Re Chawla and Minister for Immigration and Citizenship
[2008] AATA 715
•13 August 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 715
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W200600143-145
GENERAL ADMINISTRATIVE DIVISION ) Re MANMOHAN SINGH CHAWLA
AMITA CHAWLA
MANVEENA CHAWLAApplicants
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Ms L R Tovey, Member
Mr W G Evans, Member
Date 13 August 2008
PlacePerth
Decision The Tribunal:
1. Affirms the decision of the Respondent to cancel the business skills (sub-class 127 business owner) visas of Manmohan Singh Chawla and Amita Chawla; and
2. Sets aside the decision of the Respondent to cancel the business skills (sub-class 127 business owner) visa of Manveena Chawla.
…..(sgd) Mr W G Evans...........
Member
CATCHWORDS
IMMIGRATION – business skills visa – eligible business – genuine efforts – extreme hardship - exercise of discretion – turns on own facts
Migration Act 1958 (Cth), s134
Migration Series Instructions 133
Re Cai and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 212
Jo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 77
Kok and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 579
Kumar v Minister for Immigration and Ethnic Affairs (1997) 144 ALR 441
Lau and Minister for Immigration and Multicultural Affairs [2002] AATA 703
Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481
Re Pan and Minister for Immigration and Citizenship [2007] AATA 1724
Shi v Migration Agents Registration Authority [2008] HCA 31
Wong and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 54
Yam v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283.
REASONS FOR DECISION
13 August 2008 Ms LR Tovey, Member Mr W G Evans, Member 1. This is an application for review of a decision made by a delegate of the Respondent ("the Minister") on 26 April 2006 cancelling the business skills (sub-class 127 business owner) visas of Manmohan Singh Chawla ("Mr Chawla"), his wife Amita Chawla ("Mrs Chawla") and daughter Manveena Chawla ("Ms Chawla").
BACKGROUND FACTS
2. The following background facts, which we find by reference to the Section 37 Documents, were not in contention between the parties.
3. On 16 January 2003, Mr Chawla was granted a sub-class 127 business skills visa. Mrs and Ms Chawla were also granted sub-class 127 visas on the basis of being members of Mr Chawla's family unit. The applicants first entered Australia, following the issue of those visas, on 16 April 2003, with Mr and Mrs Chawla remaining in Perth until 9 May 2003.
4. On 8 March 2005, Mr Chawla was sent a standard 24 month survey. Mr Chawla returned the survey together with a statement on 10 June 2005 advising:
(a)he had investigated the restaurant and property development industries and registered as business names "Haandi Restaurant" and "Home Developers";
(b)he intended to proceed with a property development business and intended to apply for a building licence and register with the Master Builders Association of Western Australia;
(c)he would inject $750,000 into this business;
(d)he intended to be the Chief Executive Officer and Managing Director with sole decision making responsibility; and
(e)as a back up plan he would consider opening a restaurant.
5. On 29 August 2005 the Department for Immigration and Multicultural and Indigenous Affairs ("the Department") wrote to Mr Chawla seeking more information. Mr Chawla responded on 11 November 2005 advising:
(a)he was in the process of disposing of his assets in Kenya but it was moving quite slowly as a result of the poor economic conditions;
(b)he had transferred funds to Australia and purchased a house and a car; and
(c)he also was taking more time as he was recovering after being shot by thieves.
6. On 14 February 2006, notices of intention to cancel the visas were sent to the applicants. Mr Chawla responded on 17 March 2006 advising that:
(a)he had now sold his assets and wound up his Kenyan business;
(b)he had brought $252,799 into Australia and intended to shortly transfer a further $270,000;
(c)the incident where he was shot by thieves put his efforts to come to Australia 8-10 months behind; and
(d)he was looking at business opportunities and had met with a number of business brokers with whom he was currently involved in negotiations to purchase a business.
7. Mrs and Ms Chawla also wrote to the Department claiming they would suffer from extreme hardship if their visas were cancelled.
8. On 26 April 2006, a delegate of the Minister decided to cancel the applicants' business skills visas. The delegate found that:
(a)Mr Chawla had not provided sufficient documentary evidence that he had transferred and retained substantial finds in Australia for the purposes of engaging in eligible business activity. Furthermore, whilst two businesses had been registered there was no evidence that any funds had been invested into these businesses.
(b)There was no evidence that any business activity had occurred or that Mr Chawla was using his management skills at a senior level.
(c)There was insufficient information in respect of Mr Chawla's claims to have sold his assets and wound up his business in Kenya.
(d)No documentary evidence had been provided to demonstrate Mr Chawla had management roles within on-going contracts, business plans or proposal . The delegate also noted that there was minimal evidence of research and Mr Chawla had only spent 63 days in Australia.
9. In addition, in separate decisions, the delegate did not accept that the Mrs and Ms Chawla would experience extreme hardship as a result of the cancellation decision.
10. The applicants now seek a review of that decision by this Tribunal.
LEGISLATIVE BACKGROUND
11. Section 134 of Migration Act 1958 (Cth) ("the Act") confers a discretionary power to cancel the applicants' visas. Section 134(1) of the Act provides:
“(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.”
12. If the discretion to cancel the visa arises under s. 134(1) of the Act, then s. 134(2) of the Act provides that:
“(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.”
13. In determining whether a person has made a “genuine effort” within the meaning of s. 134(2) of the Act, s. 134(3) of the Act states:
“(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).”
14. Section 134(10) defines "eligible business" to mean:
"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."
