Milli and Minister for Immigration and Citizenship
[2007] AATA 2020
•5 December 2007
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: W 200600333
GENERAL ADMINISTRATIVE Division )
Re: Bulent Milli
Applicant
And: Minister for Immigration
and Citizenship
RespondentDIRECTION [2007] AATA 2020
TRIBUNAL:Mr A Sweidan, Senior Member
DATE:11 December 2007
PLACE: Perth
The Tribunal made a decision in these applications on 5 December 2007: [2007] AATA 2020.
It has come to the Tribunal’s attention that there is an obvious error in paragraph 54 of the Tribunal’s Reasons for Decision.
Accordingly, the Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter paragraph 54 of the Tribunal’s Reasons for Decision as follows:
·in subpara (a), the words “The applicant has failed to utilise his skills in actively participating at a senior level in the day-to-day management of the business” are to be deleted and the words “The applicant has failed to acquire a substantial interest in an eligible business in Australia” are to be substituted therefor.
............[Sgd Mr A Sweidan].............
Senior Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2020
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200600333
GENERAL ADMINISTRATIVE DIVISION ) Re BULENT MILLI Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Mr A Sweidan, Senior Member
Mr W Evans, Member
Date5 December 2007
PlacePerth
Decision The Tribunal affirms the decision under review.
...........(Sgd. A Sweidan).................
Senior Member
CATCHWORDS
Immigration and Citizenship – Business Skills Visa – whether eligible business was carried on – whether applicant utilised his skills in actively participating at a senior level in day-to-day management of such a business or made genuine effort to do so – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) s 134
Migration Services Instructions MSI-133
CASES
Abbu v Minister for Immigration and Multicultural Affairs [2006] AATA 898
Evans v FC of T (1989) ATC 4540
Freeman v The Secretary, Department of Social Security (1988) 19 FCR 342
Re Griffiths and Migration Agents Registration Authority [2001] AATA 240
Gunawan v Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 852
Hidayat v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 916
Koosasi and Minister for Immigration and Multicultural Affairs [2006] AATA 179
Lau v Minister for Immigration and Multicultural Affairs [2002] AATA 70
Re Juliana Leo and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 308
Re Sale Leo and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 309
Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58
Padilla and Minister for Immigration and Multicultural Affairs [2006] AATA 922
Re Soegianto Tanujaya Indrawaty Kusuma Lim Vecensia Tanujaya Rinny Tanujaya Tony Tanujaya Tony Tanujaya and MIMIA [2004] AATA 386
Subarid v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248
Patrick James Sweeney and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 991
Tang v Minister for Immigration and Multicultural Affairs [2000] AATA 997
Witjahya and Minister for Immigration and Multicultural Affairs [2006] AATA 1118
Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 54
Re Yam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283
Re Lok Young (Michael) Wong v Minister for Immigration & Multicultural Affairs [2006] AATA 277
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248
REASONS FOR DECISION
5 December 2007 Mr A Sweidan, Senior Member
Mr W Evans, Member
BACKGROUND
1. Bulent Milli (the applicant) was born in Turkey. He migrated to Singapore where he set up several successful businesses.
2. On 21 June 2003 the applicant was granted a class AD subclass 127 (Business Owner) visa. His wife Fatma Biricik and his children Muge and John Milli were also granted subclass 127 visas as dependent applicants.
3. The applicant and his dependants first entered Australia on those visas on 21 June 2003. The applicant nominated his address as 156 Oceans Drive, Quinns Rock on his incoming passenger card.
4. On 3 July 2003 the respondent received from the applicant a notification of address or change of address (Form 922) nominating the address of 18A Swan Strait (sic) South Perth WA.
5. On 14 June 2005 a delegate of the respondent sent to the applicant at the Quinns Rock address a Survey of Business Skills Migrant – 24 months (Form 1010). The applicant received and returned the completed survey form with supporting documents on 3 August 2005. In the survey form, the applicant specified his address for correspondence as then being 231 Ponggol Seventeenth Avenue, Singapore 829696.
6. On 15 February 2006, the applicant obtained an ownership interest and directorship in Elkridge Holdings Pty Ltd (Elkridge) an Australian company. ASIC records show that he holds one ordinary share being 50% of the issued share capital in the company.
7. On 24 April 2006, the respondent’s delegate sent a notice of intention to cancel the subclass 127 visas to the applicant. The address used was 231 Ponggol Seventeenth Avenue, Singapore 829696, as specified in the response to the 24-month survey.
