Sweeney and Minister for Immigration and Multicultural Affairs
[2006] AATA 991
•22 November 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 991
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2005/152-155
GENERAL ADMINISTRATIVE DIVISION ) Re PATRICK JAMES SWEENEY
JANICE SWEENEY
GAVIN SWEENEY
CRAIG SWEENEYApplicants
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Mr A Sweidan, Senior Member Date22 November 2006
PlacePerth
Decision The Tribunal sets aside the decisions under review and directs that the visas of the applicants not be cancelled.
........(Sgd. Mr A Sweidan).................
Senior Member
CATCHWORDS
Immigration – whether notices under section 135(1) Migration Act 1958 properly served - Business Skills Visa - eligible business - genuine efforts - exercise of discretion.
LEGISLATION
Migration Act 1958 (Cth) section 135(1) section 134 (1) (2) and (9)
Migration Series Instruction 133 (paragraphs 4.5.1 and 4.5.2)
CASES
Tanujaya and Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 386
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248
Ong v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 178
Commissioner for Superannuation v Scott 71 ALR 408 at 412
Gomaidy v Minister for Immigration and Multicultural Affairs [2006] AATA 75 47:
Kok v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 579 21
Wong v Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 54.
Lau v Minister of Immigration and Multicultural Affairs [2002] AATA 703 29
Juliana Leo v Minister for Immigration [2006] AATA 308
Saleh Leo v Minister for Immigration [2006] AATA 308
REASONS FOR DECISION
22 November 2006 Mr A Sweidan, Senior Member BACKGROUND
1. The applicants are Mr and Mrs Sweeney and their sons Craig and Gavin Sweeney
2. The applicants have applied for a review of decisions by a delegate of the respondent made on 8 April 2005 cancelling the applicant’s visas under section 134(1) of the Migration Act (1958) (the Act).
PRELIMINARY ISSUE - NOTICES
3. The applications of Mrs Sweeney and her two sons were heard on 10 July 2006 and the Tribunal reserved its decision. Mr Sweeney’s application was heard on 1 September 2006. At the hearing on 10 July 2006, a preliminary issue was raised on behalf of Mrs Sweeney and her two sons, namely that as they were not given the required notices under section 135(1) of the Migration Act 1958 prior to the cancellation of their visas and that they were not given written notice of the cancellation of their visas, the decision of the respondent should not be affirmed.
4. The applicants requested that the Tribunal decide the preliminary issue prior to making any further decision on their applications. The respondent agreed to this.
5. On 17 August 2006, the Tribunal gave an oral decision in favour of the respondent on the preliminary issue. The applicants subsequently requested reasons for that decision. The Tribunal’s reasons follow.
6. Mr Sweeney signed a form 47BU, which is described as application for Business Skills Migration to Australia on 6 June 2000. Form 47BU states inter alia on page 1 that the application form,
“Covers a family unit, namely a main applicant and if applicable, dependents”
7. Mr Sweeney was clearly the main applicant and signed the form as such. Also on page 1 of the form, the form explains who dependant children are under the heading, “Dependent Children”:
“An unmarried child under 18 wholly or substantially in your daily care and control is considered a dependent child.”
And then it goes on:
“An unmarried child 18 or over and living in the family home could be considered dependent in some circumstances.”
8. The form signed by Mr Sweeney shows that the family unit was himself, his spouse and their two sons being the three applicants in these matters. Form 47BU at question 17 and 41 gives an address in Dubai for Mr and Mrs Sweeney. No addresses appear for the two sons. However it is implicit from the definition of dependent children and given their ages at the time that they were at the same address as their parents.
9. Although page 16 of the form states that the declaration contained at item 73:
“…must be signed by the main applicant and each accompanying person over 18”
it was not signed by Mrs Sweeney.
10. The two sons also did not sign the form. On the same date, that is, 6 June 2000, Mr Sweeney also signed a number of other forms, being forms 926, 927, 928 and 1137. Forms 926 and 1137 contain identical undertakings in relation to change of address. Relevantly, paragraph 5 in each case contains the following undertaking by Mr Sweeney:
“I agree to notify DIMA of changes in my residential address within 28 days after I change my address, including any residential address I may have outside Australia for three years after my Business Skills visa is granted.”
