Pan and Minister for Immigration and Citizenship

[2007] AATA 1724

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1724

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  W 2005/261

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Johannes Tenggana Pan

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date30 August 2007

PlacePerth

Decision The decision under review is set aside. The Tribunal decides in substitution that the applicant’s business skills visa should not be cancelled pursuant to s 134(1) of the Migration Act1958. It follows the secondary visas held by the applicant’s wife and children are therefore not cancelled.  

…….........[Sgd B J McCabe]............

SENIOR MEMBER

CATCHWORDS

IMMIGRATION & CITIZENSHIP – Visas – business skills visa – cancellation decision – no eligible business and no genuine efforts – residual discretion – genuine efforts since date of original decision – Tribunal exercised residual discretion with regard to subsequent genuine efforts – decision under review set aside.

Migration Act 1958 ss 134, 135

Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 31

Shi v Migration Agents Registration Authority [2007] FCAFC 59

Koosasi v Minister for Immigration and Citizenship [2007] AATA 1311

REASONS FOR DECISION

30 August 2007 Senior Member B J McCabe         

1. Mr Johannes Tenggana Pan is an Indonesian businessman. He obtained a business skills visa and sent his family to live in Australia. His family members – his wife and three sons – are secondary visa holders. The Minister decided to cancel all of the visas because the Minister says the applicant did not meet the expectations set out in s 134 of the Migration Act1958. Mr Tenggana has asked the Tribunal to review the Minister’s decision.

2.      The applicant argues the visa cancellation decision is void because the decision-maker did not comply with the procedural requirements of the Act. If I accept that argument, Mr Tenggana will be able to stay in Australia. But if I form the opinion the decision is not void, Mr Tenggana says the visa should not be cancelled in any event because:

(i) he met the expectation in s 134(1) that he would have appropriate involvement in a business of a scale and type contemplated by the legislation: s 134(1); or

(ii) he made genuine efforts to become involved in such a business, and intends to persist in those efforts: s 134(2).

3. Mr Tenggana says that even if I decide he has not met the expectations set out in the Act, I should exercise the residual discretion in s 134(1) not to cancel his visa because there is a real chance one of his plans for a major business is about to be realised. Lastly, he argues that cancelling the secondary visas would result in extreme hardship for his children. He urges me to allow his children to stay in Australia even if he is required to leave.

4.      I am satisfied the decision under review should be set aside. The applicant and his family should be allowed to stay in Australia. I explain my reasons below.

is the reviewable decision void because of a failure to comply with time limits?

5. The applicant says the cancellation decision is invalid because it was made more than 90 days after the time specified in the Notice of Intention to Cancel. The respondent disagrees. The argument turns on the correct construction of s 135(4)(b) of the Act.

6. There is no dispute about the steps leading up the cancellation decision. The respondent’s delegate wrote to the applicant on 16 February 2005 to advise the Minister was considering cancelling the applicant’s visa: document T10 at 224-228. The letter invited the applicant to respond to the Notice by 25 March 2005. The Minister wrote to the applicant’s migration agent, Mr Yao, on 21 June 2005 advising him of the decision: document T2 at 5-10. It follows the decision was communicated to the applicant’s migration agent within 90 days of the date specified in the Notice of Intention to Cancel. But the applicant says the agent did not tell him of the cancellation decision until some time later. He argues s 135(4)(b) requires that the cancellation decision does not take effect until it is communicated to the applicant, and that communication must occur within 90 days of the time specified in the Notification of Intention to Cancel.

7. Section 135(4)(b) says:

If:

(b)  at the end of the period of 90 days commencing at the time specified in the notice, the Minister has not made a decision on whether to proceed with the cancellation;

the Minister is not to proceed with the cancellation.

8.      I do not think the applicant’s argument is consistent with a proper reading of the provision. The subsection does not refer to a requirement that notice of the cancellation decision be given before the decision can take effect. It merely refers to a decision being made within a 90 day period which is set out in the Notice of Intention to Cancel. I am satisfied a decision was made within the required period. The question remains whether that was the correct or preferable decision.

has the aplicant satisfied the criteria set out in s 134(1)?

9. Section 134(1) permits (but does not oblige) the Minister to cancel a business visa if certain criteria are satisfied. Section 134(2) qualifies the power to cancel by directing that it not be exercised in certain circumstances even though the criteria in s 134(1) have not been satisfied.

10.     The applicant was involved in two entities during the period prior to the cancellation decision. One of them was Touche Corporation. Touche was established by the applicant’s migration agent. The company operated a clothing boutique. The evidence suggested the enterprise – such as it was – was set up by the migration agent for the purposes of satisfying the respondent that the applicant was complying with his obligations. The applicant testified he had been told he would not be required to do anything further to satisfy the authorities. Touche was also involved in a one-off export transaction. I doubt these activities would support a finding that Touche was an eligible business within the meaning of the legislation. In any event, the applicant does not appear to have had a significant role in the management of the company during the period under review.

