Singh and Minister for Immigration and Multicultural and Indigenous Affairs
[2005] AATA 759
•9 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 759
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/446
Nº V2005/367GENERAL ADMINISTRATIVE DIVISION
Re: NAVNEET SINGH AND
TARUN SINGH
Applicants
And: MINISTER FOR IMMIGRATION AND
MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: G.D. Friedman, Senior Member
Date: 9 August 2005
Place: Melbourne
Decision:The Tribunal affirms the decisions under review.
(sgd) G.D. Friedman
Senior Member
MIGRATION ‑ business skills visa ‑ cancellation ‑ substantial ownership interest ‑ eligible business ‑ whether utilising skills in actively participating at a senior level in the day‑to‑day management of business ‑ whether intention to utilise skills ‑ secondary visa holder – whether extreme hardship
Migration Act 1958 s134(1), (2), (3), (4), (5)
Ayub and Another v Minister for Immigration and Ethnic Affairs, Federal Court, 13 December 1996, 226/1996
Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481
Kumar v Minister for Immigration and Ethnic Affairs (1997) 144 ALR 441
Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257
Re Angkadjaja and Minister for Immigration, Multicultural and Indigenous Affairs [2004] AATA 699
Re Glass and Minister for Immigration, Multicultural and Indigenous Affairs [2004] AATA 524.
Re Chen and Ors and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 628
Re Griffiths and Migration Agents Registration Authority [2001] AATA 240
Re Hindrodjojo and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 724
Re Jo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 77
Re Lala and Another and Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 209
Re Ong and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 178
Re Salim and Minister for Immigration and Multicultural and Indigenous Affairs (2002) 36 AAR 42
Re Setiawan and Minister for Immigration and Multicultural Affairs [2002] AATA 260
Re Sutandeo and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 417
Re Cheng and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 136
Re Tang and Minister for Immigration and Multicultural Affairs [2000] AATA 997
Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961
Re Widjojo and Minister for Immigration and Multicultural Affairs [2001] AATA 774
REASONS FOR DECISION
9 August 2005 G.D. Friedman, Senior Member
1. There are two applications before the Tribunal, one by Navneet Singh (the applicant) (V2004/446) and one by his son Tarun Singh (Tarun) (V2005/367), born on 18 November 1983. The applicant is seeking review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the respondent) dated 19 March 2004 to cancel his Business Skills visa (the visa) Tarun is seeking review of the decision of the respondent to cancel his visa, which he holds because he is a dependant of the applicant. Tarun is the only family member to lodge an application with the Tribunal for review of the second decision.
2. At the hearing on 4 May 2005 and 23 June 2005 Mr T. Hurley of counsel represented the applicants. Mr B. Wee, solicitor with the Australian Government Solicitor, represented the respondent.
3. The Tribunal had before it the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T22) and ten exhibits (Exhibits A1‑A10) lodged by the applicant.
BACKGROUND
4. The applicant was born on 2 September 1950 in Delhi, India and is married with two children. He lives in Mumbai, India, where he is employed by Standard Chartered Grindlays Bank Ltd (Standard Chartered) as Head of Strategy. From 1996 to 2000 he was granted a temporary resident visa as Director, Global Structured Finance, ANZ Investment Bank in Melbourne. On 18 August 2000 the applicant applied for a Business Skills (Senior Executive) visa subclass 841 to pursue a business providing financial advisory services to Australian businesses that were seeking to invest and trade in South Asia, and another business providing cultural advisory assistance for Australian universities in relation to Indian students. On 4 December 2000 the visa was granted.
5. On 8 September 2003 the applicant completed the 24 month survey of business form sent to him by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). On 17 November 2003 the Department sent a written notice of intention to cancel the applicant’s visa and the visas held by his family. On 8 January 2004 the applicant responded to the notice and stated that he was involved in four projects with Australian companies or with Australians.
6. On 19 March 2004 the respondent cancelled the visas held by the applicant and his family. On 8 April 2004 the applicant lodged an application with the Tribunal seeking review of the respondent's decision. On 4 May 2005 Tarun lodged an application for review, together with an application for an extension of time for lodging the application. The Tribunal granted an extension of time to that date.
