Silver and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 994

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 994

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   A2003/221

GENERAL ADMINISTRATIVE DIVISION		)
Re		MARTIN SILVER

Applicant

And MINISTER for IMMIGRATION and MULITCULTURAL and INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal   J.W. Constance, Senior Member

Date  10 October 2005

Place  Canberra

Decision The decision of the Minister for Immigration and Multicultural and Indigenous Affairs made on 7 August 2002 to cancel the subclass 128 (Senior Executive) visa held by Mr Silver is affirmed.

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CATCHWORDS

IMMIGRATION AND CITIZENSHIP – visa – applicant held Business Skills (Migrant) class visa – whether applicant failed to satisfy requirements of s 134 of the Migration Act 1958 – applicant made no genuine effort to obtain a “substantial interest” in an eligible business - whether the Minister should exercise residual discretion not to cancel visa – no basis for discretion – decision affirmed

Migration Act 1958 (Cth)

Kim v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA 31

Re John Reed v Minister for Immigration, Multicultural and Indigenous Affairs [2004] AATA 335

REASONS FOR DECISION

INTRODUCTION

1.      Mr Silver’s Business visa was cancelled by the Minister approximately 3 1/2 years after it was granted. In that time he had moved with his family from South Africa, gained employment and made some effort towards establishing his own business as required by the conditions attached to his visa.

2.      Unfortunately, by reason of his mother’s serious illness, Mr Silver had to return to South Africa with his family indefinitely and all plans for establishing the business were put on hold. Over 12 months later the Minister cancelled the visa.

3.      Mr Silver is not in a position to return to Australia now but plans to do so within the next 2 years if he is entitled to do so.

4.      For the reasons set out I have decided that the decision of the Minister to cancel the visa should be affirmed.

FACTS

5.      I am satisfied as to the following facts on the balance of probabilities. Unless otherwise stated the findings are based on the section 37 documents (exhibit A1).

6.      Mr Silver was granted a  subclass 128 (Senior Executive) visa on 26 January 1999. This was a Business Skills (Migrant) Class visa issued under the Migration Act 1958.

7.      Mr Silver gave evidence, which I accept, of the following:

·     Mr and Mrs Silver and their children arrived in Australia on 1 May 1999 intending to live here permanently;

·     Mr and Mrs Silver purchased a home and enrolled their children in school;

·     whilst in Australia Mr Silver was employed by 2 different companies but had no proprietary interest in those companies;

·     when Mr Silver entered Australia he intended to set up a real estate business using personal computer technology to enable prospective buyers to view homes without the need to travel to each property;

·     he expected to start the business about mid 2001, but the exact date was dependent upon his gaining the necessary qualifications;

·     in early 2001 Mr Silver’s mother became ill and it became necessary for the family to return to South Africa so that Mr Silver could assist in her care;

·     Mr and Mrs Silver sold their home in March 2001 and shortly afterwards the family returned to South Africa and have continued to live there;

·     at the time Mr Silver left Australia he intended to return to live here but he had no definite plans as to when this would occur;

·     Mr Silver’s mother passed away in July 2004;

·     Mr Silver plans to return to Australia If he is able to do so within the next 2 years but cannot afford to do so at present;

8.      On the basis of Mr Silver’s evidence I am satisfied that whilst he was living in Australia he spoke to a friend, Mr Lyristakis, on a number of occasions concerning his planned business. Mr Lyristakis owns and operates a real estate business in the Canberra area. Mr and Mrs Silver intended to attend the necessary courses and to seek employment with a local real estate business but none of these things had happened by the time they left Australia.

9.      Mr Lyristakis gave evidence confirming his discussions with Mr and Mrs Silver and confirmed that he had provided them with a considerable amount of information as to setting up a real estate business. This was done on an informal basis. I accept Mr Lyristakis’ evidence.

10.     On 7 August 2002 the Minister’s delegate cancelled Mr Silver’s visa.

STATUTORY BACKGROUND

11. Section 134 of the Migration Act 1958 in part provides:

“(1)Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australian 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.

(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.

(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).”

REASONING

12.     I am satisfied that Mr Silver has not obtained a substantial interest in an eligible business in Australia. This is not in contention.

13.     I now turn to consider whether the circumstances under which the visa must not be cancelled (as set out in subsections 134(2) and (3)) have been established.

14.     I am not satisfied that Mr Silver has made a genuine effort, (either whilst living in Australia or in South Africa) to obtain a substantial interest in an eligible business in Australia. What Mr Silver did whilst in Australia amounted to no more than making enquiries as to the requirements for establishing a real estate business. These enquiries were only made of 1 person on an informal basis. Mr Silver has not commenced any training by way of courses or on-the-job experience nor has he taken steps towards fulfilling the requirements to become a registered real estate agent.

15.     I am also satisfied that Mr Silver has not developed any business proposals. Whilst there is evidence that Mrs Silver was intended to be involved in the business there is no evidence that she has taken any steps in preparation for this role.  Mr Silver’s research has been very limited despite his having been present in Australia for 2 years. There is no evidence of any assets having been transferred to Australia by Mr Silver for use in obtaining an eligible business.

Are there grounds for exercising the residual discretion not to revoke the visa?

16.     It is clear that the Minister has a discretion not to cancel a visa even though the grounds to do so are established after a consideration of subsections 134(1), 134(2) and 134(3): Kim v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 31.

17.     In this matter I am satisfied that there is no basis for that discretion to be exercised in favour of not cancelling Mr Silver’s visa. The facts I have found have considerable similarity to those found in the matter of Re John Reed v Minister for Immigration, Multicultural and Indigenous Affairs [2004] AATA 335 in which the Tribunal held that the discretion should be exercised in the applicant’s favour. However there are crucial differences. Mr Silver did spend 2 years in Australia yet little progress towards the establishment of a business was made. Even now he is not ready to return and he does not have the financial means to do so.

DECISION

18.     The decision of the Minister for Immigration and Multicultural and Indigenous Affairs made on 7 August 2002 to cancel the subclass 128 (Senior Executive) visa held by Mr Silver is affirmed.

- END OF REASONS FOR DECISION -

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member

Signed:         .....................................................................................
  Associate

Date/s of Hearing  16 August 2005
Date of Decision  10 October 2005
Solicitor for the Applicant          self-represented
Counsel for the Respondent     Avinesh Chand
Solicitor for the Respondent     Clayton Utz