11. On 21 May 2001, the respondents’ representative sent a letter addressed to Mr Sweeney advising him that:
“Your family’s application for Class AD Business Skills subclass 128 visas has been granted.”
12. That letter encloses a copy of the declaration and acknowledgment referred to above previously signed by Mr Sweeney, and the letter again points out that:
“In the declaration and acknowledgment, you have also agreed to notify the department of your residential address in Australia within 28 days of your arrival in Australia.”
And it says:
You can do this by completing the enclosed form 922, Notification of Change of Address.”
13. It goes on to say:
“During the three years following your arrival in Australia, you must also inform the Department of Immigration and Multicultural Affairs within 28 days of any subsequent changes of residential address, whether in Australia or overseas. The department will send you extra forms 922, “Notification of Change of Address”
14. The applicants provided a chronology to the Tribunal and to the respondent and the relevant parts of that chronology are as follows: On 24 December 2001, Mr Sweeney signed a form 922 which was provided to the respondent providing his new address as 43 Attra Road, Balcatta, Western Australia. On 13 January 2002, a further form 922 was provided by Mr Sweeney providing the address, PO Box 1811, Dubai. On 2 December 2003, Mr Sweeney provided a further form 922 providing his residential address as, 14 Kauri Place, Duncraig, Western Australia.
15. On 10 March 2004, in form 1010, being the 24-month survey required by the respondent, Mr Sweeney again provided the residential address as 14 Kauri Place, Duncraig. On 2 December 2004, the respondent addressed notices of intention to cancel business visas to the applicants at 14 Kauri Place, Duncraig. On 7 January 2005, Mr Sweeney signed a statutory declaration saying that his residential address as well as that of his family, would be changing and that statutory declaration appears at page 291 of the T documents. The relevant part of that statutory declaration says:
“My residential arrangements in Perth will be changing in the coming weeks as my eldest son, Craig Roman Sweeney, takes up his university place to study commerce at either Curtin University or Edith Cowan. When my son starts university he will initially stay on campus until we can find suitable rented accommodation and my family intends to rent for the first six months while my son settles into university life. And finally, I will inform Perth Business Centre of my changed address as soon as we have signed a rental agreement for a suitable house/apartment.”
16. On the same date, that is 7 January 2005, Mr Sweeney signed a form 956 which appears at page 140 of the T documents. That form appoints a migration agent:
“…Viacorp Migration, as the authorised agents of-”
and it recites the names of Mr Sweeney, Mrs Sweeney and the two sons and the form is signed by Mr Sweeney and by the migration agent. On 10 January 2005, the migration agent wrote to the respondent, attaching amongst other things, the form 956 referred above and also responding to the Notice of Intention to cancel the applicants’ visas, which as I noted previously, was sent on 2 December 2004, to the applicants at 14 Kauri Place, Duncraig.
17. The letter from the migration agent appears at page 136 of the T documents and the first paragraph reads as follows:
“Viacorp Migration is responding to your Notice of Intention to Cancel the Business Skills visa subclass 128 of Mr Patrick James Sweeney, Mrs Janice Sweeney, Mr Craig Sweeney and Mr Gavin Sweeney. We are responding within the department's stipulated deadline of today, 10 January 2005. Please find form 956 appointing us as the authorised agents on this case.”
18. Attached to that letter amongst other things was the statutory declaration of 7 January 2005, signed by Mr Sweeney. On 8 April 2005, the respondent sent letters to Mrs Sweeney, Mr Sweeney and Gavin and Craig, advising them that their visas had been cancelled and those letters were addressed to Viacorp Migration, the migration agent.