7. The issues before the Tribunal are whether the applicant has obtained substantial ownership interest in an eligible business in Australia and whether he has utilised his skills in actively participating at a senior level in the day‑to‑day management of the business or whether he has made a genuine effort to do so. The issue in relation to Tarun is whether he would suffer extreme hardship if his visa was cancelled.
EVIDENCE
8. In a written statement dated 21 October 204 (Exhibit A1) the applicant stated that he obtained tertiary qualifications in economics and accounting and in 1982 he commenced a career in banking with ANZ Grindlays Bank in India. He said that in 1996 he was transferred to Melbourne and was involved in advising Australian companies about carrying out business in emerging markets in Asia and the Middle East. He stated that in August 2000 he decided to seek a business visa in order to assist his wife in a business called Namaste Australia (Namaste) which provided cultural advisory services to tertiary institutions in Australia. He explained that this business became a new entity called JAI Australia (JAI), which additionally offered risk management, financial, advisory and other consultancy services. The applicant stated that he and his wife own JAI.
9. The applicant said that in late 2000 he accepted a position with Standard Chartered as head of network sales in India, and was subsequently promoted to his current position of Head of Strategy for the wholesale bank of Standard Chartered Bank of India. He stated that profits have been remitted to the Australian office of the Bank. In respect of his business activities, the applicant said that he has been involved in four businesses other than JAI:
·JY Investments Pty Ltd: the applicant stated that since 2003 he and the Managing Director, Mr J. Yardi, have been developing consultancy services in risk analysis, risk modelling and risk‑based education services aimed at banks in Asia. He said that this is in its early stages and will grow as it obtains tenders for providing services for banks.
·Riverina Natural Oils Pty Ltd (Riverina): the applicant stated that the company has been established to construct and operate an integrated oil seed crushing and refining plant in Wagga Wagga, New South Wales. He said that his involvement has been to seek finance from potential investors outside Australia, and if this project is successful he will receive a fee of $250,000. The applicant stated that he will also be involved in conducting the financial affairs of Riverina.
·Gurgaon Retirement Village (Gurgaon): The applicant stated that the project involves the construction of a retirement complex in New Delhi. The Indian promoters have retained Australian architects to plan the facility. He said his role is to raise funds for the project and although the immediate prospects of the venture are uncertain, he would receive a substantial fee for locating finance and equity for the project.
·Laurent Bakery Pty Ltd (Laurent): The applicant stated that the business is an Australian‑owned company that proposes to extend its operations into South‑East Asia. He said that after an initial assessment the company has decided not to proceed with the venture until a later date.
10. In oral evidence the applicant stated that on 28 September 2004 he acquired 5 per cent of the shares in Riverina at a cost of $10,000, with the remaining shares owned by Mr D. Saxena (75 per cent) and Mr R. Reid (20 per cent). He said that he has been negotiating with companies (Exhibits A3 and A4), for them to invest in Riverina but has been unsuccessful. The applicant told the Tribunal that Riverina has already exported safflower seeds to India, and construction of the crushing facility will commence soon. The applicant stated that Gurgaon has been delayed because the relevant State authorities in India did not agree to the proposed use of the land that had been selected.
11. Under cross‑examination the applicant agreed that he works full‑time for Standard Chartered, and that he spends his spare time on the business ventures. He also agreed that his involvement with Riverina does not include operational aspects of the business, but he said that he has a day‑to‑day role in using his business contacts to seek funds from investors. In relation to JAI, the applicant said that he and his wife, as principals of the business, spend evenings and weekends in promoting and developing the business. He emphasised that he visits Australia once or twice each year, but considers his home to be in Australia, even though at the date of cancellation of his visa he had spent only 67 days in Australia.
12. In a written statement dated 1 October 204 (Exhibit A6) Mr Saxena, managing director of Riverina, stated that he has had considerable involvement in the edible oils and consumer products industries and met the applicant in 1996. He said that Riverina was incorporated in 2003 and plans to grow and process safflower seeds and export oilseed to India. He said that the company has entered into an agreement to fit out a factory in Wagga Wagga with imported equipment, to produce oil for export from 2006. He said that the company was seeking equity and loans to the value of $8.5 million from banks.
13. Mr Saxena stated that he approached the applicant in 2003 for assistance in raising the equity and debt finance by using the applicant’s contacts in the banking community. He confirmed that the applicant became a shareholder in Riverina because of his long‑term association with the company. He said that he expects the applicant to the head of finance when the company achieves full‑scale production.
