ROOPRA and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2010] AATA 343
•10 May 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 343
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0605
GENERAL ADMINISTRATIVE DIVISION ) 2009/0606
2009/0607Re
Kulwant Singh Roopra
Kulbir Singh Roopra
Kulbir Kaur RoopraApplicants
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Mr D M Connolly, AM, Member Date10 May 2010
PlaceSydney
Decision The Tribunal affirms the decisions to cancel the Business Skills visa of Kulwant Singh Roopra and the visas of Kulbir Singh Roopra and Kulbir Kaur Roopra. .....................[sgd]................
Mr D M Connolly, AM
Member
Catchwords
MIGRATION – Business Skills visa – cancellation – eligible business - substantial ownership interest - whether genuine effort to obtain substantial ownership interest of eligible business or to actively participate at a senior level in the day-to-day management – exercise of residual discretion – extreme hardship – decisions under review are affirmed.
Migration Act 1958 ss 134(1)-(5) and (10)
Badenhorst and Minister for Immigration [2006] AATA 742
Hope v Bathurst City Council (1980) 29 ALR 577; (1980) 144 CLR 1
Kim v Minister for Immigration (1995) 37 ALD 481
Kim v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 38 AAR 304
Kushner v Minister for Immigration and Citizenship [2009] FMCA 390
Lee and Minister for Immigration [2004] AATA 973
Leo and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 308
Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513
Philip and Minister for Immigration and Citizenship [2007] AATA 2092
Re Cai and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 212
Re Chin Lai and Minister for Immigration [2006] AATA 152
Re Yam v Minister for Immigration and Multicultural and indigenous Affairs (2004) AATA 283
Shi v Migration Agents Registration Authority (2008) 235 CKR 286; [2008] HCA 31
REASONS FOR DECISION
May 2010 Mr D Connolly, AM, Member 1. The applications for review concern the decision made by a delegate of the Minister for Immigration and Citizenship on 12 January 2002 cancelling the business visa granted to Mr Kulwant Singh Roopra and the visas granted to his dependant family members including wife Indajeet Kaur Roopra, son Kulbir Singh Roopra and daughter Kulbir Kaur Roopra. The cancellation decision was made pursuant to ss 134(1) and 134(4) of the Migration Act 1958 (“the Act”).
2. Mr Kulwant Singh Roopra and his children Kulbir Singh Roopra and Kulbir Kaur Roopra have made the applications for review of the decision cancelling their visas. I will refer to Mr Kulwant Singh Roopra as the principal applicant in these applications, and to Mr Kulbir Singh Roopra and Ms Kulbir Kaur Roopra as the second and third applicants, respectively.
Background
3. The principal applicant was born in Uganda in 1960 in a family of Indian descendants, and is a British citizen. With his wife he has two children, who are the second and third applicants in these applications. Since 1978 the principal applicant has worked in Motorways Construction (‘Motorways’) in Kenya, a business set up by his father and now run by the principal applicant and his brothers Surinder, Narinder and Satnam Roopra. Motorways has since grown to become a successful construction company in Kenya.
4. The second and third applicants were born, respectively, in 1984 and 1988 in Nairobi, Kenya. The second applicant has attended schools in Nairobi and India. He finished his schooling in India in 2004, and graduated in engineering from a university in the U.K in 2008. He has been staying in Australia since October 2008. The third applicant attended school in India between 2001 and 2005, and completed the last two years of her schooling in Kenya in 2007. She is currently attending university in Brisbane.
5. The principal applicant, along with his three brothers and their families, applied for a Business Skills visa in February 2000. The visas were granted to the principal applicant and his family members on 22 July 2005. Satnam Roopra moved to Australia in November 2005 and is now an Australian resident living in Brisbane.
6. On 17 October 2007, the delegate of the Minister (‘the Minister’) sent the principal applicant a Survey of Business Skills Migrant – 24 months (‘24 month survey’) to complete. The principal applicant did not respond to the request. The Minister issued a second request to complete 24 month survey to the principal applicant on 29 January 2008, notifying that further failure to respond may result in the issue of a Notice of Intention to Cancel. The principal applicant responded on 28 February 2008.
7. On 8 September 2008 the Minister issued a Notice of Intention to Consider Cancellation of the principal Applicant’s Business Skills visa. The principal applicant made submissions in response to the Notice on 17 October 2008.
8. On 12 January 2009 the Minister made a decision cancelling the principal applicant’s Business Skills visa. On 12 February 2009, the principal applicant and the second and third applicants lodged applications for review of the cancellation decision.
9. Between the date of the grant of his visa and the date of cancellation, the principal applicant had made three visits to Australia: from 3 October 2005 to 12 November 2005 (10 days), from 25 December 2005 to 31 December 2005 (7 days) and from 12 February 2008 to 2 March 2008 (19 days). The principal applicant and his wife travelled to Australia on 16 May 2009, after the visas were cancelled.
