Ngu and Minister for Immigration and Multicultural and Indigenous Affairs - [2004] AATA 341

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 341

ADMINISTRATIVE APPEALS TRIBUNAL N° V2003/524

N° V2003/526

GENERAL ADMINISTRATIVE DIVISION

Re: UNG WEI NGU AND
HENG EE NGU

Applicants

And:MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal: Mr W.G. McLean, Member

Date: 1 April 2004

Place: Melbourne

Decision:The Tribunal sets aside the decisions under review and remits the matter to the respondent with the direction that the business skills visas of the applicants should not be cancelled.

(sgd) W.G. McLean
Member

MIGRATION AND CITIZENSHIP ‑ cancellation of business skills visas ‑ whether applicant (Ung Wei Ngu) is utilising his skills in actively participating at a senior level in the day‑to‑day management of the business ‑ whether secondary visa held by applicant's son should be cancelled ‑ decision set aside

Migration Act 1958 s134

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Re Supardi and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 794

Re Park and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1021

Re Suhalim and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1171

Re Tjong and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1266

Re Tang and Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 997

Re Widjojo and Minister for Immigration and Multicultural and Indigenous Affairs [2001] AATA 774

Re Lau and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 703

Re Widjaja and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 380

Re Jo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 77

REASONS FOR DECISION

1 April 2004 Mr W.G. McLean, Member

The Tribunal considered an application N°V2003/524 from Mr Ung Wei Ngu, sometimes referred to as "William," (the applicant) for the review of a decision made by an officer of the business skills section of the Department of Immigration and Multicultural and Indigenous Affairs (the Department) on 29 April 2003. The Department officer decided on behalf of the Minister for Immigration and Multicultural and Indigenous Affairs (the Respondent) to cancel the applicant's business skills visa under section 134 of the Migration Act 1958 (the Act). An application for the review of the respondent's decision to cancel the visa held by the applicant's son Heng Ee Ngu, sometimes referred to as "Johnnie" (N° V2003/526) on 29 April 2003 under section 134 of the Act, was also considered. An application for review of a decision dated 29 April 2003 to cancel the business skills visa of Mrs Ai Huon Lau N° V2003/525 was withdrawn on 10 October 2003.
The Tribunal received into evidence the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents) and exhibits marked A1 to A9 tendered by the applicant and an exhibit marked R1 tendered by the respondent.
Mr G. Gilbert of counsel appeared for the applicant and Mr M. Brereton a solicitor from the office of the Australian Government Solicitor appeared for the respondent. Sworn evidence was given to the Tribunal by the applicant with the assistance of various interpreters of the Mandarin language and from Mrs Lau and her son Heng Ee Ngu in respect of their applications. Sworn evidence was also given by Mr Aloysius Ting, Mr John Kah Yieng Lau and Mr Robert Gangemi for the applicant.
The applicant resides in Malaysia. Mrs Lau and Heng Ee Ngu reside in Australia at Glen Waverley in the state of Victoria. The applicant and Mrs Lau have two other children, Chin Chin Nancy Ngu and Heng Chee Tommie Ngu, who have not made application to the Tribunal for the review of the respondent's decision on 29 April 2003 to also cancel their visas under section 134 of the Act. The applicant, Mrs Lau and their three children applied for and were granted sub‑class 137 business visas on 6 January 2000.
The following schedule sets out details of the time spent by the applicant in Australia from the date of his arrival on 9 January 2000 to the date of the cancellation of his visa on 29 April 2003. The parties are in agreement that the applicant spent a total of 40 days in Australia during this period:
·9 January 2000              arrived in Melbourne
·13 January 2000            departed from Brisbane
…
·14 January 2000            arrived in Brisbane
·16 January 2000            departed from Brisbane
…
·9 April 2001  arrived in Brisbane
·13 April 2001                  departed from Brisbane
…
·9 February 2002            arrived in Melbourne
·15 February 2002          departed from Melbourne
…
·11 September 2002      arrived in Melbourne
·22 September 2002      departed from Melbourne
…
·18 April 2003                  arrived in Melbourne
·25 April 2003                  departed from Melbourne
A company named Vision Wide Auto Trading Pty Ltd (Vision Wide) ACN 092 898 603 was registered under the Corporation Law of Victoria on 17 May 2000. Vision Wide's principal business is the acquisition of used motor vehicles in Australia for the purpose of extracting or recycling second‑hand automotive parts for export and sale in Malaysia. The applicant contends that Vision Wide satisfies the "eligible business" definition prescribed under section 134(10)(c) of the Act, as the company is an exporter of Australian goods.
Vision Wide has issued 3000 ordinary shares of $1.00 each making up its total paid capital of $3000. The applicant owns 1000 shares or one third of the shares issued by the company. The applicant's brothers Mr Ung Yeo Ngu (Yeo) and Ung Sing Ngu (Sing) each hold 1000 shares. The three brothers (ie the applicant, Yeo and Sing) and Mrs Lau are all directors of the company. Yeo is the secretary of the company and Mrs Lau is the public officer of the company. The respondent concedes that the applicant has obtained a substantial ownership interest in an eligible business in Australia and therefore satisfies the requirements of section 134 (1)(a) of the Act. The respondent contends that the applicant is not utilising his skills in actively participating at a senior level in the day‑to‑day management of the company and therefore does not satisfy the requirements of section 134(1)(b) of the Act.
Vision Wide commenced trading during the financial year ended 30 June 2001 and during that financial period had exported automotive parts to Malaysia amounting to $75,116 which produced an operating profit before taxation of $3444. During financial year ended 30 June 2002, Vision Wide increased its export sales to $186,289 with a pre tax profit of $3940. During the financial period from 1 July 2002 to 5 June 2003 Vision Wide significantly increased its export sales to $539,997, with the reported pre tax operating profit increasing to $82,404 for that period.
On 11 November 2000 Vision Wide entered into a Joint Venture Agreement with Furnitex Pty Ltd trading as Brimex (Brimex). Brimex carries out business in Queensland and exports motor vehicle spare parts to Malaysia. On 12 September 2002 Vision Wide entered into a Joint Venture Agreement with Gangemi Asian Connections Pty Ltd (Gangemi). Gangemi carries out business in Victoria and exports motor vehicle spare parts to Malaysia. A summary of the sworn evidence provided to the Tribunal by the representatives of Brimex and Gangemi is referred to later in these reasons for decision.
In November 2002 Vision Wide purchased vacant land situated at Murphy's Lane, Knowsley in the western parish of the Victorian city of Bendigo for $305,000. The land which comprises 305 hectares, is said to be for future use by the company. The applicant said (at Transcript p88):
…At the moment it is an investment. We have a plan in the future that we would like to say build a factory there as a recycling centre to recycle scrap metal, plastic or even wrecked vehicles, maybe, if we can, for export.
The following relevant legislation is provided by the Act:
134.(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 venturers for the business proposals;
(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 section 137;
(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 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.
…
(10)     In this section:
…
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.
…
The applicant gave sworn oral evidence in support of his following statutory declaration dated 6 June 2003 (Exhibit A1):
I, Ung Wei NGU of 21 Larkspur Circuit, Glen Waverley 3150 in the state of Victoria, director of Vision Wide Auto Trading Pty. Ltd., do solemnly and sincerely declare that:
