Sia and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 521

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 521

ADMINISTRATIVE APPEALS TRIBUNAL         Nº V2004/686

GENERAL  ADMINISTRATIVE DIVISION

Re:          HIONG TEE SIA

Applicant

And:          MINISTER FOR IMMIGRATION

AND MULTICULTURAL AND

INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal:       Miss E.A. Shanahan, Member

Date:              3 June 2005

Place:             Melbourne

Decision:The Tribunal sets aside the decision under review.  The applicant's Subclass 127 Business Visa should not have been cancelled and thus remains valid.

(sgd) E.A. Shanahan

Member

IMMIGRATION – business visa – cancellation of visa – was the applicant engaged in an eligible business – was the applicant in day‑to‑day management of the business – did he make a genuine effort to obtain substantial ownership, participate in day‑to‑day management and does he intend to continue to make such efforts –time spent in Australia  - nature of the business activity

Migration Act 1958 s 134(1), (2), (3), (10)

Kim v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 38 AAR 304

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

Re Harlim and Ors v Minister for Immigration and Multicultural and Indigenous

Affairs [2002] AATA 767

Re Tang and Minister for Immigration and Multicultural Affairs [2000] AATA 997

Re Chenand Ors andMinister for Immigration and Multicultural and Indigenous Affairs

[2002] AATA 628

Re Lauand Minister for Immigration and Multicultural Affairs [2002] AATA 703

Re Gumulia and Minister for Immigration and Multicultural and Indigenous Affairs

[2002] AATA 1174

Hope v Bathurst City Council (1980) 29 ALR 577

Re Suryatayand Ors and Minister for Immigration and Multicultural and Indigenous Affairs

[2003] AATA 581

Re NguyenandOrs and Minister for Immigration and Multicultural and Indigenous Affairs

[2002] AATA 656

Re JoandMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 77

Bretag v Immigration Review Tribunal, Federal Court, 29 November 1991

Re Koand Ors and Minister for Immigration and Multicultural and Indigenous Affairs

[2003] AATA 414

Re OngandMinister for Immigration and Multicultural and Indigenous Affairs

[2003] AATA 178

Re Widjojo and Minister for Immigration and Multicultural Affairs [2001] AATA 774

Re Ng and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 299

Re Haryanto and The Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 317

Re Marlina and Ors and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 606

Re Teng and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 715

Re Basuki and Ors and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 630

Re Andiwidjaja and Ors and Minister for Immigration and Multicultural and Indigenous

Affairs {2003] AATA 397

Re Lala and Anor and Minister for Immigration and Multicultural and Indigenous Affairs

[2003] AATA 209

Re Griffiths and Migration Agents Registration Authority [2001] AATA 240

Re Hamanand Ors and Minister for Immigration and Multicultural and Indigenous Affairs

[2002] AATA 1113

Re Angkadjajaand Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 699

REASONS FOR DECISION

3 June 2005  Miss E.A. Shanahan, Member

1. On 14 May 2004 a delegate of the respondent cancelled Mr Sia's (the applicant) business visa (subclass 127) and, as a consequence, the visas of his wife and six children. The delegate's decision was pursuant to s 134(1) of the Migration Act 1953 (the Act) and based on the finding that Mr Sia had not obtained a substantial interest in an eligible business in Australia; nor was he utilising his skills in actively participating at a senior level in the day‑to‑day management of the business; and that the two companies (see below) were not eligible businesses.  The delegate also determined that there were no grounds to exercise the discretion under s 134(2).  In particular, the departmental document examiner had verified some supporting documents as not being genuine.  Mr Sia lodged an application for review of the decision with the Administrative Appeals Tribunal on 11 June 2004.

2. Mr Sia was represented at the hearing by Mr Guy Gilbert of counsel. The respondent was represented by Mr Brian Wee, a solicitor with the Australian Government Solicitor. The Tribunal received into evidence the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T52), the marking Exhibit R1.  In addition, the applicant lodged, as part of his statement of facts and contentions, a large volume of documents relating to the activities of Mr Sia's companies.

Statutory Declaration of Sue Shi (Mr Sia's accountant)

dated 2 December 2004  Exhibit A1

Statutory Declaration of Hiong Tee Sia dated 23 November 2004     Exhibit A2

Statutory Declaration of Jack Kee Thai Sia dated 22 October 2004   Exhibit A3

Statutory Declaration of Ting Kee Sia dated 21 October 2004            Exhibit A4

Statutory Declaration of Norman P. Long, Director of Oceania

Forest Products Pty Ltd, dated 30 November 2004  Exhibit A5

ISSUES BEFORE THE TRIBUNAL

The issues before the Tribunal are:

·   does Mr Sia have a business which is an eligible business? 

·   is Mr Sia involved in the day‑to‑day management of this business at a senior level? 

·   has he demonstrated a substantial ownership of the business? 

·   whether the exercise of a discretion under s 134(2) of the Act is to be considered? 

·   has Mr Sia made a genuine effort with respect to the establishment of an eligible business under his day‑to‑day management?

3.       The respondent had determined that certain supporting documents lodged by the applicant were, on the advice of the document examiner, not genuine.  This had influenced the attitude of the respondent's delegate to the exercise of the discretion in s 134(2) of the Act.

4.       Following the hearing of oral evidence, the respondent conceded that the documents in question were genuine and also that Mr Sia had participated at a senior level in the day‑to‑day management of his businesses. 

BACKGROUND

5.       Mr Sia was granted a subclass 127 Business Owner visa (the business visa) on 12 January 2001.  This visa covered the so‑called secondary visa holders, namely Mr Sia's wife and six children.

6.       Mr Sia first arrived in Australia on 26 January 2001, and over the next 3 years and 3 months, he spent 53 days in Australia until his business visa was cancelled.  On 18 October 2002 Mr Sia incorporated a company called T & S Sunrise Pty Ltd with a holding of 50 per cent of the shares.  In partnership with his brother, Mr Sia purchased a residential property in Albion Street, Box Hill for the sum of $417,777 and took ownership on 24 December 2002.

7.       On 18 November 2003 Mr Sia incorporated a company called Timberlink Trading Pty Ltd (Timberlink), following which Mr Sia reduced his holding in T & S Sunrise to 20 per cent, with his brother holding the remaining 80 per cent of 50 $1 shares.  Mr Sia holds 90 of the 100 $1 shares in Timberlink with his son Jack holding the remaining 10 shares.

8.       Mr Sia has a 1/3 holding in and is a director of Kilang Papan Hiong Tiong Sdn Bhd (Malaysia) (KPHT) and he had been so since 1975.  KPHT is a timber logging, sawing and manufacturing company based in Sabah, Malaysia.  It has exported hardwood timber for some years, preceding the granting of Mr Sia's business visa.  KPHT also exports timber to China, Europe, Thailand and Mauritius.  T & S Sunrise was incorporated to expand the market for the export of timber from Malaysia to Australia, with T & S Sunrise acting as an agent for KPHT.  Mr Sia also planned to use T & S Sunrise to export Australian products, predominantly foodstuffs and pharmaceuticals, to Malaysia.  Mr Sia stated that, following his initial arrival in Australia in 2001, he contacted the Victorian Employers Chamber of Commerce & Industry; the Chinese Chamber of Commerce & Industry and Austrade in an attempt to delineate export potential.  Shortly thereafter, he visited China, Thailand and Hong Kong to seek export markets.  He had contacts in these countries, arising from his export of timber from Malaysia.  He stated that he was not able to identify any commercially viable export market in the early period of T & S Sunrise's trading.  In addition, the Malaysian ringgit had been devalued against the Australian dollar between January 2001 and October 2003, from an exchange rate of 1.8 ringgit to A$1 to 2.2 ringgit per A$1 in February 2003, with the current exchange rate being 2.95 ringgit to the Australian dollar.  This had greatly benefited the export of timber from Malaysia to Australia.  However, this had made the export of foodstuffs and pharmaceuticals from Australia to Malaysia commercially unviable, or at the most, resulting in a very small profit.

9.       In line with the legislation, the Department of Immigration and Multicultural and Indigenous Affairs (the Department) forwarded to Mr Sia Survey of business migrant class and resident class 24 and 36 months forms (24‑month survey) on 7 November 2002, 7 March 2003 and 19 September 2003.  Mr Sia returned the completed 24‑month survey form on 17 December 2003.

10.     On 19 January 2004 the Department sent Mr Sia a Notice of Intention to Cancel his business visa, to which he responded with a submission dated 11 February 2004 with numerous attachments (T10‑T30), in support of his continuing visa status.  A delegate of the Department cancelled Mr Sia's business visa and the secondary visas by notice dated 14 May 2004. 

