Re Burg and Minister for Immigration and Citizenship
[2007] AATA 1630
•6 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1630
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1179
GENERAL ADMINISTRATIVE DIVISION )
ReRonnie Allen BURG
Applicant
AndMinister for Immigration and Citizenship
Respondent
DECISION
TribunalProfessor GD Walker, Deputy President
Date6 August 2007
PlaceSydney
DecisionThe decision under review is affirmed.
..................[sgd]............................
Professor GD Walker
Deputy President
CATCHWORDS
IMMIGRATION – subclass 127 business visa cancelled – applicant found to have a substantial ownership interest in an eligible business – applicant not involved in the actual management of the Australian businesses – applicant’s role found to be advisory and liaison in nature rather than executive - evidence did not establish that the applicant had made a genuine effort to satisfy the requirements of the act – despite the fact that the applicant satisfied the requirements for cancellation and the absence of genuine effort, discretion allows decision maker to consider whether the applicant would be likely in the future to satisfy the criteria – evidence did not support a finding that further time would enable the applicant to satisfy the statutory criteria – decision under review affirmed.
…
RELEVANT ACT/S:
Migration Act 1958 s 134, 135
Migration Series Instruction 133: Visa cancellation under subdivision G
CITATIONS
Re Yam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283
Re Jo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 77
Re Lau and Minister for Immigration and Multicultural [2002] AATA 703
Re Huang and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 656
Re Tang and Minister for Immigration and Multicultural Affairs [2000] AATA 997
Re Kim and Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 31
Re Nagaria and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 579
…
REASONS FOR DECISION
6 August 2007
Professor GD Walker, Deputy President
Summary
1. The applicant sought review of a decision by the respondent to cancel his subclass 127 business visa.
2. At the hearing, the applicant was represented by Mr Arnold Conyer, solicitor of Diamond Conway Lawyers, and the respondent by Mr Greg Johnson, solicitor, of DLA Phillips Fox. The documents before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”), taken into evidence as Exhibit R1, together with the other documents tendered by the parties at the hearing. The applicant gave oral evidence in person.
Basic facts
3. Mr Ronnie Allen Burg was born on 19 October 1949 in South Africa and is a citizen of that country. He applied for a subclass 127 business visa on 19 August 2002, which was granted on 19 March 2003. He entered Australia for the first time on 18 April 2003, departing again on 1 May 2003. He returned for 18 days in September 2005.
4. Mr Burg responded to a 24-month form 1010 survey on 23 June 2005 and 4 July 2005. He supplied further information requested by the respondent on 1 March 2006.
5. On 6 April 2006, a notice of intention to cancel the applicant’s visa was sent to him (T pp266-271) to which he responded on 11 May 2006 (T pp275-440). Mr Burg claimed that he had ownership investments in eligible Australian businesses through having $286,000 in Insurance Line Holdings Pty Limited, a $115,000 investment in Bells Holdings Unit Trust (and a loan to the trust of $451,745), and $2,450,000 in Investec Securities Limited. He stated that he is actively involved in Australian businesses through being a director of Global Capital Holdings (Australia) Pty Limited (Global) and through providing advice to his brother, Gary Burg, in relation to their business interests. Mr Gary Burg is an Australian citizen and managing director of Global Capital Holdings.
6. After considering the applicant’s response, the delegate cancelled his subclass 127 visa under s 134(1) of the Migration Act 1958 (Cth) (the Act). The applicant applied to this tribunal for review of that decision on 8 September 2006 (T pp4-5).
Applicable legislation and policy
7. The statutory scheme for the cancellation of business visas is set out in ss 134 to 137 of the Act. Departmental policy with regard to cancellations under s 134 is contained in Migration Series Instruction 133: Visa cancellation under subdivision G – cancellation of business visas (MSI).
8. Section 134(1) provides that:
…
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.
…
9. Section 134(2) provides for circumstances in which a visa must not be cancelled under subsection (1):
…
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.
…
10. Section 134(3) provides a list of matters that the Minister may take into account when determining whether a person has made the genuine efforts described in s 134(2).