15. By s. 134(10) of the Act, an “ownership interest” in relation to a business is defined to mean:
“an interest in the business as:
(a) a shareholder in a company that carries on the business; or
(b) a partner in a partnership that carries on the business; or
(c) the sole proprietor of the business;
including such an interest held indirectly through one or more interposed companies, partnerships or trusts.”
16. Section 134(4) the Act provides that, subject to s. 134(5) and s. 135 of the Act, the Minister must cancel a business skills visa held by another person who is a member of the family unit of the holder of the cancelled business skills visa if that person would not have held the business skills visa but for that membership.
17. Section 134(5) of the Act provides that the Minister must not cancel the other person’s business visa under s. 134(4) if the cancellation of that visa would result in extreme hardship to the person.
ISSUES
18. It is common ground between the parties that Mr Chawla has not either obtained a substantial ownership interest in an eligible business in Australia or utilised his skills in actively participating at a senior level in the day-to-day management of such a business.
19. The first issue in relation to Mr Chawla's visa is therefore whether, for the purposes of s. 134(2) of the Act, Mr Chawla:
(a)has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia;
(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.
If Mr Chawla satisfies all of those requirements, his visa may not be cancelled.
20. Further, even if one or more of those requirements is not satisfied there remains a residual discretion not to cancel a visa if the circumstances warrant such exercise: see Kok and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 579 at [53].
21. The second issue in relation to Mr Chawla's visa is whether the residual discretion ought to be exercised in his favour in the event that he does not satisfy the "genuine efforts" test.
22. If Mr Chawla's visa is cancelled then the third issue which arises in relation to the visa of Mrs Chawla is whether cancellation of her visa would result in extreme hardship to her. It was not contended by the applicants, and there is no evidence which satisfies us, that Mrs Chawla would suffer extreme hardship if her visa were cancelled.
CONSIDERATION OF THE ISSUES – GENUINE EFFORTS BY MR CHAWLA
Policy
23. Assistance can be derived from the Migration Series Instruction 133 in relation to whether a person has made a “genuine effort” within the meaning of s. 134(2) of the Act. Migration Series Instruction 133, paragraph 4.5.1 relevantly provides:
“. . . Decision makers may take account of these notes to guide them in interpretation . . . .
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 migrant;
e.transferred to, and retained in, Australia at least 50% of the funds indicated as available for transfer within two years . . .
f.minimum A$100,000 or 10% ownership previously held by the person. If the person is no longer in business, the reasons for the 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.
h.failure to comply with a notice for information under s137, ie mandatory monitoring of Australian address and return of survey forms.”
24. Further, Migration Series Instruction 133, paragraph 4.5.2 states that:
“While failure to meet one or more of these indications may normally lead to a visa being cancelled, it will not necessarily mean that a visa will be cancelled. The decision maker must give weight to all relevant factors in a case (of which those set out in subsection 134(3) above may only be some) and reach a decision on that basis. For example, while the factors listed in 4.5.1 above may be indicative of “genuine effort”, lack of them will not necessarily be decisive. The decision maker must decide, on the ordinary meaning of the words, whether the visa holder has made “genuine effort”. A decision maker may still decide not to exercise the discretionary power to cancel the business visa even if it is assessed that no genuine effort has been made.”
25. Of course, while the Migration Series Instruction is a policy to which regard may properly be had in determining whether a person has made genuine efforts, it is not to be inflexibly applied and guides, rather than controls, the determination under s. 134(2) of the Act. Further, there may be many cases in which a person whose efforts do not satisfy the examples given in the Instruction are nonetheless genuine efforts which satisfy the requirements of s. 134(2) of the Act.
26. We also note that, according to the Department's website, Migration Series Instruction 133 was replaced by PAM 3 Visa Cancellation Instructions - Business Visas with effect from 15 March 2007. However, a copy of that policy has not been provided to us, and neither party contended that it was relevant to our determination. In those circumstances, we proceed on the basis that the substance of Migration Series Instruction 133 continues to reflect the applicable policy.
Applicable Principles
27. The usual approach of the Tribunal, in considering the genuine effort an applicant has made, is to look only at events, actions and intentions that existed prior to the cancellation of the visa: Wong v Minister for Immigration and Multicultural Affairs [2002] AATA 54 at [37]. In doing so, however, the Tribunal has taken the view that it is also entitled to consider subsequent events to the extent that those later events assist in evaluating the relevant intentions and actions of the visa holder as at the date of the cancellation of the visa: See Kok at [21], Jo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 77 at [10]; and Lau and Minister for Immigration and Multicultural Affairs [2002] AATA 703 at [24].
28. The recent decision of the High Court in Shi v Migration Agents Registration Authority [2008] HCA 31 casts doubt on the correctness of that approach. The question in Shi was whether the Tribunal, in conducting a review of a decision made under the s. 303 of the Act, was entitled to take account of facts and circumstances prevailing at the time of its review. The Court found that it was so entitled. The general approach of Hayne and Heydon JJ was reflected in the statement at [99] that:
"…unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act; there is nothing in the AAT Act which would provide such a limitation."
Similarly, Kirby J concluded at [43] that the Tribunal is not ordinarily confined to material that was before the primary decision-maker, or to consideration of events that had occurred up to the time of its decision, although in each case it is necessary to consider the precise nature and incidents of the decision that is the subject of the review. The approach of Kiefel J, with whom Crennan J agreed, may have been less reliant on the general presumption, but still led to the conclusion that it was open in that case to the Tribunal to have regard to facts and circumstances occurring after the taking of the decision under review.
29. There is nothing obvious in the language or subject matter of s. 134 of the Act which would confine the attention of the Tribunal to facts and circumstances existing at the time of the decision under review. That suggests that the correct approach may be to assess whether an applicant has made genuine efforts at the time the Tribunal makes its decision.