EVIDENCE BEFORE THE TRIBUNAL

11.     Mr Hiong Tee Sia, Mr Jack Kee Thai Sia, Ms Ting Kee Sia, Mr Gary Davoren and Mr Alex Ting gave evidence.

Mr Hiong Tee Sia (the applicant)

12.     Mr Sia adopted his statutory declaration dated 12 November 2004 as being true and correct in all its details; and it was admitted into evidence as Exhibit A2.  Mr Sia confirmed that he was a citizen of Malaysia and lived in Sabah.  His wife and his children were secondary visa holders, and three of his children were currently studying in Australia.  His eldest son, Jack, had recently finished a Pharmacy degree, and was now completing, as part of the pharmacy degree requirement, a practical year.  His other two children in Australia were studying at Monash University.  His second son, who had graduated from university, was working in Sabah; and his fifth and sixth sons are in Year 10 and Year 11 at a high school in Sabah. 

13.     Mr Sia confirmed that KPHT (his family business) had commenced in Malaysia in 1975, and it was involved in timber logging, sawing of timber and some manufacturing of timber products.  Mr Sia also confirmed that he had a 1/3 share of KPHT in partnership with his eldest brother and younger brother.  He said the manufacturing section of the company produced mouldings, cornices and furniture parts.  Mr Sia also said that, after he was granted his business visa, he approached the Chinese Chamber of Commerce and the Victorian and Premier’s Chambers of Commerce in addition to looking through the Yellow Pages.  Following which, they visited shops and factories to establish a business opportunity.  They had also visited display homes and furniture producers.  Mr Sia explained the delay between the granting of his business visa in 2001 and the incorporation of T & S Sunrise on 18 October 2002 as time spent in research, which revealed that there was then no commercial value in exporting the proposed foodstuffs and pharmaceuticals from Australia to Malaysia.

14.     In the early days of his business visa, Mr Sia had contemplated exporting fresh fruit and vegetables from Australia to China but, after his visit to China, he found that such an export was not viable.  Similarly, his effdrum up business in Hong Kong and Thailand, through previous business contacts, had not come to fruition.  He blamed this on the change in the exchange rate and the SARS epidemic, which had greatly reduced tourism and international trade.  In contrast to his efforts to export goods from Australia to Malaysia, the importation of timber from Malaysia to Australia had yielded an increasing profit. 

15.     Mr Sia said that Timberlink had endeavoured to establish the export of food products and pharmaceuticals from Australia to Malaysia and had no dealings with timber imports from Malaysia.  Mr Sia had pursued all dealings with overseas and Australian companies and had purchased foodstuffs from a company called RUS.  These products had been sold to a Malaysian company named Yit Thai, which was totally separate from his Australian and Malaysian companies.

16.     After the cancellation of his business visa, Mr Sia had arranged the exportation of moulding knives, used in the cutting of cornices, to a company known as Perusahaan Hiong Tiong, which was not related in any way to any of his family companies.  Mr Sia advised that many of the one‑off exports from Australia to Malaysia had been in the nature of samples in an effort to create a business opportunity.  Mr Gilbert asked Mr Sia why there was only one transaction in each instance, to which Mr Sia replied that they had found that these exports were of "no commercial value" and thus alternative exports had to be explored.  In contrast, the importation of Belian tropical hardwood from Malaysia to Australia had been expanding, with a 25 per cent increase in the first two quarters of 2004‑2005.  Attempts to export steel strapping from Australia to Malaysia had been unsuccessful in view of the exchange rate changes. 

17.     Mr Gilbert asked Mr Sia whether any employment had been created in Australia from his business interests.  Mr Sia said that he employed his son Jack, his niece, two nephews and an unrelated international student in Brisbane.  These persons were involved in taking directions from him, performing filing and checking payment slips.  All five were full‑time students and their work for the company was strictly part‑time.  His son and niece were paid $360 per month for their efforts.  The payment for all imported timber products from Malaysia was made in Malaysia and payment for any export products from Australia to Malaysia was made in Australia. 

18.     Mr Sia was asked to validate the documents that the document examiner had declared to be not genuine.  Mr Sia explained that all his business activities were done primarily by telephone and, when he was asked by his migration agent to verify these arrangements, he was asked to obtain letters in writing.  He had approached his buyers, drafted the necessary letters and then travelled some 300 miles to obtain their signatures.  The process of obtaining the signatures was undertaken at a restaurant and were all signed on the same day, even though the letters had carried different dates on their letterhead. 

19.     Under cross‑examination, Mr Sia agreed that KPHT was his family company in Malaysia, operating since 1975; and that it exported timber to Australia, Europe, Mauritius, Thailand and China.  He had not set up a separate company structure in any country other than Australia.  Mr Sia confirmed that his family company, incorporated in Malaysia, had been exporting timber to Australia prior to him obtaining his business visa.  Mr Wee asked what sort of profits the Australian company was making, to which Mr Sia replied that, for the first year of trading by T & S Sunrise, very few transactions occurred; but during the second year, it had a pre‑tax profit of $6000 approximately.  Timberlink, at the close of its first year of trading on 30 September 2004, had a pre‑tax profit of A$37,000.  Mr Sia agreed that the Malaysian company had made a considerably larger profit.  Mr Wee cross‑examined Mr Sia extensively about the roles played by his son, his niece and other related persons in the conduct of T & S Sunrise and Timberlink.  However, in view of the respondent's subsequent determination that Mr Sia had substantial control of the company, this shall not be addressed further.

20.     Mr Sia explained that the export of oleic acid (fish oil) had been a once only event, as he had subsequently been informed that the importation of such substances was controlled by the Pharmacy Board of the Malaysian Government and that a licence was required for such importation.  He said he was in the process of applying for such a licence.  Mr Sia confirmed that he was negotiating to export other products from Australia.  He said he was waiting on a pricing of the products.  In addition, he needed to wait until after the Chinese New Year period because the shipping companies impose a surcharge on the peak session.  Mr Sia estimated that during his trips to China, Hong Kong and Thailand, while having travelled for a variety of business reasons, 20 per cent of his time had been spent on the promotion of exports by his Australian companies to South East Asia.  Mr Sia agreed that, to date, most of the business conducted by Timberlink had related to the importation of timber and a minor part to the business of exporting Australian goods.  However, Mr Sia said it was his intention to pursue further exports, providing they were commercially viable. 

21.     In re‑examination Mr Sia confirmed that all his profit and loss statements were incorporated in his statutory declaration.  With respect to the export of fish oil to Malaysia, Mr Sia again stated that it requires a licence to be issued to a qualified pharmacist and that he believed he could not continue this business.  (The Tribunal notes that Mr Jack Sia, the applicant's son, is a qualified pharmacist; completing his last year of practical training and may, thus, qualify for such a licence.)  Mr Sia explained the short period he had spent in Australia (53 days), since being granted his business visa, as being necessary in order to spend more time in Malaysia, to promote his Australian business and also to ensure his income from his Malaysian timber exportation business.

Mr Jack Kee Thai Sia

22.     Mr Jack Sia is the applicant’s son.  He has recently graduated as a pharmacist and is currently completing his practical year working in a Box Hill community pharmacy.  Mr Jack Sia has a 10 per cent holding in Timberlink.  He detailed his work commitments in his father's business and confirmed that he was paid $360 per month to do the filing and banking.  He confirmed that his father conducted all negotiations, made all decisions and directed him in terms of what he was expected to do.  As the respondent has conceded that the applicant, Mr Sia, has the substantial day‑to‑day management of the companies, the son's further evidence is not relevant. 

Ms Ting Kee Sia

23.     Ms Ting Kee Sia is the applicant’s niece and resides at 77 Albion Road, Box Hill.  Her father was the major shareholder in T & S Trading Pty Ltd as of late 2003.  Ms Ting is a full‑time tertiary student, who does filing on weekends and some banking on weekdays for the applicant.  She also receives $360 per month.  Once more, her oral evidence and statutory declaration are not relevant given the respondent's concession that the applicant is responsible for the day‑to‑day management of the business. 

Mr Tee Hiong Sia (the applicant)

24.     Mr Sia was recalled to clarify some evidence relating to when he had initiated the contract of sale of dairy products to the Tai Teong Emporium; these products having been purchased by the latter company on 14 July 2004.  Mr Sia stated that normally transactions undertaken by Timberlink take two to three months to come to fruition and, while he could not recollect the exact date when negotiations had commenced, in terms of his normal practice, these negotiations would have commenced before the cancellation of his business visa. 

Mr Gary Davoren (telephone evidence)

25.     Mr Davoren is a director of Oceania Forest Products Pty Ltd and is the company manager.  Mr Davoren confirmed that his company purchased timber products from Timberlink; these include staircases and furniture in the finished form.  The majority of its purchases were for weatherboards, used in housing construction in Queensland and decking pre‑dominantly used in northern New South Wales.  The company had been extremely happy with its dealings with Mr Sia.  He said he placed all the company’s orders directly with Mr Sia by telephone and intended to continue business with Timberlink.  Mr Davoren, in cross‑examination, advised that most of the products imported from Malaysia were actually used for decking in New South Wales.  He also advised that Australian alternative timber products were in lesser demand and not preferred, as the timber imported from Malaysia was good quality hardwood, which was not available locally.  The Tribunal asked Mr Davoren if the Malaysian or Sabah timber was of superior wearing qualities to that available in Australia, to which he replied "Yes, very much so". 