11. The MSI provides notes to guide the interpretation of the matters listed in s 134(3) (see paragraph 4.5). The relevant statutory matters that may be taken into account, and the notes to their interpretation, include:
§The period or periods during which the person has been present in Australia.
The MSI refers to whether there has been physical presence for more than 6 months since the first arrival as a business skills migrant (see note (d) to paragraph 4.5.1 relevant to s 134(3)(d)).
§The value of assets transferred to Australia by the person for use in obtaining an interest in an eligible business.
The MSI refers to whether there has been transferred to and retained in Australia at least 50% of the funds indicated as available for transfer within the 2 years (see note (e) to paragraph 4.5.1 relevant to s 134(3)(e)).
§The value of ownership interest in eligible businesses in Australia that are, or have been, held by the person.
The MSI refers to whether there is or has been a minimum A$100,000 or 10% ownership held by the person and provides that if the person is no longer in the business the reasons for loss of ownership are relevant (see note (f) to paragraph 4.5.1 relevant to s 134(3)(f)).
§Business activity that is, or has been, undertaken by the person.
The MSI refers to whether there is a minimum of A$100,000 business activity as indicated by turnover and provides that this may include other business activity not considered as an eligible business but cannot include passive investment, for example the purchase of shares (see note (g) to paragraph 4.5.1 relevant to s 134(3)(g)).
12. Paragraph 4.5.2 of the MSI states that a failure to meet one of these indicators may normally lead to a visa being cancelled, but it will not necessarily mean the visa will be cancelled. The decision maker must decide on the ordinary meaning of the words “genuine effort”, when deciding whether the visa holder has made a genuine effort.
13. There are some important procedural requirements in order to cancel a visa under s 134(1). For example, s 134(9) provides that:
…
The Minister must not cancel a business visa under subsection (1), (3A) or (4) unless a notice under section 135 was given to its holder within the period of 3 years commencing:
(a) if its holder was in Australia when he or she was first granted a business visa - on the day on which that first visa was granted; or
(b) if its holder was not in Australia when he or she was first granted a business visa - on the day on which its holder first entered Australia after that first visa was granted.
…
14. A notice under s 135 must set out the reasons for the intended cancellation and invite representations from the visa holder within a period of 28 days after the notice is given. Section 135(3) requires that any such representations must be duly considered by the decision-maker.
Issues
15. The issues in this case are:
(a)whether pursuant to s 134(1) of the Act at the time of the cancellation of his visa, the applicant:
(i)had not obtained a substantial interest in an eligible business in Australia;
(ii)had not utilised his skills in actively participating at a senior level in the day-to-day management of that business;
(iii)did not intend to continue to hold that substantial interest and so utilise his skills in the eligible business; and
(b)whether, pursuant to s 134(2) of the Act, the applicant:
(i)has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and
(ii)has made a genuine effort to utilise his skills in actively participating at a senior level in the day-to-day management of that business; and
(iii)intends to continue making such efforts; and
(c)whether, in the exercise of its discretion under s 134(1), the tribunal ought to affirm the decision by the delegate of the respondent to cancel the applicant’s subclass 127 business skills visa.
The applicant’s evidence
16. In his oral and written (Exhibit A1) evidence, Mr Burg said that he has 38 years of business experience, including 28 years as managing director of a South African manufacturing business, M Burg & Son, which was established by his father in 1939 as a family business. He has a profound understanding of the day-to-day requirements for running a business and substantial experience in managing investment funds, including a knowledge of corporate management structures, international foreign exchange fluctuations and stock exchange matters.
17. In Australia, he has acquired a substantial ownership interest in Insurance Line Holdings Pty Limited (ILH) and in the Bells Holdings Unit Trust (Bell). He has invested $260,000 in ILH and a further $750,000 in Bell. He also transferred to Australia a sum of $2,450,000, which he deposited with Investec Bank Australia with a view to making further investments in suitable business transactions.
