Re Jo and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 77

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 77

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2002/377

GENERAL ADMINISTRATIVE  DIVISION		)
Re		RUDY KARIM JO

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr M Allen, Member

Date28 January 2004

PlacePerth

Decision The decision made on 13 September 2002 to cancel the applicant’s subclass 127 business skills visa is set aside and in substitution therefor a new decision is made that the applicant’s visa should not be cancelled.  The visa remains valid and effective.

.............….(sgd M Allen)................

Member

CATCHWORDS

IMMIGRATION – business skills visa – subclass 127 – cancellation – applicant has a substantial ownership interest in an eligible business – management activities of applicant outside Australia can be taken into account when considering whether applicant has been actively involved in the day-to-day management of the business – applicant has utilised skills in actively participating at a senior level in the day-to-day management of the Australian business – applicant intends to continue to do so – power to cancel visa does not arise – decision under review set aside.

Migration Act 1958 (Cth), s 134 and s 135

Re Huang and Minister for Immigration and Multicultural and Indigenous Affairs

[2002] AATA 656

Re Lau and Minister for Immigration and Multicultural and Indigenous Affairs

[2002] AATA 703

Re Ng and Minister for Immigration and Multicultural and Indigenous Affairs

[2003] AATA 299

Re Ong and Minister for Immigration and Multicultural and Indigenous Affairs

[2003] AATA 178

Puzey v Federal Commissioner of Taxation [2003] FCAFC 197

Re Widjaja and Minister for Immigration and Multicultural and Indigenous Affairs

[2003] AATA 380

Re Wong and Minister for Immigration and Multicultural Affairs [2002] AATA 54

REASONS FOR DECISION

28 January 2004 Mr M Allen, Member          

1.      On 13 September 2002 a delegate of the respondent minister cancelled the business skills visa held by the applicant, Mr Jo, and the secondary visas held by his wife and two children.  The applicant now applies for a review of the decision to cancel his visa but no applications have been made on behalf of his wife or children for a review of the decisions made in relation to them.

2. At the hearing the applicant was represented by his solicitor, Mr Chong, and the respondent was represented by Ms McPherson, an officer of the Australian Government Solicitor. Oral evidence was given at the hearing by the applicant in the Indonesian language with the assistance of an interpreter. The Tribunal received into evidence the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1 – T18 and S1 – S7) as well as documents tendered by the applicant (A1 and A2) and the respondent (R1).

3. The background to the matter is that in April 1999 the applicant and his family members were granted subclass 127 (business owner) business skills visas and the applicant first entered Australia after the granting of his visa on 26 May 1999. In May 2002 the applicant was given a notice of intention to cancel his visa and was invited to make representations concerning the possible cancellation by 21 June 2002. The applicant made representations but on 13 September 2002 his visa was cancelled because of the view taken by the delegate that the applicant had not satisfied the requirements of s 134 of the Migration Act 1958 (“the Act”).  No issues arose in the proceedings in relation to the compliance with the statutory timetable for the cancellation process. 

4. The power to cancel the applicant’s visa arises only if the decision maker is satisfied that the applicant had not satisfied one or more of the three factors set out in s134(1) of the Act, namely that the visa 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”.

5.      I must, therefore, consider whether any one of those grounds is satisfied in the applicant’s case.

6.      In relation to whether or not he has obtained a substantial ownership interest in an eligible business in Australia, the applicant relies upon his involvement in a company, ADL Enterprise Pty Ltd (ADL), which traded under the name ADL Enterprise.  ADL Enterprise had been registered as a business name by the applicant in December 2000 and ADL was incorporated in May of 2001, gaining GST registration and a Tax File Number in the same month.  The applicant is the sole owner of the business name and the only shareholder in ADL.  He and his daughter are the directors of ADL.

7. The respondent concedes that the applicant has acquired a substantial ownership interest in ADL but asserts that ADL does not carry on a business at all and is not an eligible business for the purposes of the Act.