1.I refer to my application to the Administrative Appeals Tribunal (AAT) to challenge the decision of the Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) to cancel my Business Skills Visa - Subclass 127 on 29 April 2003.
Company Registration and Substantial Ownership Interest
2.I registered a company known as Vision Wide Auto Trading Pty. Ltd. hereinafter referred to as ("VWAT") (A.C.N. 092 898 603) in Victoria on the 17 May 2000.
Annexed hereto and marked with the letter "A" is a certified copy of the certificate of Registration of the Company.
3.I am one of the four directors of VWAT. The other directors are my two brothers, Ung Yeo NGU, Ung Sing NGU and my wife Ai Huon LAU.
4.I hold a 33.33 % interest in the company VWAT. My two brothers each hold a 33.33 % interest in VWAT respectively.
Annexed hereto and marked with the letter "B" is a certified copy of the company search extract from the Australian Securities and Investment Commission.
Annexed and marked with the letter "B2" is a certified copy of my Share certificate indicating my interest in the company VWAT.
5.My company VWAT, is in the business of exporting used car parts to Malaysia. Specifically, VWAT exports Australian sourced car parts to buyers in Malaysia.
6.My wife Ai Huon LAU, manages and administers the supply side in Australia while both my brothers and I manage the purchasers (demand) side in Malaysia.
VWAT Day-to-day management and business associates
7.VWAT is currently associated with 10 other companies being: Furnitex Pty. Ltd. T/AS Brimex (Queensland); Fowles Auction Group (Melbourne); Dandenong Car Wreckers (Melbourne); Harvey Wreckers Pty. Ltd. (Melbourne); MJ Bent Auctioneers P/L (Melbourne); Patterson Cheney (Melbourne); Gangemi Asian Connection Pty. Ltd. (Melbourne); Full Circle (Melbourne); Yamashita Boueki Shokai Co. (Japan); and the Pickles Group.
VWAT Joint Venture with Furnitex Pty.Ltd. T/AS Brimex (QLD)
8.        VWAT is in Joint Venture with Furnitex Pty. Ltd. T/AS Brimex (Queensland).
Under this Joint Venture, Brimex is responsible for:
·managing the car parts stock‑yard;
·buying all 4WD parts;
·loading car parts into containers; and
·arranging shipment.
9.Under this Joint Venture, from November 2000 - January 2002, I was responsible for travelling overseas and is stationed there in order to manage and fulfil the buyer's request of car parts, take records or car models and to arrange for buyers to make payment on arrival of the goods (in containers). Since February 2002 until recently, my wife Director Ai Huon LAU has taken over all correspondence with Brimex.
Annexed hereto and marked with the letter "C" are Invoice/Credit Notes from the period 20 April 2001 until 30 April 2003.
Annexed hereto and marked with the letter "D" is a certified copy of the Joint Venture Agreement between Furnitex Pty. Ltd. T/AS Brimex and VWAT.
These invoices/credit notes and the Joint Venture Agreement, support the above propositions that there has been an ongoing business relationship between Brimex and VWAT.
10.My company has been trading with Brimex since April 2001. We have had continuous dealings with them on a regular basis. To date we have exported 7 containers under this Joint Venture.
Annexed hereto and marked with the letter "C2" is a letter dated 9 August 2002 in support of my propositions.
VWAT and Fowles Auction Group (Melbourne)
11.VWAT purchases cars from Fowles Auction Group. Fowles Auction Group auctions cars once a week. When I was in Australia, my wife and I will go to view the cars on Tuesday and check the parts and engines of the auctioned cars. Each week, around 1-10 cars are bought forth for bidding. Wednesday is the Auction Day and cars that we buy are then sent to Dandenong Car Wreckers for dismantling.
Annexed hereto and marked with the letter "E" are tax invoices for the period 16 August 2002 until 6 November 2002.
These tax invoices support the above propositions that there has been an ongoing business relationship between Fowles Auction Group and VWAT.
VWAT and Dandenong Car Wreckers (Melbourne)
12.VWAT delivers cars bought from the auction to Dandenong Car Wreckers for dismantling. Dandenong Car Wreckers would strip the cars and store them there, while loading the car parts into containers. This process would take about a month for 70-80 cars. Storage and loading of each 40 ft container costs $2,500.00. To date we have exported 4 containers with Dandenong Car Wreckers.
Dandenong Car Wreckers also sells cars to VWAT.
Annexed hereto and marked with the letter "F" are tax invoices for the period 27 June 2002 and 19 October 2002.
These tax invoices support the above propositions that there has been an ongoing business relationship between Dandenong Car Wreckers and VWAT.
VWAT and Harvey Wreckers P/L (Melbourne)
13.I negotiate with Harvey Wreckers Pty. Ltd. to use their yards for the storage, stripping and loading into containers of car parts. Cars that VWAT purchases from an auction are also taken to Harvey Wreckers Pty. Ltd. for stripping and storage. To date, we have exported 2 containers with Harvey Wreckers P/L.
In addition, VWAT purchases both cars and car parts directly from Harvey Wreckers Pty. Ltd.
Annexed hereto and marked with the letter "G" are tax invoices n°s: 18038, 4835, 4844, 4383 being for various storage, containment and car parts purchases from 20 September 2002 to 14 November 2002.
These tax invoices support the above propositions that there has been an ongoing business relationship between Harvey Wreckers and VWAT.
MJ Bent Auctioneers P/L (Melbourne)
14.On 29 August 2002, VWAT purchased early model cars from MJ Bent Auctioneers P /L and delivered them to Dandenong Car Wreckers to be stripped for parts. The bidding was done personally by my wife Ai Huon LAU.
Annexed hereto and marked with the letter "H" is a tax invoice n° : 20 for the purchase of early model (1976‑84) cars.
This tax invoice supports the above proposition that VWAT purchased the said used cars from MJ Bent P/L at the said date and that there was a business relationship between the two parties.
VWAT and Patterson Cheney (Melbourne)
15.VWAT purchases 4WD Ute Tub (metal tray) from Patterson Cheney. The price negotiations and inspections are done by NGU Ung Wei and Ai Huon LAU. This negotiation was with regard to a 40 ft container to store car parts from 4WD vehicles. To date we have exported 1 container with Patterson Cheney.
Annexed hereto and marked with the letter "I" are tax invoices for the period 9 October 2002 until 1 May 2003 being for the purchases of 4WD car parts and the processes involved in export of the same.
These tax invoices support the above proposition that there has been an ongoing business relationship between VWAT and Patterson Cheney.
Gangemi Asian Connections Pty. Ltd. (Melbourne) "GAC"
16.VWAT entered into a Joint Venture with GAC on 12 September 2002. I came to Australia in September 2002 to complete the negotiate and signed the joint venture agreement with GAC.
Annexed hereto and marked with the letter "J" is a certified copy of the Joint Venture Agreement between GAC and VWAT.
17.Under this Joint Venture, GAC was responsible for: buying (early model) cars in Sydney and Melbourne, stripping them of parts and loading them into containers and organising any paperwork in the process. My wife Ai Huon LAU assists GAC in organising workers for the stripping and loading process.
18.Under this Joint Venture, VWAT and in particular I, Ung Wei NGU, was responsible for finding a buyer overseas and taking specific car part orders. I would also collect payment and arrange for the buyers itinerary from overseas. Recently, I exported three 40 ft containers in 2 and a half months. I expect more containers to be exported.
Annexed hereto and marked with the letter "K" are tax invoices for the period from 2 December 2002 until 28 April 2003.
These tax invoices support the above proposition that there has been an ongoing business relationship between VWAT and Gangemi Asian Connections Pty. Ltd. (Melbourne) "GAC".
Yamashita Boueki Shokai Co. (Japan)
19.VWAT purchases heavy truck parts from Japan because we could not find any suitable parts in Australia. We then sell them to our buyer in Malaysia. The payment and billing process however, is done in Australia.
Annexed hereto and marked with the letter "L" are tax invoices for the period dated 10 October 2002 until 6 November 2002 being for heavy truck engine parts purchased in Japan from Yamashita Boueki Shokai Co. To date we have exported 3 containers with Yamashi ta Boueki Shokai Co.
These tax invoices support the above proposition that there has been a 'business relationship between VWAT and Yamashita Boueki Shokai Co.