Mr Alex Ting (evidence by telephone)

26.     Mr Ting, who normally resides in Sydney, gave evidence from Kuala Lumpur.  He is a director of a company called Timberland Corporation Pty Ltd.  He confirmed his statutory declaration made in December 2004 as being true and correct in all its details.  Mr Ting is involved in the import and export business and had sold milk products to Mr Sia in July 2004 and August 2004.  These contracts had been arranged directly with Mr Sia by telephone.  While Mr Ting was unable to recollect exactly when negotiations for the export of these milk products commenced, he advised that there was normally a minimum of eight weeks between placing an order and the filling of the order.  Mr Ting said that it was his intention to keep providing and selling products to Mr Sia.

27.     Mr Wee asked Mr Ting who organised the shipping of the products and was informed that Mr Ting did so.  Mr Ting said he could not recall the companies to which the products were shipped in Malaysia, but thought a company called Tai Tiong.  He said that he was currently negotiating with Mr Sia regarding a further shipment of milk products.  As Mr Ting was giving his evidence by telephone from Kuala Lumpur, he did not have his business records with him. 

28.     In his statutory declaration, Mr Ting had declared that, from his experiences in dealing with Mr Sia, he believed he had keen insight and demonstrated an aptitude in business.  He was also of the opinion that Mr Sia was determined to be successful.

DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL

Mr Norman Long (Exhibit A5)

29.     Mr Norman Long is a director of Oceania Forest Products Pty Ltd, based in Dee Why, New South Wales.  In his statutory declaration dated 30 November 2004 he records that he first met Mr Sia in December 2002, after Mr Sia had approached him in relation to the prospect of importing and exporting timbers.  Between December 2002 and the date of his declaration, Oceania Forest Products had purchased timber products to a total value of A$363,094.53 from Timberlink Trading Pty Ltd.  Mr Long had always dealt with Mr Sia directly in arranging these imports.  Mr Long stated that Mr Sia was an excellent business partner, possessing both business acumen and the ability to execute well‑conceived business proposals.  It was Oceania Forest Products intention to continue business dealings with Mr Sia and Timberlink.

Ms Sue Shi Statutory Declaration (Exhibit A1)

30.     Ms Shi is the applicant's accountant and serves in the same role for his trading companies T & S Sunrise and Timberlink.  She confirmed that, on 18 October 2002, she incorporated T & S Sunrise as instructed by Mr Sia.  She said she prepared the financial reports and income tax returns for this company for 2002/2003 and 2003/2004.  Mr Sia had maintained a 50 per cent ownership interest in T & S Sunrise.  On 20 November 2003 Mr Sia sold 30 per cent of the ownership interest to his brother and has maintained a 20 per cent ownership interest in T & S Sunrise.  On or about 18 November 2003 Ms Shi had incorporated Timberlink on Mr Sia's instructions.  Mr Sia had a 90 per cent ownership interest in the company.  His son, Mr Jack Sia owns the balance of 10 per cent.  She also prepared the financial report for Timberlink for 1 November 2003 to 30 September 2004.  Ms Shi confirmed that both companies were in a sound financial position and performing well under Mr Sia’s management.  Mr Sia is actively involved in negotiating business deals for the company and in her opinion managed the day‑to‑day business operations of the company.

Annexures to the Applicant's Statement of Facts and Contentions

31.     The applicant had provided approximately 900 pages of supporting documentation, which included letters of introduction from his companies to various Malaysian companies in the pursuit of export trade; various reports, financial, banking and taxation from both companies; evidence of incorporation of the companies; supporting documentation from the applicant's Malaysian accountant, Ernst & Young; audits, receipts, stock lists and bills of lading of various dealings; and records relating to his purchase of a property in Box Hill.  This documentation is best summarised by the attachment to Mr Sia's statutory declaration, which states as follows:

…

[Transactions between T & S Sunrise and KPHT]

11.T & S Sunrise sells the imported wood products to Sunshine Wood Products (Queensland). Up to 30 November 2003, T & S Sunrise had sold the imported wood products to Sunshine Wood Products (see S.37 Document paged 200‑216):

Date	Invoice Number	Amount (USD $)		Exchange rate on receipt	Amount (AUD $)		Sales (AUD $)		Commission Received (AUD $)
18/03/2003 27/07/2003 16/04/2003 04/06/2003 25/06/2003 01/08/2005 18/08/2003 18/08/2003 04/09/2003 06/11/2003 06/11/2003 29/11/2003 27/01/2004 27/01/2004 07/02/2004 07/02/2004 27/02/2004 27/02/2004 02/04/2004 05/04/2004 15/04/2004 15/05/2004 20/05/2004 02/06/2004 02/06/2004 29/06/2004 19/07/2004 21/07/2004 05/08/2004 05/08/2004	TS‑200301 TS‑200302 TS‑200303 TS‑200304 TS‑200305 TS‑200306 TS‑200307 TS‑200308 TS‑200309 TS‑200310 TS‑200311 TS‑200312 TS‑200401 TS‑200402 TS‑200403 TS‑200404 TS‑200405 TS‑200406 TS‑200407 TS‑200408 TS‑200409 TS‑200410 TS‑200411 TS‑200412 TS‑200413 TS‑200414 TS‑200415 TS‑200416 TS‑200417 TS‑200418	$ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $	11,887.48 11,421.01 12,596.50 10,805.05 14,979.09 15,532.16 12,693.37 9,899.68 12,131.37 - 13,211.75 - 16,947.47 - - 13,504.67 13,684.90 - - - - - 14,230.90 12,788.11 17,129.11 - 16,806.72 12,778.95 15,644.46 15,874.35	0.61930 0.63690 0.66620 0.68120 0.66040 0.64330 0.65820 0.66120 0.64040 N/A 0.71700 N/A 0.76770 N/A N/A 0.76680 0.73790 N/A N/A N/A N/A N/A 0.70980 0.70570 0.68320 N/A 0.70100 0.69800 0.71840 0.69250	$ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $	19,195.03 17,932.19 18,907.99 15,861.79 22,681.84 24,144.50 19,284.97 14,972.29 18,943.43 24,107.28 18,426.43 17,260.19 22,075.64 8,309.55 8,822.26 17,611.72 18,545.74 9,065.14 27,151.18 8,751.08 26,690.27 9,523.46 20,049.17 18,121.17 25,071.88 22,564.03 23,975.35 18,307.95 21,776.81 22,923.25	$ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $	19.196.03 17,932.19 18,907.99 15,861.79 22,681.84 24,107.28 17,260.19 8,309.55 8,822.26 9,065.14 27,151.18 8,751.08 26,690.27 9,523.46 25,071.88 22,564.03 23,975.35	$ $ $ $ $ $ $ $ $ $ $ $ $	814.93 1,401.71 1,604.17 1,459.51 1,313.94 1,930.17 2,095.37 1,903.55 1,326.78 1,451.65 1,287.29 1,491.73 1,472.48
Total					$	561,053.58	$	305,816.50	$	19,553.29

The profit made in this business venture for the 18 March 2003 to date is approximately AUD $46,591.22 (ie total sales minus total purchases amount). In addition to that, the company also received a total commission of AUD $19,553.28.

Annexed hereto and marked with the letter "D" is certified copies of the tax invoices and receipts for the some of payment received from the buyer for the period until to date.

These tax invoices and letter from the buyer support the above propositions that there has been an ongoing business relationship between Sunshine Wood Products and T & S Sunrise.

T & S Sunrise and RUS Pty Ltd (Queensland)

12.On 14 August 2003, T & S Sunrise purchased and exported processed food products at a total value of AUD $42,756.80 from RUS Pry Ltd.

Please refer to S.37 Document pages 229-231 for a copy of the tax invoice for the purchase of goods from RDS Pry Ltd.

This tax invoice supports the above proposition that T & S Sunrise purchased the said goods from RDS Pry Ltd at the said date and that there was a business relationship between the two parties.

T & S Sunrise and Yit Thai Company (Malaysia)

13.On 29 September 2003, T & S Sunrise exported the processed food products to Yit Thai Company (Malaysia) at the total price of AUD $44,048.00 and made a profit of AUD $1,291.20.

Please refer to S.37 Document pages 218-228 for copy of the purchase order, the tax invoice to Yit Thai Company, bill of ladings, insurance certificate for the shipment and confirmation of payment received from Yit Thai Company.

These documents support the above proposition that there has been a business relationship between T & S Sunrise and Yit Thai Company.