8. Section 134(10) of the Act defines an “eligible business” as 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”.

9.      Paragraph 4.3.2 of the Migration Series Instructions 133 (“MSI-133”): Cancellation of Business Visa notes that eligibility of a business relates to the achievement of stated objectives through the activities of the business, not directly to the size or scale of the business.

10.     In cases of cancellation of a visa the Tribunal must consider whether the decision to cancel is the correct or preferable decision at the time of the cancellation decision: see Re Wong and Minister for Immigration and Multicultural Affairs [2002] AATA 54. It is, however, open to the Tribunal to examine events that occurred after the date of cancellation to see whether they throw any light upon circumstances as at the time of the cancellation decision.

11.     The oral evidence of the applicant and the documentary evidence shows that the applicant and ADL have been involved in several transactions.  The first occurred in February 2001 when lanolin products to the value of $165.60 were purchased from a business known as GB International.  The invoice issued by the seller showed the purchaser as “Andalan”, which is the name of the applicant’s Indonesian business.  The lanolin was, in March 2001, airfreighted to Indonesia with ADL shown as the consignor and the consignee shown as an Indonesian company that the applicant said he had arranged to sell the lanolin to.  The applicant said that he had received payment for the lanolin from the Indonesian buyer in cash and it had not been paid into an ADL business bank account nor had ADL ever issued an invoice to the Indonesian buyer.  The applicant’s evidence was that he had become aware of the name of the Australian supplier via Austrade and that he had made “face-to-face” contact with the supplier.  However, I note that the applicant was not in Australia between 24 September 2000 and 13 May 2001 (see R1) and that the “origin and value declaration” for the purpose of shipping the lanolin was signed by his daughter.

12.     The applicant said that the Indonesian purchasers of the lanolin would not have understood if he had used an Australian business name and that he had made a profit of about 5% on the shipment of lanolin.  The shipment had been only a trial and there was no further sale with the Indonesian buyer.

13.     The next transaction that ADL was involved in involved the export of grapes from Australia.  The applicant said that his market research in Indonesia at the time had revealed that grapes and other fresh fruit were a possible attractive Australian export to Indonesia and he had obtained from Austrade details of possible Australian suppliers.  In April 2001 he had made contact with a Melbourne based company Fresh Trade Enterprises Pty Ltd, and obtained quotes for the supply of grapes.  This resulted in an agreement on 3 May 2001 for the purchase of 1844 10kg cartons of grapes to be consigned to Indonesia with a value of $40,568.00.  An invoice for the purchase was issued to ADL on 8 May 2001, the ship carrying the grapes having departed on 6 May 2001.  I note that the applicant arrived in Australia on 13 May 2001, confirming the applicant’s oral evidence that he had arranged the whole transaction from Indonesia, although he had asked his children at times to contact various people in Australia.  Again, no documents regarding the sale of the grapes to the Indonesia purchaser were produced, the applicant giving evidence that the purchaser was only interested in dealing with him personally.  The purchaser had paid him in Indonesia and the money had gone into his Indonesian bank account.

14.     The next transaction that ADL was involved in was a further export of grapes in February 2002 and involved the export of grapes to the value of $58,119.60.  A further shipment of grapes was purchased and exported in May 2002, involving grapes to the value of $43,056.00.  Again, no documentation was available regarding the transaction between ADL and the purchasers of these grapes in Indonesia.  The applicant said that in all cases the purchasers had only been interested in dealing with him personally and he made a profit of about 5% on the transactions.  He said that he had arranged the transactions from Indonesia, although I note that the applicant was in Australia for approximately 15 days from 11 February 2002.

15.     In August 2002 ADL purchased a further consignment of lanolin at a cost of $331.20 and exported it to a purchaser in Singapore (a business acquaintance of the applicant) for $420.00.

16.     Since the cancellation of his visa ADL has been involved in one further transaction, namely the export of mandarins from Australia to Indonesia with a value of $40,176.00 in July 2003.  The applicant’s evidence was that he had organised this transaction from Indonesia through a business acquaintance of his in Indonesia who was the representative of the Australian supplier.  The buyer that ADL sold the mandarins to had not yet paid for the goods and ADL had not yet paid the supplier.  There was no documentation concerning the arrangements for payment, the applicant’s evidence being that it was a matter of trust.  The mandarins were purchased for $15.50/carton and had been sold for $17.00/carton.

