Tai and Minister for Immigration and Multicultural and Indigenous Affairs - [2003] AATA 57

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 57
ADMINISTRATIVE APPEALS TRIBUNAL N2002/1068
GENERAL ADMINISTRATIVE DIVISION

Re: NG SAI TAI
Applicant

And: MINISTER FOR IMMIGRATION
AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent

DECISION
Tribunal:       Ms G Ettinger- Senior Member
Date:             22 January 2003
Place:            Sydney
Decision:The decision under review relating to Mr Ng Sai Tai, the Applicant, being the decision of the Minister for Immigration, Multicultural and Indigenous Affairs, the Respondent in these proceedings, dated 2 July 2002 to cancel Mr Ng’s business skills visa pursuant to section 134(1) of the Migration Act 1958 is affirmed.

[Sgd] Ms G Ettinger
Senior Member

MIGRATION – business skills visa subclass 127 – cancellation of visa – acquisition of substantial ownership interest in eligible business in Australia – active participation in day to day management at senior level of business – discretion not to cancel visa – cancellation of secondary business visas – decision affirmed
Migration Act 1958 (Cth) ss 134, 135, 136, 137
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342
Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257
Hope v Bathurst City Council (1980) 141 CLR 1
Re Purnama and Minister for Immigration and Multicultural Affairs [2002] AATA 237.
Re Drake (No 2) and Minister for Immigration and Ethnic Affairs (1978-80) 2 ALD 634
REASONS FOR DECISION
22 January 2003  Ms G Ettinger-Senior Member
1. The application before the Administrative Appeals Tribunal (“the Tribunal”) was that of Mr Ng Sai Tai, the Applicant, for review of a decision dated 2 July 2002, (T2), by a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs, the Respondent in these proceedings, to cancel Mr Ng’s business skills visa pursuant to section 134(1) of the Migration Act 1958 (the Act).
2.      At the hearing the Applicant was represented by Mr Min Wang, a migration agent, and the Respondent by Mr G Cranwell of the Australian Government Solicitor.
BACKGROUND
3. On the basis of the material in the T-documents and the Applicant’s evidence, the Tribunal was satisfied that on 11 March 1999, the Applicant was granted a business skills visa subclass 127. Accordingly, certain children of Mr Ng were also granted secondary visas. Ms Ng Nina Pui Shi, a daughter, is an Australian citizen who at the time of the Hearing was in Hong Kong, awaiting the birth of her child.
4.      The Applicant was born on 9 February 1948, and is a Chinese national. He owns business enterprises in China and Hong Kong where he is involved in the manufacture and export of transparent plastic gift and sushi boxes, and “OPP membrane”. In Australia, his company Sai Tai Company Pty Ltd (“the company”), was incorporated on 8 November 1999 (Exhibit A2/1).
5.      It was not in dispute that the Applicant was present in Australia for only 21 days from the grant of the visa in March 1999, to the date of cancellation on 2 July 2002. In that period, his son, Mr Ng Chak…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Tai and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 57
Case: [2003] AATA 57
Decision Date: 22 January 2003

CaseChat Overview and Summary

In the matter of Ng Sai Tai v Minister for Immigration and Multicultural and Indigenous Affairs, the applicant sought review of the decision to cancel his business skills visa under section 134(1) of the Migration Act 1958. The Administrative Appeals Tribunal found that the decision to cancel the visa was proper and affirmed the decision. The Tribunal found that the applicant did not have a substantial ownership interest in an eligible business in Australia, and he was not actively participating in the day-to-day management of the business. The Tribunal also found that the applicant did not make a genuine effort to obtain a substantial ownership interest or to actively participate in the management of the business. The Tribunal concluded that the decision to cancel the visa was within the Minister's discretion under the Act and should be affirmed. The consequential cancellation of secondary visas held by the applicant's family members was also affirmed, as no evidence of extreme hardship was presented.

Orders