30. We have considered the evidence of steps taken by Mr Chawla after the decision to cancel his visa. That evidence does not alter the conclusion we would arrive at having regard only to the evidence of steps taken prior to the cancellation decision. In those circumstances, it is unnecessary for us to reach any final conclusion as to this issue in the present case.
31. In our view a "genuine effort" must be more than a superficial or token effort: Yam v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283. The use of the word "genuine" implies that it must be a real and honest effort and not one which is false, fictitious or a pretence. The use of the word "effort" implies that some exertion or endeavour must be involved on behalf of the visa holder. It must, in our view, involve more than mere expressions of interest or inquiries.
Evidence of Mr Chawla
32. In his evidence before us Mr Chawla described travelling with Mrs Chawla and Ms Chawla to Perth from their home in Nairobi, Kenya, on 16 April 2003. Mr and Mrs Chawla remained in Perth until 9 May 2003. While in Perth on this occasion, Mr Chawla had two meetings with officers of the Small Business Development Corporation and received some information in relation to new business opportunities. The papers obtained included information in relation to licensing, business hours, health licences, employer's registration and workers' compensation and other matters associated with the operation of a restaurant. He also discussed bringing chefs from India into the country for a restaurant. At this time Mr Chawla registered two business names in the name of Haandi Restaurant and Home Developers. In the Victoria Park, Scarborough Beach and Fremantle areas he looked at some shops "that were to be leased at the time for the restaurant business purpose".
33. Mr Chawla said that he also went around Perth to "research different suburbs to see where I could purchase a property to live and also start a property development business or restaurant". He looked at some empty blocks of land in Carramar and Canningvale, and discussed their price and construction costs with a builder. He obtained some information in relation to property auctions. He said:
"I went to the land office and checked with them which type of lands are available for construction of units and all sort of things, then I was given the details at like Victoria Park, this area or that area are in the zone where I could put the units, and there are other areas where I could not put – I could not construct anything, just like putting one house only, demolish one house then put one house. But I mean, property, dealing with properties, I wanted to do something like putting up units …"
34. In cross-examination Mr Chawla said that he had not returned either to the offices of the Small Business Development Corporation or the "land office" since 2003.
35. When Mr Chawla and his wife returned to Kenya, Ms Chawla remained in Perth studying at Curtin University. Mr Chawla told us that:
"Whilst studying, Manveena was still conducting research on the availability of businesses on my behalf as she remained in Perth after my wife and I returned to Kenya to start disposing of assets and winding up my business. These included two properties, machinery including 2 concrete mixers, 2 dumpers, stone cutter, vehicles and household furniture and effects. My daughter was in constant touch with me via phone three to four times a week."
36. It is clear that Mr Chawla did not have any clear plan to start a business in Australia at this time. He told us:
"I was unsure of the exact nature of the business I would go into. My feelings at the time however were that it would be in the building and property development field as that is what I have done for a long time in Kenya. An alternative was the possibility of a restaurant business."
37. In August 2003 Mr Chawla, at a time when he told us he was "concentrating on disposing of my assets", was the victim of an armed robbery by five men with guns in his office in Kenya. He said:
"This unsettled me very much and it took some time for me to settle down and again get on with the business of disposing of assets to realise sufficient funds to move to Australia and start a business."
38. Mr Chawla returned to Perth from 12 May 2004 to 7 June 2004. With the proceeds of the sale of one of his houses in Kenya and other money, which he had transferred to Australia, Mr Chawla purchased a residential property in Carramar and a motor vehicle. He rented the residence out using the services of a rental agency, and told us that the rental income covered the outgoings including payments on a mortgage. He told us that his daughter remained living in shared rented accommodation as "I did not want my daughter to take residence at the home at that stage as I was concerned about her welfare". He said the reason he used his funds to purchase a house and car rather than invest in a business was because he needed a house and car for his family. He told us that:
"I think they say whenever you leave one country and you go to another country, you always think about the welfare of the family, that what is going to happen when you go to a new country. So when I came to – or when I was thinking of buying a property or a car here, I was thinking of settling them and then going to business. I think – maybe I made a mistake, I should have gone for the business first and then go into property and the other things, but at that time I could just think of let me settle the family, and then I go into business."
39. Mr Chawla told us that while in Perth in May and June 2004:
"I researched business opportunities with my daughter and we met with business agents but could not proceed with any deals as further funds were not yet available from Kenya."
Mr Chawla met with some business brokers, and obtained some information about two restaurants which were on the market, which he told us were the only two businesses which he looked at seriously. Mr Chawla produced to us what he described as "copies on inquiries concerning businesses" at this time. The document produced was a series of advertisements for businesses downloaded from a website on 1 June 2004. However, Mr Chawla told us that he talked to the proprietors of the businesses and discussed the finances and lease arrangements with them.
40. Mr Chawla then returned to Kenya, where he told us he continued to attempt to dispose of assets. In July 2005 Mr Chawla agreed the terms of the sale of his remaining house in Kenya. However, on 27 August 2005 he was subject of another violent robbery in Kenya. He was attacked by a group of seven men armed with AK47 rifles. A number of shots were fired, although fortunately only one stuck Mr Chawla, passing through his thigh. He told us that this incident "put me in shock and behind my schedule to start up a business Perth by 8-10 months". He said in his witness statement to us:
"This was particularly tough for me because in my property development building businesses I would spend time on the building sites and also sometimes get involved in physical labour. I realised that this would put a damper on me trying to do something along those lines in Perth. This meant that I would have to go to Plan B as opposed to Plan A. Plan B … was to conduct a restaurant business. At the time I registered the two business names …I had to two (sic) potential businesses in mind. These were the restaurant business and the building/property development business. Therefore all the enquiries I had made previously about looking at properties and development blocks of land now seemed to me to come to nought and I would have to concentrate on the restaurant business. This was wasted time and also put back our plans to start up a business or buy an existing business."