14. In oral evidence Mr Saxena stated that there has been one safflower seed harvest. He told the Tribunal that he believed that the applicant would be successful in raising the necessary capital because of his extensive experience in India. Under cross‑examination he agreed that the applicant’s fee of 5 per cent for raising funds has not been paid because the funds have not yet been raised.
15. In a written statement dated 21 October 2004 (Exhibit A7) Ms J. Singh, the applicant’s wife, said that in 1999 she established Namaste, which offered cross‑cultural advisory services to overseas students studying in Australia and to university staff dealing with such students. She said that the applicant assisted with financial and business aspects. She said that in 2000 she set up JAI to continue the work of Namaste, and she and the applicant, as joint owners, expanded the services of JAI to include matters such as risk management and financial advisory services. Ms Singh said that although she lives in India her family and friends are in Australia, which she considers her permanent home.
16. In oral evidence Ms Singh stated that she travels to Australia regularly to visit Tarun. Under cross‑examination she agreed that she spends most of her time in India because the applicant works there full‑time, and her extended family lives in New Delhi. In relation to Tarun’s future, she stated that he has not sought admission to any postgraduate courses in India but would be unlikely to be accepted on the basis of his undergraduate degree from Deakin University. She said that in any event the Indian educational system is different from the Australian system, and such study would be impractical, particularly as Tarun has lived in Australia for the past nine years. Ms Singh agreed that she had not conducted research into postgraduate studies that might be available to Tarun in India, but had spoken to other parents. She also stated that Tarun would find difficulty in adjusting to life in India after such a long absence.
17. In a written statement dated 29 October 2004 (Exhibit A8) Mr Reid, rural property manager, said that he owns an industrial site in Wagga Wagga and is involved in the project by Riverina to develop the site for the construction of a plant to crush safflower seeds. He said that he is a director of Riverina, and the project has reached the stage where business partners are being sought. Mr Reid stated that the applicant’s role in the business is to procure investment from overseas sources, for which he would receive a fee.
18. In oral evidence Mr Reid said that he owns 20 per cent of the shares in Riverina, and that the first safflower seed crop was harvested in 2004. He told the Tribunal that Mr Saxena is the driving force behind the project and that the applicant became a shareholder with 5 per cent of Riverina’s shares. He said that he was not aware of the nature of the applicant’s efforts to raise finance for the project. Under cross‑examination Mr Reid agreed that the applicant has not raised any funds so far and therefore has not received any remuneration.
19. In a written statement dated 28 October 2004 (Exhibit A9) Tarun stated that he was born in India and arrived in Australia in April 1996, where he attended Carey Baptist Grammar School and completed his Victorian Certificate off Education in 2001. He said that in 2002 he enrolled in a Bachelor of Business Information Systems course at Deakin University and expected to complete the course in February 2005. He proposed to enter the workforce for at least two years before continuing his studies in information technology at the postgraduate level in Australia.
20. In his statement Tarun said that if allowed to remain in Australia he wished to become an Australian citizen, because he regarded this country as his home, and had made an application for citizenship. He said that he was fearful that if he was required to leave Australia he would have to commence his professional career at a disadvantage, and was not certain whether his Australian qualification would be as readily recognised or effective in obtaining employment in a country other than Australia. He said that all his friends and memories were in Australia and that he believed he would suffer extreme hardship if he was required to leave.
21. In oral evidence Tarun stated that he is confident of finding employment in Australia, but doubts that an undergraduate degree would assist him in India. He explained that he is unfamiliar with the Indian education system, which is based on rote learning, rather than the practical approach in Australian universities. He emphasised that he is comfortable living on his own and away from his family.
22. Under cross‑examination Tarun stated that he has not applied for employment or explored postgraduate courses because he has not yet graduated. He agreed that his knowledge of the Indian education system and the employment situation was based on comments made to him by friends. He also agreed that he has not investigated employment possibilities or postgraduate courses in other countries because he is comfortable in Australia and does not wish to leave.