10. In his response enclosing a completed 24 month survey dated 28 February 2008, the principal applicant identified Kooka Trading Australia Pty Ltd (‘Kooka Trading’) as his “primary business interest in Australia”. Kooka Trading is a company trading in imports and exports of fruits and vegetables, registered on 27 February 2006 and managed by the principal applicant’s brother Satnam Singh Roopra in Brisbane. The principal applicant is a Director and a 25% shareholder in the company.
11. On 3 July 2009, he purchased a retail fruit outlet “Fresh@Central” in Brisbane under the business name Kooka Fresh Pty Ltd (‘Kooka Fresh’).
The Law
12. The decision to cancel the principal Applicant’s visa was taken pursuant to subsection 134(1) of the Act which states:
Cancellation of business visas
(1)… the Minister may cancel a business visa ….by written notice given to the 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;
(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.
13. Subsection 134(2) provides:
(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.
14. Subsection 134(3) also provides, without limiting the generality of matters, the Minister may take into account the following matters in determining whether a person has made a “genuine effort” referred to in subs 134(2):
(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 provides).
15. The term “ownership interest” is defined in s 134(10) as follows:
Ownership interest, in relation to a business, means 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)sole proprietor of the business; Including such interest held indirectly through one or more interposed companies, partnerships or trusts.
16. The term “eligible business” is defined in ss 134(10) as follows:
Eligible business means 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.
17. Subsection 134(5) provides that where a business visa is held by a member of the family unit of the holder of the cancelled visa, the Minister must not cancel that person’s visa if the cancellation would result in extreme hardship to the person.
18. The policy guidelines on the cancellation of business visas are set out in the Procedures Advice Manual (“PAM”) registered as a departmental policy instruction on 5 December 2008. These guidelines are not binding upon the Tribunal; however they are of assistance in determining the statutory purposes behind the provisions.
Issues
19. The issues for the Tribunal in relation to the principal applicant are:
(a)Whether he has obtained, or made a genuine effort (and intends to continue to make such effort) to obtain, a substantial ownership interest in an eligible business in Australia: ss 134(1)(a); ss 134(2)(a) and (c) of the Act. This will require the Tribunal to determine whether the business could be characterised as an “eligible business” under ss 134(10).
(b)Whether he has utilised, or has made a genuine effort (and intends to continue to make such effort) to utilise, his skills in actively participating at a senior level in the day-to-day management of that business: ss 134(2)(b) and (c).
20. If the Tribunal finds against the principal applicant with regard to the above two questions, the Tribunal is to consider whether there is a ground which would lead the Tribunal to exercise its residual discretion, and if there is, whether the discretion should be exercised in the applicant’s favour.
21. If the Tribunal finds that the decision cancelling the principal applicant’s visa had been correct, it will then be required to consider, with respect to the second and third applicants, whether the cancellation of their visas would result in extreme hardship to them: ss 134(5) of the Act.
22. The Tribunal notes that the principal applicant has expressly conceded his failure to satisfy the requirement under ss 134(1)(b) that he has been utilising his skills in actively participating at a senior level in the day-to-day management of Kooka Trading at the time of cancellation of his visa, as he was not resident in Australia. It was only after he arrived in Brisbane in May 2009 that he claimed to have met that requirement of the Act.
Relevant date for consideration
23. A preliminary issue which the Tribunal must address is to what extent, if at all, it should take into account evidence submitted by the principal Applicant after the date of his visa cancellation.
24. The applicants’ counsel contended that in accordance with the decision of the High Court in Shi v Migration Agents Registration Authority (2008) 235 CLR 286, the Tribunal should examine events following the cancellation of the visa to see whether there was a nexus with the circumstances at the time of cancellation, and whether the “relevant time” for consideration is the time that the Tribunal makes a decision.
25. The Tribunal has noted the views of the learned judges in Shi on this issue:
Kiefel J (with whom Crennan J agreed) said in Shi at 327:
In considering what is the right decision, the Tribunal must address the same question as the original decision maker was required to address. Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision. The Issue is then one of relevance, determined by reference to the elements in the question, or questions, necessary to be addressed in reaching a decision. It is not to be confused with the Tribunal’s general procedural powers to obtain evidence. The issue is whether evidence so obtained may be taken into account with respect to the specific decision, which is the subject of review.
Where the decision to be made contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the Tribunal in the process of informing itself. Cases which state that the tribunal is not limited to the evidence before the original decision-maker, or available to that person, are to be understood in this light. It is otherwise where the review to be conducted by the Tribunal is limited to deciding the question by reference to a particular point in time.
26. Hayne and Heydon JJ said at 315:
“Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that future 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 the 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.”
27. The provisions of the Act are intended to provide certainty to business visa holders by limiting the time within which the visa can be cancelled. However, the Act does not impose a temporal restriction upon the Tribunal in respect of decisions made under ss 134(1) of the Act. Nor does this Tribunal accept that the provisions have the effect of limiting it to considering only the material that was before the primary decision-maker in deciding whether the cancellation decision was at the date of decision the correct or preferable decision: Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513 at 526.
