Teo and Minister for Immigration and Citizenship
[2007] AATA 1118
•9 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1118
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200500344
GENERAL ADMINISTRATIVE DIVISION ) Re CHIN KION TEO Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Mr A Sweidan, Senior Member Date9 March 2007
PlacePerth
Decision The Tribunal sets aside the decision under review and directs that the business skills visa of the applicant not be cancelled. .......(Sgd. Mr A Sweidan)....................
Senior Member
CATCHWORDS
Immigration – business skills visa – cancellation – whether notice of intention to cancel sent within time – whether notice valid – whether requirements of s 134(1) of Migration Act 1958 (Cth) met - genuine efforts – exercise of discretion.
LEGISLATION
Migration Act 1958 (Cth) s134(1)(2)(3)(9)(10) and s135(1)(4)
CASES
Yam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283
NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 214
SAAP V Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Prawiro v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1096
Wibisono v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 145
Hidayat v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 916
Foo v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 597
M v Minister for Immigration and Multicultural Affairs [2006] FCA 1247
SZEXZ v Minister for Immigration and Multicultural Affairs [2006] FCA
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344
Bao v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 270
Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314
Maharjan v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1442
Nassouh v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 500
Ferguson v Federal Commissioner of Taxation (1979) 37 FLR 310
Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 277
Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 31
Haman v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1113
REASONS FOR DECISION
9 March 2007 Mr A Sweidan, Senior Member Background
1. This is an application for review of a decision of a delegate on 30 August 2005 to cancel the applicant’s business skills visa on the basis he had not met the requirements of s134 (1) of the Migration Act 1958 (Cth) (the Act), namely that he had not obtained a substantial ownership interest in an eligible business under s134(1)(a); and had not been involved in the day to day management of an eligible business under s134(1)(b).
2. The delegate also found the applicant had not made genuine efforts to engage in business, so the prohibition on visa cancellation in s 134(2) was not enlivened.
3. The applicant, Mr Chin Kion (Albert) Teo, is a citizen of Malaysia. On 13 August 2001 he applied for a business skills visa. At that time he was chairman and managing director of Borneo Eco Tours Sdn BHd (BET), a Malaysian company specialising in eco-tourism in Borneo. He was also chairman and managing director of Sukau Rainforest Lodge SDN BHD, another Malaysian company operating a lodge in Borneo. He and his wife together were the majority shareholders in both the companies. His wife also had a shareholding in Hotel Shangri-La, Kota Kinabalu, where the applicant had worked for 14 years before setting up his own businesses.
4. In his visa application, the applicant also disclosed an interest in the New Esplanade Hotel, Perth, owned by Laredo Pty Ltd, an Australian company. In the application it was stated:
“Mr Teo was a Director from 1982 until 2000. He was involved in the early stage of the business until his other Directors, Mr Tan Kim Thai and Mr Raymond Teo, both based in Perth, took over the day to day management.”
5. It appears that the brother of the applicant who is involved with the New Esplanade Hotel is Mr Jin Hoo Teo (Raymond Teo). He is an Australian citizen. He is the General Manager of the Hotel.
6. The applicant stated in his visa application that he intended to start up an inbound travel agent business in Perth, bringing Asian tourists to Australia. It was intended that he would retain his shares in his business in Malaysia and ‘the business’ would form an international link with Australia. The interviewer at the High Commission in Kuala Lumpur recorded that the applicant planned to explore the eco-tourism market in Western Australia as well as ‘Agro Tourism’ catered for the Asian market. The interviewer also stated:
“Having a hotel in Perth is an advantage to his business plan and he is seriously planning it.”
7. The applicant was granted a business skills visa (subclass 127) on 9 April 2002. He entered Australia for the first time on the visa on 10 April 2002.
8. On 23 June 2004 the Department received a completed 24 month survey response from the applicant’s migration agent. The response advised that the applicant had:
(a)Formed an Australian partnership named Borneo Integrated Services (BIS) with Mr Raymond Teo and Mr Jimmy Tsen in which he held a 40% share, the remaining 60% divided equally between Mr Raymond Teo and Mr Tsen. The partners had considered importing and exporting boats, small engines and wines, but for various reasons including the high foreign exchange rate for the Australian dollar, nothing viable had eventuated in these areas.
(b)Decided to pursue the export of Australian expertise in eco-tourism, with the aim of using Australian expertise to come up with high quality designs for resorts in Malaysia. He mentioned two projects: the planning of an eco-tourism conference in Malaysia at which Australian tourism and environmental experts had been engaged to contribute; and the development of a model eco-lodge in Australia which would be transported to Mount Kinabalu, Sabah Malaysia. He said BIS would be behind these projects, and:
“For both projects, BIS will have to come forward with substantial capital to fund the activities of these experts first, pending recouping these costs from the company in Malaysia.”
It was further stated that neither Mr Tsen nor Mr Raymond Teo were experienced in eco-tourism, and Mr Tsen was paid a stipend to help research and identify suitable Australian expertise and products. Mr Tsen, like Mr Raymond Teo, was resident in Perth. The principal place of business of BIS was given as 25 Babbler Turn, Beechboro, WA 6063 which is Mr Tsen’s home address. BIS also has a Malaysian operating address.
(c)Taken on the task of overseas marketing director for the New Esplanade Hotel. It was his job to sell the hotel’s facilities to overseas markets. It was expected that this would bring more inbound travellers to Perth, thus boosting the tourism and accommodation industry. The applicant continued to hold a 6.5% shareholding in the Australian holding company Laredo Pty Ltd. He also was still actively involved in his Malaysian business BET.
9. On 6 or 7 April 2005 a delegate of the respondent sent by email a notice of intention to cancel the applicant’s visa. Movement records showed that at that time the applicant had spent less than four months in Australia (115 days) since first arrival on the visa. While the email notice (which was sent to the applicant’s agent) is dated 7 April, the respondent contends that it was in fact sent on 6 April 2005 and the respondent received an acknowledgement from the applicant’s agent which is dated 6 April 2005 and was also sent by email. Subsequently on 10 April 2005 a further acknowledgement was sent by the applicant’s agent. The applicant contends that the notice was invalid for the reasons set out below, having been sent out of time, and that the decision under review is accordingly invalid.
