Ng and Minister for Immigration and Multicultural and Indigenous Affairs
[2002] AATA 1276
•4 November 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1276
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/1125
GENERAL ADMINISTRATIVE DIVISION )
Re YIN PING NG
Applicant
And MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Deputy President Don Muller
Date4 November 2002
PlaceBrisbane
Decision The Tribunal sets aside the decision of the respondent dated 2 November 2001 to cancel the Business Skills visa held by Yin Ping Ng.
..............(Signed)......……………….
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
MIGRATION ACT – Business Skills Visa – eligible business – extreme hardship
Migration Act 1958: s 134
REASONS FOR DECISION
Deputy President Don Muller
On 2 November 2001, the respondent cancelled the Business Skills visa of Chi Po Ng and his family members under section 134 of the Migration Act 1958.
Chi Po Ng and his family members applied to the Administrative Appeals Tribunal for reviews of the decisions to cancel their Business Skills visas in each of their respective cases.
The family members of Chi Po Ng are:
Mei Sim Chung (wife)
Kai Yuen Ng (son aged about 13 years)
Kai Ming Ng (son aged about 11 years)
Yin Ling Ng (daughter aged about 26 years)
Yin Man Ng (daughter aged about 24 years)
Yin Ping Ng (daughter born on 3.10.79)
Yin Wah Ng (daughter born on 11.4.83)
Chi Po Ng was granted a Business Skills visa on 23 September 1998. His family members were each granted Business Skills visas on the same day, consequential upon the grant to him of his Business Skills visa. His family members would not have held their Business Skills visas if they had never been members of his family unit.
From the date of the grant of the Business Skills visas, 23 September 1998, until the date of the cancellations, 2 November 2001, Chi Po Ng lived permanently in Hong Kong. During that period he visited Australia on two occasions for a total stay in Australia of 20 days. On the first occasion he entered Australia on 29 September 1998 and departed on 7 October 1998. On the second occasion he entered Australia on 19 September 2001 and departed on 29 September 2001.
During the relevant period the only evidence of any business activities of Chi Po Ng referable to Australia were:
(i)On 29 March 2001, he agreed with Guangzhuo Jing Xiu Tang Pharmaceutical Company Limited to import Australian health products.
(ii)On 18 September 2001, he incorporated an Australia company, New World (International) Trading Pty Ltd. The Directors were Chi Po Ng, Yin Ling Ng and Yin Ping Ng.
(iii)On 24 September 2001, a Western Australian company, Challenge Manufacturing Pty Ltd., appointed Chi Po Ng as its sole representative to promote its products in Hong Kong. Challenge Manufacturing made bed quilts filled with goose feathers.
(iv)On 2 November 2001, a Hong Kong company, Wilson (H.K.) Trading Ltd, placed an order with Challenge Manufacturing for the export from Australia to Hong Kong of 300 quilts worth $AUD40,920.
Chi Po Ng gave evidence that because of a combination of the Asian economic down turn and his poor health due to a heart condition, he had not been able to pursue further business opportunities in Australia.
The Minister may cancel a business visa pursuant to the provisions of s.134 in the Migration Act 1958. The subsections of 134 relevant to this review are:
"134 Cancellation of business visas
(1)Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australia visa, an investment-linked visa or a family member's visa), by written notice given to its holder, if the Minister is satisfied that its holder:
(a)has not obtained a substantial ownership interest in an eligible business in Australia; or
(b)is not utilising his or her skills in actively participating at a senior level in the day-to-day management of that business; or
(c)does not intend to continue to:
(i)hold a substantial ownership interest in; and
(ii)utilise his or her skills in actively participating at a senior level in the day-to-day management of;
an eligible business in Australia.
(2)The Minister must not cancel a business visa under subsection (1) if the Minister is satisfied that its holder:
(a)has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and
(b)has made a genuine effort to utilise his or her skills in actively participating at a senior level in the day-to-day management of that business; and
(c)intends to continue to make such genuine efforts.
…..
(4) Subject to subsection (5) and to section 135, if:
(a)the Minister cancels a person's business visa under subsection (1) or (3A); and
(b)a business visa is held by another person who is or was a member of the family unit of the holder of the cancelled visa; and
(c)the other person would not have held that business visa if he or she had never been a member of the family unit of the holder of the cancelled visa;
the Minister must cancel the other person's business permit or business visa by giving written notice to that person.
(5)The Minister must not cancel the other person's business visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person.
(6)The Minister is taken not to have cancelled a person's business visa under subsection (4) if the Administrative Appeals tribunal has set aside the decision of the Minister to cancel the business visa of the relevant person to whom paragraph (4)(a) applied.
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.
family member's visa means a business visa held by a person:
(a)who is or was a member of the family unit of another person who held a business visa; and
(b)who would not have held the business visa if he or she had never been a member of the family unit of the other person."