23. In an undated and unsigned written statement seen on 23 June 2005 (Exhibit A10) Mr H. Ledlie, Director, IDP Education Australia (IDP), said that IDP was a company formed by the forty‑one universities in Australia to recruit students to undertake study in Australia, and that he is responsible for the company’s operations in India. Mr Ledlie said that 78 per cent of Indian students in Australia are studying at the postgraduate level, and only 13 per cent are pursuing undergraduate qualifications. He noted that a student travelling to India to undertake postgraduate qualifications would face unique difficulties and disadvantages, and that Australian undergraduate qualifications may not be known or recognised in India. He added that there is a shortage of postgraduate places in India, particularly in the computing or information systems areas.
24. In oral evidence Mr Ledlie stated that competition for places in Indian tertiary institutions is fierce, and that quotas based on religion and geographical factors would add to the difficulties faced by an applicant in Tarun’s position. Under cross‑examination he agreed that Deakin University is well‑known and respected in India, but that an undergraduate from that university would have difficulty in obtaining a place in an Indian postgraduate course. He said that he had no knowledge of any undergraduate returning to India and seeking employment.
CONSIDERATION OF THE ISSUES
25. The Migration Act 1958 Act (the Act) provides as follows:
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.
(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).
…
(4) Subject to subsection (5) and to section 135, if:
(a)the Minister cancels a person’s business visa under subsection (1) or (3A); and
(b)a business visa is held by another person who is or was a member of the family unit of the holder of the cancelled visa; and
(c)the other person would not have held that business visa if he or she had never been a member of the family unit of the holder of the cancelled visa;
the Minister must cancel the other person’s business permit or business visa by giving written notice to that person.
(5) The Minister must not cancel the other person’s business visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person.
…
26. Paragraph 4.5 of the Ministerial Guidelines of the Migration Series Instruction (MSI) N° 133 Visa Cancellation Under Subdivision G ‑ Cancellation of Business Visas (the Guidelines), entitled What is a '”genuine effort”?, contains the following factors to assist decision‑makers in determining whether a genuine effort has been made under s 134(3) of the Act:
…
(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.
…
27. Section 134(10) of the Act provides as follows:
134(10) In this section:
…
eligible business means a business that the Minister reasonably believes is resulting or will result in one or more of the following:
(a)the development of business links with the international market;
(b)the creation or maintenance of employment in Australia;
(c)the export of Australian goods or services;
(d)the production of goods or the provision of services that would otherwise be imported into Australia;
(e)the introduction of new or improved technology to Australia;
(f)an increase in commercial activity and competitiveness within sectors of the Australian economy.
…
ownership interest, in relation to a business, means an interest in the business as:
(a)a shareholder in a company that carries on the business; or
(b)a partner in a partnership that carries on the business; or
(c)the sole proprietor of the business;
including such an interest held indirectly through one or more interposed companies, partnerships or trusts.
28. Mr Hurley submitted that in arriving at the correct or preferable decision the Tribunal should have regard to circumstances that existed at the date of cancellation (19 March 2004); but that evidence of events occurring after that date may be considered to establish intentions or circumstances at or after that date (Re Griffiths and Migration Agents Registration Authority [2001] AATA 240; Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257; Re Lala and Another and Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 209; Re Angkadjaja and Minister for Immigration, Multicultural and Indigenous Affairs [2004] AATA 699; Re Glass and Minister for Immigration, Multicultural and Indigenous Affairs [2004] AATA 524).
29. Mr Hurley said that the applicant has increased his activity in Riverina since the date of the cancellation of the visa. He submitted that Riverina is an eligible business under s 134(10) of the Act because it will result in: the development of the international market (s 134(10)(a)); creation of employment in Australia (s 134(10)(b)); and the export of Australian goods (s 134(10)(c)). He emphasised that the applicant has obtained a substantial ownership interest in Riverina (s 134(1)(a) of the Act), because the applicant is one of only three shareholders in the business, and before acquiring the shares the applicant was a partner with Mr Reid. Mr Hurley submitted that although the applicant lives in India, he has made a genuine effort to utilise his skills in actively participating at a senior level in the day‑to‑day management of the business (s 134(2)(b)) by seeking to raise equity finance and obtain funds offshore, and will continue to do so (s 134(1)(c)).
