personal assistant in Taiwan, Phyllis Wang.  Audioxtra had purchased car antennas and accessories to the value of over A$23,000 since February 2001. Mr Winder indicated that his company plans to continue to purchase antennas and car accessories from An Feng, expecting to double the amount of goods purchased from the company in the near future.

Legislative Framework

37. Section 134 of the Act provides:

“(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 ventures for the business proposal;

(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 section137;

(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 visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person.”

The Applicants’ Submissions

38.     Mr Lu is the managing director of An Feng.  His wife and daughter, Ya Ting, are also directors of the company. Ya Ting is also recorded as the company secretary with ASIC.  Mr Lu and his wife are the sole shareholders in the business, each holding one share with a value of $1.00 per share. As such, the primary applicant contends that he has obtained a substantial ownership interest in an eligible business in Australia. 

39.     The company has a registered office address in Mt Gravatt, and its principal place of business is recorded with ASIC as Unit 38, 12 Grandchester Street, Sunnybank Hills.  This is the address of the family home in Australia.

40.     Although he has spent little time in Australia, the primary applicant argues that he has been actively involved in the day-to-day management, at a senior level, of his company.  The company office in Australia is run by Mr Lu’s daughter, Ya Ting (“Heidi”), who follows the primary applicant’s instructions and maintains contact with An Feng’s clients in Australia.

41. The primary applicant contends that there is no requirement that he participate in the management of his business from within Australia. He contends that the words “in Australia” are absent from section 134(1)(b), and therefore he is not required to be in Australia to manage the business.

42.     Further, the applicant contends that, whilst his ill health has affected his ability to actively participate in the business, he has continued and will continue to make genuine efforts in managing the day-to-day activities of the business.

43.     Two of the secondary applicants, Ya Ting and Chia Chi, contend that they would suffer extreme hardship if their visas were cancelled.  Ya Ting (“Heidi”) is in the final semester of her undergraduate studies, and contends that she would suffer extreme hardship if she was forced to leave Australia.  Similarly, Chai Chi (“Sue”) is currently completing a Bachelor of Commerce and contends she would suffer extreme hardship if she was forced to leave Australia.  Heidi and Sue further contend that there is no guarantee that they will be granted student visas in the event their current visas are cancelled.  Both consider Australia to be their home, and both have indicated a desire to remain in Australia.

The Respondent’s Submissions

44.     The respondent submitted that the applicants’ case had no merit and that the evidence produced to the Tribunal was a sham.  There is no medical evidence of any substance to support the primary applicant’s contention of continuing ill health and the evidence produced to corroborate the primary applicant’s contention that he was conducting business was flimsy at best.

45.     With respect to ill health, the primary applicant relied on two certificates of diagnoses and a report from an Australian physician who had examined the MRI scan of the primary applicant and his statement.  There was no evidence provided of the length of incapacity after the two surgical procedures and the report by Dr Halliday was speculative.

46.     With respect to the evidence of An Feng’s business activities, these consisted solely of transactions with Audioxtra and Goldpark. The managing director of Audioxtra has known the primary applicant since 1992 and since that time the primary applicant’s company in Taiwan had been exporting goods to Audioxtra.  In substituting An Feng for Audioxtra’s dealings with Yon Tay, it was merely replacing the agency arrangements. 

47.     With respect to the evidence of the business transactions, the documents said to be copies of facsimiles had their transmission reports removed, the original documents were not produced, and the only evidence that the trial orders to Goldpark were dispatched relies on Ms Lu’s testimony that she and her sister took the goods when they travelled to Taiwan. Consequently, the authenticity of the transactions is questionable.  

48.     With respect to the secondary visa holders, Ya Ting Lu and Chia Chi Lu, the fact that visa cancellation will require them to leave Australia cannot amount to hardship as this is the result contemplated by the statute upon cancellation.  There is no apparent reason why they could not apply for student visas to complete their studies. 