19. At no relevant time did any of the three applicants provide an address to the respondent other than the addresses referred to previously and which were provided by Mr Sweeney. When Mrs Sweeney gave evidence at the hearing of this matter, she was asked in cross-examination a number of questions by the respondent’s representative. She was asked firstly if she had seen the letters advising of the intention to cancel the visas and she said had seen the letters. And she was asked what was her response; she said, “I was very upset”
20. The next question was:
“All right, did you intend to do anything about it?---Well, I assumed that my husband would since he was the primary applicant would – he did all the paper work, he would see to it whatever needed doing.
And that’s in fact what proceeded to happen, isn’t it”
To which she replied, “Mm.” The next question and answer was:
“Your husband – did you know that you husband had contacted a migration agent or was involved with a migration agent?---Yes, I knew he had contacted one.”
21. The next question was:
“So your understanding was that your husband was handling your migration issues and your children’s?”
To which the answer was, “Yes.”
22. The relevant law relating to the question of notices of the nature referred to in respect of the preliminary issue is to be found, firstly, in section 134(9) of the Act which provides that:
“The Minister must not cancel a Business Skills visa unless Notice of Intention to Cancel was given to the visa holder within three years at their last known residential address or post box address known to the Minister.”
23. Migration Regulation 2.55 states that:
“The giving of a document to the holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act;”
must be given in one of the ways outlined in subregulation (3) which states that for a document referred to:
“…the Minister must give the document-”
as it says, by despatching it to:
“…the person’s last residential address, business address or post box address known to the Minister.”
24. FINDINGS ON PRELIMINARY ISSUE
24.1 The Tribunal’s findings on the preliminary issue are as follows: form 47BU covered a family unit. That unit consisted of Mr Sweeney, Mrs Sweeney and their two sons. The application was granted on that basis and The Tribunal refers in that regard to the letter dated 21 May 2001, which appears at page 363 of the T documents.
24.2 All members of that family shared the same address at all relevant times up to and including 7 January 2005. Those addresses were the addresses supplied by Mr Sweeney as detailed earlier, in his capacity as the main applicant and the authorised representative of the family unit as deposed to by Mrs Sweeney in her evidence.
24.3 The respondent was entitled, absent information to the contrary, to act on that basis.
24.4 On 2 December 2004, being the date on which the respondent issued the Notice of Intention to Cancel the visas, the address of the family unit provided by Mr Sweeney to the respondent, which as indicated previously, was supplied on 2 December 2003 and again on 10 March 2004, was 14 Kauri Place, Duncraig.
24.5 Accordingly, as at that date, that was the last residential address of Mrs Sweeney and her two sons that was known to the respondent.
24.6 The Notices of Intention to cancel the visas addressed to the three applicants at that address, accordingly complied with the requirements of section 134(9) of the Act, as well as Migration Regulation 2.55 subregulation (3).
25. The Tribunal notes that the applicants in their submissions relied substantially on a decision of this Tribunal in the matter of Tanujaya and Others v the Minister for Immigration, which appears at [2004] AATA 386. In the Tribunal’s view that decision is clearly distinguishable on the facts and has no application to the facts in this matter.
26. Furthermore, that decision was given prior to the decision of the Full Federal Court in Zubair v the Minister for Immigration, (2004) FCAFC 248. In Zubair, the Full Court following a number of earlier decisions which are set out in the Zubair decision, held that the Migration Review Tribunal similarly to the Administrative Appeals Tribunal, can review a decision that it is authorised to review in the case of the Administrative Appeals Tribunal under section 43 of the AAT Act, even though the decision maker at first instance may have made a decision which is legally ineffective. It follows that even if the applicant’s contentions as to the giving of notices by the respondent are correct, which the Tribunal has found not to be so, the Tribunal nevertheless has the power to review the respondent’s decisions on their merits.
MAIN ISSUE
27. The applicants were granted sub-class 127 Business Skills Visas on 15 May 2001 and first entered Australia on 15 December 2001.
28. The principal applicant Mr Sweeney returned his 24 month survey on 10 March 2004 advising that he had established an Australian company, Apitech Pty Ltd (Apitech) on 4 December 2002. Apitech was intended to “identify export opportunities for Australian products and provide business contacts for appropriate Australian companies wishing to export their skills into Middle East”.