17.     Profit and loss statements tendered for ADL (A2) for the years ended 30 June 2001, 2002 and 2003, showed income from export sales of $42,500.00, $102,693.00 and $446.00 respectively and net profits for the 3 years (including home office and other administrative expenses) of $1,687.00, $649.00 and a loss of $2,312.00 respectively.  These figures must, to some extent, be treated with caution because, as the applicant conceded, there were no documents such as invoices relating to the sale of goods in Indonesia from which the applicant’s accountants could prepare the statements.  The applicant said that he had informed the accountants of the amounts of the sales and the profit margins in question and the accounts had been prepared on that basis.  The balance sheet of ADL for the same 3 years showed a total shareholder’s equity in the company of $89.00, $649.00 and -$1,768.00 respectively.

18.     As to whether or not ADL carried on a business, the respondent submitted that the limited export transactions in which ADL was involved did not constitute activities conducted on a continuous and repetitive basis but rather they were entered into in order to satisfy the applicant’s visa requirements. 

19.     The Full Federal Court (Hill & Carr JJ with whom French J agreed) in Puzey v Federal Commissioner of Taxation [2003] FCAFC 197 has recently made the following comments regarding the carrying on of a business:

“46.     The question whether a person is carrying on a business is a conclusion to be drawn from all relevant facts and circumstances. There are some relevant propositions which can, however, be stated. First, as was said by Barwick CJ, in Fairway Estates Pty Ltd v Federal Commissioner of Taxation 70 ATC 4061 at 4069 and it is self-evident, every business must have a first transaction. And there may be a business, even if that business is small in scope: cf Thomas v Federal Commissioner of Taxation (1972-3) 46 ALJR 397 at 401 with Hope v Bathurst City Council (1980) 144 CLR 1 at 10. A person may carry on a business, notwithstanding that the person had some other activity, such as full time employment. It is not necessary in concluding that a business is carried on that the acts to be undertaken are acts of the person seeking to establish he or she is carrying on a business. So a person may appoint another to take the steps which constitute the business activity: Ferguson v Federal Commissioner of Taxation (1979) 26 ALR 307 at 319 and, at least if the facts in Commissioner of Taxation v Lau at 218 involved a business, that case is another example.

47.      It will be relevant in deciding whether a business is carried on that there is some repetition of acts and that the activities in question have "something of a permanent character"; Hope per Mason J at 8. What is required is that activities be engaged upon "on a continuous and repetitive basis"; Hope ibid at 9. However, perhaps not too much attention should be given to the concept of repetition where the activity is one, such as plantation operation, where the activity will continue over a relatively long period of time but where there will be significant periods of what may be referred to as inactivity. Business does not mean being busy.

48.      In deciding whether or not a business is carried on courts have pointed to what have been called in the United Kingdom the "badges of trade," indicia which, while no one of them will be determinative of whether a business is carried on, collectively will demonstrate a business. These include the profit motive (although a non profit company may still carry on a business), acting in a business like way, (although many businesses may be found which operate in a non-business like way), the keeping of books of account and records, (although the fact that there are none will not necessitate the conclusion that a business is not carried on) and repetition (although a fixed term project may still be a business).”

20.     In my opinion, although some of the transactions in which ADL was involved may not have been documented in a sophisticated fashion, and bearing in mind the difficulties of establishing a new business involving the export of products to a foreign country, ADL’s business structure was sufficiently formalised and its activities sufficiently continuous and repetitive with a view to a profit, to constitute a business in Australia.

21. Accordingly, I find that the applicant had a substantial ownership interest in an Australian business via his ownership of ADL. I turn then to the question of whether that business was “an eligible business” for the purposes of the Act.