28. The Tribunal finds that it is not precluded from receiving evidence of post-cancellation activities. In the light of Shi, the relevant date for consideration in this review is the time at which this Tribunal makes its decision.
Consideration
“eligible business”
29. The principal applicant contended that his engagements with Kooka Trading demonstrate his substantial ownership interest in an eligible business in Australia. He contended that Kooka Trading was an “eligible business” because it was involved in fruit exports. The principal applicant’s claim also relies on his ownership interest in Kooka Fresh.
30. The Minister contended that neither of Kooka Trading and Kooka Fresh was an “eligible business” as defined in s 134(10) of the Act. The principal ground for the Minister’s contention regarding Kooka Trading was that a bulk of the exports by Kooka Trading consisted of transactions between New Zealand and India in which Kooka Trading acted merely as a conduit. Further, it was contended that the principal applicant’s interest in Kooka Trading and Kooka Fresh was not a substantial interest.
31. Kooka Trading has exported fruit to India and on a ‘one off’ basis, engineering equipment to Kenya. The Tribunal took account of documentary evidence outlining the details of Kooka Trading’s commercial activities:
(a)the 2005-2006 financial year: export of New Zealand apples to India valued at $AUD 15,326.
(b)the 2006-2007 financial year:
(i)export of stone fruit from Australia to India valued at $8,100
(ii)export of rubber tracks and cylinder heads to Motorways Construction in Kenya valued at $AUD9,200 and $AUD2,800 respectively
(iii)exports of Australian stone fruit to India valued at $AUD6,870 and $AUD6,909 respectively
(iv)exports of New Zealand fruit to India valued at $US67,214, $US23,688 and $US23,772.
(c)the 2007-2008 financial year:
(i)exports of Australian stone fruit to India valued at $AUD8,784
(ii)exports of Australian stone fruit to India valued at $AUD9,185
(iii)exports of Australian stone fruit to India valued at $AUD9,775
(iv)exports of Australian stone fruit to India valued at $AUD7,926
(v)exports of Australian stone fruit to India valued at $AUD7,260.
32. During the 2006-2007 financial Kooka Trading had total revenue at $AUD172,220. I note that only $AUD33,079 out of the total revenue was sourced from Australia. The financial statement for the 2007-2008 financial year showed that the revenue from its trading sales had decreased to $AUD154,124.
33. Details of Kooka Trading’s transaction activities during the 2008-2009 financial year were not provided to the Tribunal. The principal applicant claimed that since the end of the 2008-2009 financial year, revenue had increased to $AUD250,000-270,000, based on an unaudited account.
34. In considering the meaning of “business” in a number of recent decisions, the Tribunal has applied the test formulated in Hope v Bathurst City Council (1980) 29 ALR 577 at 582. The test involves examining whether the entity could be regarded as a ‘commercial enterprise’ in the nature of a going concern, that is, “activities engaged in for the purpose of profit on a continuous and repetitive basis”: (1980) 29 ALR 577 at 582.
35. Further, in order to be considered as an “eligible business” defined under the Act, the principal applicant has to satisfy the Minister that his businesses are resulting or will result in one or more of the six outcomes of benefit to Australia, as specified under ss 134(10). The Departmental policy, as enunciated in the Procedures Advice Manual 3 (PAM 3) at [7.3] refers to factors such as whether customers are sought and financial records are kept, and whether the activities are genuine and real. The Tribunal has measured the activities of Kooka Trading and Kooka Fresh against these criteria.
36. The evidence is clear that the business activities of Kooka Trading and Kooka Fresh cannot be described as financially successful as at the date of the Tribunal’s hearing. Nevertheless, the Tribunal is satisfied that their activities had the character to establish them as businesses under the Hope test.
37. Of the six outcomes identified in the definition of “eligible business” provided in ss 134(10), I consider that Kooka Trading has met one: the development of business links with the international market. I accept that Kooka Trading has established, although not fully developed, links with the Indian market through a family related company in India, Mandhiri Fresh, which imports fruit. I do not accept that Kooka Trading has created or maintained employment in Australia as it has involved only members of the Roopra family, none of whom receive a regular salary from the business. Since its registration Kooka Trading has exported fruit to India and has engaged in an ‘one off’ transaction exporting engineering equipment to Kenya. It has not produced goods or services which would otherwise be imported into Australia, nor has it introduced new or improved technology or increased commercial activity and competitiveness within the Australian economy.
38. With respect to Kooka Fresh, no documentary evidence of total monthly turnover has been provided to the Tribunal. There are no written business plans or evidence of funds borrowed in relation to its business activities. Further, upon the purchase of Fresh@Central by Kooka Fresh, the Australian staff left the store and the principal applicant has not sought to employ any further staff. The store has been run with the unpaid assistance of his family members including the second and third applicants. Further, as at 30 September 2009 (two months after the purchase of the business) Kooka Fresh was operating on a loss of $1,754 for the year.