T & S Sunrise, Perusahaan Hiong Tiong Sdn. Bhd. (Malaysia) and Sieho Import & Export Pty Ltd (Victoria, Australia)

14.On 13 July 2004, T & S Sunrise entered in to a contract to export corrugated back knives.  T & S Sunrise purchased the said product Sieho Import & Export Pry Ltd in Victoria, Australia at the cost of AUD $18,750.00.  T & S Sunrise the said product to Perusahaan Hiong Tiong Sdn. Bhd. in Malaysia at the price of AUD $19,150.00 and made a profit of AUD$400.00.

Annexed hereto and marked with the letter "E" are certified copies of the correspondence between Perusahaan Hiong Tiong Sdn. Bhd. and T & S Sunrise, purchase contract from Sieho Import & Export Pry Ltd, the purchase order from Perusahaan Hiong Tiong Sdn. Bhd.  and sale contract to Perusahaan Hiong Tiong Sdn. Bhd..

These documents support the above proposition that there has been a business relationship between T & S Sunrise, Perusahaan Hiong Tiong Sdn. Bhd. and Sieho Import & Export Pry Ltd.

Company 2: Timberlink Trading Pty Ltd

Company Registration and Ownership Interest

15.On 18 November 2003, I registered my second company in Victoria and it is known as Timberlink Trading Pty Ltd hereinafter referred to as "Timberlink Trading" (ACN 107 071 956).

16.My son, Jack Kee Thai SIA and I are the company directors for Timberlink Trading as from 18 November 2003. Since then, I hold a 90 % ownership interest in Timberlink Trading and my son holds the balance of 10% interest.

Annexed hereto and marked with the letter "F" is a certified copy of the current company search extract from ASIC, company registration certificate, Notification of the P A YG registration, Australian Business Number registration certificate and notification, and Business Activity Statement for the period from 18 November 2003 to 31 March 2004.

Day-to-day management and business associates

17.Since 18 November 2003, I am acting as the managing director of Timberlink Trading. I am the primary directing mind and will of the company.  My son (Jack Kee Thai SIA), who is studying full time in Victoria, helps me to contact buyers in Australia.  He is full­time student and he is acting under my instructions and directions.  I contact him on a regular basis to tell him what to do with the business affairs of the companies.

18.Timberlink Trading is in the business of exporting Australian products to Malaysia and importing Malaysian products to Australia.  Timberlink Trading imports wood products from Malaysia.  Timberlink Trading also exports Australian health products and safety wear.

19.Timberlink Trading has had business dealings with at least 10 other companies being: Australian Safety Wear (Victoria, Australia); Paling Construction Sdn. Bhd. (Sarawak, Malaysia); Ocean King of the Australian Antarctic Ocean Bio- Technology Pty Ltd (Victoria, Australia); ST Perfect Target (Sabah, Malaysia); Kilang Papan Hiong Tiong Sdn. Bhd. (Malaysia); Oceania Forest Products Pty Ltd (Victoria); Sunshine Wood Products (Queensland); Timberland Corporation Pty Ltd (New South Wales); RUS Pty Ltd (Victoria); and Ta Kiong Emporium Sdn. Bhd. (Sarawak, Malaysia).

Timberlink Trading, Paling Construction Sdn. Bhd. (Sarawak, Malaysia) and Australian Safety Wear (Victoria, Australia)

20.On 21 November 2003, Timberlink Trading acquired 12 pairs of safety footwear as sample for Paling Construction Sdn Bhd.  Timberlink Trading purchased the said goods from Australian Safety Wear in Victoria at the total costs of AUD $448.80 and sold them to Paling Construction Sdn Bhd in Sarawak, Malaysia at the total price of AUD$638.56.  Timberlink Trading made a profit of AUD $189.76 in this transaction.

Please refer to the letter from Timberlink Trading to Paling Construction Sdn Bhd dated 19 November 2003, the tax invoice dated 21 November 2003 for purchasing the said products from Australian Safety Wear and tax invoice dated 22 November 2003 to Paling Construction Sdn Bhd (see S.37 Document pages 324-326).

These documents support that there was an export transaction from Timberlink Trading to Paling Construction Sdn Bhd and that it was a business relationship between the parties.

Timberlink Trading and Ocean King of the Australian Antarctic Ocean Bio-Technology Pty Ltd (Victoria, Australia)

21.Timberlink Trading also exports Australian health and pharmaceutical products.  On 12 December 2003, Timberlink Trading purchased the Australian health products at the total value of AUD $2,098.80 from Ocean King' of the Australian Antarctic Ocean Bio‑Technology Pry Ltd in Box Hill, Victoria, Australia.

Please see S.37 Document page 323 for a copy of the tax invoice for the purchase of goods from Ocean King of Australian Antarctic Ocean Bio‑Technology Pry Ltd.

This tax invoice supports the above proposition that Timberlink Trading purchased the said goods from Australian Ocean King of the Australian Antarctic Ocean Bio‑Technology Pty Ltd at the said date and that there was a business relationship between the two parties.

Timberlink Trading and ST Perfect Target (Sabah, Malaysia)

22.On 18 December 2003, Timberlink Trading exported the Australian health and pharmaceutical products to St Perfect Target in Sabah, Malaysia at the total price of AUD $3,168.00 and made a profit of AUD $1,070.00.

Please refer to the Export Air Booking Confirmation, bill of ladings, forwarding instruction, tax invoice from the freight services provider and tax invoice to St Perfect Target: see S.37 Document pages 114-117,322.

These documents support the above proposition that there has been a business relationship between Timberlink Trading and ST Perfect Target.

Timberlink Trading and Kilang Papan Hiong Tiong Sdn. Bhd. (Malaysia)

23.Timberlink Trading imports wood products from Kilang Papan Hiong Tiong Sdn. Bhd. in Malaysia.  From November to date, Timberlink Trading has entered into the following transactions to purchase the wood products from KPHT:

Date	Invoice Number	Amount (USD $)		Exchange rate on receipt	Purchase Amount (AUS $)		To be sold by Commission (AUD $)
13/12//2003 18/12/2003 27/01/2004 10/02/2004 28/02/2004 28/02/2004 28/02/2004 20/03/2004 07/04/2004 17/04/2004 05/05/2004 17/05/2004 15/05/2004 20/05/2004 12/06/2004 22/06/2004 29/06/2004 05/08/2004	HT‑14703 HT‑14903 HT‑01604 HT‑02004 HT‑02640 HT‑02804 HT‑02904 HT‑03904 HT‑05804 HT‑06004 HT‑07604 HT‑08404 HT‑08204 HT‑08804 HT‑10104 HT‑10704 HT‑12004 HT‑13604	$ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $	14,689.48 11,141.32 11,990.74 11,349.35 27,298.33 9,795.14 10,028.70 11,968.61 12,094.59 23,225.48 12,460.97 11,389.58 14,808.15 10,897.82 11,938.94 24,573.15 13,165.88 26,594.91	0.77320 0.76500 0.73820 0.74420 0.76670 0.75080 0.74210 0.73370 0.68590 0.70950 0.73150 0.69370 0.69370 0.69240 0.68470 0.68640 0.69950 0.69950	$	18,998.29	$ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $	14,563.82 16,243.21 15,250.40 35,604.97 13,046.27 13,513.95 16,312.68 17,633.17 32,735.00 17,034.82 16,418.60 21,346.62 15,739.20 17,436.75 35,800.40 18,821.84 38,019.89
Total Purchase Value					18,998.29	$	355,521.21

Annexed hereto and marked with the letter "G" are certified copy of the journal voucher, tax invoice for the purchase of goods from KPHT, packaging list, bills of landing and evidence of the money paid by Timberlink Trading to KPHT.

These documents support the proposition that Timberlink Trading purchases the said goods from KPHT at the said dates and that there is an on-going business relationship between the two parties.