Consideration of the Issues

49.     On 30 November 2001, the primary applicant was notified of the respondent’s intention to cancel his visa and the respondent gave him the opportunity to make representations on that issue.  As noted above, the respondent considered a response from Ms Heidi Lu before it decided to cancel the applicants’ visas. 

50. Section 134(1) requires that, prior to cancelling a business visa, the Minister must be satisfied that the holder of the visa has not obtained a substantial ownership interest in an eligible business in Australia; or that the visa holder is not utilising his or her skills in actively participating at a senior level in the day-to-day management of an eligible business.

51. Section 134(1) is subject to an ameliorating provision contained in section 134(2), which provides that a Minister must not cancel the visa if he is satisfied that the visa holder has made genuine efforts to utilise his skills in actively participating, at a senior level in the day-to-day management of an eligible business, or has made genuine efforts to obtain a substantial ownership interest in an eligible business, and where the Minister is satisfied that the visa holder will continue to make such genuine efforts.

Section 134(1)(a) Substantial Ownership Interest

52. The term “ownership interest” in relation to a business visa is defined in section 134(10) of the Act to mean an interest in a 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”.

53.     On 22 February 2001, the applicant incorporated a company in Australia called An Feng International Pty Ltd, ACN 095 994 219. The applicant is the managing director and a shareholder of the company.  Prior to incorporating the company, he had operated the business as a sole proprietorship.

54.     The respondent contends that if the applicant was trading as a sole proprietor, he failed to produce any evidence that he had been conducting a business and that there is no evidence to demonstrate that the applicant was involved in business activity in Australia before being issued with the cancellation notice.

55. The Tribunal notes however, that the applicant incorporated An Feng and obtained a “substantial ownership interest” in that company prior to the issuing of the notice of intention to cancel his visa. Accordingly, the Tribunal is satisfied that section 134(1)(a) of the Act has been satisfied.

Section 134(1)(b) : Involvement in Day-to-Day Management at a Senior Level

56.     In Re Widjojo and Minister for Immigration and Multicultural Affairs[2001] AATA 774, Deputy President Estcourt QC considered some factors which he thought were indicative of a person being involved in the day-to-day management of a company at a senior level. This included completing the paperwork of the business, involvement in inventory, contact with suppliers and involvement in marketing.

57.     In Re Tang and Minister for Immigration and Multicultural Affairs [2000] AATA 997 at par 20, Deputy President McMahon stated:

“…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 v Bathurst City Council (1980) 144 CLR 1, Mason J considered that the use of the phrase ‘carrying on 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.”

58.     There is evidence before the Tribunal that the company has imported some goods to Australia.  Products have been imported to Australia to the value of over $23,000.  The company has also exported goods, to the value of $5,060.26.

59.     The evidence before the Tribunal is that the primary applicant has spent little time in Australia; instead he spends the majority of his time in Taiwan.  The business in Australia appears to be managed by the primary applicant’s daughter, Ya Ting (“Heidi”).  Particularly during her father’s illness, she was responsible for a range of duties including handling correspondence, liaising with customers and suppliers, liaising with lawyers and accountants and maintaining the office on a day-to-day basis. 

60.     In his statement (Exhibit 6), Mr Winder indicates that he has primarily dealt with the primary applicant’s daughter Heidi or his personal assistant in Taiwan in relation to business deals between the companies. The primary applicant’s limited English skills has meant that he cannot liaise easily with Australian customers or suppliers of the company.

61.     The Tribunal is satisfied that the primary applicant has had an extremely limited role in managing the business of An Feng, in Australia, on a day-to-day basis.

62.     The primary applicant has submitted that the requirement that the business be “in Australia” is only relevant to sections 134(1)(a) and (c) of the Act, but not to section 134(1)(b). The argument is based on the absence of the words “in Australia” from section 134(1)(b). The Tribunal rejects this argument. It seems clear to the Tribunal that the words “of that business” used in section 134(1)(b) are clearly a reference to the “eligible business in Australia” referred to in section 134(1)(a). This interpretation is further reinforced by the use of the words “eligible business in Australia” in section 134(1)(c).