41. In his oral evidence Mr Chawla said that he was incapacitated for some 8 months following the attack and was continuing to undergo physiotherapy treatment at the time he gave evidence before us. He said:
"As per my doctor’s instructions, I was told I should get in with a heavy job because, in property, among other things, you have to do – you have to run around; you have to go to the sites; you have to do all sort of things. I was told to take care of my leg and then I should not do anything like a heavy job. Then I was just thinking now that if I’m not going to do the property job, I’ll just at least do a restaurant business."
42. Mr Chawla told us that in around January 2006 he purchased some clay pots and bamboo furniture for an Indian restaurant, which were packed into a container in Kenya for transport to Perth.
43. In February 2006 Mr Chawla was sent a "Notice of Intention to Cancel Your Visa" by the Department. Mrs Chawla and Ms Chawla were sent similar notices at the same time. After speaking to immigration officials by telephone, Mr Chawla decided to travel to Australia to try and speak to the officer handling his case. He travelled to Perth on 17 March 2006, but told us that was not allowed to see an officer of the Department while in Perth. He said that at this time he was still undergoing treatment and rehabilitation in Kenya for his gunshot injury, and so was required to return to Kenya on 27 March 2006.
44. While in Perth between 17 and 27 March 2006 Mr Chawla looked at a number of businesses, which are referred to at paragraph 18 of Mr Chawla's first statement dated 13 October 2006. Mr Chawla said that the information which he obtained was confidential, and asked that we respect that confidence. Therefore, while we have had regard to that paragraph of Mr Chawla's statement and the annexures referred to in it, we have not set out the substance of that evidence in these reasons, beyond saying that it shows Mr Chawla to have made a number of inquiries of business agents at this time. He also told us that he went to visit the relevant business premises. However, the lack of funds in Australia made those inquiries somewhat academic. As Mr Chawla noted in his statement:
"Without the availability of funds at the time a business could not be bought or started up. I asked the agent who I was dealing with Mr Ralph Georgio at GMO if there was a procedure in which they would be able to hold the sale with a small deposit until full funds were available from Nairobi, but no one was ready to take up that offer."
45. Mr Chawla also told us that the notice of intention to cancel his visa led him to put the transport of the pots and furniture to Perth on hold.
46. In about April 2006 the sale of Mr Chawla's second house in Kenya settled. From this time when in Kenya he was staying in his son's rented two bedroom flat in Nairobi. On or about 26 April 2006 Mr Chawla received notice of cancellation of his visa.
47. Mr Chawla and his wife travelled to Perth on 4 September 2006. In his first witness statement Mr Chawla said:
"My wife and I travelled to Perth on the 4 September 2006 and are still in Perth at present continuing with our investigations to buy or set up a business. Were it not for the fact that there is a pre-existing arrangement for my wife and I to have to travel back to Kenya during October 2006 we would continue to remain here until such time as we find a business. Once a business is found and purchased we will then return for a final time to Kenya to get together our personal effects.
Since the sale of the businesses in which I was involved I have ceased my daily business activities in Kenya. Furthermore, since the sale of my family home my wife and I have been living with our son. We no longer have a home of our own. Essentially we have uprooted ourselves from Kenya and have got nothing to go back to and have in fact put all our eggs into one basket in Australia. …
I have become increasingly anxious about my inability to actually start up a business. Eventually and on this trip on 23 September 2006 I was introduced to a small lunch bar operating at 178 Stirling Highway, Nedlands. It was going for a very low price because the seller wanted to get out of the business. An Agreement for Sale of Business was entered into. …The business is not my ideal of running a restaurant but I thought that it may be a starting off point to learn to do business in Australia. However, both my wife and daughter have expressed great unhappiness with me having committed myself to this business as it was felt that it would require too much input for too little reward.
In any event this now seems to be academic because I had discussions with the landlord and we were not able to achieve agreement on the terms of the Lease. In the circumstances, I am not proceeding with the transaction and have requested the Seller to refund the deposit."
48. Mr Chawla then explained that the reason for his return to Kenya was to attend a 3-day Sikh festival of Diwali, which ended on 21 October 2006. Mr Chawla said that he had a long standing arrangement with his parents, who live in India, for them to travel to Kenya to celebrate Diwali. Therefore, Mr Chawla, Mrs Chawla and Ms Chawla travelled to Kenya on 13 October 2006.
49. Prior to departing Perth in October 2006 Mr Chawla made inquiries of a company trading as Trustek Steel Roofing Systems about exporting steel roofing materials to Kenya. A letter from the State manager of Trustek dated 10 October 2006 indicated the preparedness of that company to design and export prefabricated steel roofing materials to Kenya, and said that an indication of cost could be given with the supply of house plans. On 26 October 2006 Mr Chawla wrote to Trustek from Kenya seeking a quote based on plans, and on 7 December 2006 was given a quote for supply of the materials. The quote did not include the cost of delivery to Kenya. Mr Chawla told us, in a second statement which is undated but was filed with the Tribunal on 20 September 2007:
"Subsequently I spoke on various occasions on the telephone with Mr Don Ambrose, the Sales Manager. … Eventually it was agreed that I would pursue further discussions with him when I returned to Australia. At that stage I thought I would be back early this year for the Tribunal.