10. In a lengthy submission in response dated 12 June 2005, the applicant confirmed his role in the BIS partnership, and stated his equity in the business was $126,397.00. He said the business had grown, particularly in the export of consultancy services. He described the Borneo Eco-tourism Conference in Sabah which had been held in April 2005 and in which Australian experts had participated. This was said to be an export promotion of Australian eco-tourism expertise. He said that in the wake of the conference’s success, there was a possibility of Australian involvement in the planning and design of an eco-tourism project and a tourism development plan for Sabah.
11. The applicant also stated in his submission that BIS was his brainchild and revolved on his capacity to garner adequate overseas interest in Australian eco-tourism skills; that he was the managing partner; that he had provided all the capital for BIS’s growth; that Mr Tsen was semi-retired and did all the ground work in Australian for which he received a fee and further that Mr Raymond Teo provided local knowledge and contacts but was otherwise silent. The financial demands of the business were said to be ‘smallish’ and were undertaken by Mr Tsen under the direction of the applicant.
12. In relation to the proposal to bring Asian tourists to Australia, the applicant said that he was not able to get a licence from the Malaysian government to permit him to bring Malaysian tourists to Perth, and by which he would have promoted the New Esplanade Hotel using tour packages. He said he had started to represent a few Malaysian companies in Perth, namely Hotel Shangri-La BET, and Sukau Rainforest Lodge. He had also promoted the New Esplanade Hotel by distributing its brochures to travel agents. As a director of the holding company Laredo Pty Ltd, he had been involved in resolving a dispute with another shareholder.
13. The submission also referred to the applicant’s efforts to export Australian health care and disability products, private hospital/medical treatment, bottled water, and hovercraft.
14. The applicant also said that in November 2004 he invested $18,000 in an Australian company, Hemp Resources Limited.
15. In his submissions to the Tribunal, the applicant contends that:
(a)He has substantial ownership interests in two Australian businesses: BIS and the New Esplanade Hotel, and he has been actively participating at a senior level in the day to day management of those businesses;
(b)Those businesses are eligible businesses within the meaning of the Act (s 134(10));
(c)In managing those businesses the applicant has developed business links with international markets; maintained employment for Australians; and/or exported Australian goods and services;
(d)He has made genuine efforts to conduct an eligible business in Australia;
(e)Cancellation of his visa would cause considerable hardship to the secondary visa holders, his wife and children.
16. No supporting evidence has been provided on how the secondary visa holders will suffer extreme hardship if their visas are cancelled, nor have the secondary visa holders lodged applications for review under s 136 of the Act.
The Issues and the Tribunal’s Determination
17. The first issue for the Tribunal’s determination is whether the respondent’s notice of intention to cancel the applicant’s visa was sent within the period prescribed by s 134(1) of the Act and whether the notice met the requirements of s 135 (1). The applicant contends that neither of the requirements were met and that in consequence the decision under review is invalid. For the reasons which follow the Tribunal has determined that the notice was not invalid.
18. The general issue for the Tribunal’s determination are whether any of the alternative grounds prescribed by s 134 (1) of the Act (set out below) for the cancellation of the applicant’s visa are satisfied in this case, and, if so whether his visa should be cancelled under that subsection.
19. For the reasons which follow the Tribunal has determined that none of the grounds for cancellation are satisfied in this case and, furthermore, even if the Tribunal’s view in this regard is incorrect, the applicant fulfils the requirements of s 134 (2) of the Act and in any event the Tribunal is prepared to exercise its residuary discretion in favour of the applicant so that his visa should in any event not be cancelled.
Relevant Legislation and Policy
20. Subsection 134(1) of the Act provides that the Minister has a discretion to cancel the visa if he or she is satisfied that the visa holder has not obtained a substantial ownership interest in an eligible business in Australia, is not utilising his skills in actively participating at a senior level in the day-to-day management of the business, or does not intend to do these things. Under subsection 134(2) the Minister must not cancel the visa if he or she is satisfied that the visa holder has made genuine efforts and intends to continue to make such genuine efforts.
21. ‘Ownership interest’ and ‘eligible business’ and are defined in subsection 134(10) of the Act and discussed at paragraph 4.3 of the MSI-133: Visa Cancellation Under Subdivision G- Cancellation of Business Visas.
22. Subsection 134(10) defines ‘ownership interest’ in relation to a business to mean:
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 a business;
Including such an interest held indirectly through one or more interposed companies; partnerships or trusts.
23. Subsection 134(10) provides that ‘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 of maintenance of employment in Australia;
(c)the export of Australian goods and 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; and
(f)an increase in commercial activity and competitiveness within sectors of the Australian economy.
24. Paragraph 4.3.2 of MSI-133 notes that eligibility relates to achievement of stated objectives through the activities of the business, not directly to the size or scale of the business.
25. Subsection 134(3) provides a list of matters that the Minister may take into account when determining whether a person has made genuine efforts to obtain a substantial ownership interest in an eligible business in Australia and to utilise skills in actively participating at a senior level in the day-to-day management of that business.
26. Notes to guide the interpretation of these matters are provided at paragraph 4.5 of MSI-133. The matters that may be taken into account, and the notes to their interpretation provide as follows:
(a)business proposals that the person has developed. The MSI refers to whether there is a business proposal which is considered genuine, realistic and achievable;
(b)the existence of partners or joint ventures. The MSI refers to whether there is formal contact with partners or joint ventures;
(c)research that the person has undertaken into conduct of an eligible business in Australia. The MSI refers to whether there is written evidence of detailed consultations with at least 3 business advisers;
(d)the period or periods during which the person has been present in Australia. The MSI refers to whether there has been physical presence for more than 6 months since the first arrival as a business skills migrant;
(e)the value of assets transferred for use in obtaining an interest in an eligible business. The MSI refers to whether there has been transfer to and retained in Australia at least 50% of the funds indicated as available for transfer within two years;
(f)the value of ownership interest in the eligible business in Australia which is or has been held by the person. The MSI refers to whether there is or has been a minimum Australian $100,000.00 business activity as indicated by turnover and provides that this may include other business activity not considered as an eligible business but cannot include passive investment, for example the purchase of shares;
(g)whether the person has failed to comply with a notice under section 137. The MSI refers to whether there has been a failure to comply with a notice for information under section 137, i.e. mandatory monitoring of Australian address and return of survey forms; and
(h)if the person no longer holds a substantial ownership interest in particular business or no longer utilises his or her skills in actively participating at a senior level on the day-to-day management of the business:
(i)the length of time the person held the ownership interest or participated in the management as the case requires; and
(ii)the reason why the person no longer holds the interest or participates in the management as the case requires.