18. Mr Burg is a director of Global, which is part of the South Africa-based corporation known as Global Capital (Pty) Ltd Group (Global Capital). Global Capital operates as an investment banking and private equity company from Johannesburg and has interests in Africa, the United Kingdom, Israel and the United States, in addition to its Australian business. All high level management takes place in Johannesburg.
19. Global Capital's shareholders include the Investec Banking Group, Old Mutual Group, the Burg family, Larry Nestadt and Frank Boner. The group has cash and investments under management exceeding $250,000,000. In Australia, those investments include Bells Pure Ice Holdings Pty Limited, ILH, and PrefSure Holdings Group, a specialist risk life insurer which was recently sold to Tower Australia Group Limited for $145,000,000. Mr Burg personally had $1,250,000 invested in it. Global Capital has been active in Australia for nine years and during that time has sourced over $150,000,000 for investment in Australia. Most of the funding for Australia emanates from South African sources.
20. Global and Global Capital's business strategy is actively to seek large minority or majority holdings in companies that have the capacity to grow. The group actively seeks growth opportunities for those companies and assists them with any strategic acquisitions. The intention is to develop the businesses and eventually dispose of them either through a stock exchange listing or a commercial sale.
21. Mr Burg participates in high level management decisions relating to the Australian-based entities, as well as Global Capital in South Africa. After an acquisition, he is provided with information enabling him to help assess the growth and performance of the acquired businesses. He participates in management decisions that ultimately lead to the continued holding of the business or its floatation or sale. As he puts it, he is involved in the macro environment of the various businesses owned by Global Capital, while macro management is performed by the managers employed in those various businesses.
22. The macro aspect of Global Capital involves domestic and international economic issues, such as currency, interest rates, economic growth and stock market activity, legal and tax matters, political developments and management issues.
23. In Mr Burg’s experience, the basis for the success of private equity managers is their ability to invest in a business at the right price and at the right time and thereafter to assist its strategic direction and growth, ultimately maximising value by selling at the right price and at the right time. The Global group has a strong track record and has achieved credibility in the market through the strength of its key management and employees. Mr Burg himself has played a key role in both Global and Global Capital for the past 10 years. Global Capital has had a presence in Australia for nine years.
24. Currency movements, interest rate risks and stock market fluctuations are critical to the private equity manager in its decision as to when to buy or sell an investment. Mr Burg said that he has been able to play a role through his representation on the Global board of directors, regular teleconferences that are held at least three times a week with the Global managing director, the applicant’s brother Mr Gary Burg, and meetings with Gary Burg at least twice yearly in South Africa. His direct involvement in the management of the various businesses has resulted in $250,000,000 of investment turnover in Australia and the employment of over 400 people.
25. At the hearing Mr Burg explained that Global is essentially a “cashbox” that receives funds from investors and uses them to acquire companies in Australia or abroad. Investors include banks, insurance companies and individual shareholders. The individual shareholders include a group of friends and associates who meet every Wednesday in Johannesburg to discuss the pros and cons of various investment prospects. Following the discussions, Mr Burg will email or telephone his brother to pass on the investors’ views on the various investment opportunities. The information the applicant receives from his brother is crucial in bringing the other investors with him. Although he is involved in the final decisions on corporate acquisitions, he does not have the complete authority to make a commitment.
26. After acquisition, if there are any major decisions to take, they are discussed with the applicant. Again, he does not have the final say, but is involved in the consideration of any changes of direction in the acquired entities. He does not, however, actually run the business and has no role, for example, in staff selection, unless he has strong views about a particular individual.
27. Although his manufacturing company consumes most of his time, about five and a half days per week, he does spend time on Global matters, on average two or three hours a day on three days a week. He has a personal holding of 10.5 percent in Bell, and a somewhat smaller holding in ILH.
28. Global’s current rate of return to investors is about 20 percent per annum. The investors are pleased with those results and Mr Burg still receives enquiries from friends who wish to join the Wednesday group.
29. Mr Burg said he thought he had complied with the visa requirements. He believed he could have spent $200,000 on establishing a smaller business that would employ a few people, but he has instead opted for a much larger scale of the investment. Indirectly Global employs many Australian citizens.