39. The Tribunal found that Kooka Fresh satisfies none of the six criteria. The Tribunal’s factual findings regarding Kooka Fresh’s business activities, as described in the above paragraph, plainly indicate that the outcomes of its activities have failed to meet the relevant criteria. Its activities have not so far created or maintained employment in Australia, or brought an increase in commercial activity and competitiveness within sectors of the Australian economy. Further, the principal applicant could present no firm plans for the future activities of Kooka Fresh. Indeed, in view of the principal applicant’s claims that his long-term desire was to establish a construction company along the lines of Motorways, Kooka Fresh, a fruit retailer, cannot be considered as a business model which would meet that objective. Against that background the Tribunal is not satisfied that there is a reasonable ground to believe that Kooka Fresh will turn into an “eligible business” that meet one or more of the criteria under ss 134(10).
“substantial ownership interest”
40. The principal applicant stated in his original visa application that the value of money, goods and assets he intended to bring to Australia was $AUD500,000. In his response to 24 month survey dated 28 February 2008, he stated that the value of assets transferred to Australia since the grant of his visa was $AUD100,000, and that the value of assets invested in the business at $AUD29,998.00. In his oral evidence to the Tribunal however, the principal applicant claimed that he had invested $AUD100,000 to acquire a 25 per cent interest in Kooka Trading. I however do not find that these claims have been substantiated by evidence.
41. A Commonwealth Bank cash investment account statement in the name of SS and PK Roopra, which showed a deposit of $AUD233,681.76, was produced as evidence of this transaction. The principal applicant claimed that this amount was from a joint fund held by his brother Satnam and himself in an overseas account. He also submitted a NAB bank statement of Satnam Roopra’s dated January 2006 which contained a deposit of $AUD225,000, which was transferred into an unidentified savings account shortly after the original deposit was made. The Tribunal saw no record of a deposit of $AUD100,000 in any relevant account to cover the principal applicant’s claimed 25 per cent interest in Kooka Trading.
42. To further clarify the evidence provided by the principal applicant, the Tribunal by letter sent to him on 25 January 2010 sought the following additional information:
·An explanation as to how the $233,681.76 or $225,000.00 was used for conducting the business activities of Kooka Trading.
·When the $AUD100,000 deposit by the principal applicant into Kooka Trading’s account, and how the deposit was used in conducting the business activities of Kooka Trading.
·Whether Satnam Roopra or other Roopra brothers also made his $AUD100,000 contribution into Kooka Trading’s account, and how $AUD100,000 represents 25% of the total investment made into Kooka Trading.
43. On 4 February 2010 the Tribunal received the following letter from Kulwant Roopra counter-signed by his brother Satnam Singh Roopra, which contained the following information:
“A transfer from a joint overseas account in the name of Satnam and Kulwant was made on 23 January 2006 for $233,681.76 into a joint savings account in the names of Satnam and Parminder Roopra. Funds were used to enable Satnam to “set himself up in Australia.” On the advice of Satnam’s bankers (CBA) $225,000.00 was transferred into a NetBank Saver Account on 25 January 2006 paying interest.
Both brothers had agreed that as Satnam was arriving in Australia first he should be assisted to set up a home and business as soon as possible. The above funds were used to pay a deposit on a house in Brisbane, purchase furniture, a car etc. Part was also used to start Kooka Trading Australia Pty Ltd and develop a network of customers and suppliers.
Neither Satnam nor Kulwant made individual deposits of $100,000 each into a Kooka Trading account. They jointly invested $233,000.00 in Australia so that Satnam could settle here. Business activity has not been as intended but they hope to do better, the WEC was detrimental to increasing business. They intend to continue working hard to make an honest living in Australia.”
44. In my view this answer does not address the above questions to the Tribunal’s satisfaction. The Minister provided no comment regarding the answer.
45. The Tribunal also considered the Australian Business Register containing an Australian Security and Investment Commission (ASIC) statement of details relating to Kooka Trading. The four Roopra brothers including the principal applicant were named as office holders and directors appointed on 1 October 2006. Each director held one ordinary share fully paid and beneficially held. On Kooka Trading’s profit and loss statement for the year ended 30 June 2007, under “Equity”, one ordinary share was valued at $1.00. The statement noted a deficiency in share capital and reserves of $20,485.31 in 2006 and $18,833 in 2007.
46. In the absence of any evidence to the contrary and taking account of the principal applicant’s letter dated 4 February 2010, the Tribunal finds that the financial value of his 25 per cent share in Kooka Trading was significantly less than $100,000 which he had initially claimed.
47. The Tribunal has taken note of PAM 3, “Business Visa Cancellation Policy Instructions” reissued on 5 December 2008. The PAM states that a “substantial ownership interest” requires visa holders not merely to obtain a minor financial interest in a business, but one that is significant relative to the size of the business.