It has been generally accepted that the purpose of the introduction of the Business Skills visa was to encourage overseas entrepreneurs to enter Australia, set up an Australian business, live in Australia and operate a business here employing Australians and creating export opportunities for Australian manufacturing industries. It has been expected that the holders of Business Skills visas would obtain a substantial interest in an eligible business in Australia and have a significant role in the day-to-day management of that business. Consequential Business Visas are granted in order to allow visa holders to bring their families to Australia to live with them while operating their businesses.
In my view a holder of a Business Skills visa who remains living overseas and who merely makes an occasional phone, fax, mail or email order for Australian goods, cannot be said to be participating in the day-to-day management of an eligible business in Australia within the meaning of those terms in the Act.
Chi Po Ng was not engaged in the type of business nor in the manner envisaged by the legislation. His business activities in Australia were virtually non existent.
The Tribunal is also not satisfied that the evidence indicates that Chi Po Ng has made a genuine effort to obtain a substantial interest in an eligible business in Australia nor that he has made a genuine effort to actively participate in the day-to-day management of such a business.
The decision to cancel the Business Skills visa of Chi Po Ng is affirmed.
The consequential Business Skills visas
The cancellation of the Business Skills visa of Chi Po Ng results in the automatic cancellation of the consequential business visas of the members of his family (s.134(4)), unless the cancellation of that family member's visa would result in extreme hardship to that family member (s.134(5)).
Extreme hardship means what it says, some serious consequences to the life or livelihood of the visa holder.
The applicant's wife Mei Sim Chung and the following children
(i)Kai Ming Ng
(ii)Kai Yuen Ng
(iii)Yin Ling Ng; and
(iv)Yin Man Ng
Reside in Hong Kong. The two sons go to school in Hong Kong. The two daughters work in Hong Kong. There is no evidence before the Tribunal that the cancellation of their Business visas would cause them extreme hardship. The decisions to cancel the Business visas of Mei Sim Chung, Kai Min Ng, Kai Yuen Ng, Yin Ling Ng and Yin Man Ng are affirmed.
Yin Wah Ng (also known as Maggie):
(i)She is 19 years old;
(ii)She first arrived in Australia on 27 December 1998 and stayed for one week.
(iii)She returned to Australia in 2000 and began a "foundation course" which was designed to prepare her for study in Australia.
(iv)In 2001 she enrolled in a Bachelor of Business degree course at Queensland University of Technology.
(v)She attended the classes and did well in her first year of the course.
(vi)She returned to Hong Kong for Christmas holidays at the end of 2001.
(vii)She came back to Australia for university studies in January 2002 and is currently enrolled at Queensland University of Technology.
(viii)She has in effect lived in Australia for two years.
(ix)If her visa is cancelled she will have to return to Hong Kong. She may be able to obtain a student visa to complete her degree at QUT. If she cannot obtain a student visa or any other appropriate visa, she will have to complete her studies in Hong Kong.
(x)The cancellation of her Business visa will probably cause her disappointment and a major disruption to her studies but I do not regard this consequence as "extreme hardship".
(xi)The decision to cancel the Business Skills visa of Yin Wah Ng is affirmed.
Yin Ping Ng (also known as Joey):
(i)She was born on 3 October 1979 and is 23 years old.
(ii)She first arrived in Australia on 22 March 1994 and stayed for one week.
(iii)She returned to Australia on 9 July 1994 to attend a foundation language course for five months on the Gold Coast.
(iv)In 1995, 1996 and 1997 she attended Glennie School in Toowoomba and completed years 10, 11 and 12 there.
(v)In 1998 she enrolled in a double degree Bachelor of Arts and Bachelor of Business at Queensland University of Technology.
(vi)She has one more subject to complete for her Bachelor of Arts degree and two semesters to complete for her Bachelor of Business degree.
(vii)She is currently employed part-time by an accountant, Kent S. Hacker, in Stafford.
(viii)She has lived continuously in Australia for eight years. She has established relationships with peers and has lost contact with her former friends in Hong Kong.
(ix)Miss Ying Ping Ng has been in a romantic relationship for the last five years with an Australian citizen and is planning to marry him.
(x)In my view the cancellation of the Business Skills visa of Yin Ping Ng (Joey) would cause serious disruption to most aspects of her life and in particular to her studies, professional prospects, social life and emotional well-being. It would cause her "extreme hardship" within the meaning of that term in the Act.
(xi)The Tribunal sets aside the decision to cancel the Business Skills visa of Yin Ping Ng.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .....................................................................................
C. O'Donovan, AssociateDate/s of Hearing 4 November 2002
Date of Decision 4 November 2002
Written reasons 12 November 2002
Solicitor for the Applicant Mr. L. Chan
Solicitor for the Respondent Blake Dawson Waldron
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