Timberlink Trading and Oceania Forest Products Pty Ltd (New South Wales)

24.Timberlink Trading sells the imported wood products to Oceania Forest Products Ply Ltd (New South Wales) and Sunshine Wood Products (Queensland).  From November 2003 until to date, Timberlink Trading has sold the imported wood products to Oceania Forest Products Ply Ltd as follow:

Date	Invoice Number	Amount (USD $)		Exchange rate on receipt	Amount (AUD $)		Sales 1 (AUD $)		Commission Received 1 (AUD $)
26/01/2004 10/02/2004 28/02/2004 28/02/2004 28/02/2004 20/03/2004 07/04/2004 17/04/2004 05/05/2004 15/05/2004 17/05/2004 20/05/2004 12/06/2004 22/06/2004 29/06/2004 05/08/2004	TBLO0104 TBLO0204TBLO0304 TBLO0404 TBLO0504 TBLO0704 TBLO0604 TBLO0904 TBL01004 TBL01204 TBL01104 TBL01304 TBL01404 TBL01504 TBL01604 TBL01704	$ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $	13,344.53 12,630.73 30,147.80 11,804.03 11,658.06 13,005.26 13,039.48 24,740.06 13,116.81 15,820.07 12,050.39 11,603.12 12,705.40 26,101.09 13,913.62 -	0.73780 0.74380 0.76852 0.75030 0.75440 0.73370 0.68590 0.70950 0.73150 0.69370 0.69370 0.69240 0.68470 0.68640 0.69950 N/A	$ $ $ $ $ $ $ $ $ $ $ $ $ $ $	18,086.92 16,981.35 39,228.39 15,732.41 15,708.53 17,725.58 19,010.76 34,869.71 17,931.39 22,805.35 17,371.18 16,757.83 18,556.16 38,026.06 19,890.81 28,138.56	$ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $	1,833.71 1,720.95 3,613.42 2,676.14 2,194.58 1,412.90 1,377.59 2,134.71 896.57 952.58 1,458.73 1,018.63 1,1119.41 2,226.02 1,068.97 2,206.79
Total					$	356,820.99	$	NIL	$	27,911.70

Annexed hereto and marked with the letter "H" are certified copies of tax invoice to Oceania Forest Products Pry Ltd, packaging list, bank confirmations of the payment made by Oceania Forest Products Pry Ltd to Timberlink Trading.

Please also refer to the correspondence between Mr Gary Daveron of Oceania Forest Products Pry Ltd and I; purchase order from Oceania Forest Products Pty Ltd; bills of lading; tax invoice to Oceania Forest Products PtyLtd and packing list: see S.37 Document pages 118-136.

These documents support the above proposition that there has been a business relationship between Timberlink Trading and Oceania Forest Products Pty Ltd.

Timberlink Trading and Sunshine Wood Products (Queensland)

25.In December 2003, Timberlink Trading also sold the wood products to Sunshine Wood Products as follow:

Date	Invoice Number	Amount (USD $)		Exchange rate on receipt	Amount (AUD $)		Sales 2 (AUD $)		Commission Received 2 (AUD $)
13/12/2003 18/12/2003	TBL00103 TBL00203T	$ $	15,772.07 12,726.08	0.59790 0.77220	$ $	26,380.42 16,480.29	$	26,380.42	$	1,916.47
Total					$	42,860.71	$	26,380.42	$	1,916.47

Annexed hereto and marked with the letter "I" are certified copy of the letter between Timberlink Trading and Sunshine Wood Products; bills of lading; tax invoice to Sunshine Wood Products and packing list. See also S.37 Document pages 293-305.

These documents support the above proposition that there has been a business relationship between Timberlink Trading and Sunshine Wood Products.

26.Timberlink Trading made a profit of AUD $7,382.13 (total sale 2 minus total purchase value) in the transactions of importing wood products from Malaysia and selling the wood products to Sunshine Wood Products.  In addition to that, Timberlink Trading also received a total commission of AUD $29,828.17.

Timberlink Trading, Timberland Corporation Pty Ltd (New South Wales) and Ta Kiong Emporium Sdn. Bhd. (Sarawak, Malaysia)

27.On 14 July 2004, Timberlink Trading purchased dairy products (UHT Milk) at a total value of AUD $20,522.66 from Timberland Corporation Pty Ltd in New South Wales (hereafter refer to as Timberland Corporation) for the purpose of exporting the goods to Malaysia.

28.Timberlink Trading exported the dairy products (UHT Milk) to Ta Kiong Sdn. Bhd. in Sibu, Sarawak, Malaysia at the total price of AUD $21,533.79 and made a profit of AUD $1,011.13.

Annexed hereto and marked with the letter "J" are certified copies of the tax invoice for the purchase of goods from Timberland Corporation, letter from Timberland Corporation and bank confirmation of the money paid by the purchaser.

This tax invoice supports the above proposition that Timberlink Trading purchased the said goods from Timberland Corporation at the said date and sold the goods to Ta Kiong that there exists a business relationship between the parties.

29.On 5 August 2004, Timberlink Trading acquired second lot of dairy products (UHT Milk) at a total value of AUD $22,640.72 from Timberland Corporation.

30.Timberlink Trading exported the dairy products (UHT Milk) to Ta Kiong Sdn. Bhd. in Malaysia at the total price of AUD $23,772.76 and made a profit of AUD $1,132.04.

Annexed hereto and marked with the letter "K" are certified copies of the tax invoice for exporting the goods to Ta Kiong Sdn. Bhd. and tax invoice for the purchase of goods from Timberland Corporation.

This tax invoice supports the above proposition that Timberlink Trading acquired second lot of the goods from Timberland Corporation at the said date and sold the goods to Ta Kiong that there exists a business relationship between the parties.

Timberlink Trading, RUS Pty Ltd (Queensland) and Ta Kiong Emporium Sdn. Bhd. (Sarawak, Malaysia)

27.On 22 March 2004, Timberlink Trading purchased processed food products at a total value of AUD $48,948.21 from RUS Pty Ltd. Timberlink Trading exported the said product to Ta Kiong Emporium Sdn. Bhd. in Sarawak, Malaysia at the total price of AUD $50.556.16 and made a profit of AUD $1,607.95.

Annexed hereto and marked with the letter "L" are certified copies of the tax invoice for the purchase of goods from RUS Pty Ltd and bank confirmation of the money paid by the purchaser.

These documents supports that there is an export transaction from RUS Pty Ltd to Timberlink Trading and to Ta Kiong emporium Sdn. Bhd. and that exists a business relationship between the parties.

Steel Strapping

28.Timberlink Trading also seeking to export Australian steel strapping. I have obtained a quotation and am negotiating business deals with some Australian suppliers of steel strapping such as Packstrap International, Venuspack and Chep Pallets.

Annexed hereto and marked with the letter "M" are certified copy of the correspondence between Timberlink Trading and Venuspack and Packstrap International as well as my business notes of contacting the suppliers.

Eligible Business - "Company Financial" - Suewin Business Associates

29.Suewin Business Associates and specifically, Ms Sue Shi, being a Certified Practising Accountant handles the Company financials; she prepares the Financial Reports and Income Tax Return for T & S Sunrise and Timberlink Trading.

30.T & S Sunrise achieved considerable growth under my management as evidenced by the following turnover figures (based on the financial year):

·   28/10/2002 - 30/06/2003  AUD $    2,850.00;

·   01/07/2003 - 30/06/2004  AUD $ 212,072.00;

Please note that from 1 July 2003 to 30 June 2004, T & S Sunrise has completed the import sales of a total value of AUD $154,113.00, export sales of the value of AUD $44,048.00 and sales commission of $13,911.00.

Annexed hereto and marked with the letter "N" is a certified copy of the financial report of T & S Sunrise for the financial year ending 30 June 2004.  See also S.37 Document pages 138-147 for the Interim Financial Report of T & S Sunrise ending 30 November 2003.

31.Timberlink Trading has also achieved considerable growth since its inception asevidenced by the following turnover figures:

·   18/11/2003 - 30/09/2004  AUD $ 204,699.00

Annexed hereto and marked with the letter "O" is a certified copy of the Interim Financial Report of Timberlink Trading ending 30 September 2004

Please note that from 18 November 2003 to 30 September 2004 Timberlink Trading has completed the export sales of AUD $100,698.00, import sales of AUD $114,396.00 and sales commission of $25,110.00.

32.T & S Sunrise has two bank accounts as follows:

·   ANZ Bank (Box Hill Branch)

Account Type: Business Cheque Account

Account No. 1096-36117

Balance as at 16 June 2004............... AUD $  66,608.79

·   ANZ Bank (Box Hill Branch)

Account Type: Foreign Currency Account
     Account No. 865972-00001
     Balance as at 3 May 2004 is
     USD$15,148.50 at the exchange rate of

1 USD = 1.38621 AUD....................... AUD $  20,999.00

Total cash deposits............................... AUD $  87,607.79

Annexed hereto and marked with the letter "P" is certified copy of the Bank Statements from the ANZ Bank Accounts.

33.      Timberlink Trading has the following bank account:

·   ANZ Bank (Box Hill Branch)

Account Type: Business Cash Management Account
     Account No. 013-225 1079-18073

Balance as at 21 July 2004................. AUD $  36,099.13

Total cash deposits  AUD $  36,099.13

Annexed hereto and marked with the letter "Q" is certified copy of the Bank Statements from the ANZ Bank Account.