“It is the policy intention that officers consider an ownership interest of at least 10% or a value of at least AUD $100,000 as indicative of substantial ownership. However, substantial ownership must be relative to the size of the business”.
48. I am not satisfied that the principal applicant has obtained a substantial ownership in an eligible business in Australia as at the relevant date.
“genuine effort”
49. The principal applicant contended that he had made a “genuine effort” to acquire a substantial ownership interest in an eligible business in Australia as required under the Act and, since his arrival in Australia, had participated at a senior level in the day-to-day management of Kooka Trading. In relation to the principal applicant’s sustained involvement in Kooka Trading, the Tribunal also considered the evidence of his activities since the date of cancellation up to the relevant date.
50. The principal applicant also contended that in purchasing a 100 per cent interest in the retail fruit outlet “Fresh@Central” under the name Kooka Fresh he had demonstrated a genuine effort as required by the Act. He stated that he invested $AUD68,783 to acquire a Fresh@Central, plus establishment costs in the latter of $15,000.
51. The Tribunal has taken note of Federal Magistrate Driver’s comments in Kushner v Minister for Immigration and Citizenship [2009] FMCA 390 at [22], where he said that the Tribunal was entitled to have regard to Mr Kushner’s motivation in undertaking trading activities in order to determine whether those activities amounted to a going concern or were “for the purpose of a migration outcome, rather than for establishing a business.” It has been stated in an earlier Tribunal decision in Yam v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283 at [53] that the level of a “genuine effort” is beyond that which is purely “superficial or token”. The Tribunal had also found in Leo and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 308 at 309 that a genuine effort must be “vigorous and determined”.
52. In considering whether the principal applicant has made “genuine efforts” to meet the relevant statutory requirements up until the relevant date, the Tribunal has taken into account the following factors:
(a)During the 32 months between the registration of Kooka Trading in February 2006 and the issue of the Notice of Intention to Consider Cancellation in September 2008, the principal applicant had made three visits to Australia, totalling 36 days.
(b)He moved to Australia in May 2009 with his wife, 4 months after the cancellation of his visa. He had been staying in the country for approximately five months at the time of the hearing. During that time he purchased a retail fruit outlet, Fresh@Central, under a new company Kooka Fresh. No other evidence is available regarding the extent of his business activities in Australia during those months.
(c)No evidence of concrete business plans or business research has been provided to the Tribunal in relation to Kooka Trading or Kooka Fresh.
(d)Although there is a formally constituted partnership in existence between the four Roopra brothers, this seems to have been arranged principally for the reason of Satnam Roopra migrating to Brisbane. For example, no evidence indicates that the other two Roopra brothers who are listed as directors of Kooka Trading have made any notable direct contributions to the business, financially or otherwise. I cite again from the principal applicant’s letter dated 4 February 2010: “[t]hey jointly invested $233,000.00 in Australia so that Satnam could settle here. Business activity has not been as intended but they hope to do better…”
(e)There is no definite documentary evidence regarding the value of assets transferred to Kooka Trading from the principal applicant, and the financial value of his 25% interest in the business is less than $100,000.
53. Further, I take into account the principal applicant’s motivation for purchasing Kooka Fresh. Although contending that Kooka Fresh was his family company in which he held a 100 per cent ownership, and that it had no financial or other links with Kooka Trading, the evidence does not support this conclusion. The Tribunal heard that the principal applicant’s brother Satnam Roopra was involved in the management of Kooka Fresh, along with the family of the principal applicant. As with Kooka Trading, none received a regular income from this new “family” business which was not, at the time of the hearing, running at a profit. The Tribunal has concluded, and it has been partly conceded by the principal applicant, that he purchased Fresh@Central through Kooka Fresh because he was concerned that his involvement in the activities of Kooka Trading was insufficient to satisfy the relevant statutory requirements.
54. The Tribunal is not satisfied that the principal applicants have made genuine efforts up until the relevant date to obtain a substantial ownership interest, or to utilise his skills in actively participating at a senior level in the day-to-day management, of Kooka Trading or Kooka Fresh.
Residual discretion
55. The final issue is whether the Tribunal should exercise the residual discretion in favour of the principal applicant.
56. The authorities have said that the exercise of the residual discretion would be appropriate where an applicant needs more time to fulfil his visa obligations: Kim v Minister for Immigration (2004) 38 AAR 304; Badenhorst and Minister for Immigration [2006] AATA 742, subject to the applicant being able to offer a satisfactory explanation for their inaction: Re Chin Lai and Minister for Immigration [2006] AATA 152 at [44]. Kiefel J also commented in Kim (2004) 38 AAR 304 at 310 that:
[t]he Minister might be satisfied of the matters referred to in subs (1) and not be satisfied as to the efforts made as referred to in subs (2) but nevertheless consider in a particular case that further time should be given to the visa holder to undertake what was required of them. An explanation satisfactory to the Minister, of inaction up to the point of assessment might be given.