22. As noted at paragraph 9 above, it is not the size or scale of the business that determines its eligibility for the purposes of the Act. In my opinion it would be unrealistic to attempt to measure the impact of a particular business, particularly a newly established one, on such things as the creation or maintenance of employment or the exports of goods or services or the level of commercial activity and competitiveness. ADL’s business activities have, in my opinion, generated export sales that are not nominal and the applicant has developed business links overseas with the buyers of the Australian fruit. The satisfaction of any one of the 6 criteria referred to in s 134(10) of the Act will be sufficient for a business to be an eligible business and I am satisfied that factors (a) and (c) are satisfied. It may be the case that factors (b) and (f) are also satisfied.

23. It follows that, in my opinion, ADL’s business is an eligible business for the purposes of the Act and, consequently, the applicant has satisfied the requirements of s 134(1)(a) of the Act.

24. The next question that must be addressed is whether or not the applicant satisfies s 134(1)(b) of the Act by utilising his skills in actively participating at a senior level in the day-to-day management of ADL’s business.

25.     The respondent contended that Tribunal decisions such as Re Huangand Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 656 (per Senior Member Muller) and Re Ng & Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 299 (Deputy President Wright QC) have established that it is the management activities of the visa holder in Australia rather than outside Australia that are relevant in assessing whether a person has actively participated in the management of the Australian business, although there can be trips overseas from time-to-time.

26.     The applicant contended that the approach taken in Huang and Ng is a narrow interpretation of s 134 and a preferred approach would be that the visa holder could be physically away from Australia “most of the time” and still be operating a business at a day-to-day senior level – depending on whether the nature of the business activities necessitates the visa holder being overseas significantly more than in Australia.

27.     In Huang Senior Member Muller observed at [6] that the relevant provisions of the Act are:

“directed towards overseas business people who wish to use their business skills to establish a significant business in Australia with a view to providing employment opportunities for Australians, export markets for Australian goods and introducing new technology to Australia (among other aims).  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 the holder of such a visa will acquire a significant interest in the Australian company and play a significant role in the day-to-day management of the company.  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.” 

28.     Senior Member Muller accepted at [10] “that a person who is engaged in the business of exporting goods from Australia may have to spend lengthy periods of time out of Australia.”  However, he went on the find that the business in question in that case was being carried on from Taiwan rather than from Australia, observing at [11] that “the act of ordering Australian goods from a base in Taiwan does not constitute the management of the business in Australian.”

29. At [12], Senior Member Muller said “not only must the eligible business operate in Australia to comply with the Act, the visa holder must participate at a senior level in the day-to-day management of the Australian business in Australia, albeit with trips overseas from time-to-time.

30.     In Re Ong & Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 178 Senior Member Allen referred with approval to the comments of Senior Member Muller in Huang.  Senior Member Allen referred to the second reading speech of the Minister for Immigration introducing the Migration Amendment Bill (No. 2) 1992 which introduced the new s 134 into the Act and observed that it was clear from that speech [Hansard, House of Representatives, 7 May 1992 at page 2678] that it was understood that migrants who arrived in Australia on a business skills visa would remain resident in Australia. Senior Member Allen concluded (at 32) that “it is the business activities of [a visa holder] in Australia that must be examined, not his business activities whilst he is residing overseas” (emphasis in original).

31.     In Re Ng Deputy President Wright referred to the views expressed in Huang and Ong and went on to say at [12] that:

“this does not mean that the visa holder is confined to working within the geographical limits of Australia. Obviously overseas trips may be a vitally important part of fostering and expanding the business. However the Act does not contemplate an absentee entrepreneur directing operations from afar. ‘Hands-on’ involvement within the Commonwealth of Australia is essential. A business skills visa carries with it the right of permanent residency in Australia during its existence and by departing from Australia and joining family members as secondary applicants they too can obtain this privilege. It would be strange indeed if an overseas entrepreneur could secure these advantages by directing business operations from abroad within a day or two of his (sic) first arrival and never setting foot in this country again.”