Current Assets in Australia

34.As at 30 June 2004, my business net asset in T & S Sunrise is $5,203.20, as follow:

Loan to the T & S Sunrise................................. $ 2,806.00

20% share of the company net equity

(20% of $11,986.00).......................................... $ 2,397.20

Total business net asset in T & S Sunrise............... $ 5,203.20

35.As at 30 September 2004, my business net asset in Timberlink Trading is $225,282.40 as follow:

Loan to the Timberlink Trading..................................... $  197,899.00

90% share of the company net equity

(90% of $30,426.00)..................................................... $    27,383.40

Total business net asset in Timberlink Trading      $  225,282.40

36.My brother and I purchased a property at 77 Albion Street, Box Hill 3128 in Victoria at the purchase price of AUD $417,777.00.  The property is registered in our joint names and it is subject to a mortgage.  The mortgage has a balance of AUD $270,571.86 as at 10 August 2004.  My share in the property, less the mortgage, is approximately AUD $73,602.57.

Annexed hereto and marked with the letter "R" are certified copies of the Contract of Sale, letter from our solicitor, letter from the ANZ Bank (mortgagee), and loan statements.  See also S.37 Document pages 335-338.

37.My brother and I have a joint-named bank account with ANZ bank (Box Hill; Account No. 013-225 5125-73769) which has a balance of ADD $6,759.53 as at 31 May 2004. My share of the account is ADD $3,379.75 as at 31 May 2004.

Annexed hereto and marked with the letter "S" is certified copy of the bank statements.

38.      I currently have a total assets of approximately AUD $307,468.22 in Australia:

Net business asset in T & S Sunrise           AUD $    5,203.50
Net business asset in Timberlink Trading     AUD $ 225,282.40
Real Estate Property Ownership                 AUD $  73,602.57
Personal Cash deposit  AUD $    3,379.75

Total assets in Australia  AUD $ 307,468.22

39.In addition to the monies invested in my business in Australia, I have also transferred an estimated amount of AUD $191,858.57 to Australia being the settlement monies since I was granted a Subclass 127 visa in January 2001 until to date:

Account	Date	Amount Transferred		My snare or me Monies transferred
ANZ (Box Hill Branch) NC No :013‑225 5125‑73769	05/02/2003 07/02/2003 21/02/2003 13/03/2003 20/08/2003 28/01/2004 09/03/2004 09/03/2004 11/03/2004 15/03/2004 13/04/2004 12/05/2004 11/06/2004 16/06/2004 28/06/2004 12/07/2004 03/08/2004 31/08/2004	$ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $	79,992.00 83,895.05 34,203.97 70,592.00 11,352.00 5,000.00 2,750.00 4,499.00 4,000.00 10,000.00 5,000.00 9,000.00 10,000.00 5,000.00 10,000.00 20,000.00 10,000.00 8,433.11	$ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $	39,996.00 41,947.53 17,101.99 35,296.00 5,676.00 2,500.00 1,375.00 2,249.50 2,000.00 5,000.00 2,500.00 4,500.00 5,000.00 2,500.00 5,000.00 10,000.00 5,000.00 4,216.56
Total	$	383,717.13	$	191,858.57

Annexed hereto and marked with the letter "T" are certified copies of the credit statements from the bank accounts in Australia.

Genuine Effort and Summary

40.I believe that Timberlink Trading is and has been operating successfully as an importer and exporter in Australia. The nature of the import/export business requires both a buyer and seller.

41.I am responsible for travelling to Malaysia and am stationed there to:

·   negotiate with the buyer to ascertain their requirements of the products; negotiate with the supplier regarding the products' specifications, price and shipment schedules;

·   order the products in accordance with the buyer's requests;

·   arrange freight services for shipments of the products;

·   authorise freight services providers to arrange for insurance, shipping and organising bills of lading; and

·   inspect the supply of goods to ensure the goods fulfil the buyer's requests.

42.My roles and duties as a company director have been outlined above and can be further evidenced in correspondence between the other directors and my business associates.  My own presence in Malaysia is inextricably linked to the day-to-day running of such a business.  In order to source the suppliers/buyers who are based in Malaysia, I naturally had to return there and assume the same duties as a managing director.

RELEVANT LEGISLATION

32. Section 134(1) of the Act provides:

134(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.

33.     Section 134(2) of the Act provides:

134(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.

34.     Section 134(3) of the Act provides:

134(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).

35.     Section 134(9) of the Act provides:

134(9)     The Minister must not cancel a business visa under subsection (1), (3A) or (4) unless a notice under section 135 was given to its holder within the period of 3 years commencing:

(a)…

(b)if its holder was not in Australia when he or she was first granted a business visa—on the day on which its holder first entered Australia after that first visa was granted.

36.     Section 134(10) of the Act defines 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. 

MIGRATION SERIES INSTRUCTION 133

37.     The Migration Series Instruction N° 133 (MSI) Visa Cancellation Under Subdivision G ‑ Cancellation of Business Visas (the Guidelines) are Ministerial Guidelines which provide guidance to the respondent on the cancellation of business visas.  While such guidelines are not binding on the Tribunal, they are included here to elucidate the respondent's approach to the decision to cancel Mr Sia's business visa. 

38.     Paragraph 4.5.1 of the MSI , entitled "What is a 'genuine effort'?", notes that:

4.5.1If, after 24 months, a migrant is not in business, he/she must establish that a "genuine effort" has been made to engage in business since arrival.  The Minister must assess "genuine effort".  S 134(3) of the Act lists any or all of the factors which the Minister may take into account:

(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 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 s 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).

SUBMISSIONS

The Applicant

39. The applicant submitted that the cancellation of a business visa under s 134 of the Act is a two stage process. First, the decision-maker must be satisfied that one or more of the grounds set out in s 134(1)(a) to (c) exist. If one, or more, of the grounds does exist, before cancelling the business visa the decision‑maker must then go to s 134(2) which deals with the concept of "genuine effort". Even if an applicant fails to meet the provisions of s 134(1) and s 134(2), the decision‑maker still has an overall discretion not to cancel the business visa (MSI 133 Visa Cancellation Under Subdivision G at para 4.5.2 and KimvMinister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 3138 AAR 304). The applicant also relied on MSI 133 at paragraph 7.5.3 where it is stated :

7.5.3       Visa cancellations usually have serious consequences for the visa holder.  Officers must therefore ensure that they have a high standard of proof that non-compliance with Subdivision G occurred and that the evidence gathered is sufficient to support a decision to cancel. …If officers are not convinced that visa cancellation is appropriate or warranted, as a matter of policy the visa holder is to be given the benefit of the doubt.  In addition, the power to cancel a business visa arises if, and only if, the holder as a matter of law is a person referred to in subsection 134(1), (3A) or (4).…

40.     The applicant submitted that, while the Tribunal is primarily concerned with the position as at the date of cancellation (in this case 14 May 2004), it is nevertheless relevant to look at activities since that date (Re Lau and Minister for Immigration and Multicultural Affairs [2002] AATA 703; Re ChenandOrs and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 628; Re Griffiths and Migration Agents Registration Authority [2001] AATA 240).

41.     In Re Tang and Minister for Immigration and Multicultural Affairs [2000] AATA 997, the Tribunal stated (at para 9):

….The ordinary principles of administrative review apply.  It is the function of this Tribunal to deal with the question having regard to the evidence put before it at the time and having regard to all facts and circumstances that have occurred up until the date of the hearing.

Mr Gilbert pointed out that, while the decisions of the Tribunal in the past have been somewhat conflicting, the applicant relied on the decision of Deputy President Estcourt QC in Re Angkadjaja and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 699, who, at paragraph 11, said:

In arriving at the correct or preferable decision the Tribunal must have regard to evidence of circumstances that existed as at the date of cancellation of the visa, although evidence of activities and transactions occurring after the date of cancellation may be considered to the extent they are relevant to establish intentions or the likelihood of certain outcomes as at the date of cancellation…

In addition, the definition of eligible business in s 134(10) requires that the decision‑maker reasonably believe that the business is resulting or will result in one or more of the relevant criteria occurring, and some assessment of the future is, therefore required.  Mr Gilbert submitted that the delineation of activities before and after the cancellation of Mr Sia's business visa can be equivocal.  He said that this can be evidenced by Mr Sia entering into export negotiations and placing orders with Mr Ting prior to the cancellation of his business visa, although the actual delivery of the export goods did not occur until after the cancellation.

42.     Mr Gilbert submitted that the applicant's 50 per cent share in T & S Sunrise, between 18 October 2002 and 30 November 2003, and his 90 per cent share in Timberlink, from 30 November 2003 to the present time, satisfied the s 134(1)(a) requirement of substantial ownership interest.  He cited Re Wong and Minister for Immigration and Multicultural Affairs [2002] AATA 54, where a 25 per cent share in a business was held to be a substantial ownership interest; and Re Gumulia and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1174, where it was conceded that a 1/3 share in a business met the substantial ownership requirement.  Mr Gilbert pointed out that the ownership interest in relation to a business is defined in s 134(10))(a) of the Act as "(a) a shareholder in a company that carries on the business" and that there is no mention in the Act of any relationship between substantial ownership interest and the net value of the company. 