30. His Australian earnings are reinvested in this country, and his South African business revenues are his personal income. He would like to come and live here, having first come to Australia six years ago. He has visited Australia four or five times for a total of between two and three months. On each occasion he has brought his family, and has spent part of his time on business matters and part of it on tourism activities.
Mr Gary Burg’s evidence
31. Mr Burg said he has lived in Australia for six and half years. He helped to found Global in South Africa, and set up the group’s Australian operations, of which he is now managing director.
32. South African exchange control laws require that foreign investments be held by a legal entity other than an individual. Consequently, shares are held on an investor’s behalf by a nominee, such as Wintol Pty Limited (Wintol), pursuant to a declaration of trust. The Jenilla Trust (Jenilla) is also permitted to hold assets offshore pursuant to certain special arrangements.
33. The applicant has invested about $6,500,000 in ILH, the shares in which are held for him by Wintol, and in Bell, and his interests in Bell are held by Jenilla.
34. The Global Capital organisation chart (T pp254-255) sets out the corporate relationships between the various components of the group, except that the ultimate ownership is no longer held by Global Capital but by individuals, including members of the Burg family. When the family assembled the Global organisation, the applicant had the role of investment adviser and contributed to the success of the enterprise. While Mr Gary Burg is responsible for the day-to-day operation of the company, the payment of salaries and the like, the applicant continues to fulfil a sounding-board function for investment issues. They have telephone discussions on average three times a week and meetings in South Africa two or three time a year. There is sometimes a divergence of views but consensus is invariably reached. Investment decisions thus have a consultative basis.
35. Ultimately, Global aims to have a larger office in Australia, and so far its operations have been successful. Ultimately, the plan is for the investors to live in Australia.
Applicant’s submissions
36. Mr Conyer submitted that the tribunal is presented here with a company that deals in corporations. It is assesses them, acquires them and supplies management expertise to run and sometimes sell them. Its investors include institutions, the Burg family and what might be called the Wednesday club of individuals who are planning for their retirement and have entrusted superannuation funds to the applicant. They do so because they know that the applicant and his brother can provide the type of business expertise that has resulted in returns of over 20 percent per annum.
37. The applicant is personally involved in the day-to-day management of the company by providing his experience on the best methods for maximising returns, for coping with exchange controls and movements in interest rates and currency exchange rates. He does not claim to run the business but effectively manages its stock.
38. In Re Yam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283 at para 93, the tribunal had accepted that the requirement for the utilisation of skills in the day-to-day management of a business did not mean that those skills had to be used on a daily basis, but simply that there be continuity and regular activity. Re Jo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 77 had pointed out 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. Senior level management input by an experienced business person could often be intangible, and might involve ideas and planning, as much as researching products, securing orders and suppliers and transacting shipping.
39. The applicant in this case was involved in supplying high-level input. He conveys information to the investment group which discusses and decides what should be done in relation to a particular business opportunity. He engages in discussions several times a week with Australia and makes a contribution that is crucial to the management of Global.
40. The businesses in which the applicant is involved in Australia are eligible businesses. He has substantial ownership interests in them and although the international holdings are somewhat complex, the money can be traced from the applicant to the Australian businesses. Some $200,000,000 has flowed into Australia and hundreds of jobs have been created and supported. At this stage, the business needs someone in South Africa to “corral” investors. With his 30 years of senior management and expertise, the applicant is in a position to make a vital contribution.
Consideration
41. In relation to the issue under s 134(1), it was not disputed that Bell and ILH are eligible businesses.
42. As Mr Johnson pointed out, while the international structure of the corporate group with which the applicant is associated is relevant, the fact that the arrangements are complex does not mean that the tribunal can simply accept the applicant’s assurance that the interests he holds amount to substantial ownership.
43. The applicant has adduced evidence to show that he has invested $260,000 in ILH and a further $566,745 in Bell. In addition, he has transferred to Australia an amount of $2,450,000, which he deposited with Investec for the purpose of making further investments. Both Bell and ILH are substantial operations. For the year ended 30 June 2005, ILH’s gross revenues amounted to $24,000,000 and its net revenues were $3,383,953, with employee benefits amounting to $2,916,938. Gross turnover for this year is estimated at $30,000,000. The company employs almost 200 people.