29. On 2 December 2004, notices of intention to cancel the visa were sent to the applicants.
30. The applicants engaged a migration agent who responded to the notices on 10 January 2005. The response advised that the principal applicant had invested $100,000 for a 10% shareholding in Jadan (WA) Pty Ltd and had been engaged as an Export Manager.
31. On 8 April 2005 a delegate of the respondent decided to cancel the applicants’ business skills visas. Notices of cancellation were sent out to the applicants at the address provided to the Department.
Delegate’s Decision
32. The delegate noted that the principal applicant and his spouse were the sole shareholders in Apitech but was not satisfied that Apitech was an eligible business. In particular, the delegate noted that no invoices, bank statements, taxation returns or Business Activity statements had been provided to indicate what business activity had been conducted by Apitech.
33. The delegate noted the documentation indicating that Apitech had invested $100,000 into Jadan. However, the delegate found that information from ASIC did not support the principal applicant’s claim that this investment entitled him to a 10% shareholding in Jadan.
34. The delegate found that there was no evidence that the principal applicant had personally acquired any shares or that he was a director of Jadan. The delegate found that the documentation provided stated that the principal applicant was an employee of Jadan and this suggested that the principal applicant had made an investment with Jadan and had not obtained a substantial ownership interest. The delegate found that Apitech was operating passively.
35. The delegate also found that while the principal applicant was employed as the export manager reporting to the managing director of Jadan, there was no evidence that the principal applicant had acquired the role of director or that his role as export manager would enable him to utilise his management skills in the ongoing direction, strategic planning or growth of Jadan.
36. The delegate found that the principal applicant had not made genuine efforts to meet his visa requirements, noting that although Apitech was incorporated in December 2002 there was no evidence of any business correspondence, meetings or research until February 2004 and no evidence that the principal applicant had conducted any serious research in the intervening period. Finally, the delegate noted that the principal applicant had spent less than three months in Australia since arriving on his business skills visa.
37. Overall the delegate found that the principal applicant had not obtained a substantial ownership interest in an eligible business, was not utilising his skills in senior management on a day to day level, nor had he made genuine efforts to do so.
Legislation and Policy
38. Section 134(1) of the Act provides as follows:
“(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 inactively 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.”
39. Section 134(2), to which s134(1) is expressly subject provides as follows:
“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.
40. In determining whether a person has made a “genuine effort” for the purposes of s134(2) of the Act, s134(3) provides as follows:
“(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 interests 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).”
41. Section 134(10) of the Act provides that an “ownership interest” in relation to a business means:
An interest in the business as
(a) a shareholder in a company that carries on with business; or
(b) a part owner in a partnership that carries on with business; or
(c) a sole proprietor of the business;
Including such an interest held indirectly through one or more interposed companies, partnerships or trusts”
42. Section 134(10) of the Act further provides as follows:
Eligible business means business that the Minister reasonably believes is resulting or will result in one or more of the followings:
(a)the development of business links with international markets;
(b)the creation or maintenance of employment in Australia;
(c)the export of Australian goods or services;
(d)the production of goods or provisions of services that would otherwise be imported into Australia;
(e)the introduction or new or improved technology to Australia;
(f)an increase in commercial activity and competitiveness within sectors of the Australian economy”.
43. In addition to s134(10) of the Act, in determining whether a person has made a “genuine effort” within the meaning of s134(2) of the Act, it is permissible to have regard to Migration Series Instruction 133, paragraph 4.5.1, of which relevantly provides as follows:
“… decision makers may take account of these notes to guide them in interpretation …
a.business proposal which is considered genuine, realistic and achievable;
b.formal contract with partners or joint venturers;
c.written evidence of details consultations with at least three business advisers (accountant, lawyer, bank/financial institutions, State/Territory government business development office, Austrade, business/trade associations);
d.physical presence in Australia for more than six months since first arrival as a Business Skills migrant;
e.transferred to, and retained in, Australia at least 50% of the funds indicated as available for transfer within two years …
f.minimum A$100,000 or 10% ownership previously held by the person. If the person is no longer in business, the reasons for the lass 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 s137, ie mandatory monitoring of Australian address and return of survey forms.”