The Pickles Group
20.VWAT purchases cars at an auction once a week with The Pickles Group. The cars purchased at this auction are then bought to either Dandenong Car Wreckers or Harvey Wreckers for dismantling and storage. A VWAT representative does the payment, selection and bidding of the cars.
Annexed hereto and marked with the letter "M" are the tax invoices for the period from 13 August 2002 until 4 November 2002 being for the purchase of cars/parts at The Pickles Group Auctions.
These tax invoices support the above proposition that there has been a business relationship between VWAT and The Pickles Group.
Full Circle Industry Recycling Co. (Auto Parts) Ltd.
21.I came here on 18 April 2003 to undertake business negotiations with Full Circle Industry Recycling Co. (Auto Parts) Ltd. As a result, VWAT has recently completed negotiations with Full Circle Industry Recycling Co. Ltd. on 31 May 2003.
Annexed hereto and marked with the letter "M7" is a certified copy of a letter dated 5 June 2003 from the Managing Director and Export Manager of Full Circle Industry Recycling Co. Ltd., confirming their existing business relationship with VWAT.
Annexed and marked with the letter "M1" is a certified copy of the "quotation of parts and loading" (with some confirmed orders) from Full Circle Industry Recycling Co. (Auto Parts) Ltd. to VWAT.
22.Having obtained the necessary car parts from the suppliers, VWAT then transported the relevant goods to the buyers by ship.
Annexed hereto and marked with the letter "M2" are the "Bill of Lading" Invoices for the period of 26 June 2002 until 6 May 2003 in support of the actual shipment of the said goods.
23.VWAT supplies companies in Malaysia with the car parts obtained in Australia. These companies are: Public Auto Parts Trading Company (who is a frequent buyer), Borneo Cahaya Mata, Kapo Trading Company (Kalun Auto Parts Trading S/B), King Motor Company and Hong Wang Auto Parts Enterprise.
Annexed hereto and marked with the letter "M3" are the tax invoices from VWAT to the respective buyers for the period from 20 April 2001 to 6 May 2003. Included are VWAT Official Receipts from 18 June 2002 to 18 December 2002.
Annexed hereto and marked with the letter "M4" are the particulars of the Shipment Orders and the respective buyers and dates thereof.
Annexed hereto and marked with the letter "MS" are photographs of cars involved in VWAT transactions.
24.My company VWAT has strong business ties with Public Auto Parts Trading Co. They regularly purchase auto parts and engines from VWAT. We expect our business relationship to continue to flourish.
Annexed hereto and marked with the letter "M6" is a letter dated 8 August 2002 in support of the above propositions.
25.All negotiations between the VWAT and the suppliers including but not limited to:
·price negotiation;
·parts inspection; and
·negotiations with wreckers.
were initially done by me (Ung Wei NGU).
My wife, (Ai Huon LAU) would manage the VWAT in Australia. She handle the company's paper works with the assistant of my children. Her job also include:
·delivery of parts from auction yard; and
·shipping and organising "Bills of Lading".
26.The nature of the export business precludes a buyer and seller. My wife's presence in Australia and my own presence in Malaysia are inextricably linked to the day-to-day running of such a business. In order to outsource the buyers (demand side) who were based in Malaysia, I naturally had to return there and assume the same duties as mentioned before. My wife then handled the bidding, buying, payment to suppliers and loading of goods.
VWAT and Eligible Business ‑ "Company Financiall" AST Accounting (Mr. Alloysius Ting)
27.AST Accounting and specifically, Mr. Alloysius Ting, being a Certified Practising Accountant handles the Company financial and" Statement on Compilation of Financial Reports".
Annexed hereto and marked with the letter "N", is the Statement on Compilation of Reports for VWAT from AST Accounting done in accordance with APS 9 for the period ending 30th June 2002 and Business Activity Statements including other relevant company financials.
28.My company VWAT, has achieved considerable growth since it's inception as evidence by the following export turnover figures (based on the financial year):
·2001  $ 75,116.00;
·1/7/01 ‑ 30/6/02            $186,289.00
·1/7/02 ‑ 5/6/03              $539,997.00
All the above export sales are completed prior to the cancellation of my subclass 127 visa on 29 April 2003.
Annexed hereto and marked with the letter "N2" is an up to dated profit and lost statement from my accountant.
Annexed hereto and marked with the letter "N3" are Bank Statements for the period 12 February 2002 until 16 May 2003 from the Bank of Melbourne.
Current Assets in Australia
29.My wife and I have transferred between $750,000.00 to $800,000.00 to Australia since our first arrival in early 2001 on the subclass 127 visa.
30.I have lent the total amount of $134,339.00 to VWAT company. Please refer to the up dated company financial statement.
31.My wife and I purchased a property in New South Wales, Australia, being the land at volume 892 folio 616368. We made this investment at a total purchase price of AUD $99,000.00. The property is in my wife's name and is not subject to mortgage or any encumbrances.
Annexed hereto and marked with the letter "N4" is a certified copy of the Certificate of Title.
Annexed hereto and marked with the letter "N5" is a certified copy of the Settlement Statement for the abovementioned property from Bury Solicitors.
32.My wife and I have also purchased the land and house package at 21 Larkspur Circuit, Glen Waverley 3150 in February 2002 for $381,000.00. We moved into the new house in March 2003 after the construction is completed. We spent an addition $40,000.00 in landscaping and interior fittings. This property is in my wife's name and is not subject to mortgage or any encumbrances.
Annexed hereto and marked with the letter "N6" is a certified copy of the Certificate of Title.
33.VWAT purchased a vacant land worth $305,000.00 in November 2002 at Murphy's Lane, Knowsley near Bendigo. This is 305 acres of vacant land. It has a permit for subdivision into three lots with individual houses. This property is not subject to mortgage or any encumbrances. We make this investment with the intention to subdivide and develop the land.
Annexed hereto and marked with the letter "N7"" is a certified copy of the Certificate of Title and letter from council agrees to extend of the planning permit for further two years.
Annexed hereto and marked with the letter "N8" is a certified copy of correspondence between VWAT and it's lawyers in relation to the purchase of property at 8F & 8C Murphy's Lane, Knowsley worth ($305,000.00).
34.      My wife and I own a personal car worth $38,000.00 being a Honda CRV.
35.      VWAT has purchased a company car worth $16,000.00.
Genuine Effort and Summary
36.I believe that my company VWAT is and has been operating successfully as an exporter of Australian car parts to Malaysia.
37.My roles and duties as a director of this company have been outlined above and can be further evidenced in correspondence between the other directors and my business associates.
Annexed hereto and marked with the letter "0" are copies of my handwritten correspondence, done during the day-to-day running of the business.
38.For avoidance of doubt, I make reference to paragraph 25 where I have set out my primary roles within the company. As this list is non-exhaustive, I further say that as the "directing mind and will" of the company, I am continually seeking alternate avenues to increase the profits of VWAT.
39.I hold a substantial ownership interest in an eligible Australian export business and the nature of this business dictates my presence in Malaysia.
40.I have made and will continue to make a genuine attempt towards the growth and survival of this business. I have invested considerable time and effort into this business.
41.My subclass 127 visa was cancelled as a result of my previous migration agent neglected to submit the above documentation in support to the DIMIA on time. I have given those document to my previous migration agent and he forgot to submit it to the DIMIA.
AND I MAKE this solemn declaration by virtue of the statutory Declarations Act 1959 as amended and subject to the penalties provided by that Act for the making of false statements in statutory declarations, conscientiously believing the statements contained in this declaration to be true in every particular.
…
(sgd) Ung Wei NGU

