Quek and Minister for Immigration and Multicultural Affairs
[2006] AATA 213
•9 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 213
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2005/167
Nº V2005/168GENERAL ADMINISTRATIVE DIVISION Nº V2005/169
Re: KHENG HUAT QUEK AND
SOK SEN QUEK ANDSOK CHING QUEK
Applicants
And: MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal: Regina Perton, Member
Date: 9 March 2006
Place: Melbourne
Decision:The Tribunal affirms the decisions under review.
(sgd) Regina Perton
Member
MIGRATION ‑ business skills visa ‑ cancellation ‑ whether eligible business ‑ whether utilising skills in actively participating at a senior level in the day‑to‑day management of business ‑ whether genuine effort ‑ whether extreme hardship
Migration Act 1958 s 134(1), (2), (3), (4), (5), (10)
Re Griffiths and Migration Agents Registration Authority [2001] AATA 240
Re Salim and Minister for Immigration and Multicultural and Indigenous Affairs (2002) 36 AAR 42
Re Setiawan and Minister for Immigration and Multicultural Affairs [2002] AATA 260
Re Tang and Minister for Immigration and Multicultural Affairs [2000] AATA 997
Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961REASONS FOR DECISION
9 March 2006 Regina Perton, Member
1. Kheng Huat Quek was born in Singapore and arrived in Australia on 19 October 2001 with his wife and four children as the holder of a subclass 127 business skills visa. Mr Quek established a company, QF Shipping Pty Ltd (QF Shipping), in Australia as a ship cargo broking business. On 8 February 2005 the Minister’s delegate cancelled Mr Quek’s visa under s134(1) of the Migration Act 1958 (the Act) because he was not satisfied that Mr Quek had obtained a substantial ownership interest in an eligible business in Australia or that he was involved in the day-to-day management of the company at senior level. Since his family were granted visas because Mr Quek was granted a visa, the cancellation of his visa resulted in the cancellation of their visas.
2. Mr Quek maintains that he has satisfied all the conditions of his visa and that the decision to cancel the visa was incorrect (application N° V2005/167). His daughters Sok Sen Quek (Sen) (born on 23 January 1984) (applicationN° V2005/168) and Sok Ching Quek (Ching) (born on 22 June 1980) (applicationN° V2005/169) claim that cancellation of their visas would result in extreme hardship.
3. The issues before the Tribunal are: whether QF Shipping is an eligible business; whether Mr Quek is actively participating at a senior level in the day-to-day management of the business; and whether he has made a genuine effort to obtain an interest in an eligible business and participate in day-to-day management of the business. The Tribunal also needs to consider whether Sen and Ching would suffer extreme hardship if their visas were cancelled.
EVIDENCE FROM MR QUEK
4. Mr Quek told the Tribunal that he has worked in the shipping industry in Singapore for many years. He said that QF Shipping was registered in Australia on 13 February 2002 and provides a complete range of services in international freight forwarding and customs brokerage. He maintained that the company is an eligible business because its activities are resulting in, or will result in, the development of business links with the international market; the creation and maintenance of employment in Australia; the export of Australian goods or services; and an increase in commercial activity and competitiveness within sectors of the Australian economy.
5. Mr Quek explained that he is the sole director and shareholder of the business. Between February and June 2002 the business made 2 transactions. This rose to 35 transactions in each of 2002/2003 and 2003/2004 financial years. He said that since 2004 the business was operating on a continuous and regular basis and made a profit. It employed one person (Sen) whom he was training in all aspects of the business. Mr Quek stated that he has visited a number of Asian countries and approached potential joint partners but has been unsuccessful, and had considered purchasing a ship, but the price of vessels had become prohibitive. He said that the business encourages competitiveness in this sector of the Australian economy and he plans to employ Australian permanent residents in its growth and expansion plans.
6. Mr Quek emphasised that he is closely involved in the day-to-day management of the business, such as formulation of ideas, planning, securing orders and negotiating with suppliers. He has leased space for the business, albeit in his accountant’s office. He noted that his absences from Australia have been partly due to his efforts to increase the activities of the business.