57. In the previous Tribunal’s decision in Philip and Minister for Immigration and Citizenship [2007] AATA 2092, it was stated at paragraph [121]:
“It appears to be another well established proposition that the residual discretion should not be exercised unless the applicant has shown a sustained commitment to trying to fulfil his or her visa obligations….”
58. The principal applicant contends that the Tribunal’s residual discretion should be exercised in his favour, as his business plans were stymied through no fault of his own. He claimed that his family had relied on the incorrect advice of his migration agent that the visas would be granted within six months or so. The family moved to Bangalore, India in reliance of this advice, and this move ultimately caused a further delay in their taking up residence in Australia after the visa was finally granted in July 2005. Other circumstances contributing to the delay included the need to allow his children to complete their secondary education; the growing success of the family’s Kenyan business, Motorways; and an ongoing litigation involving Motorways before the courts.
59. The Tribunal noted a departmental document “A Manager’s guide to visa grant times” dated June 2002, which stated that in the period 1 January 2001 to 30 June 2002 it took 101 weeks for a 127 Business owner visa to be issued in Nairobi. In that time only one was issued, while worldwide it took 111 weeks for 75 per cent of similar visas to be issued. I accept that the 5 year period that elapsed between the principal applicant’s application for the visa and the grant of the visa exceeded the normal time expected to take for issue of a visa. I am not convinced, however, that between 2002 and 2005 the principal applicant had made sufficient effort to hasten an outcome through his new agent (one of his former agent’s staff) by making representations to the Australian High Commission in Nairobi, or indeed to the Department direct. The fact that the principal applicant had waited a further 3 year period for his visa without taking other active actions casts a doubt on his claim that he was genuinely interested in migrating to Australia at the first opportunity
60. Further, the Tribunal was not satisfied with the rest of the explanations offered by the principal applicant. In the normal course of events, the children of any family migrating to Australia will have their education disrupted, at least in the short term.
61. The Tribunal finds unsatisfactory his explanation that he had to remain indefinitely in Nairobi because of an unsettled and long standing legal claim against Motorways, considering that he recently attended a court hearing in Nairobi from Australia and his two brothers, who are partners in the business and residents in Nairobi, were well placed to cover the court proceedings.
62. The evidence supports the Tribunal’s finding that after receiving his visa in July 2005 and following his brother Satnam Roopra’s migration to Australia in November 2005, the principal applicant made a choice to remain with his family in Nairobi, rather than to make arrangements to migrate to Australia.
63. The Tribunal considers that the principal applicant has had ample time since the grant of his visa in July 2005 to show sustained commitment to meet his visa obligations as required under the Act. The Tribunal finds that the principal applicant had other, mainly commercial priorities in connection with Motorways, until and after the grant of the visas and for that reason made a choice to remain in Kenya and continue with his substantial business interests rather than to meet his obligations under the Act. I am not satisfied that this qualifies as an adequate explanation for the principal applicant’s failure to fulfil his visa obligations in time, or that his case is one in which residual discretion should be exercised by the Tribunal to allow him further time to fulfil those obligations.
“extreme hardship”
64. The second and third applicants have contended that the cancellation of their visas will result in extreme hardship to them.
65. The applicants’ counsel contended that while the applicants were relying upon the grounds of “extreme hardship”, he accepted that mere dislocation and/or disappointment would not be sufficient grounds to make out their case. Counsel contended that the jurisprudence on “extreme hardship” was well settled and cited Senior Member Lindsay in Lee and Minister for Immigration [2004] AATA 973, at [7]-[9], where it was stated that the Minister should refrain from cancelling a business visa without taking account of:
(a)whether on the balance of probabilities, cancellation of the applicant’s visa will result in certain outcomes claimed by the applicant;
(b)whether those outcomes may be characterised as “extreme hardship” to the applicant.
66. The Tribunal agrees with both parties that Foster J in Kim v Minister for Immigration (1995) 37 ALD 481 contained a satisfactory interpretation of the terms “extreme hardship” at 487:
“It is, in my opinion, important to approach the phrase “extreme hardship” in a broad way. Clearly, it imposes 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 a 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……In addition, to what I have said, I consider that the application of the word “extreme” must 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, 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”.
Kulbir Singh Roopra
67. The second applicant is a single man aged 26. He graduated with a Masters degree in Manufacturing Engineering from a UK university in July 2008. To date he has not been employed in his profession and told the Tribunal that he had not investigated opportunities in Australia, India or Kenya.
68. He lived in Kenya until 2002, travelled on a Kenyan travel document and had a student visa in India from 2002 till 2004. He obtained a visa to commence his university studies in the UK in 2005, based on his Kenyan travel document. After completing his studies, the second applicant successfully obtained a British Overseas Resident passport which does not give him the automatic right to live or work permanently in the UK. He can reside in India provided he has a work permit but he has not investigated that option. He has relatives in Bangalore.
