Thomas and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 637

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 637

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2004/275

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MYRNA SUSAN THOMAS

Applicant

And MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon R J Groom (Deputy President)

Date5 July 2005

PlacePerth

Decision The Tribunal sets aside the decision under review and directs that the business visa of the applicant not be cancelled.

[Sgd The Hon R J Groom]

Deputy President

CATCHWORDS

IMMIGRATION – cancellation of Business Skills Visa Subclass 128 – whether applicant had a substantive interest in an eligible business – whether 30% shareholding sufficient – whether participating at senior level in day to day management of business – participating in management outside Australia – intention to continue ownership interest and management – pre-conditions in s134 of Act not satisfied – no discretion to cancel – decision under review set aside.

Migration Act 1958 – ss134, 135, 136

Ng and Minister for Immigration Multicultural and Indigenous Affairs [2003]AATA 299

Huang and Minister for Immigration and Multicultural Affairs [2002] AATA 656

Jo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 77

Wong and Minister for Immigration and Multicultural Affairs [2002] AATA 54

Commissioner for Superannuation v Scott (1987) 13 FCR 404

REASONS FOR DECISION

5 July 2005 The Hon R J Groom (Deputy President)

1.      This is an application to review a decision made on 12 July 2004 of a delegate of the respondent to cancel the applicant’s Business Skills (Subclass 128 Senior Executive) visa.

2. The hearing of the application was held in Perth on 16 May 2005. Mr J Galloway appeared for the applicant and Ms L McPherson for the respondent. The applicant gave oral evidence. The “T” documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 were received into evidence and further documents were tendered in evidence and marked as exhibits.

Background Facts

3.      I find the following background facts:

(a)The applicant was born in Singapore on 28 December 1947 and is a citizen of that country.   She was granted a Business Skills visa on 20 November 2000 and first entered Australia under that visa on 18 March 2001.

(b)The applicant has spent most of her working life in Singapore.   She worked in the television industry there for some 20 years and then with an international public relations consultancy for 9 years before being employed by the Caltex Corporation in Singapore for a further period of approximately 3 years.   The applicant worked fulltime for the Caltex Corporation until sometime in December 2002 and, in order to complete certain projects, she then worked part-time for that company until 30 June 2003.

(c)As at the date of cancellation of the visa, the applicant was a director of, and held shares in, an Australian company Channel 5 Pty Ltd trading as CVA Film and Television (“the company”).    The company, which has its headquarters in Western Australia, is involved in video, film and television production and related activities.   The applicant became associated with the company as early as 1995 when she used her public relations and marketing skills to help secure contracts with government agencies and other entities in Singapore.  Singapore has been the principal source of business for the company for many years.

(d)The applicant purchased a 30% interest in the company in April 2004.   This was after the delegate had given notice on 16 March 2004 of an intention to cancel the applicant’s visa.   According to the ASIC database the applicant owns 3 ordinary shares of the 10 ordinary shares issued in the company.   The two share certificates (at T documents pp247-248) indicate that the applicant paid a total of $33,332 for the 3 shares.   The share certificates were issued in the applicant’s name on 8 April 2004.   The applicant stated in evidence that she had in fact invested two amounts of AUD$50,000 each in the company on 6 April 2004 and 13 September 2004.   The applicant became a director of the company on 30 March 2004.  

(e)The evidence indicates that Mr Derek Longhurst has a controlling interest in the company.   He owns 1 share in his own right, but also 5 shares jointly with his wife.    He signs all contracts, looks after the finance of the company and is actively involved on a day to day basis, both in Australia and Singapore.   Mr Longhurst, who is a former BBC and ABC producer, is referred to in some of the company’s promotional material as “Executive Producer”.

(f)The company has been successful in gaining significant contracts in Singapore where it undertakes approximately 80% of its work.    Although its performance has varied from year to year, the company has generally been profitable and, for example, it averaged over $980,000 in gross earnings for the period 1997/8 to 2001/2002.  It has won numerous industry awards for the quality of its videos and other productions.

(g)In order to ensure continuing business for the company in the Singapore market it was decided to incorporate a company in Singapore.    CVA (Singapore) Pte Ltd was created in 1999.   Any contracts won in Singapore were entered in the name of the Singapore Company.    In oral evidence the applicant described the Singapore entity as the “reception desk” but, “… all the work, all the creative input and all the technical input, was coming out of Perth.”

(h)The applicant is on the record as the holder of 50,000 ordinary shares in CVA (Singapore) Pte Ltd.    However it is clear from the terms of the deed signed on behalf of the company and by the applicant dated 14 May  1999 (see T documents p118) that she is not the beneficial owner of those shares, but merely holds the shares in trust on behalf of the company.   The deed shows that the company actually paid for the shares held in the name of the applicant in CVA (Singapore) Pte Ltd.