The applicant has worked as an automotive mechanic in Malaysia for about 20 years and for some time in his own business named Mono Repair Shop. He no longer owns Mono Repair Shop and is now solely involved in the activities of Vision Wide. In 1988 he completed a mechanical repair and skills course in Singapore conducted by the Australian Institute of Mechanical Engineers and became a member of that Institute. Membership of the Institute entitles him to discounts on purchases of certain parts, accessories and equipment in Australia.
The applicant gave evidence that because motor vehicles are very expensive in Malaysia, many vehicles that are driven there are very old. It is very difficult to acquire motor vehicle spare parts in Malaysia to repair vehicles, and the cost of vehicle replacement parts in Malaysia is around three times the cost of similar parts in Australia. Also, there is not an adequate volume of spare parts in Malaysia to satisfy consumer demand.
Vision Wide's activities principally involve the purchase of used motor vehicles in Australia to obtain automotive parts for export to Malaysia. Parts are sold in Malaysia mainly to spare part dealers or second hand spare part shops. The dealers and shop personnel clean and service the used automotive parts prior to their sale.
Vision Wide acquires parts via its abovementioned joint venture arrangements with Brimex and Gangemi. Representatives from both of these joint ventures have visited the applicant in Malaysia to inform themselves about the Malaysian operations of Vision Wide and also to meet its automotive used part dealers. Additionally, used motor vehicles are required by Vision Wide in Australia from other sources and the applicant said (at Transcript p18):
…The first thing I did was to gather information about what sort of spare parts are required in Malaysia including the models like Toyota, Mazda, Honda, and secondly the age of the spare parts or the vehicles, and when it is confirmed I will make a phone call to my wife who is in Australia and tell her all about those informations and she will then look for those type of cars that are required in a car yard and have those vehicles dismantled and then get the spare parts, and then we prepare all the documents for the export of the spare parts.
Vision Wide presently exports from Australia to six Malaysian automotive parts customers. The applicant provides his wife by telephone or internet email with export requirement details, including his instructions concerning export documentation and details of receiving customers in Malaysia. The applicant said (at Transcript p20):
…The first thing I do is to take orders from the customers to know their requirements of what type of spare parts they want. The second thing is when the containers arrive in Malaysia we have to do all the checking to see whether the quality is good because you know those second hand spare parts, some of them may not be good so we have to sort them out and maybe provide some after sales service. The third thing is for all those spare parts that don't have a serial number so I have to use my experience to sort out what type of vehicles and models and spare parts they are and then to tell customers in Malaysia what type of spare parts they are.
The Malaysian parts customers pay Vision Wide a deposit in Australian dollars of between 18 per cent and 20 per cent of the cost of the parts ordered. All payments for goods received from the Malaysian parts customers, including the deposits, are remitted by the customers to Vision Wide's bank in Australia. The applicant said (at Transcript p22) …in Malaysia I can't accept Australian dollars because our government control foreign exchange for currencies.
The applicant gave evidence that on visits to Australia he surveys the used car market to try to find more sources for Vision Wide to obtain spare parts. He also visits his joint venture contacts in Brisbane and Melbourne. He is occasionally accompanied by his wife during these visits as she has a greater understanding and command of the English language than he does. He made the following comments (at Transcript p28) in relation to his wife's role in Australia during his absence in Malaysia, in respect of Vision Wide's used motor vehicle purchases:
…Sometimes I will contact her on the phone and if there is an auction I will get her to go to the auction and find out the list of cars in the auction and then she will send me the list by fax or by email, then I instruct her, say what type of models or make that are required and what price I can offer and let her know this information. Then she will buy those cars for me and then send those cars to the wrecking yard.
The applicant said that the motor vehicle wreckers arrange for the spare parts that they have removed from the used vehicles to be placed in containers and shipped to Malaysia. His wife issues Vision Wide cheques for the payment of the acquisition, transport and wrecking of used vehicles and the shipment of spare parts to Malaysia. She is therefore also in direct contact with the company's custom brokers and shipping agents.
The applicant said that his brothers have visited Australia and have called on Vision Wide's used vehicle suppliers. They also negotiate the sale of spare parts with the company's Malaysian parts customers. He said that as his brothers both have their own businesses in Malaysia they can not spend a lot of time on the activities of Vision Wide. The applicant therefore keeps his brothers apprised of the company's activities at weekly informal directors' meetings which are attended by his brothers and himself. Decisions affecting the business activities of the company are made collectively by the directors present at those weekly meetings and those decisions are communicated by the applicant to his wife in Australia, especially whenever she is required to assist with the implementation of those decisions. The applicant said (at Transcript p86):
Usually on general business they just appoint me to handle general business. Sometimes when say one of my brothers has found some buyers, then we have to agree that we go ahead, then we will go ahead.
The applicant said that his wife and son had been living in New Zealand for five years prior to her arrival to live in Australia in 2002. She had previously endeavoured to enrol their son in an Australian university in 2000 but his application had been rejected at that time. He said (at Transcript p44):
…My child thinks that the education environment in Australia is better than New Zealand and so they are very interested to move over to study in Australia. That is why they make those arrangements.
The applicant's wife and son relocated to Australia from New Zealand in January 2002 and his son enrolled at Monash University. Mrs Lau was appointed a director of Vision Wide on 4 June 2002. The applicant gave the following evidence in respect of Mrs Lau's relocation (at Transcript p46):
…For two reasons. The first thing is for her to move to Australia, then she can help the children in their education because she has been looking after the children in New Zealand all the time. The second thing is I also want her to help me in doing the document work in my business.
The applicant said that his long term plan is as follows (at Transcript pp93 and 94):
…What my plan is, I would like to get more buyers in the shortest period of time and then I will try my best to sort out all the technical problems and then after that, when it is all settled, I will come to Australia
…
I know my wife is at the moment very busy so I also want to come over and relieve her and that is why my plan is I try to get more buyers and get everything settled. At the same time also get more supplies in Australia.