43.     Mr Gilbert submitted that T & S Sunrise and Timberlink were eligible businesses as they satisfied s 134(10)(a) to (c) of the Act, in that these businesses were developing business links with the international market, created or maintained employment in Australia and exported Australian goods.  While the number of export sales has been limited and the monetary value of these sales small, MSI 133, at paragraph 4.3.2, states "Eligibility relates, therefore, to the achievement of stated objectives through the activities of the business, not directly to the size or scale of the business…".  Mr Sia's business, according to the accounting records, had been conducted for the purpose of profit, and continuity and regularity (Re Tang, and Hope v Bathurst City Council (1980) 29 ALR 577). Mr Gilbert further submitted that the applicant's business had taken time to develop and the lack of activity between January 2001 and October 2002 was caused by the applicant having to devote time to researching overseas markets. As a result, no actual exports took place during that time, although the applicant had imported hardwood timbers from Sabah.

44.     Despite the applicant's residence in Australia for only 53 days during a three‑year period, it is apparent from the evidence that he has had the day‑to‑day management of the company; most of which is conducted by telephone and other forms of international communication.  The respondent has conceded that Mr Sia utilises his skills and actively participates at a senior level in the day‑to‑day management of the business.  Currently the value of the imports by Timberlink exceeds the value of the exports by a considerable margin.  The applicant attributes the low volume of exports to events beyond his control, namely the falling value of the Malaysian currency (ringgit), the SARS epidemic and the war in Iraq.

45.     The applicant acknowledged that the companies did not employ Australians in the conduct of the business, but he submitted that, by taking a more global view, his business activities, in particular the trade with Oceania Forest Products, contribute to the competitiveness of that company and its employment of Australians in Australia. 

46.     Mr Gilbert submitted that should the Tribunal consider that either of the grounds in s 134(1)(a) or s 134(1)(b) of the Act were satisfied, there is evidence, both before and after the time of cancellation of the applicant's business visa, that the applicant has made genuine efforts within the meaning of s 134(2)(a) and s 134(1)(b); and that he intends to continue to make such efforts (s 134(2)(c).  Subsequent to the visa cancellation, the applicant has continued to conduct the   export business (Bretag v Immigration Review Tribunal, Federal Court, 29 November 1991).  In addition, he submitted, the applicant has satisfied the MSI 4.5.1(g) and (i), requiring a minimum of A$100,000 worth of business activity.

47.     Mr Gilbert further submitted that the applicant was an experienced businessman who was not prepared to pursue unprofitable transactions and where a transaction proved to be unprofitable he directed his attention to other areas of export potential.

48.     At the completion of the submissions Mr Gilbert advised the Tribunal that Mr Long's statutory declaration was incorrect with regard to the dates mentioned in paragraph 5.  December 2002 until to date should read December 2003 until to date.

The Respondent

49.     Mr Wee submitted that the applicant had not provided sufficient evidence to demonstrate that T & S Sunrise or Timberlink were eligible businesses in Australia; that the applicant does not continue to have a substantial ownership of T & S Sunrise (now at 20 per cent); and that a genuine effort had not been made in respect of Timberlink, as required by s 134 of the Act.  The major activity of T & S Sunrise and Timberlink had been the importation into Australia of timber and timber products from the applicant's business in Malaysia.  As such, Mr Wee argued, these imports did not develop international business links as considered in Re Tang; and Re Haryantoand The Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 317. The exports by both companies had been single events relating to the export of dairy products, foodstuffs, safety work boots, fish oil, pharmaceuticals and knives (for sawmilling purposes), some of which occurred after the cancellation of the applicant's business visa. It was submitted that it could not be said that the import of goods from Australia to Malaysia had been conducted with continuity and regularity (Re Tang). 

50.     The respondent submitted that expthe applicant's Malaysian company did not lead to the development of business links with the international market and that both companies were in effect operating as intermediaries for Mr Sia's Malaysian company.  In addition, the major exports of dairy products in July and August 2004 had occurred after the cancellation of Mr Sia's business visa; and on the authority of Re Andiwidjaja and Ors and Minister for Immigration and Multicultural and Indigenous Affairs {2003] AATA 397 should not be taken into account except with respect to future intentions. 

51.     The respondent relied on the decision in Re Marlina and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 606, where the Tribunal concluded that the purchase and sale of two sample lots of pharmaceuticals, purchased at $3.55 and sold at $6.56, did not constitute a business let alone an eligible business.  The respondent asserted that a single export of knives for sawmilling purposes appeared to be an export to a company related to the applicant.  The Tribunal notes that Mr Sia's oral evidence was that the Malaysian company was unrelated to any of his businesses either in Australia or Malaysia.

52.     The respondent submitted a similar argument regarding the applicant's second business, Timberlink, with respect to the size and value of the consignments of fish oil, pharmaceuticals, safety work boots, various foodstuffs and inquiries relating to the exportation of steel strapping.  The respondent submitted that a single transaction with Sunshine Wood Products (Queensland) for the exportation of parquetry was, on the evidence, isolated and not ongoing.  Many of the latter exports had occurred after the cancellation of Mr Sia's business visa.  With respect to evidence of genuine effort, the respondent acknowledged that, while the applicant had made inquiries of the Victorian Employers Chamber of Commerce & Industry; the Chinese Chamber of Commerce & Industry, and Austrade; and had sent letters of introduction to Thai and Malaysian companies, these activities fell short of the requirements of s 134(2) and (3) in relation to making a genuine effort.  No business proposals such as a business forecast or market research had been provided.  In addition, the respondent submitted that there was no evidence of the transfer of significant funds to Australia. 

53.     Initially, the respondent had submitted that the Tribunal should disregard the letters of introduction and responses as these documents had been forensically examined by the document examination laboratory and were found to be of doubtful validity. 

54.     Subsequently, the respondent accepted Mr Sia's explanation for the perceived irregularity in the documentation and acknowledged the validity of the documentation.

THE TRIBUNAL'S DELIBERATIONS

55.     The Tribunal finds Mr Sia to be a credible witness and an astute businessman.  His exporting of Australian produce from Australia to Malaysia has been of small volume, varied in nature, and yielding a low profit margin.  He has clearly stated that most of these exports proved to be "of no commercial value" despite attracting a small profit.  As a result, he has searched for more viable export markets, such as sawmilling knives, safety work boots and steel strapping.  In contrast, the well and long established family company KPHT has and continues to export Malaysian (Sabah) hardwood timbers in the form of weatherboards, decking, cornices and furniture to many countries, including Australia.

56.     Mr Sia is well aware of the business visa requirement with respect to an eligible business, and on the facts before it, the Tribunal concludes that he has made continuing efforts to identify viable markets for the export of Australian products to South East Asia.

57.     The respondent has conceded that Mr Sia exerts substantial, if not sole, day‑to‑day management of the companies, T & S Sunrise until November 2003 and Timberlink thereafter, albeit predominantly by telecommunications.  The evidence of Mr Ting, Mr Sia and Mr Davoren indicates that conduct of business by telephone is common.  Indeed, Mr Ting, whose business is registered in Sydney, gave his evidence before the Tribunal by the telephone, as did Mr Davoren who was at the time working in rural Australia. 

58.     The respondent had raised the possibility of fraudulent documentation by Mr Sia with respect to his efforts to establish contacts in South East Asia, but following Mr Sia's oral evidence, the respondent conceded that his explanation was both acceptable and explanatory.

59.     The Tribunal is thus left to decide whether T & S Sunrise and Timberlink are eligible businesses in which he has a substantial interest and, if not, whether the discretion provided by s 134(2) should be exercised in his favour. 

60.     In Hope, Mason J characterised the nature of the business as "transactions were entered into on a continuous and repetitive basis for the purpose of making a profit" (at 6). 

61.     Mr Sia has interests in two incorporated entities, namely T & S Sunrise Pty Ltd and Timberlink Trading Pty Ltd, both companies being incorporated in Australia.  Since 19 October 2002, both companies have been involved in the importation of timber from Malaysia.  Between October 2002 and November 2003, T & S Sunrise exported $89,474 worth of Australian products for a profit of $7802.  Timberlink, which was incorporated on 18 November 2003, has from that date until 30 September 2004 exported Australian products to the value of $204,699 for a profit of $37,937.  On the evidence before it, the Tribunal is satisfied that the activities of these two companies constitute the carrying on of a business.  Section 134(1)(a) also requires that the business is carried on in Australia.  Both companies are incorporated in Australia.  The supporting documentation and the oral evidence before the Tribunal indicates that all purchasing of goods for export are conducted in Australia; are paid for in Australia; the profits are banked in Australia and the appropriate taxation paid in Australia.  The negotiations for these exports sales are carried out predominantly by telephone, given that Mr Sia is primarily based in Sabah, Malaysia in order to conduct his substantial business interests in that country.