Is the exercise of the discretionary power to cancel the applicant’s visa prohibited by s 134(2) of the Act?
27. Pursuant to s 134(2) of the Act, if the Tribunal is satisfied that, as at 13 July 2005, the applicant fulfilled the requirements specified in paras (a), (b) and (c) of that subsection, it “must not” cancel his visa pursuant to s 134(1) of the Act.
28. Section 134(3) of the Act lists (non-exhaustively) matters that may be taken into account in determining whether a person has made the “genuine effort” referred to in s 134(2). Departmental policy guidelines regarding the matters listed in s 134(3) are contained in the Migration Series Instructions – specifically, in “MSI-133: Visa Cancellation under Subdivision G – Cancellation of Business Visas”, which relevantly states:
“4.5 What is ‘genuine effort’?
4.5.1 If, 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:
...
[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.]
4.5.2 While 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 a ‘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.”
Although these guidelines are not binding on the Tribunal, it will have regard to them where relevant.
29. In Re Yam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283 the Tribunal (at para 53) expressed the following views regarding the concept of “genuine effort” for the purposes of s 134(2) of the Act:
·the relevant visa holder must himself or herself have made some real or genuine effort;
·the degree of effort made must be beyond that which is purely superficial or token;
·relevant efforts may suffice for the purposes of s 134(2) even if they fall short of the matters specified in s 134(3).
30. These views have subsequently been adopted by the Tribunal in various cases and are adopted by the Tribunal in the present case. The Tribunal would simply add that the phrase “genuine effort” is an ordinary English phrase and that, in its opinion, the appropriate ordinary meaning of that phrase for present purposes is “real and sincere endeavour or strenuous attempt”.
EVIDENCE
31. Written and oral evidence was given by the applicant, Professor Keith Dowling and Mr Jimmy Tsen. The evidence of the three witnesses and documents tendered to the Tribunal essentially confirmed the substance of the matters set out in the applicant’s Statement of Facts and Contentions, the gist of which is set out above as well as in the Tribunal’s reasons below. The Tribunal also had before it the “T” documents.
Preliminary and Procedural Matters
32. The applicant arrived in Australia under his business visa on 10 April 2002. Pursuant to s134 (9) the respondent was required to give notice of intention to cancel within the 3 year period, otherwise cancellation is prohibited. The applicant contends that the notice was out of time.
33. The respondent sent the notice of intention to cancel by email to Mr William Foo the applicant’s agent. The first issue is on what date was the email sent. The respondent contends that although it is dated 7 April 2005 it was in fact sent on 6 April 2005 on which date Mr Foo sent an email acknowledging receipt. Subsequently, Mr Foo sent a further acknowledgment dated 10 April 2005. However the Tribunal finds on the balance of probabilities, having regard to the earlier acknowledgement of receipt that the notice was sent within the 3 year period prescribed by s134(9) of the Act.
34. The applicant contends further that the notice was invalid because the applicant was given a longer period than the 28 days prescribed under s135(1) of the Act to respond to the notice.
35. Section 135(1) provides that:
“Before cancelling a visa under s134(1) the Minister must give its holder a written notice:
(a) ….
(b) inviting its holder to make representations … within:
(i) if the notice is given in Australia – 28 days after the notice is given;
…”
36. The notice of intended cancellation gave the applicant until 16 June 2005 to respond. This is 71 days from 6 April 2005, if the notice was sent on that day, or 67 days from 10 April 2005.
37. The applicant contends further that s135(4) provides a further barrier to cancellation:
“(4) If:
(a) the time specified in the notice ends after the end of the period referred to in subsection 134(9); and
(b) at the end of the period of 90 days commencing at the time specified in the notice, the Minister has not made a decision on whether to proceed with the cancellation;
the Minister is not to proceed with the cancellation”.
38. The decision to cancel was made on 30 August 2005 and the applicant asserts that this was outside the period contemplated by the Act, namely, that the maximum period for cancellation must take place within 3 years plus 28 days plus 90 days.
39. There have been a number of decisions of the Tribunal which have held that the notice is not invalid if it extends the period in which the applicant can respond and further that the 90 day period specified in s135 (4) is calculated by reference to the date actually stated in the notice rather than the correct date as required by the Act. The applicant contends that those decisions are flawed for 2 reasons. Firstly because they were made in reliance on the Full Federal Court decision of NAHV of 2002 v MIMIA (2003) 129 FCR 214 which the applicant contends was effectively overruled by the High Court in SAAP v MIMIA (2005) HCA 24, in which the High Court held as follows:
“206 The language of s 424A is, of course, imperative: "the Tribunal must" take the several steps it prescribes. That imperative language stands in sharp contrast with the permissive terms of, for example, s 424 which says that "the Tribunal may" take various steps. The evident purpose of the provisions of s 424A (and several other provisions in Div 4 of Pt 7) is to give applicants for review procedural fairness.
…
208 Where the Act prescribes steps that the Tribunal must take in conducting its review and those steps are directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, both the language of the Act and its scope and objects point inexorably to the conclusion that want of compliance with s 424A renders the decision invalid. Whether those steps would be judged to be necessary or even desirable in the circumstances of a particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case. (emphasis added)
209 In light of that conclusion, it is not necessary to consider the separate question whether the procedures which were followed by the Tribunal in this particular case were procedurally fair.”
40. NAHV in substance had held that practical compliance with natural justice was sufficient. The applicant contends that the High Court held in SAAP that if there was a mandatory procedure it must be complied with.