The applicant said that when his two brothers are trained by him to take over the Malaysian operations of Vision Wide, he will relocate to live with his family in Australia in about two years time.

Mrs Lau gave sworn evidence in support of her following statutory declaration sworn on 8 October 2003 (Exhibit A8):
I, Ai Huon Lau, of 21 Larkspur Circuit, Glen Waverley, 3150 in the State of Victoria, company director, do solemnly and sincerely declare that:
1.I am a director of Vision Wide Auto Trading Pty. Ltd. ("VWAT") along with my husband Ung Wei Ngu and his two brothers, Ung Yeo Ngu and Ung Sing Ngu.
Day-to-day management of VWAT
2.Apart from my formal directorship of VWAT, I have been involved in various aspects of the business in Australia. My primary role has been in assisting with the purchase of motor vehicles and spare parts on behalf of the company.
3.These purchases take place following instruction from my husband Ung Wei Ngu. He either telephones me or sends me a fax advising that he has a buyer or buyers for certain car parts or car bodies. He then asks me to purchase the relevant goods.
4.On receiving my husband's request I contact the various businesses which VW AT has come to know to enquire whether they have the goods in question. If the car or parts are available I generally visit the business to confirm my husband's instructions, and ensure that the price is within the range that he has requested.
5.If the purchase is successful, I arrange for the car to be transported to one of the car wrecking yards used by VWAT, where the car is dismantled and then exported to Malaysia for sale.
Annexed hereto and marked with the letter "RI" is a certified copy of updated business correspondences in support of the above propositions.
VWAT updated turnover figure for period from 1 July to 2003 until 13 September 2003
6.VWAT has completed further business transactions with Fowles Auction Group and thus increased company turnover.
Annexed hereto and marked with the letter "R2" is a certified copy of the updated tax invoices from Fowles Auction Group to 20 August 2003.
7.VWAT has completed further business with Gangemi Asian Connection Pty. Ltd. and thus increased company turnover.
Annexed hereto and marked with the letter "R3" is a certified copy of updated tax invoices Gangemi Asian Connection Pty. Ltd. from 1 September 2003 to 9 September 2003.
8.The updated VWAT export turnover figures for the period from 1 July 2003 until 13 September 2003 is AUD $146,140.40.
Annexed hereto and marked with the letter "R4" is a certified copy of VWAT tax invoice/credit notes for the period from 13 August 2003 until 13 September 2003 in support of the above proposition.
Annexed hereto and marked with the letter "R5" is a certified copy of the VWAT official receipts from 19 August 2003 until 4 September 2003 in support of the above proposition.
I make this solemn declaration by virtue of the Statutory Declarations Act 1959 as amended and subject to the penalties provided by that Act for the making of false statements in statutory declarations, conscientiously believing the statements contained in this declaration to be true in every particular.
…
(sgd) Ai Huon LAU
Mrs Ai Huon Lau is the wife of the applicant. She came to Australia with her son Heng Ee Ngu in January 2002 and prior to that they resided in New Zealand for five years. Mrs Lau said that she has been married to the applicant for 25 years. She relocated from New Zealand to Australia for two reasons. Firstly to enable her son to transfer to Monash University in Victoria and secondly to assist her husband with his management of the Australian business and administration duties of Vision Wide. Mrs Lau said (at Transcript p149):
…Yes, the second reason is the business start in year 2002 but because the market is not so strong at the moment we are still looking for more buyers and that's why in year 2002 we have more buyers and getting their trust so it's better that I can come here to help my husband to run the business. On the other part he can get more buyers from overseas.
Mrs Lau is a salaried employee of Vision Wide and was appointed as a director of the company from 4 June 2002. She said that the applicant contacts her by telephone every day or he might facsimile or email documents to her concerning used vehicles that he requires Vision Wide to purchase in Australia for parts export to Malaysia. Mrs Lau then locates and photographs the required used vehicle and provides the applicant via email with a copy of the photograph of the vehicle and its offered price. The applicant decides whether Mrs Lau is to proceed and have Vision Wide purchase the used vehicle. Mrs Lau arranges for the acquired vehicle to be transported to a motor vehicle wrecker who extracts the parts required by the applicant. The wrecker packs the parts into containers for transport by ships to Malaysia. Mrs Lau prepares and signs cheques drawn on Vision Wide and other documents associated with the purchase of vehicles, the transport of vehicles to wreckers and the cost of shipping parts to Malaysia. She also signs tax quarterly statements and other documents prepared by Vision Wide's public accountant Mr Ting.
Mr Ting, an accountant, gave sworn oral evidence in support of his following statutory declaration sworn on 24 September 2003 (Exhibit A5):
I, Aloysius Tinq of 3 Yellowstone Close 3187 in the State of Victoria, accountant, do solely and sincerely declare that:
1.I have known Mr William Ung Wei NGU ("Mr Ngu"l) since May 2000 when I agreed to act as his tax and business adviser for his company Vision Wide Auto Trading Pty. Ltd. ("VWAT").
2.I prepared the company's Financial Report and income tax return for year ending 30 June 2002.
3.As per client's instruction, I also prepared an Interim Financial Report for the period from 1 July 2002 to 5 June 2003. The company has a total turnover of $539,997 as at 5 June 2003 with operating profit before income tax of $82,402.00.
4.Mr Ngu has personally loaned an amount of $105,000 to the company as at 12 November 2002.
5. The company mainly exports Australia car parts to Malaysia.
6.Mr Ngu is actively involved in negotiating business deals on behalf of the Company. He continuously devotes himself in assisting the management of the company.
7.When Mr Ngu was in Australia, he would meet personally with me to discuss about VWAT's financial and taxation issues.
8.When Mr. Ngu was not in Australia he would instruct me on the phone with regard to VWAT business matters.
9.If I was unable to contact him overseas, I would then call his wife in Australia to relay the message to him.
10.As VWAT's tax and business adviser I have found that Mr Ngu demonstrates an acute awareness of the way things are done in VWAT.
11.My instructions from Mr. Ngu indicate his ability to make executive decisions on behalf of VWAT.
12.My conclusion is that Mr Ngu is essential senior management in the day-to-day running of such a business.
…
Mr Ting has been a certified practising accountant and registered tax agent for 15 years. Mr Ting said he initially met the applicant's brother Yeo in Australia in 2000 and Yeo requested Mr Ting to register Vision Wide. The company was incorporated in Victoria on 17 May 2000. Mr Ting said that since the date of incorporation he has been mainly dealing with the applicant. He has also discussed financial issues with Mrs Lau since 2002.
Mr Ting prepares the annual financial statements, taxation returns, Australian Securities and Investments Commission annual returns and notices for and minutes relating to the Annual General Meetings of the shareholders of Vision Wide. He also maintains the company's register of shareholders and directors and completes other accounting and administration tasks as requested by the directors of Vision Wide. The abovenamed financial statements are prepared by Mr Ting from Vision Wide's bank statements and cheque butts and other relevant accounting source documents provided to him by Mrs Lau. He said (at Transcript pp53 and 54):
…Mainly I deal with Mr Ngu. If he is not in Australia, I would have done it through his wife, Rose. If he was overseas he occasionally would call me and ask for advice or through fax facilities and whenever he is in Australia he would come to see me and ask for taxation and business advices.
…
…Rose I would say was just a go between between me and Mr Ngu and whatever things I discussed with Rose, William would appear to call me one way or the other to confirm everything is okay, to make sure there is no misunderstandings as to the law in Australia and so forth.
Mr John Kah Yieng Lau, a director of Furnitx Pty Ltd trading as Brimex, gave sworn oral evidence in support of his following statutory declaration sworn on 29 January 2004 (Exhibit A6):
I, John Kah Yieng LAU of 39 Market Street, Indooroopilly 4068 in the State of Queensland, director, do solemnly and sincerely declare that:
1.I make this Statutory Declaration with regard to my business dealings with Vision Wide Auto Trading Pty. Ltd. ("VWAT").
2. I am a director of Furnitex Pty Ltd. The company is trading as Brimex.
3.I first met Mr William Ung Wei NGU ("William") in 2000 through the introduction of my business associates. At that time, William wanted to export Australian car spare parts to Asian countries. We discussed of the joint venture business to export Australian cars spare parts to Asian countries.
4.In November 2000, my company Furnitex Pty Ltd T/A BRIMEX signed a joint venture agreement with William's company VWAT. Under the joint venture agreement, William will source buyers in Asian countries for the spare parts. My company will source second-hand cars in Australia, dismantle and loading the spare parts in a container and export to Asian countries.
5.William and I have met each other a few times both in Queensland and in Malaysia to discuss our joint venture business. I met William once in Brisbane and a few times in Malaysia.
6.From my dealings with VWAT, I believe that William is instrumental in the day-to-day running of the business. I usually discuss with his wife Rose Lau about shipment documentation and requirement. If anything technical, I will contact William by phone, fax and sometimes email. William will give instruction about buyers' specification, car model, grades, conditions and prices that will be acceptable by the buyers in Malaysia.
7.My joint venture with William and VWAT came to fruition and facilitated the export of seven (20 foots) containers of used car products from Queensland to Malaysia, until October 2003 amounted over AUD $350,000.00 including GST.
8.1 regard William as being an excellent business associate, possessing both business acumen and the ability to execute well conceived business proposals.
…
(sgd) John Kah Yieng LAU
Brimex is an export procurement company that mostly acquires four‑wheel drive vehicles and machinery spare parts in Queensland for export to Malaysia, the Solomon Islands and Papua New Guinea. Mr Lau first met the applicant in Brisbane in 2000 and at that meeting discussed the possibility of a business venture involving the export of four‑wheel drive motor vehicles. Prior to that meeting Brimex had not been exporting to Malaysia. Arising out of this initial meeting Brimex and Vision Wide entered into the abovementioned joint venture agreement on 11 November 2002. The operational details of the parties under the joint venture are set out in Mr Lau's statutory declaration (Exhibit A6). Mr Lau said that the applicant was encouraged to have Vision Wide enter into their joint venture arrangement due to the following (at Transcript p101):
…With my experience exporting to the South Pacific in earlier years, so I'm more into four‑wheel drives because that's what I have been specialising and with my meeting with William and he ‑ there's a market in East Malaysia for that kind of vehicle too. So before that William had done surveys in Melbourne before he went up to Brisbane. He already found that there's not much of those vehicles available in Melbourne which are readily available in Brisbane.