32.     The decision in Ng was delivered on 31 March 2003.  On 28 April 2003 Member W G McLean delivered a decision in the matter of Re Widjaja& Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 380. Mr McLean referred to the decisions of the Tribunal in Huang and Ong, but not Ng, and went on to observe at [40] that:

“the Tribunal however concurs with the applicant’s submission that the Act does not support the view that … it is the business activities of the applicant in Australia that must be examined, not his business activities whilst he is residing overseas, in order to satisfy s 134(1)(b) and s 134(2)(b) of the Act. The Act prescribes that the applicant shall utilise his or her skills in actively participating at a senior level in the day-to-day management of the business and this statutory requirement does not restrict the Tribunal from also examining the activities of the applicant whilst residing overseas in order to satisfy s 134(1)(b) and s 134(2)(b) of the Act.”

33. I agree with the views expressed by Senior Members Muller and Allen and Deputy President Wright that the business skills visa provisions of the Act are designed to permit persons to migrate to Australia and to take up residence in this country. However, I do not believe that it can be said that the Act demonstrates a requirement that the visa holder become ordinarily resident in Australia immediately in the sense that he or she spends the majority of his or her time in this country, only taking trips overseas from time-to-time. A number of factors have influenced that conclusion. In the first place, there is nothing in the documentation provided to me concerning the application made by the applicant for his visa (S1 – S4) that indicates that the Australian government had any requirement that overseas businesses be disposed of or the applicant’s involvement in them scaled down. Specifically, the 24 months survey form that is used by the government to obtain information from visa holders asks the question (in section 7): “are you still actively involved in a business outside Australia?” and contains the statement: “note that there is no expectation or requirement that you discontinue any business outside Australia”.. Secondly, the MSI at clause 4.5.1, when dealing with the issue of what constitutes “genuine efforts” in relation to the establishment of a business and involvement in its management, refers to whether or not the visa holder has been physically present in Australia for more than 6 months since first arrival. Bearing in mind that a cancellation decision will often be made between 3 and 3 ½ years after the first arrival, an expectation that the visa holder may have spent only 6 months in Australia suggests that, so far as the respondent is concerned, the visa holder is not expected to spend the majority of his or her time in this country - and may indeed spend as little as 15% of the total time between first arrival and cancellation. Finally, I note that s 134(1)(a) specifically refers to an interest in an eligible business in Australia but s 134(1)(b) does not specifically require the active participation in the management of that business to occur in Australia. It would have been very easy for Parliament to have specified in s 134(1)(b) that the management activities must occur in Australia if that had been the intention.

34.     These provisions must, in my opinion, be interpreted in a way that accords with commercial reality and modern business practices.  Businesses having different characteristics will present a wide variety of business management issues that will influence the type, extent and geographic location of management activities.  For example, a business exporting products from Australia that involves the collection of Australian products from a large number of suppliers for delivery to a single purchaser overseas may necessitate the managers of that business spending the majority of their time in Australia managing the supply process.  On the other hand, a business that involves products that are supplied by a small number of Australian suppliers for delivery to a wide variety of purchasers in a foreign country may necessitate a much greater emphasis on the marketing of the product in the foreign country.

35. It must also be remembered that modern means of travel and communication permit a business to be managed and strategically directed from almost anywhere in the world. The emphasis in s 134(1)(b) is on senior management rather than on what might be called day-to-day administrative tasks under direction from a senior manager. I agree with the comments of Member Carstairs in Re Lau & Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 703 that management input at a senior level by an experienced business person will often be intangible, and may involve ideas and planning, as much as researching products, securing orders and suppliers and transacting shipping. As Hill and Carr JJ observed in Puzey in a slightly different context at [47] “business does not mean being busy.”

36.     In the circumstances, and although I am very conscious of the desirability of consistency of decision-making in this Tribunal, I consider that the views expressed in cases such as Huang, Ong and Ng, to the extent that they require only a person’s management activities in Australia to be considered for the purposes of determining whether a person has been actively involved in the senior management of an Australian business, to go too far and beyond that which the Act requires. In my opinion activities undertaken outside Australia can also be taken into account if they can be directly related to the management of the Australian business. Putting it another way, once it is established there is an eligible business in Australia, then in my opinion the management activities in relation to that business can take place either in Australia or overseas.