44. In addition, Migration Series Instruction 133, paragraph 4.5.2 provides as follows:
“While failure to meet one or more of these indications 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) in reaching a decision on that basis. For example, while the factors in 4.5.1 above may be indicative of “genuine effort”, lack of them will not be necessarily be decisive. The decision maker must decide, in the ordinary meaning of the words, whether the visa holder has made a “genuine effort”. The decision maker may still decide not to exercise the discretion empowered to cancel the business visa even if it is assessed that no genuine effort has been made”.
RELEVANT PRINCIPLES
Substantial ownership
45. The word “substantial” is not defined but has been considered in Ong v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 178 where Commissioner for Superannuation v Scott 71 ALR 408 at 412 was cited with approval. In Commissioner for Superannuation v Scott the Court considered a number of authorities dealing with the question of what constitutes “substantial” and held, (albeit in the context of s45D of the Trade Practices Act 1974 (Cth)) that the word “substantial” means:
“Real or of substance and not insubstantial or nominal”.
46. Whilst the Tribunal is required to consider the position as at the date of the cancellation of the visa, it is entitled to consider subsequent events to the extent that those later events assist in evaluating the relevant intentions and actions of the visa holder as at the date of the cancellation of the visa: Gomaidy and Minister for Immigration and Multicultural Affairs [2006] AATA 75 47: Kok and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 579 21.
47. The question of what is a substantial “ownership interest” of an eligible business is one of fact and degree; Wong and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 54.
48. Commercial realities are to be taken into account. In particular, many genuine business attempts will fails despite the best efforts of participants, Lau and Minister of Immigration and Multicultural Affairs [2002] AATA 703 29.
49. It was submitted by counsel for the respondent that the delegate’s decision to cancel the applicant’s subclass 127 business skills visas should be affirmed because (a) Mr Sweeney failed to obtain a substantial ownership interest in an eligible business in Australia (b) Mr Sweeney failed to utilise his skills and actively participate in a senior level in the day-to-day management of the business, and (c) Mr Sweeney failed to make a genuine effort to obtain a substantial interest in an eligible business in Australia or to utilise his skills in actively participating in a senior level in the day-to-day management of an eligible business.
ISSUES
50. The above are therefore the issues which the Tribunal must determine, subject to the following:
50.1if (a) and (b) are resolved in favour of the applicant, (c) does not arise:
50.2if either or both of (a) and (b) are resolved against the applicant, and (c) is resolved in favour of the applicant, s134 (2) of the Act compels the Tribunal not to cancel the visa;
50.3if either or both of (a) and (b) are resolved against the applicant, and (c) is likewise resolved against the applicant, the Tribunal nevertheless retains a discretion as to whether or not the applicant’s business visa ought to be cancelled.
EVIDENCE
51. The Tribunal heard evidence from all of the applicants and a number of other witnesses, each of whom confirmed the content of statements tendered to the Tribunal. The Tribunal was also provided with the “T” Documents and a number of other documents.
52. Mr Sweeney said that after a number of previous trips to Australia he incorporated Apitech Pty Ltd in December 2002 to participate in the export market by using his experience, skills and contacts in the Middle East.
53. He then advertised seeking responses from companies in Western Australia that were interested in exporting their products. He received a number or responses and this led to Apitech initially acting as an agent for the sale of spas manufactured by Jadan Pty Ltd (“Jadan”) in the Middle East and subsequently in July 2004 investing $100,000 for a 10% interest in a unit trust which was represented to him to own the Jadan business, although it now appears that there may be some doubt as to whether Jadan, which was the trustee of that trust, recorded that investment correctly. Prior to this investment being made Apitech had sold a number of spas and earned commission on those sales.
54. Mr Sweeney was appointed as Jadan’s Export Manager and this led to Sanadi Fountains (Sanadi) (a firm which he located) being appointed as agents of Jadan in the Middle East after Mr Sweeney and Mr Abraham of Sanadi met with Mr Hodgkinson of Jadan in Perth in November 2004.