63.     Under regulation 127.216 of the Migration Regulations 1994 an applicant for a business visa must have a genuine and realistic commitment to either the establishment of an eligible business in Australia, or the participation in an existing business in Australia.  Under that section, the applicant is:

“…to maintain direct and continuous involvement in management of that business from day to day and in making decisions that affect the overall direction and performance of the business in a manner that benefits the Australian economy.”

64.     In Tang, at par 21, Deputy President McMahon noted that:

”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.”

65. It appears to the Tribunal that the intention of the Act in the granting of business visas is to encourage business owners to move to Australia, to set up businesses operating in Australia, with the intention of benefiting the Australian economy and community. It seems that the primary applicant’s conduct in the management of his business does not fall within the spirit of this intention.

Eligible Business

66. The applicant in his statement of facts and contentions, submitted that An Feng is an eligible business as it satisfies one or more of the definitions in section 134(10) of the Migration Act 1958. Section 134(10) relevantly provides:

“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.”

67.     Specifically, it is contended by the applicant that the company is an “eligible business” because it has:

“… imported car accessories and other similar products manufactured in Taiwan to Australia in the past.  The applicant intends to import more car accessories products to Australia in the near future.  By doing so, An Feng has developed and will continue to develop business links between Australia and Taiwan through the import of car accessories product from Taiwan to Australia. An Feng has also increased commercial activity and international competitiveness into the Australian economy by introducing new and advanced car accessories products from Taiwan to Australia”.

68.     On the basis of the evidence before the Tribunal, An Feng appears to have undertaken the following business transactions since its incorporation in February 2001:

§November 2001: the importation of approximately A$23,139.26 worth of car accessories from Taiwan to Australia, which were sold to Audioxtra;

§April and November 2001: the exportation of blankets, health and underwear products to the value of A$5,060.26 to Goldpark Industrial Corporation; and

§November 2002: the importation of US$28,471.00 worth of car accessories from Taiwan to Australia, for Audioxtra.

69.     These appear to have been the only transactions undertaken by the business.  In Hope v Bathurst City Council (1980) 144 CLR 1, it was held that, for a company to be carrying on business, the company needed to be engaged in carrying out activities for the purpose of making a profit, with those activities being undertaken on a continuous and repetitive basis. Although there is no requirement for the activities to be of a particular size or scale, it is necessary that there be continuous and repetitive activity. In this case, it cannot be said that An Feng has undertaken continuous or repetitive activity with a view to obtaining a profit. It has had three business transactions in a twelve-month period. The transactions are ad-hoc at best.

70. Accordingly, the Tribunal is not satisfied that An Feng is an eligible business for the purposes of the Act.

Section 134(2) : Is the Primary Applicant Making Genuine Efforts?

71.     The primary applicant’s evidence as to his future plans for the business in Australia was vague to say the least.  Even allowing for a period of ill health, he has not formulated a business plan and neither did he demonstrate that he had any concrete proposals for expanding his business, other than cursory references to advertising and attendance at trade shows. The only evidence of any continuing business relationship is an indication from Audioxtra to the effect that it plans to purchase more products from An Feng.

72.     The evidence of the primary applicant demonstrated only a superficial knowledge of the few transactions that An Feng has conducted since its inception. Accordingly, the Tribunal is not reasonably satisfied that the primary applicant intends to make a genuine effort to utilise his skills in actively participating at a senior level in the day to day management of his business. 

73.     Accordingly, the Tribunal affirms the decision to cancel the business skills visa of the primary applicant.  

74.     In respect to the secondary visa holders, only Ya Ting Lu (“Heidi”) and Chia Chi Lu (“Sue”) gave evidence to the Tribunal on the question of extreme hardship.  There is no evidence of hardship in relation to Su Chen Chan, Yi Ling Lu or Cheng Tse Lu, and, therefore, the Tribunal is not satisfied that these applicants would suffer extreme hardship if their visas were cancelled.  Accordingly, the Tribunal affirms the decisions to cancel the secondary business skills visas of Su Chen Chan, Yi Ling Lu and Cheng Tse Lu.