Mr Lau said that he had visited the applicant and his brothers in Malaysia on more than three occasions and the applicant had introduced him to his Malaysian customers for used vehicle parts and explained to him the demand for parts in Malaysia. He said that the joint venture between Brimex and Vision Wide has worked out very well because of the applicant's understanding of the used car/used parts trade in East Malaysia.
Mr Lau gave the following evidence (at Transcript p104) in respect of his dealings with the applicant in Malaysia and his wife in Australia arising from the joint venture:
…I'll just give a brief description how the dealing's going on. Like if there's inquiry, William will call me up, and on my mobile most of the time, and say: this is the things we require, and ask me to source them. If I have got them I'll ring him up and I'll fax him a list of the things that I found and he will go through it and call me back and say: yes, go ahead with it. And then I do all the necessary arrangement to export the thing and when I done that, I'll just call Rose up and give her the paperwork.
Mr Lau said that Brimex acquires a used motor vehicle for Vision Wide and organises the dismantling of the vehicle and the export to Malaysia of the parts extracted from the vehicle. The applicant's wife provides Brimex with the payment for costs incurred by Brimex arising from the joint venture arrangement.
Mr Gangemi a director of Gangemi, gave sworn oral evidence in support of his following statutory declaration sworn on 24 September 2003 (Exhibit A7):
I, Robert GANGEMI of 5 Holcourt Road, Laverton 3026 in the State of Victoria, director of Gangemi Asian Connections Pty. Ltd, do solemnly and sincerely declare that:
1.I make this Statutory Declaration with regard to my business dealings with Vision Wide Auto Trading Pty. Ltd. ("VWAT").
2.I am Director of Gangemi Asian Connections Pty. Ltd. (Melbourne).
3.I first met Ung Wei NGU ("NGU") on 5 September 2002 who approached me in relation to the prospect of exporting car parts to Malaysia.
4.After a period of negotiation, NGU and I signed a Joint Venture Agreement on 12 September 2002 as directors for VWAT and Gangemi Asian Connections Pty. Ltd. (Melbourne).
5.I flew to Malaysia earlier this year to investigate the possibility of exporting Australian used car parts to Malaysia through VWAT. I was invited to Sarawak, East Malaysia by NGU.
6.During my stay in Malaysia Ngu introduced me to his business associates and acquainted me with the Malaysian aspect of his business.
7.NGU and I discussed in depth, the possibility of exporting my used car parts to Malaysia.
8.NGU laid out succinctly, the Malaysian side of his business and gave me a good indication of what I would expect from our business dealings.
9.NGU also took me to car yards and introduced me to the prospective buyers in Malaysia, showing me how purchased car parts were utilised upon arrival in Malaysia. I also discussed with the prospective buyers about prices and the range of car parts that I could provide from Australia.
10.Throughout my stay in Malaysia, NGU not only demonstrated an acute awareness of the way things were done in VWAT, but an ability to make executive decisions on behalf of VWAT.
11.From my dealings with VWAT, I believe that Mr. Ung Wei NGU is instrumental in the day-to-day running of the business. He gives direction to his wife Ms Rose Lau of the car parts required by the buyers. Ms Rose Lau will contact me to give me the orders.
12.Through NGU, my experience in Malaysia has been both productive and efficient. I had the opportunity to see for myself, the target market that my business associates at VWAT had researched.
13.My negotiations with NGU and VWAT came to fruition and facilitated the export of seven (40 foots) containers of used car products from our yards in Melbourne, from 20 February 2003 until September 2003.
14.NGU coordinated the process of the goods upon arrival in Malaysia until the delivery to the buyers in Malaysia.
15.I regard NGU as being a excellent business associate, possessing both business acumen and the ability to execute well conceived business proposals.
16.I remain impressed with the professional service of NGU and I look forward to continual business dealings with him.
AND I MAKE this solemn declaration by virtue of the Statutory Declarations Act 1959 as amended and subject to the penalties provided by that Act for the making of false statements in statutory declarations, conscientiously believing the statements contained in this declaration to be true in every particular.
…
(sgd) Robert Gangemi
Gangemi is an exporter of car parts from Victoria. Gangemi entered into the abovementioned joint venture agreement with Vision Wide on 12 September 2002. Mr Gangemi gave the following evidence regarding his background:
…Basically I specialise in exporting old Japanese cars. These are cars that cannot be sourced in Japan. So Japan is like the Mecca of second‑hand car parts. They can't produce the ‑ they have got no cars left from the seventies, the eighties, the old Volkswagen and the Beetles that are real yuppies car now in Asia ‑ they can't find them anywhere else in Asia, bar Australia. I started a business back in 1997 solely to export car parts to Malaysia, where I deal with another company we have been in joint venture since 1997 just basically buying pre‑1985 cars for exporting because they can't get them anywhere else in the world or in Japan. So basically what we don't need any more I just export over there.
Details of the operational roles arising from the joint venture agreement between Gangemi and Vision Wide are adequately set out in Mr Gangemi's statutory declaration (Exhibit A7). Mr Gangemi described the role of Mrs Lau under the agreement as an interpreter in respect of his business discussions with the applicant and she also issues Vision Wide's cheques in respect of costs arising out of the joint venture. Prior to entering into the joint venture with Vision Wide, Gangemi had another arrangement to export car parts to West Malaysia. Mr Gangemi was therefore very pleased to be able to extend his car part exporting business to East Malaysia via his Vision Wide joint venture arrangement.
Heng Ee Ngu gave sworn oral evidence in support of his following statutory declaration sworn on 9 October 2003 (Exhibit A9):
I, Johnnie Heng Ee NGU of 21 Larkspur Circuit, Glen Waverly, 3150 in the State of Victoria, student, do solemnly and sincerely declare that:
1. I was born in Malaysia on 24 March 1981 and I am now 22 years of age.
Annexed hereto and marked with the letter "A" is a certified copy of my passport.
2. I first arrived in Australia on 9 January 2000.
3.On 6 January 2000 my father was granted a Subclass 127 - Business Skills Visa. I was included in my parents visa application as a dependant child.
4.I am currently enrolled in Monash University in the degree of Bachelor of Computer Science. I am in the last year of my course. My student Identity number is 18617220.
Annexed hereto and marked with the letter "B" is a certified copy of my academic results.
5.Upon successful completion of my Bachelor of Computer Science, I hope to continue my studies and pursue a degree in Business Management (which should last another 3 years).
6.On 29 April 2003, a delegate of the DIMIA cancelled my father's 127 visa. As a consequence, my 127 visa was also cancelled.
7.On 22 May 2003, my father made an application to for review to the Administrative Appeals Tribunal (AAT).
8.On 22 May 2003, I made a separate application for review to the AAT. I believe I will suffer extreme hardship as a result of the cancellation of my father's business visa.
9.The visa cancellation would force me to leave Australia forfeiting all my studies. My studies in Australia would not be recognised in Malaysia.
10.There is no equivalent degree course in Malaysia that is recognised so internationally as the one offered at Monash University.
11.During my stay in Australia, I have made many friends and established close personal ties with them. I have become accustomed to the Australian environment.
12.My untimely departure from Australia would impact severely on both my social and educational development. I would therefore suffer greatly should my visa be cancelled.
13.I have studied hard and fully intended to continue my studies as I am a conscientious student.
14.I would therefore be grateful, to remain in Australia, so that I may complete my tertiary education at Monash University and be among my close personal friends.
I make this solemn declaration by virtue of the Statutory Declarations Act 1959 as amended and subject to the penalties provided by that Act for the making of false statements in statutory declarations, conscientiously believing the statements contained in this declaration to be true in every particular.
…
(sgd) Johnnie Heng Ee NGU
Heng Ee Ngu first arrived in Australia with his father on 9 January 2000. At that time he was residing in New Zealand with his mother. He completed his secondary education in New Zealand in 1999 and endeavoured unsuccessfully to enrol at a university in Australia. So he completed one year at a university in New Zealand prior to transferring to Monash University in Australia, for enrolment in a computer science degree course in January 2002. He expects to graduate in 2004 with a Bachelor of Computer Science, if his business skills visa is not cancelled.
Heng Ee Ngu is presently receiving Austudy which he may lose if his business skills visa, which provides him with permanent residence status for Austudy purposes, is cancelled. He may be able to return to Australia and complete his Monash University course if his visa is cancelled, but this depends upon study deferment approval by Monash University and the granting by the Department of a student's visa. He has not made enquiries to Monash University or the Department to date about any alternative arrangements, should his visa be cancelled.