However, in March of 2007 I was involved in a motor vehicle collision which resulted in injuries to myself and this in turn delayed my return to Australia until now. I did tell Mr Ambrose that I would be returning to Australia in September 2007.
On my arrival in Perth on Friday last week I made contact with Mr Ambrose's office but was told that he was away from office this week. However, I have since spoken with him and am due to meet with him tomorrow to further our discussions. I have brought with me further plans to show to him for purposes of obtaining a quote for roof trusses for a property development in Kenya.
In addition to the additional plans, however, the most important thing I intend to discuss with him is pricing and the practicalities of shipping something of this nature from Australia to Kenya."
50. A further quote, again for supply only, was provided by Trustek on 21 September 2007. Mr Chawla described this as finalising his first order, although a quote had not been obtained for shipping the material to Kenya. Mr Chawla explained to us that he saw a lot of potential for the product in Africa.
51. Mr Chawla also told of inquiries he made on 18 September 2007 of a proprietor of a restaurant for sale, involving two meetings and a perusal of some accounts. However, it does not appear that negotiations proceeded any further.
52. Otherwise, Mr Chawla accepted that, since returning to Kenya in October 2006, he had done little in the way of pursuing his attempts to obtain an interest in an eligible business in Australia. He said that, while he did have funds that were available for investment in a business, he had not yet transferred them to Australia or committed to any investment in a business in Australia because of the uncertainty as to whether his visa would be cancelled.
53. In the period from April 2003 to March 2006 Mr Chawla transferred $250,627.00 in funds to Australia. The individual amounts transferred were often less than $10,000 and in all cases less than $26,000. A schedule of the amounts transferred into Australia, derived from the Section 37 Documents, was tendered before us. Mr Chawla told us that he had a sum of $120,000 in Kenya which was "not for going into a business".
54. At the time of the hearing before us Mr Chawla said that he had sold all of his assets and closed his business in Kenya. In cross-examination, he said that he continued to operate the business in Kenya until its disposal in around July 2005.
55. Mr Chawla told us that, during the times he was in Kenya, Ms Chawla would research businesses for sale in Perth and regularly speak to him on the phone about them.
Lack of Genuine Effort
56. Taking Mr Chawla's evidence at its highest, we are not satisfied that he has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia prior to the cancellation of his visa. His only steps in Australia have been the fairly superficial research we have described between 16 April and 9 May 2003, and inquiries of persons and agents selling businesses between 12 May and 7 June 2004, and 17-27 March 2006. Beyond looking at existing businesses for sale by himself and through the agency of his daughter at a time when he did not have funds to purchase them, Mr Chawla took no positive steps to establish any business in Australia. When he did have funds available for investment in an Australian business, he used the funds for the purchase of a property which has been rented out. He has not sought to realise the value of that asset to assist in the establishment of a business.
57. Looking to the particular matters identified in s. 134(3) of the Act:
(a)Mr Chawla has not developed any business proposal in Australia, beyond a rather vague concept of establishing a building or restaurant business;
(b)Mr Chawla has no partners or joint venturers for the business proposals;
(c)We would regard the research that Mr Chawla has undertaken into the conduct of a business in Australia either by himself or through the agency of his daughter, described in his evidence, as limited and superficial;
(d)Mr Chawla has spent only 63 days in Australia between the grant of his visa in January 2003 and its cancellation in April 2006;
(e)Mr Chawla has not transferred any money to Australia for use in an eligible business, as all money transferred has been used for other purposes;
(f)Mr Chawla does not, and has not, held any ownership interest in any eligible business in Australia;
(g) Mr Chawla has not undertaken any business activity in Australia;
(h)Paragraph 134(3)(h) is not relevant, as Mr Chawla has not failed to comply with a notice under s. 137 of the Act;
(i)Paragraph 134(3)(i) is not relevant as Mr Chawla has never held a substantial ownership interest in a business in Australia or utilised his skills in actively participating at a senior level of a day-to-day management of a business in Australia.
58. Taking account of the activities undertaken since the cancellation of Mr Chawla's visa does not alter that position. We would doubt that the existing café business which Mr Chawla offered to purchase in September 2006 was an eligible business, but in any event the offer was not followed through to purchase. Otherwise, the only steps taken by Mr Chawla since cancellation have been the obtaining of information about restaurant businesses and obtaining two quotes from Trustek.
59. Therefore, even if we were to accept the entirety of Mr Chawla's evidence we would remain unconvinced that he has made any genuine to effort obtain a substantial ownership interest in an eligible business in Australia.
CONSIDERATION OF THE ISSUES – SHOULD THE RESIDUAL DISCRETION BE EXERCISED IN MR CHAWLA'S FAVOUR
60. The discretion to cancel Mr Chawla's visa having been enlivened, it is then necessary to consider whether we should exercise our discretion to cancel the visa. As was noted in Re Pan and Minister for Immigration and Citizenship [2007] AATA 1724 at [14], an applicant may fail to discharge the obligations contemplated in the legislation and still be permitted to stay.
61. While we recognise that Mr Chawla has suffered traumatic experiences in Kenya, the fact remains that he appears to us to be little closer to establishing a business in Australia than when he obtained the visa in 2003. He has had opportunities to do so, but failed to take advantage of them, particularly in relation to the use of funds transferred to Australia for other purposes.
62. In those circumstances, we consider it appropriate to exercise the discretion to cancel Mr Chawla's visa.
CONSIDERATION OF THE ISSUES – EXTREME HARDSHIP IF MS CHAWLA'S VISA IS CANCELLED
63. It is then necessary to consider whether the cancellation of Ms Chawla's visa would result in extreme hardship to her. Unless we are satisfied that this is the case, the cancellation of Ms Chawla's visa follows from the cancellation of Mr Chawla's visa.