69. The second applicant’s Kenyan travel documents had expired in April 2009. He claimed that he made enquiries through the Kenyan High Commission in Canberra after the expiry of his and his sister’s travel documents. No formal application was lodged. The Tribunal noted e-mail correspondence dated between 8-22 July 2009, between the applicants and the Kenyan High Commission in Canberra. It was claimed that his father, the principal applicant, also lodged an application for travel documents in Kenya and made representations through his connections in senior officials in the Kenyan government, but with no success.
70. The applicants’ counsel indicated that the essence of his contention was not that the Kenyan authorities have been deliberately targeting the Roopra family, but that the bureaucracy was very inefficient.
71. The second applicant also referred to his concern over security issues and tribal tensions in Kenya between the Kikuyu and Luo since the 2007 general election, which were followed by inter-tribal massacres and attacks on Indians.
72. The Tribunal does not accept that the second applicant’s claims amount to “extreme hardship”. The claim that he would have limited career opportunities in Kenya stands at odds with the fact that his honours level qualifications in industrial engineering would be a good fit with the activities of the family company Motorways, where he could obtain practical experience, thus ensuring that should he wish to move outside Kenya in the future, he would be well qualified. This outcome cannot be regarded as “extreme hardship”. Further, as he is a single person, he has no family responsibilities that if he would become unable to carry out due to the cancellation of his visa.
73. The Tribunal does not accept the second applicant’s claim that he could face “extreme hardship” because he has only a UK Overseas Citizen passport, and his freedom of movement would be injuriously affected. He would have Kenyan citizenship available to him on the grounds of his birth and previous residence, and there is no evidence that he would face difficulty in obtaining an entry visa to live and work in India. Furthermore, his UK passport would allow him entry to work in the UK where he could apply for residence after three years.
74. With regard to the second applicant’s contention that the deterioration of the security situation in Kenya since 2007 to the point where living in Nairobi would cause “extreme hardship” to him, I note that his sister, the third applicant, put forward a similar contention. I will consider those contentions together in a later part of these Reasons.
Kulbir Kaur Roopra
75. The third applicant is a single woman aged 22. She is a second year student at the University of Queensland. She claimed that as a result of the cancellation of her visa, she would face “extreme hardship” on the following grounds:
(a) her education would be interrupted;
(b) She was now, for all intents and purposes, a “stateless” person, as she has not been able to obtain a Kenyan passport and has had to rely upon her certificate of identity as travel document. This document expired on 27 April 2009 and the Kenyan authorities, as they did with her brother, refused to renew the document;
(c) The “dangerous conditions” in Kenya.
76. The first ground does not withstand scrutiny in the light of the recent Tribunal decision in Re Cai and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 212. The Tribunal had said at [12]:
“Neither legislative barriers preventing [the Applicant] 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”.
77. The third applicant’s inability to continue her studies as a result of her visa cancellation is not of itself sufficient to amount to “extreme hardship” as noted above in Cai. I further note that Kenyan documentations have been made available to her other cousins who were born into similar circumstances and are now studying in the UK. It has not been demonstrated to the Tribunal how she would be prevented from applying off-shore for a subclass 573 student visa to complete her degree at the University of Queensland, provided that she could likewise obtain a Kenyan documentation. Further, there appears to be no reason why she would be prevented from finishing her university studies in the UK or in India, in the event that she failed to obtain an Australian student visa.
Stateless status
78. Before considering whether her statelessness would amount to extreme hardship, the Tribunal scrutinised the circumstances that led to her stateless status and considered whether the difficulties which would ensue from that status are resulted by the cancellation of her visa.
79. The third applicant claimed that as a female member of a very conservative Sikh family, she had left her status in the hands of her father and brother rather than taking her own initiatives.
80. The third applicant is entitled to claim Kenyan citizenship by virtue of the fact that she was born in Kenya. Her father, the principal applicant, gave evidence that he did not wish his family to be Kenyan citizens. Although he had successfully arranged for his wife and himself to obtain UK nationality, this was not extended, at the time, to his children. The third applicant is precluded from obtaining a UK Overseas Citizenship unless she lives in the UK for three years, as did her brother when he was a student. As with her brother, she has no automatic access to Indian citizenship, although her mother was born there.
81. However, the claim that Kenyan authorities have refused to update the third applicant’s Kenyan identity documentation have not been made out. I note that her brother took no action after his enquiries for renewed documentation for himself and his sister to the Kenyan High Commission in Canberra yielded no result. The Tribunal notes below that the High Commission had responded to his enquiries with a not unreasonable query of its own, which he had left unanswered:
“Is there any reason why the holder had not applied for a passport and was issued with a travel document instead?”
82. Indeed it appears to me that no efforts have been made to resolve the citizenship issue since the third applicant reached her age of majority. It was claimed that a passport application in the name of the third applicant was submitted in Nairobi, and a partly completed Kenyan passport application in the name of Kulbir Roopra was submitted as evidence, as noted earlier in paragraph 69. The Tribunal could not conclude, however, that the application had ever been actually submitted to the Kenyan authorities, or that the third applicant’s father has taken all necessary steps with the Kenyan authorities to obtain a Kenyan passport or an identity document for his daughter.