11. Yapasad, the other entity, was not registered until after the Notice of intention to Cancel was received by the applicant. The applicant says the late date of registration is not significant. He explained he had been investigating a number of business projects but none of them had come to fruition before the time of the cancellation decision. He says he was making a genuine effort to identify an appropriate opportunity – and he was therefore entitled to rely upon s 134(2) which prohibits the Minister from cancelling the visa under subsection 134(1) if there is evidence of genuine ongoing attempts to comply with the criteria.

12.     I note the applicant was only present in Australia for approximately 106 days in the period between when the visa was granted and the Minister’s decision to cancel. He says he was still investigating business projects during that period. His children remained in Australia where they attended school.

13. I was provided with documents and was told about various discussions that took place prior to the cancellation decision. I learned of a short-lived attempt to operate a café. The applicant agrees in his testimony that he was not involved in the management of the café in any event. None of these activities resulted in the establishment of an eligible business prior to the cancellation decision. The evidence did not suggest a level of commitment to pursuing discussions and investigations during the same period that would justify me finding the applicant was making genuine efforts to comply with the criteria within the meaning of s 134(2). While more recently there have been discussions that may bear substantial fruit, those discussions were not initiated until after the cancellation decision. They do not tell me anything about the commitment of the applicant during the period before the Minister decided to act.

should the residual discretion to cancel the visa be exercised in this case?

14. The Minister is not obliged to cancel a visa where the applicant fails to satisfy the criteria in s 134. It is a discretionary power, as the Federal Court explained in Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 31. An applicant may fail to discharge the obligations contemplated in the legislation and still be permitted to stay. I think this is one of the cases where the discretion ought to be exercised in the applicant’s favour notwithstanding his tardiness in pursuing appropriate business opportunities prior to the date of the reviewable decision.

15.     Much of the evidence at the hearing was directed to negotiations that have been occurring in relation to one or more ethanol and bio-diesel projects. The negotiations appear to have begun seriously following the date of the reviewable decision. The timing invites suspicion: the Minister’s delegate apparently formed the view the discussions were being carried on in order to support the applicant’s argument that he should be permitted to stay in this country.

16.     I am satisfied the applicant’s discussions are part of a genuine attempt to investigate the proposed ethanol and bio-diesel projects. I formed that view after hearing from Mr Reinhold Hart, a senior officer with the Office of State Development in Western Australia’s Department of Industry and Resources. Mr Hart made it clear during the course of his testimony that he believed the applicant was acting seriously and in good faith. Mr Hart did not think the applicant was merely ‘going through the motions’ for the sake of his visa application. While he was unable to say whether any of the projects would proceed, he did not doubt there was significant potential in what is being proposed, and said there would be significant benefits accruing to Western Australia (particularly in the Great Southern region) if the projects were developed.

17.     Mr Hart noted Yapasad Corporation had entered into a memorandum of understanding with Jerramungup Industry Group Ltd, a regional development body in the area of the proposed projects. The memorandum is annexed to the statement of Mr Harvey Reeves. Mr Reeves is a director of the Jerramungup Industry Group. While the memorandum does not commit the applicant to do anything in particular, I am satisfied it is evidence of his good faith. I also note the applicant gave evidence about acquiring access to a large area of land in Indonesia that was suitable for growing crops that could be used to produce bio-diesel. He told the Tribunal at the hearing that seedlings had already been planted on part of the property in anticipation of the larger venture.

18.     Mr Reeves also gave evidence of his belief in the applicant’s bona fides in relation to the proposed ethanol plant. He spoke enthusiastically about a vision for the development of an integrated bio-fuel and pellet-processing plant. His organisation had been talking to the applicant who was attempting to arrange assistance – either through the applicant’s relationship with a Dr Edy Soekanto, an Indonesian businessman with access to a large amount of capital, or through Chinese manufacturers who were considering providing the machinery required for the plant on favourable terms. I heard evidence from Dr Soekanto’s business manager, Mr John Grice, who explained how the capital might be made available. I also heard telephone evidence from Mr Jin Chen of the Shandong Machinery and Equipment Group Corporation who explained the assistance his firm might provide.

19.     Mr Reeves said the Jerramungup project would be dealt a serious blow if the applicant’s visa was cancelled. I acknowledge Mr Reeves was not necessarily an impartial observer, in the sense that his enthusiasm for the project and for its potential to transform his local region might have coloured his perceptions of the applicant. But I am ultimately persuaded his point was valid: the progress that has been made towards realising the vision may be lost if the applicant is required to leave the country because his visa is cancelled.