8. On 16 October 2006, a delegate of the respondent decided to cancel the applicant’s subclass 127 visa. The applicant seeks a review of that decision.
Relevant Legislation and Policy
9. Section 134 of the Migration Act 1958 (the Act) provides that the Minister has a discretion to cancel the visa if he or she is satisfied that the visa holder has not obtained a substantial ownership interest in an eligible business in Australia, is not utilising his skills in actively participating at a senior level in the day-to-day management of the business, or does not intend to do these things. The Minister must not cancel the visa if he or she is satisfied that the visa holder has made genuine efforts and intends to continue to make such genuine efforts.
10. Eligible business and ownership interests are defined in s 134(1) of the Act and discussed at paragraph 4.3 of the Migration Series Instructions MSI-133.
11. Section 134(10) provides that 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 and 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; and
(f)an increase in commercial activity and competitiveness within sectors of the Australian economy.
12. Paragraph 4.3.2 of the MSI-133 notes that eligibility relates to achievement of stated objectives through the activities of the business, not directly to the size or scale of the business.
13. 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.
14. Notes to guide the interpretation of these matters are provided at paragraph 4.5 of the MSI-133. The matters that may be taken into account, and the notes to their interpretation provide as follows:
(a)Business proposals that the person has developed. The MSI refers to whether there is a business proposal which is considered genuine, realistic and achievable.
(b)The existence of partners or joint ventures. The MSI refers to whether there is a formal contract with partners or joint venturers.
(c)Research that the person has undertaken into the conduct of an eligible business in Australia. The MSI refers to whether there is written evidence of detailed consultations with at least 3 business advisers.
(d)The period or periods during which the person has been present in Australia. The MSI refers to whether there has been physical presence for more than 6 months since the first arrival as a business skills migrant.
(e)The value of assets transferred for use in obtaining an interest in an eligible business. The MSI refers to whether there has been transfer to and retained in Australia at least 50% of the funds indicated as available for transfer within the 2 years.
(f)The value of ownership interest in the eligible business in Australia which is or has been held by the person. The MSI refers to whether there is or has been a minimum Australian $100,000.00 or 10% ownership held by the person and provides that if the person is no longer in the business the reasons for loss of ownership are relevant;
(g)The business activity that is or has been undertaken by the person. The MSI refers to whether there is a minimum of Australian $100,000.00 business activity as indicated by turnover and provides that this may include other business activity not considered as an eligible business but cannot include passive investment, for example the purchase of shares.
(h)Whether 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.
(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 in the day-to-day management of the business:
i)the length of time the person held the ownership interest or participated in the management as the case requires; and
ii)the reason why the person no longer holds the interest or participates in the management as the case requires.
PRELIMINARY ISSUE
Notification
15. The applicant raised a preliminary issue regarding notification. The applicant claims he did not receive the notice of intention to cancel and consequently did not have an opportunity to provide further submissions. This issue is not relevant to the 24 month survey or the notice of cancellation, as the applicant received these documents within time.
16. In relation to each of the relevant numbered documents which the applicant filed on this issue the Tribunal notes the following:
(a)Document 1: The notification of address or change of address (Form 922), dated 30 June 2003, nominates the applicant’s official address as 18A Swan Strait (sic) South Perth WA.
(b)Document 2: The respondent confirmed receipt of the Form 922.
(c)Document 3: It is clear that the 24 month survey (Form 1010) was sent to the wrong address. However, the applicant nonetheless received the form and was able to return the form by the specified date. The applicant was therefore not prejudiced and was able to give a reply within time.
(d)Document 4: The respondent concedes that the address of 156 Oceans Drive Quinns Rock, made on a PAX card dated 21 June 2003 was not an officially nominated address: see decision of Member Allen in Re Soegianto Tanujaya Indrawaty Kusuma Lim Vecensia Tanujaya Rinny Tanujaya Tony Tanujaya Tony Tanujaya and MIMIA [2004] AATA 386. The respondent concedes that the Form 1010 should not have been sent to this address but should have been sent to the officially nominated address in South Perth.
However, as noted above, the applicant did receive the Form 1010 in a timely manner. It should also be noted that the respondent did not send further communication to the Quinns Rock address.
(e)Document 5: The respondent acknowledges receipt of this letter and the Tribunal notes again that the letter confirms that despite the error with addresses, the applicant did receive the Form 1010 and was able to respond within time.