83. The Tribunal does not accept the principal applicant’s claim that his children were precluded from obtaining the Kenyan citizenship unless he renounced his UK citizenship. He provided no official Kenyan Government information in support of his claim. As the children are no longer minors, they should be free to make Kenyan citizenship applications if they wish - yet in deference to their father’s desire that they not be Kenyan citizens, it appears that they have not pursued this step, possibly in the expectation that Australia will solve their self-made problem.
84. The Tribunal finds, on the basis of the evidence before it, that there appears to be no barrier to the Roopra children applying successfully for Kenyan citizenship. If they do not pursue this course and remain “stateless”, then in my view, any ensuing difficulties or “extreme hardship” as such, cannot be said to have been resulted from the cancellation of their Australian visas.
Security issues in Kenya
85. Both the Roopra parents and their children claimed that if they had to return to Kenya, they would be living in fear because of the dangerous living conditions in Kenya. The applicants described the social instability and racial tensions in Kenya and how Indians are targeted for robbery and violence. The third applicant stated that her family were “not ably to move freely like in Australia” and referred to her “always having to worry about [her] personal safety”. She described that her family had to move to live in a high rise secure building in 2003; only travelled by car with the windows closed; and shopped in places where mainly Indians lived and worked. Most Indian families have made alternative arrangements to leave. She stated that her family was “fairly well off in Kenya”.
86. The applicants claimed that members of their extended family in Nairobi had been victims of robbery and threats of violence. Recently the brother-in-law of Satnam Roopra was murdered and the family was left traumatised. When such incidents were reported to the police, they were told that other high profile business people faced similar threats.
87. The Tribunal referred to country reports, including the US State Department’s 2008 Human Rights Report and other reputable sources, which stated that Indians in Kenya were not specifically targeted following the 2007 elections, as claimed by the applicants. This is a view supported by the Indian Minister for External Affairs, Anand Sharma, who on 2 January 2008 stated:
“All Indians in Kenya are safe but some of their shops have been looted in the widespread violence that has rocked the African nation…….. I admit that there has been damage to property in Kenya, but I must add here that Indians are not being targeted specifically”. (2008 Thaindian News Website, source ANI.)
88. The International Crisis Group’s Crisis Watch Report No 54 dated 1 February 2008 stated that the post-election violence was fought “along ethnic lines……..fuelled by longstanding land disputes and economic disparity”. The Tribunal took note of a more recent article dated 17 January 2009 which reported the Kenyan Prime Minister Raila Amolo Odinga as saying:
“People of Asian origin who live in Kenya live as equal members of the society……Gujaratis and Indians are very much welcome in Kenya. They are welcome to live and work just like any other community.”
89. The consensus of informed opinion appeared to be that, although no Indians were killed during the post 2007 election riots, some members of the extensive Indian community of approximately 75,000, of whom 43,000 are Gujaratis living mainly in Nairobi, including Roopra family members, could have been affected by the riots.
90. It was also contended that the applicant’s subjective fear following recent incidents involving relatives, should be taken into account. Yet there is no evidence that would suggest that the families of the applicants were specifically targeted, or that they would be living in Nairobi without adequate personal security or the level of state protection available to other residents.
91. The Tribunal notes that although the principal applicant claimed that he moved his family to Bangalore from Nairobi for security reasons in 2002, he himself returned to Nairobi and remained there. In May 2005, he arranged for his wife and daughter to return to Nairobi and remained there until and throughout the 2007 post-election violence – even though by this time the family had been holding the Australian visas for the previous two years. The third applicant did not move to Australia until February 2008 to commence her university studies; the principal applicant not until May 2009. Clearly, the family had made the decision to stay in Kenya after assessing that the rewards for staying in Kenya exceeded the risks involved for them. I am not convinced that the living conditions in Kenya would present “extreme hardship” to the second and third applicants if they were to return.
92. Consequently, on the basis of the evidence before it, the Tribunal finds that there are no grounds upon which to find that the second and third applicants would suffer “extreme hardship” as a result of the cancellation of their visas.
Decision
93. For the above reasons the Tribunal:
(a)affirms the decision of the Minister to cancel the visa of Kulwant Singh Roopra; and
(b)affirms the decision of the Minister to cancel the visas of Kulbir Singh Roopra and Kulbir Kaur Roopra.
I certify that the 93 preceding paragraphs are a true copy of the reasons for the decision herein of Mr D M Connolly, AM, Member.
Signed: .....................................................................................
AssociateDates of Hearing 12 October 2009 and 3 December 2009
Date of Decision 10 May 2010
Counsel for the Applicant Mr Nick Poynder
Solicitor for the Applicant Mr Gareth Lewis, Lewis Law Solicitors
Solicitor for the Respondent Ms Alice Linacre, Clayton Utz
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