The respondent has conceded that the applicant has obtained a substantial ownership interest in an eligible business in Australia and therefore satisfies the requirements of sub‑section 134(1)(a) of the Act. The parties are in agreement that the "business" to be considered for the purposes of satisfying the requirement of section 134 of the Act is the business activities of Vision Wide. Vision Wide acquires used motor vehicles in Australia to obtain used automotive parts for export to Malaysia.
Vision Wide has two separate operational functions. One of the operational functions is to generate the supply of used vehicles in Australia. Vision Wide purchases these vehicles and arranges for their transportation to vehicle wreckers who dismantle them and extract nominated used parts. The parts extracted are then packed into containers and shipped to Malaysia. The other operational function of Vision Wide takes place in Malaysia, where orders are obtained from used automotive parts distributors/retailers and from automobile repairers. The evidence indicates that the applicant and his two brothers jointly manage the day‑to‑day requirements of the Malaysian operations. The applicant undertakes the day to day management of the Australian operations. The applicant's wife Mrs Lau assists with the administration of the Australian operations subject to management instructions from the applicant. Mrs Lau also issues cheques for the company and completes other clerical duties in Australia.
The applicant and his two brothers, who are all automotive mechanics, reside in Malaysia. They are all directors of Vision Wide and each of the brothers owns 1000 shares and has one‑third equity ownership interest in the company. The evidence shows that the applicant and his brothers hold informal weekly meetings in Malaysia and make decisions regarding the abovementioned operational functions of the company and also future operational strategies and development objectives of the company. The applicant generally accepts the overall responsibility to contact Vision Wide's Australian suppliers of used motor vehicles, either directly or via his wife Mrs Lau, to arrange for the acquisition of used vehicles.
The applicant and his brothers call on their Malaysian used part retailer clients in order to ascertain their ongoing used part requirements. They provide price quotations for the supply of used parts to their Malaysian clients after discussing used vehicle availability and cost with their Australian suppliers or Mrs Lau. If Mrs Lau is requested to purchase a used vehicle from a private vendor, she emails the applicant via the internet with photographs of the offered used vehicle and its quoted cost. The applicant then provides Mrs Lau with his instructions as to whether the vehicle is to be purchased by Vision Wide or not.
It is clear that the initial development of the successful export of used automotive parts business conducted by Vision Wide, has required the parts trading knowledge and continuous presence of the applicant in Malaysia until this time. It is the applicant's evidence that he intends to spend an increasing amount of time in Australia as his brothers progressively assume a greater role in the Malaysian side of the operational functions of Vision Wide. It is the applicant's objective to reside permanently in Australia with his family within approximately two years time.
The success of Vision Wide during its initial three years of operations, since its commencement of business during the year ended June 2001, to June 2003, is reflected in its increasing sales and profit attainment. Export sales of used automotive parts have increased from a total of $75,116 in the year to 30 June 2001, to $186,289 for 2002 and $539,997 for 2003 with the company achieving a reported net profit, before tax in 2003 of $82,404.
The respondent referred to the fact that the applicant spent only 40 days in Australia following the date of his first arrival on 9 January 2000 until the cancellation of his business skills visa on 29 April 2003. The respondent also referred the Tribunal to the following cases previously heard and determined by the Tribunal, where the applicants had spent a short period of the time in Australia from the date of first arrival to the date of visa cancellation: Re Suryaty and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 581; Re Supardi and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 794; Re Park and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1021; Re Suhalim and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1171; Re Tjong and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1266; Re Tang and Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 997; Re Widjojo and Minister for Immigration and Multicultural and Indigenous Affairs [2001] AATA 774.
The Tribunal concurs that consideration of the number of days spent in Australia by a holder of a business skills visa between the date of his first arrival in Australia and the date of visa cancellation by the respondent may be relevant under certain circumstances in partly determining whether a visa holder has participated at a senior level in the day to day management of the business pursuant to sub‑section 134(1)(b) of the Act. On the other hand the Act does not prescribe that time spent by an applicant outside Australia, utilising his or her skills in actively participating at a senior level in the day‑to‑day management of a business is irrelevant and should not be taken into consideration when determining a visa holder satisfied the requirements of sub‑section 134(1)(b) of the Act.
In Re Lau and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 703 the Tribunal considered the fact that Mr Lau had only spent 30 days in Australia in the relevant period. The Tribunal set aside the cancellation of the visa and said at paragraphs 32 and 33:
32. Section 134(1)(b) requires that the visa holder be utilising his or her skills actively, participating at a senior level in day‑to‑day management of that business. In using the term that business the legislation directs the decision‑maker to consider the nature of the actual business undertaken. The term day–to‑day should be given its ordinary meaning. It is defined in the Shorter Oxford English Dictionary on Historical Principles as continuous(ly), routine(ly). The Macquarie Dictionary defines it as ordinary, happening every day. Consistent with these meanings, it is not a requirement that a visa holder establish a certain number of days that he or she undertakes the activity of business in order to show that he or she is involved in its day‑to‑day management. The meaning is consistent with the need to show that a business is in existence, namely continuity and regular activity.
33. The day-to-day management of a company like Corcom, involved in developing an export market for Australian grocery goods in South East Asia, will involve researching products, securing orders and suppliers, transacting shipping. It will also involve ideas and planning. This is clearly evidenced by the applicant’s activities in this case. The applicant had substantial commercial experience in Malaysia on which to develop Corcom as an export vehicle for sale of Australian goods into Asia. He developed Australian contacts through the proposed venture with Unipole and (T22, exhibit A31). While some of the activities undertaken by the applicant might be viewed as unsophisticated, there is nothing to suggest that they were inappropriate for the nature of the proposed business. The activities relied on the applicant’s considerable experience directly in this field in the Asian market and on his business acumen. There may not be extensive notes, or records of activity occurring every day. As Ms McKenzie submitted, the diary notes showed only entries 30 days. However, the use of the term day-to-day management does not require that that activity be recorded every day, and the input at a senior level by someone of the experience of the applicant will often be intangible.
In Re Widjaja and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 380 the Tribunal said at paragraph 40:
40. The respondent also referred the Tribunal to the following decisions in support of their contention that the applicant has not participated at a senior level in the day‑to‑day management of Crown Records because he spent a total of only 48 days in Australia from the time of his arrival in July 1998 and the date of his business skills visa cancellation on 2 November 2001:
·Re Huang and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 656
·Re Ong and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 178
In the case of Huang, the Tribunal said:
…
Not only must the eligible business operate in Australia to comply with the act, the visa holder must participate at a senior level in the day‑to‑day management of the Australian business in Australia, albeit with trips overseas from time to time.
In the case of Ong, the Tribunal said:
…I am therefore satisfied that Senior Member Muller in Re Huang was correct and it is the business activities of the Applicant in Australia that must be examined, not his business activities whilst he is residing overseas.
The Tribunal however concurs with the applicant’s submission that the Act does not support the view that "…it is the business activities of the Applicant in Australia that must be examined, not his business activities whilst he is residing overseas", in order to satisfy ss.134(1)(b) and ss.134(2)(b) of the Act. The Act prescribes that the applicant shall utilise his or her skills in actively participating at a senior level in the day‑to‑day management of the business and this statutory requirement does not restrict the Tribunal from also examining the activities of the applicant whilst residing overseas in order to satisfy ss.134(1)(b) and ss.134(2)(b) of the Act.