37.     In the present case the applicant’s evidence was that he had been involved in the management of his Indonesian business for some 30 years but that, particularly since 1999, he had scaled back his activities and his wife had taken over the principal management of the business.  Initially in his oral evidence the applicant said that he spent no time in the management of the Indonesian business but he subsequently modified that to concede that he sometimes makes some decisions concerning the business, including the granting of credit to some customers and controlling the buying of stock.  He said that this might involve 1 hour 2 or 3 times a week and he thought that in total he would spend no more than 3 hours per week on average in relation to the Indonesian business.  The purchasing of stock for the Indonesian business is done by way of samples sent from suppliers - originally from Thailand but now from China.  He had visited China twice in the last 3 years for about 5 days each time.

38.     The applicant’s evidence was that the vast majority of his time is spent on the management of ADL and he put that time at about 8 hours each day.  He lives in Medan in the northern part of Sumatra and is obliged to travel frequently to other parts of Indonesia, particularly Java, to sell the Australian products.  Although I suspect that the applicant may spend more time on the Indonesian business than he was prepared to concede, I am satisfied that the applicant spends the majority of his time in Indonesia on the marketing of the Australian products and the general management of ADL.  I am satisfied that the applicant’s wife is primarily concerned in the management of the Indonesian business.  This is confirmed to some extent by the fact that the applicant, prior to cancellation, had spent 111 days in Australia whereas his wife had spent no more than about 30 days in this country. 

39.     Importantly, the applicant’s evidence, which I accept, was that his 2 children in Australia play a very small part only in the affairs of ADL.  His daughter has helped him write letters in the English language from time-to-time and I have already noted that she was involved in the purchase of and shipment to Indonesia of the original sample of lanolin.  That was, however, a relatively small transaction and her involvement in it does not indicate, in my opinion, that she has played a substantial part in the management of the business.  I accept the applicant’s evidence that he has been in regular contact with Austrade to obtain information about possible suppliers of Australian goods and that he has been the dominant actor in the identification of products that may be attractive in the Indonesian market, in the location of Australian suppliers, and the location of and sale of the products to Indonesian purchasers.  Documentary evidence also indicates that between July 2001 and March 2003 the applicant made contact with various possible suppliers of other products although no transactions resulted.  Overall, in my opinion the applicant was ADL’s only senior manager and he undertook all the significant management duties.

40.     In all the circumstances I am satisfied that as at the time of cancellation of his visa the applicant had been actively involved in the day-to-day management of ADL’s business at a senior level and that, as evidenced by the transactions that have occurred since, he intended then and continues to intend to be so involved. 

41. It follows that none of the 3 pre-conditions that are set out in s 134(1) of the Act are satisfied and hence the power to cancel the visa does not arise. That being so, it is not necessary to consider whether the applicant made genuine efforts to satisfy the matters referred to in s 134(2) of the Act. Had it been so necessary, I should say that I would have concluded that the applicant had made genuine efforts. He is obviously an experienced businessman in Indonesia and he has undoubtedly devoted considerable time to identifying Australian products that are marketable in Indonesia and he has had some success in organising the export of those products. He has established a company in this country that is organised on a sufficiently sophisticated basis to have the indicia of a business and he has spent, in my opinion, sufficient time in this country and made sufficient efforts whilst in Indonesia to justify a conclusion that his efforts to become involved in the ownership and management of an Australian business have indeed been genuine having regard to the various factors set out in s 134(3) of the Act.

42.     My conclusion is therefore that the business visa held by the applicant should not have been cancelled and that consequently, although the issues do not arise in these proceedings, the secondary visas held by his family members should not have been cancelled.  My decision is, therefore, that the decision made on 13 September 2002 to cancel the visa held by the applicant should be set aside and in substitution therefor a new decision is made that the applicant's subclass 127 business visa should not be cancelled.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Allen, Member

Signed:         .....................(sgd J Lim)............................
  Associate

Date/s of Hearing  11 September 2003
Date of Decision  28 January 2004
Counsel for the Applicant         Mr J Chong
Solicitor for the Applicant          James Chong & Co
Counsel for the Respondent     Ms L McPherson
Solicitor for the Respondent     Australian Government Solicitor