(i)Both the company and Singapore company, CVA (Singapore) Pte Ltd have no permanent workforce.   The role of the Singapore entity is to make appropriate contacts, market the operation and find clients.   The Australian entity then contracts in the necessary technical expertise to actually produce the creative work and the end product.    The end product is mainly corporate videos for government entities and some private sector companies in Singapore.

(j)Since obtaining her Business Skills visa in 2000, the applicant has spent most of her time living and working in Singapore.   The evidence is that the applicant spent 198 days in Australia between the date her visa was issued on 20 November 2000 and the date the delegate cancelled her visa on 12 July 2004.    So the applicant was in Australia for 198 days out of a total period of approximately 1330 days.

(k)As indicated in (b) above, the applicant worked for many years in journalism and television in Singapore.   She has obviously gained a detailed knowledge of the Singapore market and has many useful contacts there.   The applicant’s expertise is in communication, public relations, and marketing and she also has a sound knowledge of Singapore, its people and culture.    Her principal role with the company has been to make the contacts and seek out business for the company in Singapore.   The applicant has injected capital into the company and has worked for it for some years, yet to this point, quite surprisingly, she has received no return on capital and no salary or payment from either the company or CVA (Singapore) Pte Ltd.

(l)The applicant purchased land in Perth in 1998 and built a house on that land.   The house was completed in 2000 and sold in 2004.   the applicant then purchased an apartment in Perth, which she said is valued at approximately AUD$940,000 and on which an amount of some $340,000 is owing.   The applicant has bank accounts in Australia totalling $200,000.   Her investments in Australia therefore total approximately $900,000, including $600,000 in real estate, $200,000 lodged in bank accounts and $100,000 with the company.

(m)On 7 March 2003, a standard 24-months survey was sent to the applicant for completion.   As the applicant failed to complete and return the survey, another copy was sent to the applicant for completion on 22 May 2003.

(n)The completed survey was received on 15 July 2003.   Information provided in the completed survey stated that the applicant had invested $50,000 (30% shareholding) in Channel 5 Pty Ltd.

(o)On 28 August 2003 a letter was sent to the applicant requesting that she provide further information on her business activities in Australia.   Further documentation was sent on 19 November 2003.

(p)Additional information was sent by the applicant under cover of letter dated 3  December 2003.

(q)On 16 March 2004, a notice of intention to cancel the applicant’s visa was e-mailed to the applicant’s representative, Mr John Galloway.   The notice of intention to cancel the visa was issued because the delegate of the respondent was not satisfied that the applicant had invested the money in Channel 5 as she had claimed.   A company search conducted through the Australian Securities and Investment Commission (ASIC) revealed that the applicant was not then listed as a shareholder or director of the company.

(r)The applicant responded to the notice of intention to cancel the visa by letter dated 13 April 2004.   The applicant stated that evidence of her involvement in the company was being registered with ASIC.    On 22 April 2004 the applicant sent by fax an updated ASIC company search showing that she is registered as a shareholder and a director of the company.

(s)After considering all of the material provided by the applicant, the delegate was not satisfied that the applicant had obtained a substantial ownership interest in an eligible business nor that she was utilising her skills at a senior level on a day-to-day basis in the management of the business. The delegate was also not satisfied that the applicant was making the genuine efforts within the terms of s134(2) of the Act. The delegate of the respondent cancelled the applicant’s visa on 12 July 2004.

(t)On 2 August 2004 the applicant applied to the Administrative Appeals Tribunal for review of the decision.

Legislation

4.      The following provisions of the Migration Act 1958 (“the Act”) are relevant to this application:

“134 (1)

Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australia visa, an investment-linked visa or a family member's visa), by written notice given to its holder, if the Minister is satisfied that its holder:

(a) as not obtained a substantial ownership interest in an eligible business in Australia; or

(b) is not utilising his or her skills in actively participating at a senior level in the day-to-day management of that business; or

(c) does not intend to continue to:

(i)        hold a substantial ownership interest in; and

(ii) utilise his or her skills in actively participating at a senior level in the day-to-day management of;

an eligible business in Australia.

(2) The Minister must not cancel a business visa under subsection (1) if the Minister is satisfied that its holder:

(a) has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and

(b) has made a genuine effort to utilise his or her skills in actively participating at a senior level in the day-to-day management of that business; and

(c) intends to continue to make such genuine efforts.

(3) Without limiting the generality of matters that the Minister may take into account in determining whether a person has made the genuine effort referred to in subsection (2), the Minister may take into account any or all of the following matters:

(a)       business proposals that the person has developed

(b) the existence of partners or joint venturers for the business proposals;

(c) research that the person has undertaken into the conduct of an eligible business in Australia;

(d) the period or periods during which the person has been present in Australia;

(e) the value of assets transferred to Australia by the person for use in obtaining an interest in an eligible business;

(f) the value of ownership interest in eligible businesses in Australia that are, or have been, held by the person;

(g) business activity that is, or has been, undertaken by the person;

(h) whether the person has failed to comply with a notice under section 137;

(i) if the person no longer holds a substantial ownership interest in a particular business or no longer utilises his or her skills in actively participating at a senior level of a day-to-day management of a business:

(ii) 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).