7. Mr Quek said that he has used his experience in the freight forwarding industry to continue to make appropriate efforts to promote the business. However, he conceded that in recent years the business has not succeeded to the extent that he had hoped. He said his intention is to expand into the United States market. Mr Quek stated that after the cancellation of his visa he obtained an agency agreement to supply tropical fish to the United States market; although he conceded that the agency had not proceeded because it was considered not to be viable. Mr Quek agreed that a number of the tax invoices issued by QF Shipping for brokerage were made out to Gim Shing Shipping Pte Ltd, a company he owns and operates from Singapore.
8. Mr Quek produced a large volume of documentation relating to his business activities after the date of cancellation of the visa, and said that this material demonstrates his genuine and ongoing intention to operate the business successfully.
LEGISLATION
9. The relevant legislation is the Migration Act 1958 (the Act). Section 134(1) of the Act provides:
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.
Is QF Shipping an Eligible Business?
10. Section 134(10) of the Act defines eligible business as one that the Minister reasonably believes is resulting in 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.
11. On the question of the material to be taken into account when considering the exercise of the discretion to cancel a business visa, the Tribunal notes that in Re Griffiths and Migration Agents Registration Authority [2001] AATA 240 the Tribunal stated (at paragraph 41):
…
Whether concerned with an entitlement decision or a cancellation decision, and in the absence of any legislative direction to the contrary, the evidence upon which the relevant facts rest, is that before the Tribunal. In so far as it is pertinent to the facts to be found, the evidence is not limited to that either known to the decision‑maker or in existence at the time that the decision under review was made.
12. In Re Tang and Minister for Immigration and Multicultural Affairs [2000] AATA 997 the Tribunal stated (at paragraph 9):
… The ordinary principles of administrative review apply. It is the function of this tribunal to deal with the question having regard to the evidence put before it at the time and having all the facts and circumstances that have occurred up until the date of the hearing.
13. The Tribunal accepts that s 134 of the Act contemplates that consideration should be given to a person’s intention. Therefore, while the exercise of the discretion at the time of cancellation of the visa is the primary focus, matters that refer to occurrences after the date of cancellation may be relevant to address adequately the matters raised in s 134 of the Act to establish intentions or circumstances at or after that date.
14. QF Shipping employs only Mr Quek’s daughter Sen, who was appointed after the date of cancellation, and there is no material to satisfy the Tribunal that goods or services are produced by the business. A number of invoices from QF Shipping relate to business activities with another of Mr Quek’s companies in Singapore. Other invoices tendered were not accompanied by evidence that goods were actually shipped under Mr Quek’s agency arrangements. The business has not demonstrated that it has developed business links with the international market. Therefore, there is no persuasive evidence that QF Shipping is creating or maintaining employment in Australia; producing goods or services that would otherwise be imported to Australia; introducing new or improved technology to Australia; or increasing the commercial activity and competitiveness within sectors of the Australian economy. For these reasons the Tribunal finds that QF Shipping is not an eligible business for the purposes of s 134(10) of the Act, and that Mr Quek has not obtained a substantial ownership interest in an eligible business in Australia (s 134(1)(a) of the Act).
Is Mr Quek Actively Participating at a Senior Level in the Day‑to‑Day Management of the Business?
15. The Tribunal takes into account that Mr Quek has spent 4 months in Australia during the more than 3 years between the grant of the visa and its cancellation. Although modern communications technology enables a business to be conducted from anywhere in the world and the Tribunal notes the routine emails forwarded to Mr Quek by Sen, Mr Quek has not substantiated his claim that he has carried out management functions of the business at a senior level on a day-to-day basis. The Tribunal notes his overseas travel to develop the business, but he has not provided material to justify his claim that the travel was on behalf of his Australian business or that he promoted its interests.
16. For these reasons the Tribunal finds that Mr Quek is not utilising his skills in actively participating at a senior level in the day-to-day management of the business (s 134(1)(b) of the Act). Consequently, he is unable to satisfy s 134(1)(c) of the Act.
Was Mr Quek Making a Genuine Effort to Obtain Substantial Ownership of an Eligible Business and to Participate in Day‑to‑Day Management?
17. Section 134(2) and 134(3) of the Act provide:
(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).