30. In respect of the overall nature of the applicant’s business activities, Mr Hurley submitted that the applicant’s interest in JAI at the date of cancellation was sufficient to satisfy the requirements of s 134(1)(a) of the Act. Alternatively, he submitted that the Tribunal should consider the aggregate effect of all the businesses in which the applicant was involved, and find that the prerequisites for cancellation of the visa did not exist. Mr Hurley submitted that there is no reason why the applicant needs to be in Australia in order to participate in the management of the business at a senior level (Re Jo and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 77; Re Hindrodjojo and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 724; and Re Sutandeo and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 417).
31. Mr Hurley submitted that cancellation of Tarun’s visa would result in extreme hardship for Tarun (s 134(5) of the Act). He said that extreme hardship combines objective and subjective factors (Kumar v Minister for Immigration and Ethnic Affairs (1997) 144 ALR 441; and Ayub and Another v Minister for Immigration and Ethnic Affairs, Federal Court, 13 December 1996, 226/1996). Mr Hurley said that Tarun has been in Australia for nine years, has completed secondary and tertiary education in this country and has applied for Australian citizenship. He referred to Mr Ledlie’s evidence that Indian students come to Australia to undertake postgraduate study and that postgraduate places in Indian universities are difficult to obtain.
32. Mr Hurley noted that Tarun has formed a wide network of friends, is committed to the Australian way of life and wants to seek employment before undertaking postgraduate study. He said that Tarun has become a self‑reliant and independent person who is willing and able to live away from his family. Mr Hurley submitted that cancellation of the visa would have a serious effect on Tarun at a personal level, as he would be required to re‑establish his life in an unfamiliar culture and environment. He said that the circumstances of this case should be viewed together, and the question should be determined as a unique combination of factors that would constitute extreme hardship under the Act if the visa was cancelled.
33. Mr Wee submitted that the applicant has not provided sufficient evidence to demonstrate a substantial ownership interest in JAI, or that JAI was carrying out any business activities. He noted that the applicant’s intention was to come to Australia to develop JAI, but instead he accepted a full‑time position with Standard Chartered in India, and has not pursued business activities through JAI to any meaningful extent. Therefore, JAI was not an eligible business.
34. Mr Wee submitted that Riverina is not the applicant’s eligible business as it belongs primarily to Mr Suxena. He said that the applicant does not hold a substantial ownership interest because he entered an agreement with Mr Saxena in September 2003 and acquired 50 shares in Riverina six months after the cancellation of his visa. Mr Wee said those shares equalled a 5 per cent shareholding, which does not amount to substantial ownership interest (Re Ong and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 178). Mr Wee also submitted that the applicant’s investment falls far short of the $100,000 guideline set out in MSI 133. Mr Wee stated that there is no evidence that the applicant is participating at a senior level in the day-to-day management of Riverina in Australia, given his full‑time employment, the brief periods he has spent in Australia, and his evident lack of success in obtaining finance for Riverina.
35. Mr Wee submitted that there was insufficient evidence in the 24‑month survey dated 18 September 2003, or in the evidence presented at the hearing, to show that the applicant had made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia and to utilise his skills in the day-to-day management of the Riverina or the other businesses.
36. In respect of Tarun’s application, Mr Wee referred the Tribunal to Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961 in which the Tribunal stated at paragraph 29:
…Clearly, whatever view is taken, hardship involves more than inconvenience or detriment. Affectation must be to a considerable degree before it can properly be called hardship.
At paragraph 30 the Tribunal stated:
…There are many meanings of the word "extreme" offered in the Macquarie Dictionary. Some of the more helpful suggestions are "of a character or kind farthest removed from the ordinary or average", "utmost or exceedingly great in degree", "farthest, utmost or very far in any direction", "going to the utmost lengths, or exceeding the bounds of moderation", "the utmost or highest degree, or a very high degree". The use of the word "extreme" can be contrasted with the use of the word "undue" found in Ministerial Guidelines relating to hardship associated with deportation. In order to enliven the prohibition against a Minister cancelling another person's business visa under subsection (4), there must be shown to be not only hardship and not only undue hardship, but extreme hardship…
37. Mr Wee also referred to Re Salim and Minister for Immigration and Multicultural and Indigenous Affairs (2002) 36 AAR 42; and Re Chen and Ors and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 628. He noted that Tarun has lived in Australia since 1996, has a network of friends in this country and does not wish to leave. However, Mr Wee submitted that Tarun has a number of options available to him including studying in another country or seeking employment in India, where he has a large network of immediate and extended family. Mr Wee also stated that if his business skills visa was cancelled Tarun could make application for a different type of visa and return to Australia at a later date. He said that any hardship experienced by Tarun does not amount to extreme hardship.