(f)Document 6: The applicant makes two claims with regard to the addresses given in the Form 1010. The first is that he gave an email address but did not receive correspondence via email. While the applicant may have expressed a preference to be contacted by email the respondent was still entitled to send documentation by mail pursuant to Regulation 2.55 of the Migration Regulations 1994.
Secondly, the applicant claims ‘somehow the address stated in form 1010 was considered as my communication address.’ In the Tribunal’s view it is clear that the reason why the respondent took the address listed on the Form 1010 as the ‘communication address’ is because question 5 specifically asked ‘address for service’ at which the applicant wrote 231 Ponggol Seventeenth Avenue, Singapore 829696. Question 38 of the same form then specifically asked the applicant who ‘all written communications about the Business Skills monitoring should be sent to…’. The applicant ticked ‘myself, all written communications will be sent to the address for communications that you have provided in this form’.
The Tribunal notes that the applicant did not tick ‘migration agent’ or ‘authorised recipient’ but chose to be contacted personally on the address given. The applicant also did not subsequently fill out parts G or H which specifically asked for the details of an agent or authorised recipient. In the Tribunal’s view by these actions the applicant’s official address for service on 1 August 2005 became 231 Ponggol Seventeenth Avenue, Singapore 829696.
(g)Document 7: It is clear that the Form 1010 was received.
(h)Document 8: The Tribunal finds that merely ticking ‘yes’ to the question ‘do you intend living in Australia for the next 12 months’ is not evidence that the applicant has and will actually continue to reside in Australia.
(i)Document 9: The position is the same as with regard to Document 8.
(j)Document 10: The applicant acknowledges that the notice of cancellation was emailed to the applicant, which he received. The Tribunal finds that the fact that this document was emailed while previous documents were posted is irrelevant as both are legitimate methods for service.
The applicant further claims that the respondent ignored the address on the PAX cards (Documents 8 and 9) which he claims shows his permanent address since 2005. However, the respondent says justifiably in the Tribunal’s view that the reason documents were not sent to these addresses is because documents cannot be sent to addresses nominated on PAX cards: see Tanujaya (supra) at 36.
The Tribunal notes that the applicant could have been prejudiced previously when the 24 month survey was sent to the address nominated on a PAX card rather than the official nominated address. In the Tribunal’s view, the respondent was correct in ensuring that further subsequent documentation was only sent to the last known official address, which at that time was 231 Ponggol Seventeenth Avenue, Singapore 829696.
(k)Document 11: As appears from the notice of cancellation (T5 p22), copies were sent to every possible address that the applicant had supplied in the past and present. One of those addresses was the Quinns Rock address referred to in Document 11. This document, in the Tribunal’s opinion, only demonstrates the care which the respondent took in ensuring that the applicant received the notice of cancellation.
(l)Document 12: This new Form 922 is dated 20 October 2006 and was received by the respondent on 24 October 2006. This is after the notice of cancellation was sent and after the application to the Tribunal. The Tribunal is of the view that until this form was received the last known official address of the applicant was 231 Ponggol Seventeenth Avenue, Singapore 829696, as stated on the Form 1010.
(m)Documents 13 and 14: The respondent concedes that the applicant most likely filed a Form 956 authorisation of person to act and receive communication on 27 February 2003.
However, the Tribunal finds that the point is largely irrelevant in relation to receipt of the notice of intention to cancel. As mentioned in the applicant’s last official communication to the respondent (being the Form 1010, 24 month survey) before the notice of cancellation was sent, the applicant specifically stated that he had elected to receive written communication personally.
Clearly, the applicant could have elected that future communication be sent to his agent or authorised recipient and have provided details for that. The point is that the applicant did not.
An agent was appointed when the applicant first made his visa application. The respondent was entitled to assume that that this agent was no longer engaged, or engaged to receive correspondence at the address specified on the 24 month survey. Finally, even if the agent was still engaged, the applicant nevertheless specifically asked that written communication be sent to him personally at the address nominated. All the respondent did was follow the applicant’s instructions as detailed in that form.
(n)Document 15: The fact that the respondent chose to take extraordinary steps well above and beyond legislative requirements cannot in the Tribunal’s opinion in any way be used to suggest that the previous methods of service were not valid.