41. The applicant asserts that the second flaw in the Tribunal reasoning in those Tribunal cases where it was claimed that the decision was outside the 90 day period of s135 (4) because an incorrect period was given in the Notice (i.e. Prawiro v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1096 and Wibisono v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 145) in which the Tribunal held that because s135(4) referred to “…the period of 90 days commencing at the time specified in the notice…” rather than to a 90 day period commencing from a period 28 (or 70) days after receipt of the notice, meant that the legislature intended that if the wrong date was given in the notice, this could operate to extend the period beyond the period that would exist, if there was strict compliance with s135(1). The applicant assets that the reason for the wording used in s135 (4) is better understood by recognising that because there are 2 dates specified in s135 (1) depending on whether the notice was given in Australia or outside Australia, it would have been clumsy drafting to refer separately both to the 28 day notice and to the 70 day notice in s135(4).
42. The applicant seeks to displace a long line of authority in the Tribunal that the specification of a longer period than 28 days to respond to a notice of intention to cancel does not render a notice invalid (Prawiro v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1096; Wijaya v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1223; Wibisona v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 145; Hidayat v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 916; Foo v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 597).
43. The applicant seeks to argue that this line of authority should not be followed as the decisions fail to have regard to the mandatory requirements of the Migration Act 1958 (the Act) and the purpose of these requirements. The Tribunal notes that this was an argument which was specifically raised by the applicant (and consequently rejected) in Foo.
44. It is clear from the decisions referred to above that the Tribunal considers the purpose of the time limits are to ensure a visa holder is afforded an adequate opportunity to make representations before the decision maker determines whether the visa should be cancelled (see Foo at [32]). The Tribunal has consistently found that the specification of a period greater than 28 days does not impede the ability for an applicant to make such representations. Indeed, it is apparent that the giving of additional time for making representations is usually to an applicant’s advantage.
45. The respondent contended that the Tribunal should follow its earlier decisions on this issue, and the Tribunal is of the view that it should do so.
46. The Tribunal notes that the Full Federal Court recently held in M v Minister for Immigration and Multicultural Affairs [2006] FCA 1247 that the obligation to stipulate correctly the prescribed period does not extend in mandatory terms to circumstances where the time stipulated is more generous than that prescribed.
47. In M the applicant ran a similar argument to the present applicant. That is, the time limits imposed by the Act (in that case by s359B(2)) constituted an essential part of the statutory scheme for dealing with appeals to the Tribunal. The relevant letter in M had not contained the period prescribed by the Regulations. The applicant argued that as strict compliance was required, the stipulation of the incorrect, but longer, period rendered the notice invalid. After a discussion of the relevant authorities, and, in particular the High Court decision of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, Justice Tracey rejected this argument. At [36] of his judgment his Honour stated:
“I am not persuaded that a legislative intention can be discerned that a misstatement of the prescribed period in the letter of invitation should lead to invalidity of the Tribunal’s ultimate decision at least in circumstances where, as here, the time stated was more generous that that prescribed.”
48. His Honour also noted that a similar conclusion had been reached by Jacobson J in SZEXZ v Minister for Immigration and Multicultural Affairs [2006] FCA 449 at [49]:
“I do not see how, having regard to the language of s 424B(2) or the scope of Div 4, a breach which consisted of giving an applicant more time than he or she was entitled to, could be thought to render invalid a decision given after the breach. This must be especially so where the information was provided and a hearing took place in accordance with s425.”
49. Tracey J in M also found at [38]:
“Lest I be wrong on the principal issue I would indicate that I would, in any event, have refused relief on the ground that the applicant suffered no injustice by reason of the misstatement of the prescribed period.”
50. In the Tribunal’s opinion the purpose of the notification provisions is to afford visa holders a reasonable opportunity to make submissions to the Department as to the reasons why their visas should not be cancelled. In the Tribunal’s view the applicant was not denied this opportunity. Neither was he denied the opportunity to apply to the Tribunal for merits review once the decision to cancel was made. There is no practical injustice in this matter as the applicant has not been denied a fair opportunity to put his case.
51. Finally the respondent submitted that even if the applicant is correct, the Tribunal has a valid application before it and is not precluded from reviewing the decision under review because of an alleged procedural deficiency. Authority for this proposition is to be found in the Full Federal Court decision in Zubairv Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344. At paragraph 28 of that decision the Court stated:
“There is nothing in Pt 5 of the Act which would suggest that the Tribunal does not have the power or obligation to review a decision properly brought before it where the delegate of the respondent may, or may arguably, have failed to comply with a procedural requirement imposed by the Act, or in some other way may, or may arguably, have committed an error of law either in determining the applicable law or in applying the law. There is no reason why the Act, which provides for a full merits review by the Tribunal of decisions which may be brought to it, should impose upon the Tribunal the task of culling out those decisions which may involve jurisdictional error on the part of the original decision-maker. That would impose an unnecessary additional complexity upon the merits review process”.
52. Zubair related to a Migration Review Tribunal decision. However, the Full Court at [28] - [29] specifically related the power and obligations of the MRT to the review powers possessed by the AAT:
“That is similar to the review powers of the Administrative Appeals Tribunal (AAT): see AAT Act, s43. In that context it has been held that the review by the AAT is available even though the decision-maker at first instance may have made a decision which is legally ineffective: see eg, Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143.
That approach accords with a line of decisions of this Court beginning with Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307”.
53. Zubair was followed in another decision of the Federal Court in Bao v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 270. In that case Tamberlin J noted at [3] that Zubair was authority for the proposition that:
“Not only is review by the Tribunal available where the delegate has made a decision which is legally ineffective, but also an invalid decision by the delegate can be remedied by the Tribunal giving a full hearing de novo and the tribunal can “cure any defect in the delegate’s decision in relation to non-compliance with the Migration Act.
54. It was also held in Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314 that a delegate’s failure to comply with s119 notification requirements did not deprive the Tribunal of statutory authority. The Tribunal acceded to the powers and discretions conferred on the Minister or delegate and not the procedures which bind them. The conclusion that all the Tribunal could do was recognise the delegate’s lack of power and set aside his decision was found to be erroneous. At [41] to [43] the Full Court stated:
“It is to be recalled, in this context, that under s349 of the Act the Tribunal accedes to the powers and discretions conferred on the Minister or delegate not the procedures which bind them. The procedures required of the Tribunal are set out in Division 3.4 and 5 of Part 5.