75.     Heidi and Sue are both completing undergraduate degrees at universities in Queensland.  Both contend that they would suffer extreme hardship if their visas were cancelled as would have to return to Taiwan, where they have few friends, and they would be unable to complete their studies.  There is no evidence before the Tribunal that either would be ineligible for a student visa or that they would be unable to complete their courses through external study.

76.     In Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961, Deputy President McMahon considered the phrase “extreme hardship” and stated:

“28.  It is clear that hardship in subsection (5) must be judged subjectively. The use of the phrase ‘to the person’ indicates this. What His Honour said in Man Ki Kim is relevant to that observation. The reference to Dell v Dalton above is by way of analogy. In that case, the Court of Appeal in effect held that a worst case scenario does not necessarily mean the worst case imaginable. What His Honour was saying in Man Ki Kim could be illustrated by taking the degree of hardship on a scale of one to ten. Extreme hardship does not necessarily have to rate a 10. Anything between nine and ten, for example, might still be called extreme.

29.  The word ’hardship’ has received attention in various contexts. … [W]hatever view is taken, hardship involves more than inconvenience or detriment. Affectation must be to a considerable degree before it can properly be called hardship.

30. …In order to enliven the prohibition against a Minister cancelling another person’s business visa under subsection (4), there must be shown to be not only hardship and not only undue hardship, but extreme hardship. Furthermore, that hardship must result from the cancellation.

31.  The use of the word ‘would’ in subsection (5) indicates that the hardship must be a necessary concomitant of the cancellation. A mere possibility or even a probability would not be sufficient. Thus the bar is set doubly high. To avoid a cancellation, there must be shown not only hardship of an extreme kind, but hardship which will necessarily follow cancellation. Although no one can accurately predict the future, the legislation requires the decision maker to find that the adverse consequence will almost certainly happen.

32.  Hardship is a condition that bears hard upon one. In the present case, it is clear that the applicant does not wish to leave Australia. That in itself cannot amount to hardship. The fact that the loss of a visa means that the applicant would need to leave Australia cannot of itself amount to hardship as this is the result contemplated by the statute upon cancellation.. One must look at the consequences to the applicant that undoubtedly would result from the cancellation.

33.  …

34.  The Migration Act and Regulations, taken as a whole, disclose a compromise which represents a balance between various competing interests. There is no reason to give a broad and generous construction to the concept of extreme hardship. To do so may detract from the force given in the balance of the legislative scheme to the other interests which are involved. It is not necessary in the present case, however, to extend the meaning of the phrase beyond its ordinary English meaning. In my view, the hardship, if any, which the applicant would suffer is nowhere near the extent of the hardship which would be required in order to fit the statutory description.”

77.     With respect, the Tribunal adopts the approach set out above.  The Tribunal is satisfied that Heidi and Sue would not suffer extreme hardship if forced to return to Taiwan.  Although they may be forced to leave friends they have made in Australia if their visas were cancelled, they have immediately family in Taiwan to support them on their return.  Further, there is no evidence that Heidi or Sue would be ineligible to obtain student visas to allow them to complete their studies.  The Tribunal cannot, therefore, be satisfied that any adverse consequences will almost certainly flow from the decision to cancel their visas.

78.     Accordingly, the Tribunal affirms the decision to cancel the secondary business skills visas of Ya Ting Lu (“Heidi”) and Chia Chi Lu (“Sue”).

Decision

79.     The Tribunal affirms the decisions under review.

I certify that the 79 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member

Signed:         Sarah Oliver
  Associate

Date of Hearing  5 March 2003
Date of Decision  26 September 2003
Counsel for the Applicant         Mr Rangiah
Solicitor for the Applicant          Redmond van de Graaff Lawyers 
Solicitor for the Respondent     Mr Gallo, Blake Dawson Waldron