17. It is clear that the respondent was under a legal obligation pursuant to the Act to send the notice of intention to cancel to the applicant’s last known residential or business address: Tanujaya (supra). The last known residential address at that time was the address given in the Form 1010, being 231 Ponggol Seventeenth Avenue, Singapore 829696. It was this address to which the notice of intention to cancel was sent.
18. Further and in the alternative, it is clear from the relevant case law that merits review by the Tribunal cures any procedural defect in notification: see Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 and Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 and Patrick James Sweeney and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 991. Merits review addresses the applicant’s central grievance that he did not have the opportunity to respond and put his reasons and evidence to the decision-maker.
19. The Tribunal accordingly finds that there is no substance in the applicant’s argument on the preliminary issue.
APPLICANT’S EVIDENCE AND CONTENTIONS
20. The applicant said that his intention was to migrate to Australia at the beginning of 2005 but his plans had to be delayed because he had to restructure his business plan.
21. He said that he had targeted two ways of setting up business in Australia. He has two companies setup 13 and 12 years ago in Singapore. The two companies have reached a credible position in the market. By using the synergies of both companies, setting up of an Australian company in Perth would give a competitive advantage which he believed would benefit Australia and his Singapore companies.
22. His Singapore company Gendata Pte Ltd (Gendata) has a patent for a device which provides mobile entertainment for buses and has applied to register the patent in Australia.
23. His other Singapore company Golden Horn Pte Ltd (Golden Horn) deals in food products. The company focused on importing gourmet products from various regions of the world to Singapore. One main focus was Perth. He personally visited many wine and gourmet product manufacturers. His focus was independent small growers and manufacturers. He made contacts with the Swan Valley and Margaret River wine producers and visited them. He provided evidence regarding these contacts. Further reference to this is made below.
24. As noted earlier, the applicant obtained an ownership interest in Elkridge in February 2006. The applicant produced documents showing a total of four transactions entered into by Elkridge. Further reference to these transactions appear below.
25. As well, the applicant produced documents and provided evidence showing that he had purchased a motor vehicle and a mixed use commercial/residential property “off the plan” in Australia.
Information which the Tribunal should consider
26. In conducting its review of the cancellation decision the Tribunal should have regard to all relevant evidence to determine whether the applicant satisfies the requirements of section 134(1) or is making genuine efforts to do so within the meaning of section 134(2) as at the date of cancellation (Re Griffiths and Migration Agents Registration Authority [2001] AATA 240; Freeman v The Secretary, Department of Social Security (1988) 19 FCR 342 and Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 54).
27. The Tribunal has held previously that it is entitled to look at activities after the date of visa cancellation and up to the date of the hearing where they can be related back to events prior to that date. The predominant view now appears to be that the Tribunal when reviewing a cancellation decision cannot take into account material relating to facts arising after the date of cancellation (Koosasi and Minister for Immigration and Multicultural Affairs [2006] AATA 179 at [33] and [34]).
28. In the matter of Padilla and Minister for Immigration and Multicultural Affairs [2006] AATA 922 at [20] Senior Member McCabe stated:
“I think I should confine myself to considering the evidence of what transpired before the cancellation decision – although it is possible that evidence of what occurred afterwards might still be relevant to the exercise of the residual discretion under s134(1)”.
Substantial ownership interest in an eligible business in Australia
Substantial ownership
29. It is clear that if Elkridge is an eligible business, then the applicant would as, a 50% owner and director of the company have a substantial ownership interest within the meaning of section 134(1)(a).
Eligible business
Is Elkridge a business?
30. However, before the Tribunal considers whether Elkridge is an eligible Australian business, there is the preliminary question of whether it is even a business within the meaning of the Act.
31. The definition of an eligible business is set out in section 134(1) of the Act. A business must meet at least one of the criteria set out in paragraphs (a) to (f) of the definition in order to be classified as an eligible business.
32. The Tribunal has previously found that the reference in subsection 134(1)(b) to the “day-to-day management of the business” indicates that an eligible business must have some element of continuity and repetition. Applying Mason J’s formulation of “carrying on a business” from Hope v Bathurst City Council (1980) 144 CLR 1, Deputy President McMahon found in Tang v Minister for Immigration and Multicultural Affairs [2000] AATA 997 at [20] that the construction of “participating in the day-to-day management of the business” for subsection 134(1)(b) required a commercial enterprise in the nature of a going concern with activities engaged in for the purpose of profit on a continuous and repetitive basis.