We are assisted to the above conclusion by the recognition that the constitution and powers of the Tribunal are appropriate for a body conducting review on the merits rather than making decisions as to compliance with statutory provisions. An application for review to a tribunal is an application for review on the merits. Judgment as to the validity of actions by the Minister is for the courts, not for an administrative body such as the Tribunal.
Thus, far from concluding that the decision in Zubair was clearly wrong, we have come to the same conclusion.”
55. The Tribunal notes that In Maharjan v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1442, Smith FM held as incorrect a Tribunal’s finding that it was obliged to satisfy itself that the delegate followed proper procedure as an essential precondition to the exercise of the s116 cancellation power. The Federal Magistrate’s Court again followed Zubair and Ahmed at [32]:
“Zubair and Ahmed clearly stand as authority against the applicant’s contentions in relation to the procedural irregularities argued above, including lack of particulars and notice of evidence. In my opinion, they also establish a broader proposition that it is irrelevant to the Tribunal’s review of a s116 decision whether the delegate’s s119 notice was invalid for any reason”.
56. In Nassouh v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 500 Barnes FM again followed Zubair and Ahmed in respect of a s116 cancellation and found at [70] that:
“The MRT-reviewable decision in the present case was the decision to cancel the applicant’s visa under s116(1)(a) on the basis that “any circumstances that permitted the grant of the visa no longer exist”. The Tribunal had the power to conduct a review of this decision on the merits.”
57. The Tribunal has a valid application before it and it is therefore incumbent on the Tribunal to review the merits of that decision. It should not, to use the language of the Full Court in Zubair, unnecessarily involve itself in culling out those decisions which may involve jurisdictional error.
58. Specifically, the Tribunal’s role here is to exercise the Minister’s power and discretion to decide whether to cancel the applicant’s visa under s134 and not examine the procedures which bind that power and the Tribunal now proceeds to do so.
Section 134(1) Substantial Ownership Interest in and Management of an Eligible Business by the applicant
59. The undisputed facts are that at all times from its commencement in July 2003, the business Borneo Integrated Services (BIS) had both an Australian office in Perth, Western Australia and an office in Kota Kinabalu, Sabah. At the time of cancellation, BIS had 3 partners, 2 of whom were based full time in Perth, the third, the applicant, travelled widely, spending time in Perth, but was principally based in Kota Kinabalu. The business employed one partner, Jimmy Tsen, on a part time basis and paid him $1,000 per month for his services. Jimmy Tsen’s work was carried out entirely in Australia. He worked he calculated at least 50 hours a month on the business. It is clear that he worked directly under the supervision of the applicant and all significant decisions were made by the applicant. In turn, the applicant spent approximately half his working time on the business of BIS and more time on BIS than on any one of his several other businesses. The applicant’s evidence was that his two other primary businesses, Borneo Eco Tours and the Sukau Rainforest Lodge took many years to become profitable and that he was prepared to take the long term view.
60. The applicant’s visa was cancelled on 30 August 2005. To meet the requirements of s 134(1), the applicant has to show the business was in existence at that date, that it was operating at least in part in Australia, that the applicant had a substantial ownership interest in the business and that the applicant was involved at a senior level in its day to day management and that the applicant intended to continue both the ownership interest in the business and his involvement in management. Events and activities after 30 August 2005 can be relied on to show the existence of the business on the date of cancellation, the management role at that date and the intention to continue after that date. For instance, any business has to have a start date, it may only have a single transaction on that day and no other transactions until after cancellation. By itself the single transaction may not be sufficient to show a business but the subsequent transactions can be relied upon to show that the business did exist and that it had started its life prior to the date of cancellation. Of course the present application is not such an extreme example. The evidence shows that the applicant and Jimmy Tsen had been continuously involved in activities, some of which were unsuccessful, some of which achieved results, since the formation of the business in July 2003.
61. Similarly, it is important not to confuse activities with results. The commercial activity of the business would normally have a regular and repetitive characteristic to it. The results may be regular or quite irregular. For instance, a cattle grazing business may involve regular grazing, growing and hopefully fattening of the cattle and there would usually be management of these activities by the farmer. However, the cattle may only be sold once a year, or even longer, perhaps every 2 years. The intermittent financial result does not detract from the commercial activity of the business. In this case the successful organisation of the Conference on Ecological Tourism held in Sabah in April 2005 is an example of an event where the planning and organisation took place over the preceding 18 months to 2 years to organise, i.e. regular activity culminating in a result. The evidence is that the planning and organisation for the next Conference in Sarawak in 2007 commenced as soon as the Sabah Conference was completed.
62. The accounts for the year ended 30 June 2005 show that the business earned a substantial income and a profit for that financial year. A commercial approach and the keeping of records are important evidence that a business is in fact being carried on (see Ferguson v Federal Commissioner of Taxation (1979) 37 FLR 310 at p314-316).The accounts themselves also show there was a multiplicity of activity and expenditure which again goes to show that a business was being conducted.
63. The accounts for the year ended 30 June 2006 show that the business has continued and has continued to receive income and to incur expense. All the time working to the ultimate aim, as explained by both the applicant and by Professor Dowling, to create a business which has credibility both in Australia and in South East Asia (but particularly in the East Malaysian States of Sabah and Sarawak and the Sultanate of Brunei – together described as North Borneo) so that the business can use the expertise of Australian Consultants and Experts in Tourism and Environmental related projects to the greater benefit of Australia and of those consultants and also to the considerable commercial benefit of the applicant’s business. That this plan for the business is not wishful thinking or fantasy on the part of the applicant is confirmed both by the very strong support given by Professor Dowling for the business plan and concept. Professor Dowling has been involved with the applicant and with BIS since 2004. Professor Dowling emphasised the need for and the benefits to both Australia and North Borneo in having a business that was able to bridge the gap and bring Australian expertise to that area. The realistic nature of the BIS concept is also demonstrated by the projects underway or being considered, such as bringing a sewage system to a water village of 30,000 inhabitants in Brunei and with flow-ons to smaller water villages elsewhere in Brunei and in Sarawak and Sabah, with enormous benefits to the inhabitants and with potentially very considerable financial return to BIS. Other proposed projects by BIS, include a proposal to export Solarhart water heaters to joint venture partners in Sabah again with a flow on to the other States and a proposal for an Ecologically sound Resort and Spa in the world heritage area of Mount Kinabalu.