…
18. Paragraph 4.5 of the Ministerial Guidelines of the Migration Series Instruction (MSI) N° 133 Visa Cancellation Under Subdivision G ‑ Cancellation of Business Visas (the Guidelines), entitled What is a “genuine effort”?, contains the following factors to assist decision‑makers in determining whether a genuine effort has been made under s 134(3) of the Act:
…
a. business proposal which is considered genuine, realistic and achievable;
b.formal contract with partners or joint venturers;
c.written evidence of detailed consultations with at least three business advisers (accountant, lawyer, bank/financial institution, State/Territory government business development office, Austrade, business/trade association);
d.physical presence in Australia for more than six months since first arrival as a Business Skills class migrant;
e.transferred to, and retained in, Australia at least 50% of the funds indicated as available for transfer within two years (under Factor 4 of the Business Skills Points test);
f.minimum A$100,000 or 10% ownership previously held by the person. If the person is no longer in business, the reasons for loss of ownership are also relevant;
g.minimum A$100,000 business activity as indicated by turnover. This may include other business activity not considered “eligible business” but cannot include passive investment, eg, purchase of shares;
hfailure to comply with a notice for information under s 137, ie mandatory monitoring of Australian address and return of survey forms.
19. In assessing Mr Quek’s claims against the factors listed in s 134(3) of the Act and the Guidelines, the Tribunal takes into account his evidence about a number of business proposals and plans for the future. However, on the available material the Tribunal is not satisfied that the business proposals meet legislative requirements(s 134(3)(a)). The Tribunal notes that after the date of visa cancellation, Mr Quek obtained an agency arrangement, but on his own evidence that arrangement has not resulted in any meaningful business. Further, there is no evidence that there are contracts with any Australian partners or joint venturers (s 134(3)(b)). There is no evidence of proper research into the conduct of an eligible business in Australia (s 134(3)(c)). Mr Quek has spent 4 months in Australia from the grant of the visa in 2001 to its cancellation, which is less than the minimum of 6 months suggested in the Guidelines (s 134(3)(d)).
20. Although Mr Quek stated in his visa application that he intended to invest $A200,000 in the business, he reported in the 24-month survey that he had only transferred $A32,000, which is substantially less than 50 per cent within two years, and there is no evidence he has made a significant investment in the business (s 134(3)(e)). The value of the ownership interest that he holds in eligible businesses in Australia is nil (s 134(3)(f)). There appears to have been little business activity undertaken by Mr Quek in the business (s 134(3)(g)). In respect of s 134(3)(h) he has not failed to provide additional material requested by the Department of Immigration and Multicultural Affairs. Section 134(3)(i) is not applicable.
21. After considering all the relevant factors in s 134(3) of the Act, the Tribunal finds that Mr Quek has not made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia (s 134(2)(a) of the Act), or to utilise his skills in actively participating at a senior level in the day‑to‑day management of that business (s 134(2)(b) of the Act). Therefore, the Tribunal finds that the exercise of the discretion to cancel his visa is appropriate in this case.
Would Sen and Ching Suffer Extreme Hardship if their Visas were Cancelled?
22. Section 134(4) of the Act provides:
…
(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.
23. Sen told the Tribunal that she completed Year 12 and a Bachelor of Business (Marketing) degree in Australia. She said that she is learning the business under her father’s direction, and is glad to have the opportunity to do so. Sen stated that she enjoys the lifestyle in Australia, has made friends here and wishes to stay in this country. She pointed out that her qualifications would not assist her to gain employment in Singapore. She said she is not familiar with the education system and would be unable to study there.
24. Ching told the Tribunal that she has been in Australia since 1997 and completed a Bachelor of Commerce (Finance) degree at the University of Melbourne in 2000. She said that apart from 8 months in about 2001 or 2002 she has lived continuously in Australia since her first arrival, working in market research and in a call centre until July 2004, when she commenced her current position in customer relations administration with a superannuation/investment company. Ching stated that her employer has indicated support for her progression into higher positions as an adviser in superannuation and other financial products. She explained that cancellation of her visa would mean the loss of her employment and a promising career, as well as a loss to the employer in respect of the time and effort spent in training her since 2004. She also said that she enjoys the Australian lifestyle, has many friends here and her career prospects in Singapore are slim.