33. Member Barton at [55] in Leo v Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 309 citing Evans v FC of T (1989) ATC 4540 also stated:
“Whether 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”.
34. The importance of a clear profit motive was also discussed by Member Allen at [34] in Hidayat v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 916. Member Allen in the same paragraph also drew attention to the keeping of proper books, accounts and other records.
35. The applicant’s own documents (see below) show only 4 transactions by Elkridge. Two of those transactions occurred on 9 November 2006, which is after the date of cancellation on 16 October 2006 and therefore cannot be considered by the Tribunal. The remaining two transactions both occurred on 1 September 2006.
36. One of the transactions before cancellation involved Elkridge purchasing $6,483.30 worth of food products from Bas Foods (Aust) Pty Ltd in Victoria Park. The second transaction involved selling those same products to the applicant’s Singapore company Golden Horn Pte Ltd (Golden Horn) for $7,093.70. In essence this is one full transaction from Australian source to overseas sale (assuming that, at best for the applicant, it should be treated as a sale). Further, the total amount of profit made by Elkridge during the relevant period amounted to only $610.40.
37. The Tribunal finds that Elkridge therefore cannot be said to be a business within the definition of Mason J’s test. It is clearly not a commercial enterprise in the nature of a going concern with activities engaged in for the purpose of profit on a continuous and repetitive basis. While the Tribunal might accept that a business can run on a small scale, Elkridge has run on virtually no scale at all: Lau v Minister for Immigration and Multicultural Affairs [2002] AATA 70.
Is Elkridge an eligible business?
38. Even if the Tribunal were to characterise Elkridge as a business the Tribunal finds that it clearly was not an eligible business within the definition of s134(10). With regard to each of the relevant criteria the Tribunal finds as follows:
(a)The development of business links with the international market: The applicant claims to have established business links with international markets through the sale of the food products on 1 September 2006 to Golden Horn. However, the applicant admits that Golden Horn is one of his own Singapore based companies. Therefore the applicant has not developed business links with anyone.
(b)The creation or maintenance of employment in Australia: There is no evidence that Elkridge ever engaged anyone as an employee. The applicant has not provided employment contracts, pay slips, superannuation printouts or any financial records whatsoever. Further, any employment would have been unlikely considering the total gross profit derived appears to have been only $610.40.
(c)The export of Australian goods and services: As noted above, the only export that occurred was to Golden Horn, one of the applicant’s own companies in Singapore. The applicant therefore has not exported anything other than to himself.
(d)The production of goods or the provision of services that would otherwise be imported into Australia: There is no evidence that there has been any 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: There is no evidence that during the relevant period the applicant introduced new or improved technology to Australia.
(f)An increase in commercial activity and competitiveness within sectors of the Australian economy: The Tribunal finds that one shipment of food to a company in Singapore owned by the applicant for a total profit of $610.40 is not sufficient. It is nominal or token activity only and falls far below what could be characterised as a real increase in commercial activity and competitiveness within sectors of the Australian economy.
39. The Tribunal therefore finds that Elkridge is not a genuine business and has many similarities to the ineligible business in Witjahya and Minister for Immigration and Multicultural Affairs [2006] AATA 1118. In that matter the Tribunal at [15] found:
“The Tribunal formed the view that Multi Trading and the transactions in which it purportedly engaged were all part of a façade created by the applicant to give the impression that he was complying with the requirements of his visa, when in fact this was not so.
The Tribunal notes that Multi Trading had no business premises or employees in Australia and that it made minimal profits. The Tribunal is of the view that Multi Trading did not carry on a genuine business and that what the applicant was doing was exporting the products to entities which he either controlled or was closely associated with in Indonesia, solely for the purposes stated above.”
40. Likewise, Elkridge has:
(a)No business premises: The business address of Elkridge is the same as the applicant’s residential address; being 6/8 Keys Close (see Australian Business Register records at part 4 of the applicant’s documents).
(b)No employees: There is no evidence that Elkridge had any employees during the relevant period.
(c)Made minimal profit: Elkridge made virtually no profit during the relevant period.
(d)Been exporting products to entities which the applicant controlled or was closely associated with overseas: Finally and most importantly, it has been demonstrated that the applicant did nothing more than send products from his Australian company Elkridge to his Singaporean company Golden Horn. This gave the impression of a real and genuine business transaction when in the Tribunal’s view it was not.