38. In reaching its decision the Tribunal takes into account the documentary and oral evidence and the submissions made at the hearing.
39. On the question of the material to be taken into account when considering the exercise of the discretion to cancel the visa, the Tribunal notes that in Re Griffiths the Tribunal stated at paragraph 41:
…
Whether concerned with an entitlement decision or a cancellation decision, and in the absence of any legislative direction to the contrary, the evidence upon which the relevant facts rest, is that before the Tribunal. In so far as it is pertinent to the facts to be found, the evidence is not limited to that either known to the decision‑maker or in existence at the time that the decision under review was made.
40. In Re Tang and Minister for Immigration and Multicultural Affairs [2000] AATA 997 the Tribunal stated at paragraph 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 all the facts and circumstances that have occurred up until the date of the hearing.
41. The Tribunal accepts the submission by Mr Hurley that s 134 of the Act contemplates, that consideration should be given to a person’s intention. Therefore, while the exercise of the discretion at the time of cancellation of the visa is the primary focus, matters that refer to occurrences after the date of cancellation may be relevant to address adequately the matters raised in s 134 of the Act. The Tribunal agrees with Mr Hurley that there is no requirement in the Act that the applicant reside in Australia, particularly in view of the reach of global communications technology.
42. In relation to s 134(1) of the Act the Tribunal accepts Mr Wee’s submission, that on the available material, although initially there was an agreement between JAI and Riverina for the raising of finance, JAI has not been engaged in any business activity. JY Investments is in its early stages and is aiming at securing banks as customers. Gurgaon is a project located in India and the relationship with Australia appears to be limited to the employment of Australian architects. On the applicant’s own evidence Laurent is not proceeding at this stage. For these reasons the Tribunal finds that JAI, JY Investments, Gurgaon and Laurent are not eligible businesses under the Act.
43. The Tribunal is satisfied that the Riverina project, to produce and export safflower oil, is a business that is likely to result in, among other things, the development of business links with the international market and the creation or maintenance of employment in Australia. Therefore, it satisfies the definition of eligible business. However, the Tribunal agrees with Mr Wee that Riverina is primarily Mr Saxsena’s enterprise, as he holds 75 per cent of the shares and Mr Reid holds 20 per cent. On this basis the Tribunal does not accept Mr Hurley’s submission that because the applicant is one of only three shareholders he has a substantial interest. The Tribunal finds that the applicant’s 5 per cent shareholding, purchased some six months after the date of cancellation of the visa is an extremely small holding and does not constitute a substantial ownership interest (Re Ong and Re Cheng and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 136).
44. For these reasons, the Tribunal is satisfied that the applicant has not obtained a substantial ownership interest in an eligible business in Australia (s 134(1)(a) of the Act).
45. In respect of whether the applicant has made a genuine effort under s 134(2) of the Act, the Tribunal has considered the factors listed in s 134(3) of the Act and the Guidelines in MSI N° 133. In assessing the applicant’s claims against these factors and the Guidelines, the Tribunal is not aware of any business proposals that the applicant has developed, apart from general statements that he is seeking to raise finance for Riverina (s 134(3) (a)), or any partners or joint venturers other than Mr Saxena and Mr Reid (s 134(3)(b)). There is no evidence of research into the conduct of an eligible business in Australia (s 134(3)(c)). The applicant had spent 67 days in Australia from the grant of the visa in 2000 (s 134(3)(d)). This is substantially less than the minimum of six months suggested in the Guidelines, although the Tribunal takes into account the applicant’s evidence concerning his commitments in India to his full‑time position with Standard Chartered.
46. There is no evidence the applicant has made a significant investment in any of the businesses (s 134(3)(e)); and the value of the ownership interest in eligible businesses in Australia held by him is extremely small (s 134(3)(f)). There appears to have been little business activity undertaken by the applicant in any of the businesses (s 134(3)(g)). In respect of s 134(3)(h) the applicant has not failed to provide additional material requested by the Department. Section 134(3)(i) is not applicable.