In Re Jo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 77, the Tribunal said at paragraphs 35 and 33:
35. It must also be remembered that modern means of travel and communication permit a business to be managed and strategically directed from almost anywhere in the world. The emphasis in s 134(1)(b) is on senior management rather than on what might be called day-to-day administrative tasks under direction from a senior manager. I agree with the comments of Member Carstairs in Re Lau & Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 703 that management input at a senior level by an experienced business person will often be intangible, and may involve ideas and planning, as much as researching products, securing orders and suppliers and transacting shipping. As Hill and Carr JJ observed in Puzey in a slightly different context at [47] “business does not mean being busy.”
33. …However, I do not believe that it can be said that the Act demonstrates a requirement that the visa holder become ordinarily resident in Australia immediately in the sense that he or she spends the majority of his or her time in this country, only taking trips overseas from time-to-time. A number of factors have influenced that conclusion. In the first place, there is nothing in the documentation provided to me concerning the application made by the applicant for his visa (S1 – S4) that indicates that the Australian government had any requirement that overseas businesses be disposed of or the applicant’s involvement in them scaled down. Specifically, the 24 months survey form that is used by the government to obtain information from visa holders asks the question (in section 7): “are you still actively involved in a business outside Australia?” and contains the statement: “note that there is no expectation or requirement that you discontinue any business outside Australia”. Secondly, the MSI at clause 4.5.1, when dealing with the issue of what constitutes “genuine efforts” in relation to the establishment of a business and involvement in its management, refers to whether or not the visa holder has been physically present in Australia for more than 6 months since first arrival. Bearing in mind that a cancellation decision will often be made between 3 and 3 ½ years after the first arrival, an expectation that the visa holder may have spent only 6 months in Australia suggests that, so far as the respondent is concerned, the visa holder is not expected to spend the majority of his or her time in this country - and may indeed spend as little as 15% of the total time between first arrival and cancellation. Finally, I note that s 134(1)(a) specifically refers to an interest in an eligible business in Australia but s 134(1)(b) does not specifically require the active participation in the management of that business to occur in Australia. It would have been very easy for Parliament to have specified in s 134(1)(b) that the management activities must occur in Australia if that had been the intention.
The Tribunal is satisfied that in this case the applicant was required during the establishment of the successful operations of Vision Wide to operate the way he has and to spend most of his time in Malaysia. The Tribunal is of the opinion that the applicant has used his skills as an automotive mechanic and has participated with the other directors of Vision Wide at a senior level in the day‑to‑day management of the business. The Tribunal has taken into consideration the work performed by Mrs Lau in attending to certain operational duties in Australia, with the ongoing regular supervisory support and guidance by the applicant from Malaysia via either the telephone or the internet. Accordingly, Mrs Lau was able to execute operational tasks such as arranging the purchase of used vehicles and the transport of those vehicles to wreckers, so that automotive parts could be removed from the vehicles and exported to Malaysia. Mrs Lau has also issued cheques drawn on Vision Wide and provided various accounting source data to the company's accountant, Mr Ting to allow him to prepare financial statements, various tax returns and the annual returns of the company.
The Tribunal finds that the applicant has used his skills in participating at a senior level in the day to day management of Vision Wide pursuant to the requirements of sub‑section 134(1)(b) of the Act, notwithstanding the fact that he spent only 40 days in Australia from the time of his arrival on 9 January 2000 to the date of the cancellation of his business skills visa by the respondent on 29 April 2003. The Tribunal is satisfied that the applicant intends to continue to make a genuine effort to satisfy the requirements of sub‑section 134(1)(a) and sub‑section 134(1)(b) of the Act in the future.
The secondary business skills visa held by the applicant's wife, Mrs Ai Houn Lau, and her son, Heng Ee Ngu, were also cancelled by the respondent on 29 April 2003 pursuant to sub‑section 134(4) of the Act because the respondent had cancelled the applicant's business skills visa on that date. Sub‑section 134(6) of the Act provides that the respondent is taken not to have cancelled a person's business skills visa under sub‑section 134(4), if the Administrative Appeals Tribunal has set aside the decision of the respondent to cancel a person's business skills visa under subsection 134(1) of the Act. Accordingly, the Tribunal is not required to determine whether the cancellation of Heng Ee Ngu's visa would result in extreme hardship to him pursuant to the provisions of sub‑section 134(5) of the Act.
The Tribunal sets aside the decisions under review and remits the matter to the respondent with the direction that the business skills visas of the applicants should not be cancelled.

I certify that the fifty‑six [56] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr W.G. McLean, Member

(sgd) Olympia Sarrinikolaou

Clerk

Date/s of Hearing:  3 & 5 February 2004
Date of Decision:  1 April 2004
Counsel for the applicant:            Mr G. Gilbert
Solicitor for the applicant:            Chua Tan & Associates
Solicitor for the respondent:         Mr M Brereton, Australian Government Solicitor