Applicable Principles
64. In Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481 at 487 Foster J stated, in the construing the phrase "extreme hardship or irreparable prejudice" appearing in reg 812.723(6)(a) of the Migration Regulations 1993 (Cth):
"… it is, in my opinion, important to approach the phrase 'extreme hardship' in a broad way. Clearly, it imports a high degree, perhaps a very high degree of hardship, but it must be applied in the context of the facts of the particular case. 'Hardship' is in itself a relative term. What may be a 'hardship' to a sensitive person, or one in a particularly vulnerable situation, may be no great burden at all to a person of more stoical disposition or in a more protected situation. Similarly, the word 'extreme' must be evaluated against the facts of the particular case. Such an evaluation cannot, consistently with the duties imposed upon the decision-maker by the Act, be approached in a dismissive or perfunctory fashion. A full and proper consideration of the person allegedly suffering the hardship or prejudice must be undertaken. Again, as emphasised in the passages cited, separate consideration must be accorded to the questions of 'extreme hardship' and 'irreparable prejudice'. They are different concepts. They are not to be simply lumped together. Obviously the degree of prejudice must not be merely trivial … However, provided that some significant prejudice is shown, then the question of whether it is 'irreparable' must be determined. It cannot be ignored on the basis that the prejudice involved would not, itself, qualify for the description of 'extreme hardship'.
In addition to what I have already said, I consider that the application of the word 'extreme' must also be approached with caution. Obviously there are varying degrees of hardship which may be suffered by any particular individual. 'Trivial', 'minor', 'moderate' are adjectives which spring to mind as conveying such varying degrees. 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 …"
65. However, as Tamberlin J noted in Kumar v Minister for Immigration and Ethnic Affairs (1997) 144 ALR 441 at 446, the words "extreme hardship" call for no paraphrase or substitution.
Evidence of Ms Chawla: Activities in Australia
66. Ms Chawla told us that she was the 26 year old daughter of Mr and Mrs Chawla, born in Kenya. She is a citizen of Kenya only, and is not entitled to citizenship of any other country.
67. Ms Chawla left Kenya at age 19 to study in the United Kingdom. She studied at Manchester Metropolitan University and was awarded a Bachelor of Arts with second class honours in June 2002. She then resided with her parents in Kenya and was unemployed until her arrival in Australia on 16 April 2003.
68. Ms Chawla then enrolled at Curtin University for a Masters Degree in International Business, studying part time and working full time with BankWest. She worked with BankWest "through an agency" from July to November 2003, and worked directly for BankWest from December 2003 until December 2005.
69. Ms Chawla remained in Australia, leaving only to visit her parents in Kenya from 3 July 2004 to 4 August 2004, and to visit India from 3 December 2004 to 4 January 2005.
70. In December 2005 Ms Chawla resigned from BankWest to travel to Kenya to be with her father after he was shot in the armed hold up. She told us that she had not been able to get away any sooner because of study commitments, and was not able to get leave from BankWest and so resigned.
71. Ms Chawla returned to Australia on 23 February 2006. She did not return to work at that time, but studied full time in order to complete her Master of International Business, which was awarded to her in September 2006. She also completed a Certificate IV in analytic psychotherapy from the Churchill Clinic, also awarded in September 2006. At that time Ms Chawla was invited to continue with a graduate diploma in Human Resources, which is her desired area of speciality, at Curtin University.
72. While in Perth, Ms Chawla lived in shared rental accommodation in Victoria Park until March 2005, when she moved to a unit in South Perth.
73. Ms Chawla returned to Kenya at her parents' insistence in October 2006. She told us that:
"Whilst in Kenya my parents and I lived with my unmarried brother in his rented apartment. My parents' family home has been sold and we have nowhere else to live when in Kenya. My brother's home is a modest two bedroom one bathroom apartment. Whilst there I shared one bedroom with my brother and my parents shared the other bedroom. The last time that I shared a bedroom with my brother was when I was about 7 years old. I wasn't happy with the arrangement but was informed by my parents that no other arrangements could be made."
74. Ms Chawla told us that she returned to Australia in January 2007, despite her parents insisting that she remain on in Kenya with them. Ms Chawla said that the reason her parents wanted her to stay was to meet an Indian doctor who they understood was originally from Kenya and would be returning to visit family.
75. On her return to Perth, Ms Chawla recommenced working at BankWest on 26 February 2007 and completed training in July 2007 in the Home Loans Section in Sales and Marketing. She then commenced work as a branch manager for the National Australia Bank on 3 September 2007. During that time she continued with her studies in psychotherapy at the Churchill Clinic.
76. We accept the above account of Ms Chawla's activities in Australia, which was not challenged by the Minister.
Ms Chawla's Limited Opportunity for Independent living in Kenya
77. For the following reasons we find that, if Ms Chawla were to return to Kenya, she would have very limited opportunity for independent living in that country. That limit in her opportunity arises through a combination of the following factors.
- Limited Employment Opportunities
78. Mr and Ms Chawla gave evidence, which we accept, that Ms Chawla would have very limited opportunity for employment in Kenya were she to return to live in that country. Ms Chawla described a form of "affirmative action" in Kenya, compounded by corruption at all levels, in the following terms:
"The 'affirmative action' is similar to what is happening in other parts of Africa including, for example, South Africa. This means that if you are non-indigenous and apply for a job for which an indigenous person has also applied that (sic) even if your qualifications are higher than the indigenous person that person will be awarded the job. This is so especially in the government sector and in companies wanting to continue doing business with the government. It is, in effect, an unofficial form of discrimination against non-indigenous peoples.