64. The business activities of BIS have been conducted both in Australia and in Sabah and elsewhere in North Borneo. Clearly the activities of Jimmy Tsen on behalf of the business were conducted entirely in Australia. The activities of Professor Dowling as consultant for the business in planning the 2005 conference as well as other activities for the business were conducted in Australia as well as in North Borneo. Professor Dowling was paid a fee by BIS of $1000 in May 2005 for his work for BIS. The applicant undertook the majority of his activities for BIS in North Borneo because that was where the intended market for BIS was; however he also undertook a significant part of his work for BIS in Australia in making arrangements and in meeting and liaising with the consultants such as the environmentalists Professor Dowling and Dr Helen Crabtree, the Architect Sam Rizzo, and the water system expert, Dr Martin Anda.
65. The fact that a major portion of a business visa holder’s activities are conducted outside Australia, does not prevent the business concerned from being an eligible business in Australia, nor does it otherwise disqualify an applicant from meeting the provisions of s134(1) or (2). In Wong v MIMIA (2006) AATA 277 at par 48 the Tribunal stated as follows:
“I consider that it would not be permissible to imply into subsections 134(1) or (2) a requirement for the relevant management of an eligible business to take place in Australia. Once again, this would be tantamount to rewriting the provisions in question. Whilst a consideration of the place where management activities will take place might be relevant to the exercise of discretion in appropriate cases, it is not a requirement of the relevant subsections. Further, I think that an additional purpose of the business migration provisions is to attract non-citizens with business expertise to invest in eligible businesses in Australia, and thereby promote economic growth. This purpose can be achieved without implying the further requirement that the relevant day-to-day management activities must take place in Australia.”
66. The decision where to locate a business is substantially a matter of business judgment. As a matter of fact, the business BIS was formed and has operated in Australia. It has kept accounts, complied with Australian laws and filed tax returns. This cannot be ignored unless it is regarded as a mere sham. It is no answer to say that it could have been a business formed and operating in Sabah with an Australian agent, or that the applicant could have expanded one of his existing businesses to include the business activities of BIS. Equally, the suggestion that it was not a separate business, because it shared office facilities in Sabah with the applicant’s other businesses and that the applicant’s existing business banking facilities were used by BIS when collecting fees from Conference attendees and sponsors, should be dismissed. The sharing of facilities in Sabah does not detract from BIS being a separate business which over time has built up its own reputation and identity in North Borneo as well as in Australia. Further the business structure and ownership, both in the original partnership and subsequently with the formation of an Australian limited company, is quite separate from the ownership of the applicant’s other businesses.
67. In this regard, the recent decision of Wong v MIMIA (supra) is informative. In that case Mr Wong had an existing business which manufactured industrial roller doors in Singapore under licence from an Australian business. He also purchased residential roller doors from Australia. He had reached an agreement with his Australian business partner to form a joint venture to expand the industrial roller door business into the Middle East and other parts of South East Asia. The manufacture of the doors would take place outside of Australia, the doors were primarily of the industrial type already manufactured in Singapore and were intended to meet the international standards already met by Mr Wong’s existing business and the new joint venture business was intended to be run by Mr Wong from Singapore. However by the time of the Tribunal hearing, an Australian company had been formed to own the joint venture assets and the Australian partner had a 51% interest and Mr Wong held 49%. The Tribunal had no difficulty in accepting that the joint venture owned by the new Australian company was (or would be when operating) an Australian business. In the present case, BIS, whether owned by the partnership of the applicant, his Australian resident brother and Jimmy Tsen, or owned by the Australian company, has much stronger arguments to be an Australian business.
68. There were sound business reasons for locating BIS in Australia, which were expanded on by both the applicant and Professor Dowling. In summary, these were that the business reputation and credibility of BIS in both North Borneo and in Australia was assisted by being an Australian business. This reputation was a vital part both of winning business in North Borneo and in obtaining the necessary Australian experts to provide that business. The Tribunal accepts that BIS is an Australian business in which the applicant has a substantial ownership interest and which he is managing on a day to day basis and indeed is devoting to it a very significant part of his working efforts.
69. Of course the business must be an eligible business as defined in s134 (10). On the evidence and in particular the use of the business to promote and use Australian expertise (and goods, i.e. the Solarhart proposal and/or the hardware for the sewage proposal) in North Borneo, the Tribunal’s view is that the business meets criteria (a), (b) and (c) of the definition of an eligible business, namely the creation of business links with the international market, the creation or maintenance of employment in Australia and the export of Australian goods and services. It should be noted that the definition of eligible business includes both the present “is resulting” and the future “or will result in” one or more of the 6 criteria. In determining these matters at the date of cancellation, evidence of the business activities since cancellation may be taken into account in determining whether the existing business at the time cancellation was in fact an eligible business.
Section 134(2) – Genuine Efforts
70. The Tribunal is satisfied on the evidence before it that the applicant meets all the criteria of s134(1), so that there is no need to go further and consider the provisions of s134(2) and (3). However if the Tribunal is incorrect in finding that the requirements of s134(1) were met at the time of cancellation then the Tribunal is nevertheless satisfied that the applicant has made genuine efforts to obtain and perform the matters set out in s134(1) (a) and (b) and that he intends to continue with those efforts.
71. When determining whether the applicant has made genuine efforts in relation to these matters, the respondent is directed that she may take into account the matters listed in s134(3).
72. The whole range of initiatives pursued by the applicant in relation to his proposed business in Australia should be considered in determining whether the applicant has made genuine efforts and intends to continue those efforts. These include:
·the applicant’s original efforts for a business in Perth to bring eco-tourists from Malaysia to Australia, which business could not proceed because the applicant was not granted the necessary licence as a Malaysian outbound tour operator.
·The applicant’s similar efforts to bring medical tourists from Malaysia to Australia which depended on negotiations with a suitable hospital in Perth.