44. Bell has investments in Bells Pure Ice Holdings Pty Limited, Vision Equity Living Pty Limited (a specialist insurance supplier), Ralph Properties Pty Limited and Grelbune Properties Pty Limited. To date the trust has raised $7,000,000 from its unit holders.
45. The applicant’s ownership interest in Bell represents 10.5 percent of its capital and in relation to ILH, approximately nine percent. The evidence on these matters is not contradicted.
46. While the applicant's holdings do not represent a controlling interest in the corporations in question, given their size and turnover, it must be regarded as a substantial ownership interest. Consequently, the applicant satisfies s 134(1)(a).
47. As regards the issue under s 134(1)(b), the evidence shows that the applicant is a successful businessman with extensive experience. The fact that he has been able for almost 30 years to keep in operation his manufacturing business, which employs 80 people, throughout periods of turbulence and economic difficulty in South Africa, attests to his business acumen and skills.
48. By virtue of his knowledge and experience, he is in a position to make a significant contribution to the activities of the Australian businesses with which he is associated. It is clear, however, that Mr Burg devotes most of his working hours to his South African manufacturing business. On his own estimate, the amount of time he spends on the Australian businesses averages out to two to three hours on three days a week, or a maximum of nine hours. Mr Gary Burg describes the applicant’s role as in the nature of a “sounding-board”, and the applicant himself characterises it as that of a “senior adviser”.
49. Given the nature of the businesses involved, his role is not an insignificant one, bearing in mind the need to maintain continuous consultation with the investors in South Africa. It is, however, more in the nature of an advisory and liaison role than an executive one, in the sense of directly making a substantial number of decisions in the daily operations of the business. The applicant conceded that he is not involved in the actual management of the Australian businesses, that being the responsibility of Mr Gary Burg. He stated that his advice is sought in relation to acquisitions and sales of businesses, and changes in the direction of any of the acquired companies. I do not suggest that a person performing an advisory and liaison function cannot satisfy s 134(1)(b). But when coupled with the small proportion of his time spent on the Australian businesses, that fact contributes to the conclusion that his Australian activities are of relatively minor importance
50. The applicant estimated that he has spent a total of two or three months in Australia, but at the date of visa cancellation he had been present in this country for only 30 days since his arrival on 18 April 2003. With recent movements that had now risen to about 40 days at the time of the hearing.
51. Yam and Jo establish that regularity and continuity of activity are more significant than actual daily involvement in the running of a business, and that modern communications permit a business to be managed and strategically directed from almost anywhere in the world. Further, Re Lau and Minister for Immigration and Multicultural Affairs [2002] AATA 703 recognises that management input at a senior level by an experienced person will often be intangible, and may involve ideas and planning as much as researching products, securing orders and suppliers and transacting shipping.
52. At the same time, Re Huang and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 656 points out that the legislation is directed towards overseas business people who wish to use their business skills to establish a significant business in Australia. A business skills visa is designed to allow the overseas business person to travel to and from Australia and to live in Australia while conducting the business. It envisages that the holder will acquire a significant interest in the Australian company and play a substantial role in its day-to-day management. “It also envisages that the business person will probably wish to have close family members accompany them while they live in Australia. Hence the provision of secondary visas for family members” (at para 6).
53. In this case, the applicant has spent only a little over a month in Australia. While overseas he has been principally engaged in the management of his South African manufacturing company. His involvement in the Australian businesses has totalled only about nine hours per week, a low figure for a senior manager engaged in the day-to-day conduct of the company. Further, his role is advisory and liaison in character rather than executive. He has not acquired or leased a place of residence in Australia and appears to have taken no steps towards moving his family here. As Deputy President McMahon noted in Re Tang and Minister for Immigration and Multicultural Affairs [2000] AATA 997, “it is apparent that the Act is intended to benefit business owners who settle here and actively manage that business” (at para 21). Mr Burg has not done that.