41. It appears that Elkridge has many of the qualities which the Tribunal in Witjayah thought indicative of a “façade created by the applicant to give the impression that he was complying with the requirements of his visa, when in fact this was not so.”
Active participation at a senior level in the day-to-day management of an eligible business
42. The Tribunal finds that the applicant has not actively participated at a senior level in the day-to-day management of Elkridge or any eligible business.
43. The total evidence supplied by the applicant relevant to management appears at parts 5, 7 and 8 of the applicant’s documents. In relation to each of these parts the Tribunal finds:
Part 5: ‘Invoices from Charted Accountants company which is engaged in keeping the company accounts to Elkridge Holdings’
44. These invoices merely deal with the setting up of Elkridge and not its day-to-day management. One of the invoices is also dated 17 November 2006, after the date of cancellation. The applicant has not provided financial records, such as profit and loss statements and balance sheets, notwithstanding that various accountants have been engaged.
45. This part also contains a number of emails from the applicant to accountants regarding BAS statements. Again pieces of correspondence fall after the date of cancellation.
Part 7: ‘Invoices showing transactions made a total of 22,000 Aud’
46. This part involves transactions which as already demonstrated, occurred after the date of cancellation or involved the applicant exporting products to himself in Singapore.
Part 8: ‘Correspondence with various IT companies as well as Food related companies. Also showing a Dealer application with a major IT company in Australia.’
47. With regard to the Dealer Application with Westann Australia Pty Ltd the Tribunal notes that the document is dated 1 November 2006, after the cancellation. The respondent also notes that the document is signed by Biricik Milli, the applicant’s wife and not the applicant.
48. The rest of the documents of this part are a collection of emails. In relation to these the Tribunal notes the following:
(a)Many are again dated after the date of cancellation.
(b)Even for those that did occur before cancellation, most occur after the notice of intention to cancel on 24 April 2006.
(c)Some of the emails are addressed to the applicant’s overseas business address and not his Elkridge business address. It is therefore questionable whether the applicant was making such endeavours in his capacity as a director of Elkridge or his overseas business.
(d)It appears that all the applicant did in effect was attend the Perth wine and food exhibition some time around June 2006. The applicant then merely sent a few emails to various exhibitors asking for export price lists. The Tribunal finds that these mere inquiries do not demonstrate active participation in the senior level day-to-day management of Elkridge.
CONCLUSION
49. The Tribunal finds that the applicant has not provided anything which demonstrates he had actively participated in senior level day-to-day management of Elkridge.
Genuine effort to obtain a substantial ownership interest in an eligible business in Australia and to utilise skills in actively participating at a senior level in the day-to-day management of the eligible business
50. Although the legislation provides no definition as to what the term ‘genuine effort’ means, a number of previous authorities have discussed the issue and held that it must:
(a)Be a genuine effort to obtain a substantial ownership interest in an eligible business or to utilise an applicant’s skills in the day-to-day management of an eligible business at a senior level. Efforts which cannot realistically satisfy either of these criteria cannot be said to be genuine efforts.
(b)Be more than a superficial or token effort: Yam v Minister for immigration and Multicultural and Indigenous Affairs [2004] AATA 283. The must be a real and honest effort and not one which is false, fictitious or a pretence, and mere expressions of interest or inquiries fall short of genuine efforts.
(c)Involve some exertion or endeavour. The requirement is that an effort is made and the respondent contends that this requires some activity on behalf of an applicant. In Leo v Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 309, and followed in Gunawan v Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 852 at [46], [48], the Tribunal found that a genuine effort must be ‘vigorous and determined’.
(d)Be a ‘real and sincere endeavour or strenuous attempt’: Abbu v Minister for Immigration and Multicultural Affairs [2006] AATA 898.
51. In determining whether a genuine effort has been made, there is also good reason for a decision-maker to have regard to the factors set out in MSI-133. Paragraph 4.5.1 of the Migrations Series Instructions provides a list of factors that decision-makers may look at when determining whether a genuine effort has been made. The Tribunal has held that this ‘correctly summarises the relevance of s134(3) to the decision-making process’: Re Lok Young (Michael) Wong v Minister for Immigration & Multicultural Affairs [2006] AATA 277 at [27].
52. The Tribunal finds following:
(a) Business proposals that the person has developed.