·The BIS partnership’s investigation of the business prospects of exporting jet engines which included the actual export of one jet engine as market leader.
·BIS’s investigation of the business prospects of exporting other Australian products including wines, orange juice and mineral water which all turned out not to be viable
·The payment of a substantial salary to Jimmy Tsen on the basis that he put in at least 50 hours a month work for the business in finding and investigating leads as well as arranging and paying for consultant’s itineraries, air transport and other expenses.
·BIS’s proposal to contract and use the services of Mr Sam Rizzo an Australian architect of international repute in the design and building of the further eco-lodge for Golden Goodhill Sdn Bhd at Mount Kinabalu World heritage Site and then to expand on this to be the consultant for the construction of other eco-lodges in Malaysia and Brunei. This included bringing Mr Rizzo to Sabah in 2004 (as well as employing him as a key note speaker at the 2005 conference) in order to interest him in this project. Whilst the Eco Lodge proposal did not proceed with Mr Rizzo, it is now proceeding with new Architects and with the guidance of Professor Dowling.
·Investigation of the export of Hovercraft from Australia to Malaysia.
·The work of the applicant and Jimmy Tsen as well as that of Professor Dowling as a consultant in organising and conducting through BIS the Conference in Sabah in 2005 the proposed conference in Sarawak in 2007 the additional seminars in Sabah and Sarawak in 2006 which work has the aim of building BIS’s reputation so that major projects such as the sewage project for the Brunei Water Village can follow.
73. The applicant estimated that he spent approximately of 50% of his working time in relation to BIS and this was not challenged by the respondent. Jimmy Tsen estimated that he spent at least 50 hours a month. The extent of the time spent on achieving a business is a major factor in determining whether there have been genuine efforts by the applicant.
74. In determining whether the applicant has made genuine efforts, the Tribunal is to have regard to the factors contained in s134 (3) and also to the Migration Series Instruction MSI 133 at 4.5.1 which provides some assistance as to the meaning of these factors. However it should be noted that MSI 133 appears in some respects to be more restrictive than the statutory requirements.
75. In relation to each of the matters raised in s134(3) and the commentary in MSI 133 the applicant’s performance can be judged as follows:
(a)“business proposals that the person has developed;” - The MSI states that the business proposal is required to be genuine, realistic and achievable. It is submitted that all the proposals considered and investigated by BIS through the applicant and Jimmy Tsen fit this category, even if their fruition was frustrated by things beyond their control, such as the failure to obtain a necessary licence, the high exchange rate of the Australian Dollar, or if another party failed to proceed with the proposal.
(b)“the existence of partners or joint venturers for the business proposals;” - The MSI refers to a formal contract with partners or joint venturers. The registration of the business name for the 3 partners, the preparation of accounts for the business showing the partnership shares and the filing of the partnership tax returns, all provide formal proof of the existence of the partnership.
(c)“research that the person has undertaken into the conduct of an eligible business in Australia;” - The MSI refers to evidence of detailed consultations with 3 advisers. The research that the applicant has undertaken with consultants, such as Prof Ross Dowling and Sam Rizzo and many others, exceeds what is expected by the MSI. The applicant has also consulted his accountant, his banker and business friends in Australia. His initial plans for inbound tourism to Australia were made in conjunction with his brother as managing director of the New Esplanade Hotel, which was to provide the initial base for the tourists in Perth. The applicant’s accountant has continued to prepare the business’s financial returns.
(d)“the period or periods during which the person has been present in Australia;” - The MSI refers to physical presence in Australia of more than 6 months (i.e. 183 days in total) in the initial 3 year period. The applicant was in Australia for 143 days in this period. This is not far from the minimum expected and is of course only one factor to be taken into account. (Compare Wong v MIMIA (supra) where Mr Wong succeeded in establishing genuine efforts, although he had spent just 15 days in Australia.) Certainly the MSI contemplates the reasonable possibility of substantial periods, even the great majority of the time spent, outside Australia. Of greater importance in the Tribunal’s view is that during the 3 year period prior to cancellation, the applicant was continuously working on the BIS business with substantially greater time devoted to it than for any one of his established businesses. Further the nature of the BIS business and particularly the development of the export of consultancy work to East Malaysia required the applicant to be in Malaysia to achieve the aims of the BIS business.
(e)“the value of assets transferred to Australia by the person for use in obtaining an interest in an eligible business;” - The MSI refers to the transfer of at least 50% of the funds indicated as available for transfer. The statutory requirement is only to look at the value of assets transferred as at date of intended cancellation. The BIS records for 30 June 2005 show cash in the Bank of $26,877.25 and a Term Deposit of $102,173.26. This was sufficient funds for the Business at the relevant time, according to the applicant’s evidence.
(f)“the value of ownership interests in eligible businesses in Australia that are, or have been, held by the person;” - The value of the applicant’s ownership interest in the partnership by reference to Owners Equity and Note 6 in the financial statements as at 30 June 2005 shows the Capital Account for the applicant of $142,398.41. The MSI refers to a minimum of $100,000.
(g)“business activity that is, or has been, undertaken by the person;” The MSI refers to a turnover of $100,000. The applicant contends and the Tribunal agrees that turnover can be very misleading. In relation to an export business the turnover can be very high with little trading profit. In relation to a consultancy business, turnover and trading profit are likely to be much more closely aligned. The accounts to 30 June 2005 show $41,597.04 in turnover or income and a net profit after expenses of $6,637.67. The applicant gave evidence that in all his businesses he worked to a long term goal and that it was necessary to build reputation and trust before looking to maximise financial returns. The work by BIS in organising and running Conferences and Seminars, which had already provided some significant revenue at the date of the cancellation were part of a long term goal of developing Australian expertise to North Borneo and were not an end in themselves.
(h)“whether the person has failed to comply with a notice under section 137;” - The applicant has comprehensively complied with the 24 month notice under s137.