20.     It is difficult to say whether the negotiations will ultimately be successful. The applicant’s efforts may come to nothing, but I am satisfied from the evidence they are genuine. I note the applicant and his son have also had discussions about the possibility of developing a bio-fuels project in the Ord River region of Western Australia. Mr Paul Frapple, the manager of Agri-Industry Opportunities within the state Department of Agriculture, Food and Trade Development, spoke about the discussions. He opined that the applicant appeared to be serious and was going about his investigation of the opportunities in a business-like way.

21.     The respondent points out the discretion must be exercised having regard to the applicant’s situation during “the currency of the visa”: Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 31 at [19] per Kiefel J. Mr Gerrard, for the respondent, submitted I should not take into account the possibility of events occurring after the visa has expired. But the cancellation decision does not take effect unless and until the Tribunal confirms the cancellation decision: s 134(8). The negotiations have therefore taken place during the life of the visa. The fact they may not generate tangible results – if there are any – until some later point is not necessarily a problem. One is able to satisfy s 134(2) (and thus foreclose a decision that the visa be cancelled) without a guarantee of imminent success; there is no reason why I should impose a more demanding standard when considering the exercise of the residual discretion.

22.     There is one further point. It occurred to me after the hearing concluded that the Full Federal Court’s decision in Shi v Migration Agents Registration Authority [2007] FCAFC 59 might be relevant. The case deals with a cancellation decision. A question arose over whether the Tribunal was able to take into account facts and circumstances occurring after the original decision was made. Nicholson and Tracey JJ concluded that was only possible if the legislation permitted the Tribunal to do so. Downes J agreed the legislation was decisive but suggested the Tribunal should be permitted to have regard to the most up-to-date information unless the legislation displaced that presumption.

23.     I invited the parties to make supplementary submissions on the point. The applicant said Shi was not an obstacle and referred to the Tribunal’s subsequent decision in Koosasi v Minister for Immigration and Citizenship [2007] AATA 1311. The respondent said Shi prevented me from taking into account the material about the recent negotiations to establish the bio-fuels plant. Mr Gerrard pointed out the decision in Koosasi - which appeared to accept more recent information was admissible - did not address the decision in Shi.

24. I agree the Tribunal should only have regard to facts and circumstances occurring before the date of the cancellation decision when considering whether the statutory criteria in ss 134(1) and (2) have been satisfied – although evidence about things which transpired afterwards might still be relevant to the extent that the evidence sheds light on the true state of affairs existing before the cancellation decision was made. But the legislation suggests matters arising at a later point might still be taken into account when considering whether to exercise the residual discretion. The residual discretion is designed to give the decision-maker flexibility to deal with unanticipated circumstances. It would be surprising if that flexibility were to be limited temporally, particularly given s 134(8) provides that the cancellation decision does not take effect until after it has been confirmed by the Tribunal.

25. Mr Gerrard argued s 134(8) is intended to avoid the risk of an applicant being placed in immigration detention before exhausting his or her rights before the Tribunal. That is undoubtedly an objective of the provision, but it is also consistent with a legislative intention that the decision-maker retain the flexibility to permit visa-holders to stay if they generate (albeit belatedly) good ideas or opportunities that might advance Australia’s national interests. Section 134 of the Act is different in that sense to the legislation under consideration in Shi. In Shi, the agent was licensed to carry out a particular function. Evidence of what transpired after the cancellation decision could only serve to mitigate what had already occurred - but the Full Court found the legislation did not allow for the consideration of mitigating circumstances. Nicholson J explained the legislation evinced an intention that the cancellation should take effect as soon as it was clear the circumstances justifying cancellation were found to exist: at [13]-[16]. The position is different in this case. The applicant is given a visa at least partly because of the benefits that might accrue to Australia as a result of his business endeavours. That legislative purpose would be frustrated if the Tribunal were prevented from taking into account evidence about potential benefits simply because the applicant did not begin pursuing them until late in the day.

conclusion

26. The applicant’s discussions in relation to the bio-fuels project may yet come to nothing, but I accept the discussions are real and there is some prospect of them bearing fruit. In those circumstances, I accept it is appropriate to exercise the residual discretion in s 134(1) of the Act in the applicant’s favour even though he did not otherwise satisfy the criteria in ss134(1) and (2) before the cancellation decision was made. The cancellation decision is set aside. It follows the secondary visas held by the applicant’s family members must not be cancelled.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: .................[Sgd S O’Grady]..............................
  Associate:     Stephen O’Grady

Date of Hearing  21 & 22 March 2007, 16 April 2007
Date of Decision  30 August 2007
For the applicant  Mr A Gerrard, lawyer
For the respondent                   Mr R Lindsay, of counsel