62.     Section 134(10) of the Act defines the nature of an eligible business.  On the evidence the Tribunal finds that Mr Sia's business is resulting in, or will result in,

(a)       the development of business links with the international market;

(b)       …

(c)the export of Australian goods or services;

To date, the export of Australian goods has been of relatively small volume compared to the goods Mr Sia imports from Sabah.  In addition, the nature of the goods exported has varied and some of the more recent export sales occurred after the cancellation of Mr Sia's business visa.  In August and again in September 2003, T & S Sunrise exported two shipments of foodstuffs and in July 2004 (after the cancellation of the business visa) a small volume - in the nature of a sample – of knives used for sawing timber products.  The knives were not exported to Mr Sia's Malaysian‑based company. 

63.     In November 2003 and December 2003 Timberlink exported two shipments of health and pharmaceutical products, and in November safety work boots, again in a small volume (and as a sample sale).  In April 2004 a single export of food products from Australia to Sabah occurred.  Dairy products were exported in July and August 2004 after cancellation of Mr Sia's business visa.  However, the evidence before the Tribunal was that the negotiations for the purchase of these dairy products occurred prior to the cancellation of Mr Sia's business visa.  Mr Sia has also been negotiating to export steel strapping.  Mr Sia has explained the variation in the nature of his exports, resulting from changing circumstances such as the devaluation of the ringgit against the Australian dollar, the SARS epidemic and the war in Iraq, all of which impacted on the profitability of such exports. 

64.     In his evidence before the Tribunal, Mr Sia, on several occasions, indicated he was not prepared to persist with the line of exports that proved to have no commercial value.  The respondent submitted that the volume of exports by T & S Sunrise and Timberlink has been below the $100,000 business activity turnover recommended in MSI 133 and that many of the exports have been to companies owned or associated with Mr Sia, to an extent that the role played by Mr Sia's companies — T & S Sunrise and Timberlink — have been those of an intermediary.  The Tribunal notes that Mr Sia has a lengthy experience in the import and export business and in many instances his companies play an intermediary role.  From his evidence, it was obvious that Mr Sia intended to pursue economically viable exports from Australia. 

65.     The respondent also suggested that other more profitable forms of business might be pursued by the applicant.  However, given Mr Sia's some 30 years in the import/export area and the business acumen he has developed in this area, the Tribunal is of the opinion that his efforts will, with time, satisfy more of s 134(10) criteria.

66.     Initially, Mr Sia intended to concentrate on the export of health and pharmaceutical products.  However, this was thwarted by the Malaysian Government requirement that only a certified pharmacist could be involved in the importation to Malaysia of such products.  The Tribunal notes that Mr Sia's son Jack, who has a 10 per cent in Timberlink, is currently completing his practical year and that he, at the end of 2005, will have Australian certification as a pharmacist which may meet the Malaysian Government requirements.

67.     At the time of the incorporation of T & S Sunrise, Mr Sia had a 50 per cent interest in the company with his brother.  Having established Timberlink on 18 November 2003, Mr Sia reduced his holding in T & S Sunrise from 50 per cent to 20 per cent.  In Re Wong the Tribunal determined that a 25 per cent ownership was considered to be substantial and in Re Ong and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 178 Senior Member Allen considered a 12.25 per cent holding also to be a substantial ownership of a business. Since the incorporation of Timberlink, Mr Sia's transactions have been mainly through Timberlink, in which he has a 90 per cent ownership. The Tribunal finds that Mr Sia has a substantial interest in both companies.

68.     The respondent submitted that Mr Sia's presence in Australia for 53 days during the three‑year period, from January 2001 to January 2004, does not meet the guidelines proposed in MSI 133.  MSI 133 recommends a six‑month period when assessing whether the business visa holder has participated in the day‑to‑day management of the business at a senior level.  While the Tribunal notes the decisions in Re Tang, and Re Widjojo and Minister for Immigration and Multicultural Affairs [2001] AATA 774, the respondent has conceded that the applicant, on the evidence, does participate at a senior level in the day‑to‑day management of the business.

69.     While the Tribunal is of the opinion that Mr Sia's business will, with time, meet the criteria of eligibility of a business, it is not convinced that it had done so at the time of the cancellation of the business visa.  Therefore, the Tribunal must consider the application of s 134(2) to the evidence before it.  This of course relates to whether the applicant has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and has made a genuine effort to utilise his or her skills in actively participating at a senior level in the day‑today management of that business; and whether he intends to continue to make such genuine efforts.  MSI 133 provides guidance as to what is a "genuine effort".  Paragraph 4.5.1 states:

4.5.1If, after 24 months, a migrant is not in business, he/she must establish that a "genuine effort" has been made to engage in business since arrival.  The Minister must assess "genuine effort".  S 134(3) of the Act lists any or all of the factors which the Minister may take into account:

(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 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 s 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).

[Notes referring to factors listed above.  Decision makers may take account of these notes to guide them in interpretation of 4.5.1.

a.business proposal which is considered genuine, realistic and achievable;

b.formal contract with partners or joint venturers;

c.written evidence of detailed consultations with at least three business advisers (accountant, lawyer, bank/financial institution, State/Territory government business development office, Austrade, business/trade association);

d.physical presence in Australia for more than six months since first arrival as a Business Skills class migrant;

e.transferred to, and retained in, Australia at least 50% of the funds indicated as available for transfer within two years (under Factor 4 of the Business Skills Points test);

f.minimum A$100,000 or 10% ownership previously held by the person.  If the person is no longer in business, the reasons for loss of ownership are also relevant.

g.minimum A$100,000 business activity as indicated by turnover.  This may include other business activity not considered "eligible business" but cannot include passive investment, eg, purchase of shares.

h.failure to comply with a notice for information under s 137, ie mandatory monitoring of Australian address and return of survey forms.].

Paragraph 4.5.2 states:

4.5.2While failure to meet one or more of these indicators 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.

70.     While MSI 133, as a policy document, is not binding on the Tribunal, it does provide the basis for the Tribunal’s analysis.  The Tribunal finds that s 134(3)(c), (e), (f) and (g) are satisfied.  There was no evidence of business proposals that have been developed in a documentary form (s 134(3)(a)); while originally and perhaps continuingly, Mr Sia was in partnership with his brother in T & S Sunrise, no evidence has been led on this particular point (s 134(3)(b)).  With reference to MSI 133 (4.5.1(c)), Mr Sia has provided evidence of consultations with accountants, banks, government business development officers, Austrade and letters of introduction to potential overseas‑based purchasers of Australian products.  While the business activity in the 12 months to November 2003 did not reach the recommended target by some A$11,500, it has exceeded that in the following 10‑month period.

71.     Mr Sia has, certainly belatedly, complied with the 24‑month survey form information request, having been sent these forms on 17 November 2002, 7 March 2003 and 19 December 2003.  A reply was not received until 18 December 2003 and the reply was lodged by Mr Sia's migration agent.  Form 1010 was completed by Mr Sia and supported by documentation relating to the business activities of T & S Sunrise.  The applicant had stated that he did not receive any of the 24-months survey forms; and it was only after a departmental officer contacted his then migration agent, that Mr Sia was given until 30 December 2003 to submit his survey form. 

72.     The Tribunal notes that, since February 2003, Mr Sia's address in Australia has been 77 Albion Street, Box Hill.  This is also the address of the incorporated companies.

73.     On balance, the Tribunal finds that Mr Sia has made a genuine effort to engage in business since he received his business visa and arrived in Australia on 26 January 2001.  The lack of business activity between this date and October 2002 is satisfactorily explained by Mr Sia as being a time when he was making contacts in South East Asia and assessing the potential export of Australian products.  It is obviously his intention to continue to explore and access export markets in the areas of his expertise and also to spend more time in Australia in the future.  The Tribunal has considered Mr Sia's business activities after the date of cancellation of his business visa, although some of these negotiations for export commenced prior to cancellation.  The post‑cancellation exports have been considered only with respect to the applicant's intent to continue and expand his export business in Australia (Re Lau; Re Lala; and Re Haman and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1113.

74.     In all of the above circumstances, the Tribunal finds that the applicant's business visa should not have been cancelled and the decision of the delegate of the Minister is therefore set aside.  While the secondary visa holders were not parties to this application, their secondary visas remain valid.

DECISION

75.     The Tribunal sets aside the decision under review.  The applicant's Subclass 127 Business Visa should not have been cancelled and thus remains valid.

I certify that the seventy‑five [75] preceding paragraphs are a true copy of the reasons for the decision herein of

Miss E.A. Shanahan, Member

(sgd)     Catherine Thomas
             Clerk

Date of Hearing:  18 February 2005

Date of Decision:  03 June 2005
Counsel for the applicant:             Mr G. Gilbert
Solicitor for the applicant:             Chua Ran & Associates

Solicitor for the respondent:         Mr B. Wee, solicitor, Australian Government Solicitor