The result is that someone of Asian heritage such as myself would find it extremely difficult to find a job for myself in Kenya. In addition in that society it would be difficult for me as a woman to start up a business of my own."
79. Ms Chawla told us that, while in Africa between October 2006 and January 2007 she looked for work without success. She said that she was able to obtain only one interview in a three month period, that being with a Bank from which she never heard back following the interview. She said:
"From the enquiries made in Kenya it appeared to me that far greater preference is given to local indigenous persons as opposed to someone like me, namely a young Asian female."
80. Based on Ms Chawla's evidence we also accept that, if she were to obtain employment in Kenya, it would not be for a salary that would allow her to live independently.
- Limited Educational Opportunities
81. We also accept Ms Chawla's evidence that there is no real opportunity for her to continue her studies in Kenya, or abroad if she is required to return to Kenya. Ms Chawla said:
"If I were obliged to return to Kenya and try to further my studies this would in my view prove impossible. The Kenyan universities are invariably not attended by Indians or anyone other than the local indigenous population. The reason for this is that the standard of education is very poor. Most Indian families would send their children abroad to be educated. Whilst this was feasible for me while studying in England and then in Australia it would become most difficult for my parents who have now ceased conducting their business to continue to support me in Kenya (or Australia) whilst I study further. …
Strikes happen on a regular basis on campus in the Kenyan universities and I have no doubt that any education I would receive would be inferior and of little or no use to me particularly having been educated in England and Australia. Most of my school friends have immigrated from Kenya after they completed their schooling. The usual scenario is for schooling to be completed at private school in Kenya and then for the children to travel abroad (for example USA, England and Australia) to further their education. Invariably people then make lives for themselves in those other countries and do not return other than for visits. I attended private schools whilst in Kenya. The majority of people in those schools were non-indigenous and either of European or Indian extraction. Unfortunately I have no friends amongst the indigenous population."
82. In cross–examination Ms Chawla accepted that it might be possible to undertake external courses from Kenya, but said that she would not be able to transfer units from her Masters degree. She also thought that her family would not allow her to stay home and study in Kenya.
- Security and Cultural Issues
83. Ms Chawla gave evidence that the security situation and cultural mores in Kenya would make it impossible for her to live or travel independently in that country.
84. The poor security situation in Kenya is illustrated by the two attacks to which Mr Chawla has been subjected. Ms Chawla said, and we accept,
"It is unsafe for persons to travel around at night and on one's own during the day especially as a young Asian female. Armed robberies, assaults, rapes are no longer a rare event."
85. Ms Chawla tendered a number of newspaper articles relating to the security situation in Kenya, and gave some accounts of young Indian girls being targeted by gangs operating in Kenya. We treat that evidence with some caution, as it would no doubt be possible to collate a series of newspaper articles reporting crime in Western Australia in a manner which gave an impression of a poor security situation in this country. However, taking that evidence as a whole and bearing that need for caution in mind, we are satisfied that the security situation in Kenya, and Ms Chawla's perception of it, would be such as to prevent Ms Chawla from living or travelling alone in Kenya.
- Conclusion as to Independent Living in Kenya
86. We find that the employment, education and security situation in Kenya would combine to prevent Ms Chawla from living independently in Kenya. In that country she would be dependent on her parents to provide accommodation, and her brother and father to accompany her to allow for travel to places such as her Temple.
Forced Arranged Marriage in Kenya
87. We also accept the evidence of Mr Chawla that he would find it necessary to force his daughter to accept an arranged marriage if she was required to return to Kenya. That perceived need would arise for a number of reasons.
88. Firstly, Mr Chawla and Ms Chawla gave evidence of family and cultural pressure for Ms Chawla to marry. If Ms Chawla were living in Perth and supporting herself, this pressure would be less and, to the extent that Mr Chawla felt the need to pressure Ms Chawla into a marriage while she was living in Perth, she would be in a position to resist that pressure. However, Mr Chawla would not be able to withstand the cultural pressure for his daughter to be married if they were living in Kenya.
89. Secondly, the economic pressure which would result from having to support his daughter in Kenya would lead Mr Chawla to require her to be married, so that she would be supported by her husband and living with him.
90. Thirdly, even if Ms Chawla were to achieve independence, it would not be culturally acceptable for her to be living unmarried and alone in Kenya. Because of that Mr Chawla would not allow his daughter to move out of the family home in Kenya until she was married.
91. At the hearing before us there was a good deal of forensic energy devoted to the question of whether Mr Chawla had placed an advertisement seeking potential grooms for Ms Chawla in a newspaper in India. We have not found it necessary to resolve that debate. We accept the oral evidence of Mr Chawla that he would require his daughter to remarry if they were to be required to return to India, and that this action would be brought about by the economic and cultural pressures which would exist in those circumstances.
92. Ms Chawla's evidence, which we also accept, was that she would resist any attempts to force her into an arranged marriage but did not know how she would successfully do so. She told us:
"Whilst in Kenya my parents were constantly discussing the question of marriage with me. They told me that they were in discussions with other parents to try and arrange meetings between those parents' sons and myself. I refused to meet the men that my parents wanted to introduce me to. This caused resentment and anger towards me and anxiety and unhappiness.
As stated above I have lived outside of Kenya for some seven years. I have been educated and become used to a western way of life which allows a woman to be independent and pursue their own interests without being dependent upon a male partner.