76. The above matters have to be considered in the context of the meaning of the phrase “genuine efforts” as stated by the Tribunal in Wong v MIMIA (supra) at par 26:
“In Yam (supra) the Tribunal thought that the word "genuine" and the matters mentioned in subsection 134(3) showed that there must be a level of effort in relation to the relevant matters beyond that which is purely superficial or token, that the applicant himself or herself is the person who must have made the genuine efforts, and that relevant efforts which are genuine should not be rejected by virtue of subsection 134(3) simply because they fall short of the examples given in that section.” Also as stated by the Tribunal in Gunawan v MIMA (2006) AATA 852 at par 46 "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.”
77. In all the circumstances the steps taken by the applicant, to own and manage an eligible business, namely BIS, in the period between the grant of his visa and the decision to cancel that visa on 30 August 2005 coupled with the evidence of his intention to continue that business into the future and particularly having regard to his long term vision and goals, meet the criteria of “genuine efforts.”
Residuary Discretion
78. Even if the Tribunal had determined that the applicant did not meet the requirements of s134(1) and had not made the genuine efforts as required by s134(2), the Tribunal is of the view that it should still exercise its residuary discretion not to cancel the applicant’s Visa.
79. That the discretion exists and is at large has now been determined by the judgment of the Federal Court in Kim v MIMIA (2004) FCA 31 at par 9, 16-21. The exercise of the discretion is not mandated by the Act, or by the Regulations. In that regard it is similar to the cancellation on character grounds under s501 of the Act.
80. The most important criteria to be taken into account when exercising the discretion are the following:
·The best interests of any minor children affected by the decision to cancel.
·The benefit or detriment to the Australian community as a whole and in its international relations if the visa is cancelled.
·The hardship to the applicant and to the applicant’s family members, who have relied on the grant of the visa to gain permanent residence in Australia.
·Whether a decision setting aside the cancellation would adversely affect the objectives of the Australia’s migration policy.
81. It is clearly in the interests of the applicant’s third child, who was 17 at the relevant time and is now 18, that his schooling should not be disrupted by cancellation of the visa. This will inevitably occur if he is required to return to Sabah to complete his schooling and to return to a different schooling system. Equally, it is in his interests that he should be re-united with his parents and able to live with them on a permanent basis. The cancellation of the applicant’s visa and the consequent uncertainty caused has delayed the applicant’s and the applicant’s wife’s decision to move to Sydney to be with the 3 elder children. This uncertainty and consequent disruption to their family life would also have affected the third child. The best interests of the children were and are that the applicant’s visa be not cancelled and in turn that their visas be not cancelled and there are no strong countervailing considerations. The best interests of the youngest child are also that her family be free to retain their Australian permanent residency, so that she can also receive the balance of her schooling in Australia and that the family can proceed with their plans to become permanent residents of Australia.
82. That the best interests of affected children should be taken into account as a primary consideration was held by Deputy President Hotop in Haman v MIMIA [2002] AATA 1113 at par 70 and indeed in that case this issue was given very considerable weight, which outweighed the very strong reasons for cancelling the applicant’s visa, namely that he had committed serious offences involving fraud and was serving a 7 year jail sentence.
83. The potential benefit to the Australian community is clearly considerable if the applicant is permitted to pursue his intended business operations. The export of Australian services into the South East Asian market is much more complex than the export of goods, but is potentially just as important. The proposed arrangements for sewage control for the water village on the Brunei River is an example of what can be achieved and with likely high profits where Australian technology and expertise can be exported, provided that a consultancy business is available to make the necessary contacts available in both Australia and in the overseas country; this is the service that BIS aims to provide. Of course, it may be possible for the applicant to pursue this business without a permanent visa, but it will undoubtedly be much more difficult for him and if he gives up or it proves too difficult if he loses his ability to travel freely between Australia and Malaysia and if his business loses its credibility because its main shareholder is based overseas, it is Australians generally and particularly those who would use the consultancy business to sell their expertise or services into South East Asia, who will be the losers.
84. There will be considerable hardship for the applicant and his family if the visa is cancelled. He has put the last 3 to 4 years of his life into developing this business. He and his wife and his children have made their plans to become permanent residents of Australia. These plans will have to be changed. The children’s schooling and university studies will be disrupted. This particularly applies to all 3 eldest children regardless of their age.
85. It is not contended that this hardship amounts to extreme hardship, nevertheless it is significant.
86. The final issue is whether setting aside the cancellation would be contrary to the objectives of Australia’s migration system. In the Tribunal’s view this would only occur where an applicant has made no effort to meet his original commitment, or where he obtained the visa effectively by misleading the Department.
87. In Kim v MIMIA (supra) at par 14 the Federal Court said that the most relevant criterion under Subclass 127 Visa was the requirement under clause127.216 that the applicant have a genuine realistic commitment to establish, or participate in an existing, eligible business. This is clearly the present case. The applicant wishes to live with his family as a permanent resident in Australia. He has very significant investments in Australia. His original plans had to change for reasons beyond his control. He has devoted on his estimate half of his working and business time to BIS and the only real issue is whether this business is seen as a business carried on in Australia, given that the services it delivers, although sourced in Australia, are delivered primarily in East Malaysia and Brunei.
88. In Wong v MIMA (supra) at par 53 the Tribunal held that even if it was wrong to find that the proposed eligible business was a business in Australia it would still have exercised its discretion under s134(1) in favour of Mr Wong so as not to cancel his visa. This was notwithstanding that Mr Wong had spent virtually no time in Australia and was not planning to migrate to Australia in the foreseeable future and the favourable exercise of the discretion was largely because of the business benefits that the Mr Wong’s business plans could bring to Australia. The current applicant’s business plans could also be of very great benefit to Australia; in addition of course he and his family intend to migrate to Australia and the reason why they have not done so at the present time and joined their sons who are living in Sydney is because of the cancellation in August 2005.
89. For all these reasons and because there are no countervailing reasons the discretion should be exercised in favour of the applicant.
90. The Tribunal accordingly sets aside the decision under review.
I certify that the ninety [90] preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member
Signed: .............(Sgd. Ms R Riberi) ...........................
AssociateDates of Hearing 11 – 12 October 2006
Date of Decision 9 March 2007
Counsel for the Applicant Mr H Christie
Solicitor for the Applicant Mr T Su, Su & Co
Solicitor for the Respondent Mr A Gerrard, Australian Government Solicitor
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