55. Pursuant to an agreement between Apitech and Sanadi, Apitech was to receive commission on the sale of Jadan products as well as other Australian sourced products by Sanadi in the Middle East.
56. Unfortunately production problems prevented Jadan from delivering on orders for spas. Cash flow problems ensued which led to Jadan being placed under administration in April 2005 and subsequently in liquidation.
57. Notwithstanding the cancellation of his visa Mr Sweeney, through Apitech, continued to try and source Australian suppliers and importers in the Gulf States and this led to Max Spas, a Brisbane based business appointing Sanadi as its agent, with Apitech again being entitled to commission on sales made by Sanadi.
58. Mr Sweeney also testified that he had explored numerous opportunities for the export of Australian wines and other products to the Middle East and had contact with a number of wine producers although no orders eventuated. He said that he had travelled extensively throughout the Middle East seeking opportunities for the sale of Australian products. He also had discussions with Australian Government Trade Officers.
59. Mr Sweeney remained resident in Dubai although he has purchased a unit in Perth which is occupied by his sons who are both university students and also by his wife on intermittent visits.
60. He explained that to build up an export business he needs to spend most of his time in the Middle East and be based where the markets are but said that his intention is to live in Perth once Apitech is generating sufficient revenue.
61. Mr Hodgkinson of Jadan and Mr Abraham of Sanadi both gave evidence supporting Mr Sweeney’s evidence.
DECISION
62. The Tribunal is satisfied that each of the companies in which Mr Sweeney was directly or indirectly involved i.e. Apitech and Jadan, are eligible businesses. The Tribunal is also satisfied that Mr Sweeney acquired a substantial ownership interest in both companies.
63. The Tribunal is further satisfied on the evidence that Mr Sweeney participated actively at a senior level in the day-to-day management of the business of those companies, albeit that he was resident in Dubai
64. Accordingly the Tribunal is of the view that Mr Sweeney met the requirements of Section 134(1) of the Act as at 8 April 2005 and his visa and those of his family should not be cancelled.
65. The Tribunal notes further that under s 134(2) of the Act a visa must not be cancelled if the respondent is satisfied that the applicant has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia and to utilise his skills in actively participating at a senior level in the day-to-day management of that business and intends to continue to make such genuine efforts.
66. “Genuine effort” is not defined so must be given its ordinary meaning within the context of the Act. The Oxford Dictionary of English defines “genuine” to mean “truly what something is said to be; authentic” and “effort” to mean “a vigorous or determined attempt.
67. Section 134(3) of the Act sets out an inclusive list of the matters that the respondent and therefore the Tribunal may take into account in determining whether an applicant has made the genuine effort referred to in s 134(2).
68. The applicant’s endeavours to meet the requirements of his visa after his first entry into Australia and up to the hearing of the application are set out in the evidence as outlined above. In the Tribunal’s view, there is nothing in the evidence to suggest that Mr Sweeney’s efforts were not genuine. The Tribunal is satisfied that those efforts were “vigorous and determined” and that Mr Sweeney intends to continue to make them.
69. Accordingly, even if the Tribunal’s view in regard to s 134(1) is not correct under s 134 (2) the visas of the applicants should not be cancelled.
70. Accordingly, the Tribunal sets aside the decision of the respondent’s delegate made on 8 April 2005 to cancel Mr Sweeney’s business visa. It follows that the visas of Mrs Sweeney, Gavin and Craig should also not have been cancelled. It is not necessary to further consider their applications and the decisions to cancel their visas are similarly set aside. The respondent is directed not to cancel the visas of the four applicants.
I certify that the preceding 52 paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member
Signed: …………(Miss C Skinner)............................
AssociateDates of Hearing 10 July, 17 August and 1 September 2006
Date of Decision 22 November 2006
Solicitor for the Applicant Mr M Rothstein
Solicitor for the Respondent Mr A Gerrard
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