47. After considering all the relevant factors in s 134(3) of the Act, the Tribunal finds that the applicant has not made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia (s 134(2)(a) of the Act), or to utilise his skills in actively participating at a senior level in the day‑to‑day management of that business (s 134(2)(b) of the Act). Therefore, the Tribunal finds that the exercise of the discretion to cancel the visa is appropriate in this case.
48. In respect of Tarun’s application the Tribunal notes that in Re Setiawan and Minister for Immigration and Multicultural Affairs [2002] AATA 260 the Tribunal stated:
…The meaning to be ascribed to the words “extreme hardship” was considered by the Federal Court in Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481. At p 487 it was stated:
...it is, in my opinion, important to approach the phrase "extreme hardship" in a broad way. Clearly, it imports a high degree, perhaps a very high degree of hardship, but it must be applied in the context of the facts of the particular case. "Hardship" is in itself a relative term. What may be a "hardship" to a sensitive person, or one in a particularly vulnerable situation, may be no great burden at all to a person of more stoical disposition or in a more protected situation. Similarly, the word "extreme" must be evaluated against the facts of the particular case…A full and proper consideration of the person allegedly suffering the hardship or prejudice must be undertaken...
…Clearly enough, "extreme" hardship must find itself at the very high end of the scale. This does not mean, however, that in any given case, "extreme hardship" means, in effect, a particular point on a continuum of hardship. It obviously connotes an area within which an ascertainable burden of hardship may fall and properly merit the description "extreme". Within that area there may be varying degrees of burden, one less than another, but each meriting the description...
In Re Salim Deputy President Purvis said at paragraphs 46 and 47:
…
However, it would be strange or unusual and unexpected if three relatively young, intelligent and capable persons had not in the years developed such relationships. It will be hard to leave these people. It will be hard to readjust to a life outside Australia and the university environment. But this hardship is one within the contemplation of the legislature when it chose to insert the word "extreme" as to qualify the hardship. And it must be "extreme" to the particular individual.
The Tribunal does not consider that the hardship that will undoubtedly be experienced by each one of the Applicants is exceptional, unexpected or of such a nature as to qualify for the description of exceedingly great in degree. Unfortunate yes, emotional yes, financial yes to a degree. But not extreme…
49. The Tribunal takes into account that Tarun has been in Australia for nine years and completed his secondary education and an undergraduate degree in this country. There is no doubt that the applicant enjoys living in Australia, has developed a network of friends, and that cancellation of the visa would cause disruption to his established lifestyle and to his plans to seek employment for two years before commencing postgraduate studies in information technology. The Tribunal takes into account the evidence from Tarun, Ms Singh and Mr Ledlie that there might be difficulty in adapting to the Indian education system and in securing a postgraduate place in an Indian university.
50. However, the Tribunal accepts the submission by Mr Wee that the applicant is young and independent, and his capacity to live independently of his family would suggest that, if necessary, he would be able to pursue temporary employment or postgraduate studies in another country. The Tribunal takes into account that Tarun’s parents, a sibling and extended family live in India and would assist him to find work or to undertake further study. Tarun has not made formal enquiries about working or studying in India, and the Tribunal is not persuaded that he would be unable to find a place in an Indian university, particularly given Mr Ledlie’s evidence that Deakin University is well known and respected in India. It would follow that a degree from that institution would be highly regarded.
51. The Tribunal agrees with Mr Hurley that all matters should be taken together when assessing the level of hardship to the applicant. In considering all the relevant material, and for the reasons set out above, the Tribunal finds that, although cancellation of the visa would result in disruption to Tarun’s lifestyle, inconvenience and possibly a change to his environment and separation from his network of friends, the level of hardship that he would undoubtedly experience would not be extreme for the purposes of the Act. Therefore, under s 134(5) of the Act, the Tribunal finds that cancellation of the visa would not result in extreme hardship to Tarun.
DECISION
52. The Tribunal affirms the decisions under review.
I certify that the fifty-two [52] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of hearing: 4 May 2005, 23 June 2005
Date of decision: 9 August 2005
Counsel for applicant: Mr T. Hurley
Solicitor for applicant: Universal Migration Consultants
Advocate for respondent: Mr B. Wee
Solicitor for respondent: Australian Government Solicitor
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