25. In Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961 the Tribunal stated (at paragraph 29):
…Clearly, whatever view is taken, hardship involves more than inconvenience or detriment. Affectation must be to a considerable degree before it can properly be called hardship.
At paragraph 30 the Tribunal stated:
…There are many meanings of the word "extreme" offered in the Macquarie Dictionary. Some of the more helpful suggestions are "of a character or kind farthest removed from the ordinary or average", "utmost or exceedingly great in degree", "farthest, utmost or very far in any direction", "going to the utmost lengths, or exceeding the bounds of moderation", "the utmost or highest degree, or a very high degree". The use of the word "extreme" can be contrasted with the use of the word "undue" found in Ministerial Guidelines relating to hardship associated with deportation. In order to enliven the prohibition against a Minister cancelling another person's business visa under subsection (4), there must be shown to be not only hardship and not only undue hardship, but extreme hardship…
26. In Re Setiawan and Minister for Immigration and Multicultural Affairs [2002] AATA 260 the Tribunal stated (at paragraph 7):
…The meaning to be ascribed to the words “extreme hardship” was considered by the Federal Court in Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481. At p 487 it was stated:
…Clearly enough, "extreme" hardship must find itself at the very high end of the scale. This does not mean, however, that in any given case, "extreme hardship" means, in effect, a particular point on a continuum of hardship. It obviously connotes an area within which an ascertainable burden of hardship may fall and properly merit the description "extreme". Within that area there may be varying degrees of burden, one less than another, but each meriting the description...
In Re Salim and Minister for Immigration and Multicultural and Indigenous Affairs (2002) 36 AAR 42 Deputy President Purvis said (at paragraphs 46 and 47):
…
However, it would be strange or unusual and unexpected if three relatively young, intelligent and capable persons had not in the years developed such relationships. It will be hard to leave these people. It will be hard to readjust to a life outside Australia and the university environment. But this hardship is one within the contemplation of the legislature when it chose to insert the word "extreme" as to qualify the hardship. And it must be "extreme" to the particular individual.
The Tribunal does not consider that the hardship that will undoubtedly be experienced by each one of the applicants is exceptional, unexpected or of such a nature as to qualify for the description of exceedingly great in degree. Unfortunate yes, emotional yes, financial yes to a degree. But not extreme…
27. The Tribunal takes into account that Sen and Ching have been in Australia for several years and completed their secondary education and an undergraduate degree in this country. There is no doubt that they enjoy living in Australia, have developed a network of friends, and that cancellation of the visas would cause disruption to their established lifestyle, including their current employment. Sen would lose the opportunities she has gained in working in her father’s shipping business, and Ching would lose her job and her prospects in the finance industry are uncertain. The Tribunal takes into account their evidence that there might be difficulty in adapting to the Singaporean education system for further study, and in securing comparable employment.
28. However Sen and Ching are young and independent, and have the capacity and educational qualifications to be able to pursue employment or postgraduate studies in Singapore or another country. The Tribunal takes into account that their parents, a sibling and extended family live in Singapore and would assist them with support and accommodation and to find work in the family’s other businesses or to undertake further study. Neither Sen nor Ching provided evidence that they have made formal enquiries about working or studying in Singapore.
29. In considering all the relevant material, the Tribunal finds that, although cancellation of the visas would result in loss of employment, financial loss, inconvenience, disruption to their lifestyle, a change to their environment and separation from a network of friends, the level of hardship that they would undoubtedly experience would not be extreme for the purposes of the Act. Therefore, under s 134(5) of the Act, the Tribunal finds that cancellation of the visas would not result in extreme hardship to Snk or Ching.
DECISION
30. The Tribunal affirms the decisions under review.
I certify that the thirty [30] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of hearing: 15 and 16 December 2005
Date of decision: 9 March 2006
Counsel for applicant: Mr V. Morfuni SC
Solicitor for applicant: Lily Ong
Advocate for respondent: Mr T. Eteuati
Solicitor for respondent: Clayton Utz
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