54. In relation to s 134(1)(c), nothing in the evidence suggests that the applicant does not intend to continue to hold his substantial ownership interest in the eligible businesses. Nor is there anything to suggest that he does not intend to continue making such use of his skills as he has to date.
55. In view of the above finding, it is necessary now to consider whether the applicant has made the genuine efforts described in s 134(2). From the above it follows that he has satisfied the requirements in relation to obtaining a substantial ownership interest in an eligible business.
56. The applicant made no submissions specifically on the issue of genuine effort. On behalf of the respondent, however, Mr Johnson pointed out in the context of s 134(3) that there was no evidence before the tribunal of any business proposals developed by the applicant, or partners or joint venturers. Nor was there any evidence of research into the conduct of an eligible business, as it was Gary Burg who had established Global Capital and had founded its Australian operations. The applicant had spent very little time in Australia for the purpose of assisting the business, and while he had moved substantial assets here, that was only one factor to be considered under s 134(3). Though the businesses had been successful, they were principally run by Mr Gary Burg.
57. In relation to s 134(2)(b), the evidence shows that his failure to use his skills in the manner required has resulted from choices of his own making. He has continued to devote the great bulk of his time and attention to his South African manufacturing company, leaving the Australian businesses as very much a secondary or peripheral concern. His chosen role in relation to them has been of an advisory and liaison nature rather than of an executive character. He concedes that he is not running the Australian businesses and that he does not have the final say in decisions affecting them. He has spent little time in Australia, giving as his reason that he has young children, one aged one year and the other aged six. Yet, if he were planning to settle in Australia, the best time to move would be when the children are young, before they have become established at school and developed a network of friends.
58. The applicant's failure to use his skills in the manner prescribed has not resulted from forces beyond his control but is the inevitable consequence of his own choices. I therefore conclude that the applicant has not made the necessary genuine effort.
59. Although in light of the above it may not be necessary to make a finding in relation to s 134(2)(c), I note that at the hearing the applicant said that he wished to live in Australia. He did not, however, indicate that he had taken any steps or made any plans in that regard. It appears to be more of a contingent aspiration than an actual intention.
Discretionary considerations
60. In Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 31, Kiefel J found that the power to cancel a visa under s (134(1) is a discretionary power. Her Honour found that failure by the tribunal to consider whether or not to exercise the residual discretion after determining that the applicant satisfied the criteria in s 134(1) amounted to jurisdictional error. She stated (at para 21) that:
… Whilst the discretion given in s 134(1) is not as broad as that considered in Samad, in the sense that it does not involve more choices, it cannot be said that a decision not to cancel a visa could serve no purpose. The Minister might be satisfied of the matters referred to in subs (1) and not be satisfied as to the efforts made as referred to in subs (2) but nevertheless consider in a particular case that further time should be given to the visa holder to undertake what was required of them. …
61. In Re Nagaria and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 579, Member Webb stated (at para 17) that:
… Following Kim there is discretion not to exercise the power to cancel a business visa even in the event that the criteria set out in paragraphs 134(1)(a) to (c) are not satisfied.
…
62. In that case, Member Webb, when considering whether to exercise the residual discretion, considered whether the applicant would be likely in the future to satisfy the criteria in s 134(1).
63. The applicant made no submissions directed to the question of discretion. On the evidence, however, this does not appear to be a case in which there is any reason to think that allowing further time would enable the applicant to satisfy the statutory criteria. He has foreshadowed no plans to move to Australia, or to spend more time present here, or to play a more direct and substantial role in the Australian businesses than he is already playing.
64. On the basis of established principles, there is therefore no ground on which I could exercise the implied discretion in favour of non-cancellation of the visa. The decision under review should be affirmed.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President
Signed: ..................[sgd]......................................................
R. Wallace, AssociateDate/s of Hearing: 26 June 2007
Date of Decision: 6 August 2007Solicitor for the Applicant: Arnold Conyer, Diamond Conway Lawyers
Solicitor for the Respondent: Mr Greg Johnson, DLA Phillips Fox
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