The applicant has not provided any genuine, realistic or achievable business plans with regard to Elkridge. The most the applicant has done in this regard is outline a vague statement to the Department on how he intends to ‘set up a company in Perth to export various local products to be sold in Singapore’ (see T40 p369).
(b) The existence of formal contracts with partners or joint ventures
There is no evidence of formal contracts with partners or joint ventures during the relevant period. There is a signed dealership application with the IT company Westan Australia Pty Ltd, however, as noted above, this is dated 1 November 2006 after the date of cancellation, and signed by the applicant’s wife, not the applicant.
(c) Research that the person has undertaken into the conduct of an eligible business in Australia.
As mentioned above, the only activity that could remotely considered ‘research’ involved the applicant attending the Perth wine and food exhibition some time around June 2006. The applicant then merely sent a few emails to various exhibitors asking for export price lists. This level of activity amounts to nothing more than mere expressions of interest or inquiries and therefore falls short of genuine effort.
(d) The period or periods during which the person has been present in Australia.
Although there appears to be some difference of opinion in the Tribunal as to whether time spent within Australia is necessary to the question of senior level management, there appears to be consensus that this factor may be relevant to genuine efforts and the Tribunal’s discretion: see Lok Young (Michael) Wong v Minister for Immigration and Multicultural Affairs [2006] AATA 27 at [44] and [45].
Departmental policy states that physical presence in Australia for more than six months since first arrival is required. The applicant had only been in Australia for 126 days since initial entry.
(e) Value of assets transferred for use in obtaining an interest in an eligible business.
The applicant claims at part 6 of his documents that he has ‘bank statements showing that a total of 109,000 Aud have been invested in Elkridge Holdings account.’ However the Tribunal notes:
i.From 17 February 2006 until 15 September 2006 the balance of this account never reached above $12,425.51. At the date of cancellation on 16 October 2006 the balance appears to be only $3,702.15.
ii.Subsequent to cancellation some large amounts of money were deposited in the company’s account. For example, a deposit of $16,674.40 was made on 17 January 2007 while a deposit of $50,000 was made on 31 January 2007.
iii.The Tribunal again notes that the only evidence of a business transaction during the relevant period is the purchase of food products from Bas Foods (Aust) Pty Ltd in Victoria Park on 1 September 2006 for $6,483.30. There is no record of this transaction or any other in the banking records.
iv.It appears that money in Elkridge’s bank account may have been used for the applicant’s personal use rather than for conducting business. For example, there were several withdrawals and EFTPOS transactions from Ocean Keys Shopping Centre, BWS Liquor Mindarie and Mindarie Gull Petrol Station.
(f) Value of ownership in a relevant business in Australia that is, or has been, held by the person.
The applicant holds 1 share of $1 amounting to 50% of ownership in Elkridge.
(g) Business activity that is, or has been, undertaken by the person.
The Tribunal again notes that during the relevant period, the applicant completed only 1 transaction worth $7,093.70 for a profit of $610.40. Departmental policy on the other hand suggests a minimum of $100,000 business activity as indicated by turnover.
As already noted even this minimal business activity cannot be considered genuine as it involved the applicant selling products from his Australian company to his Singapore company.
(h) Whether the person has failed to comply with a notice under s137.
The Tribunal repeats its findings with regard to notification as set out above.
(i) - (j) If the person once held, but no longer holds, a substantial ownership interest in an eligible business.
These factors do not apply.
Discretionary Powers under s 134(1) of the Act
53. The applicant did not seek to rely on any special factors which might militate against an exercise of discretionary power to cancel his visa under s 134(1) of the Act and in the Tribunal’s opinion there are no such factors.
DECISION
54. The Tribunal finds that the correct or preferable decisions are that the delegate’s decision should be affirmed and the applicant’s visa should be cancelled because:
(a)The applicant has failed to utilise his skills in actively participating at a senior level in the day-to-day management of the business;
(b)The applicant has failed to utilise his skills in actively participating at a senior level in the day-to-day management of the business; and
(c)The applicant has failed to make any genuine efforts to obtain a substantial interest in an eligible business in Australia or to utilise his skills in actively participating at a senior level in the day-to-day management of an eligible business.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member and Mr W Evans, Member
Signed: …………(Sgd. R Riberi)……....
AssociateDate of Hearing 1 August 2007
Date of Decision 5 December 2007
Representative for the Applicant Self Represented
Counsel for the Respondent Mr S Ferguson
Solicitor for the Respondent Australian Government Solicitor
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