I will not allow myself to be forced into an arranged marriage yet I am caught in a vicious bind as I know that if I am obliged to return to Kenya my parents will continue with their pressure eventually forcing me out of the home to be married.
I am constantly anxious about this and thinking about being forced to live the rest of my life in Kenya in an arranged marriage. In any event those boys that I have grown up with may (sic) have been of interest to me have long since left Kenya to immigrate to other countries in the world.
Further pressure is from my grandparents (my father's parents who in turn apply pressure to him to in turn pressurise me). He has told me he will lose face with his parents if I do not marry soon. I do not believe that this is a good enough reason for me to marry someone."
93. The particular psychological effects of the return to Kenya on Ms Chawla are described in a report of a Clinical Psychologist, Carmela Yom-Tov, dated 18 September 2007. Given the personal nature of much of the material in that report, it inappropriate to set it out in these reasons. It is sufficient for us to indicate that we accept the accuracy of the contents of that report, and its conclusion stated in the following terms:
"She [Ms Chawla] has spent the last seven years away from Kanya and her parent's influence and has become self-sufficient. She is fearful of returning to Kenya where her standing would be substantially diminished to only being of worth if she was married and was mainly a housewife.
I believe this would be traumatic for her, as it would nullify her constant striving for self-worth and self-esteem. The resultant stress could lead to illness, physical and/or emotional".
Options of Return to Australia under another Kind of Visa
94. There is no evidence before us that Ms Chawla would be able to apply for another visa which would entitle her to remain in Australia if her visa is cancelled. That is not itself sufficient to amount to extreme hardship. As noted by the Tribunal in Re Cai and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 212 at [21]:
"legislative barriers preventing Ms Cai from continuing her studies in Australia nor possible difficulties in obtaining permission to return once she is offshore amounts to extreme hardship. All persons who have their visas cancelled face similar restrictions and barriers and something more is required."
95. In the present case the significance of the absence of any evidence that Ms Chawla would be eligible to obtain a visa to return to Australia, if her current visa were cancelled, is whether the cancellation of that visa would require her to return to Kenya.
96. We accept the submissions of counsel for Ms Chawla that there would be very considerable barriers to Ms Chawla obtaining a visa for return to Australia, either from within Australia or overseas.
97. Ms Chawla could not apply for a higher education visa whilst on-shore for the reasons explained in Cai at [12], namely:
"A subclass 573, higher education sector, visa would meet her requirements to enable her to continue her studies. Clause 573.21 sets out primary criteria. For an applicant to apply, within Australia, for a subclass 573, higher education sector, visa, certain requirements must be met. Under subcl 573.211(1), an applicant must meet the requirements of subclause (2), (3), (4), (5) or (6). Ms Cai does not hold any of the prescribed visas for subcl 573.211(1). She is currently the holder of a substantive visa and therefore cannot apply under subcl 573.211(2). For the purposes of subcl 573.211(3), she must not be the holder of a substantive visa and her last visa must have been a student visa or other special visa there set out. For the purposes of subcl 573.211(4), (5) and (6), she must be the holder of one of a range of specified visas and she does not hold one of these visas. Therefore, Ms Cai cannot apply for a subclass 573 visa while she is in Australia."
98. While Ms Chawla could apply for a bridging visa E, that is a stop-gap measure and is only available for the usual term of 3 months.
99. Ms Chawla will not be able to apply for a resident return visa if her current visa is cancelled: Cai at [14].
100. Ms Chawla would also face difficulty in seeking a student visa offshore, as the seeking of a temporary visa immediately after having to leave Australia after the cancellation of a permanent visa is not a sound basis for an application: Cai at [16].
101. Finally we accept the submissions of counsel for Ms Chawla that the length of Ms Chawla's experience in the banking sector is not sufficient to qualify her for a skilled migration visa or for immigration under sponsorship of an employer.
102. While a number of speculative possibilities as to migration were put to Ms Chawla in cross-examination, there was no evidence to show that those possibilities were available to Ms Chawla in any real and practical sense.
103. Nor is there any evidence that Ms Chawla would be eligible to return the United Kingdom or another country where she would have the opportunity to work and study independently.
104. On the evidence before us we therefore find that if Ms Chawla's current visa is cancelled, she will be required to return to Kenya and live in that country with her parents until such time as she is married.
Conclusion as to Extreme Hardship
105. In our view, the above circumstances combine to lead us to the conclusion that Ms Chawla would suffer extreme hardship if her visa is cancelled. She would be forced to return and live in Kenya. In Kenya the economic and social situation would prevent her from living, working or studying independently. She would be dependent on, and required to live with, her parents and would be under considerable pressure to accept an arranged marriage. She would, as a result, suffer the stress referred to in Ms Yom-Tov's report. Those circumstances and the impact they would have on Ms Chawla do, in our view, amount to exceptional hardship. It follows that her visa should not be cancelled.
DECISION
106. For the above reasons we would:
(a)Affirm the decision of the Minister to cancel the visas of Mr Chawla and Mrs Chawla; and
(b)Set aside the decision of the Minister to cancel the visa of Ms Chawla.
I certify that the 106 preceding paragraphs are a true copy of the reasons for the decision herein of Ms LR Tovey, Member and Mr W G Evans, Member
Signed: ...(sgd) T Freeman......................
AssociateDates of Hearing: 3 and 4 October 2007; 1 February 2008
Date of Decision 13 August 2008
Representative for the Applicants Mr M Rothstein
Representative for the Respondent Mr A Gerrard
Solicitors for the Applicants M Rothstein & Co
Solicitors for the Respondent Australian Government Solicitor
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