…

(7) If the Minister cancels a business visa under this section, the Minister must include in the notice given to its holder:

(a)       the Minister's reason for the cancellation; and

(b) a statement to the effect that the holder may, within 28 days after receiving the notice, apply to the Administrative Appeals Tribunal for review of the cancellation.

…

(9) The Minister must not cancel a business visa under subsection (1),

(3A or (4) unless a notice under section 135 was given to its holder within the period of 3 years commencing:

(a) if its holder was in Australia when he or she was first granted a business visa—on the day on which that first visa was granted; or

(b) if its holder was not in Australia when he or she was first granted a business visa—on the day on which its holder first entered Australia after that first visa was granted.

(10) In this section:

business visa means:

(a)       a visa included in a class of visas, being a class that:

(i)        has the words "Business Skills" in its title; and

(ii)       is prescribed for the purposes of this paragraph; or

(b)       a visa:

(i) to which a prescribed provision of the Migration Reform (Transitional Provisions) Regulations applies; and

(ii)       that is of a kind prescribed for the purposes of this paragraph; or

(c) a return visa that is granted to a person who is or was the holder of a business permit or business visa;

that is or was granted on or after 17 February 1992.

eligible business means a business that the Minister reasonably believes is resulting or will result in one or more of the following:

(a)       the development of business links with the international market;

(b)       the creation or maintenance of employment in Australia;

(c)      the export of Australian goods or services;

(d) the production of goods or the provision of services that would otherwise be imported into Australia;

(e)the introduction of new or improved technology to Australia;

(f) an increase in commercial activity and competitiveness within sectors of the Australian economy.

established business in Australia visa means a business visa a criterion for whose grant:

(a)       relates to the applicant having an established business in Australia; o

(b) is that the applicant is a member of the family unit of the holder of a visa a criterion for whose grant is as mentioned in paragraph (a).

…

ownership interest, in relation to a business, means an interest in the business as:

(a)       a shareholder in a company that carries on the business; or

(b)       a partner in a partnership that carries on the business; or

(c)       the sole proprietor of the business;

including such an interest held indirectly through one or more interposed companies, partnerships or trusts.

…

135 (1)

Before cancelling a visa under subsection 134(1), (3A) or (4), the Minister must give its holder a written notice:

(a)       stating that the Minister proposes to cancel the visa; and

(b) inviting its holder to make representations to the Minister concerning the proposed cancellation within:

(i) if the notice is given in Australia—28 days after the notice is given; or

(ii) if the notice is given outside Australia—70 days after the notice is given.

(2) The holder may make such representations to the Minister within the time specified in the notice.

(3) The Minister must give due consideration to any representations.

(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.

136.  Application may be made to the Administrative Appeals Tribunal for review of a decision of the Minister under subsection 134(1), (3A) or (4).”

Consideration of the Issues

5.      Section 134(9) provides that, in the circumstances of this application, the Minister must not cancel a business visa under s134 unless a notice under s135 was given to its holder within 3 years of the day she first entered Australia after the visa was granted.   Notice was given by e-mail to the applicant’s representative on 16 March 2004.    The Tribunal finds that the requirements of s134(9) are satisfied in this case.    It is pointed out that this particular matter was not in issue  at the hearing of the application.

6.      In summary, the Minister’s delegate has a discretion to cancel a business skill if the delegate is satisfied that the holder of the visa at the date of the decision:

(a)has not obtained a substantial ownership interest in an eligible business in Australia; or

(b)was not then utilising her skills in actively participating at a senior level in the day-to-day management of that business; or

(c)does not intend continuing to hold that ownership interest or utilise those skills.

The delegate must not cancel the business visa, however, if the holder has made a genuine effort to obtain that ownership interest and to also utilise those skills and intends to continue to make such efforts.

7.      The Minister’s delegate has to be satisfied with only one of (a), (b) or (c) in order to exercise the discretion to cancel.    But the delegate must not cancel the visa if genuine efforts were being made and will continue to be made to achieve (a) and (b).

8.      In cases of cancellation of a business visa the Tribunal must consider whether the decision to cancel is the correct or preferable decision at the time of the cancellation decision: see Re Wong and Minister for Immigration and Multicultural Affairs [2002] AATA 54. It is, however, open to the Tribunal to examine events that occurred after the date of cancellation to see whether they throw any light upon circumstances as at the time of the cancellation decision.

9.      The first significant issue that the Tribunal must consider is whether the applicant at the time the decision to cancel was made had a “substantial ownership interest in an eligible in Australia.”

10. There is no doubt that the company is a genuine business with links to the international market and is exporting skills and services overseas. It appears to satisfy the definition of “eligible business” in s134(10) and, in fact, this was conceded on behalf of the respondent. The Tribunal finds that the company at the relevant time was an eligible business within the meaning of the Act.

11.     The next question is whether the applicant had a “substantial ownership interest” in the company.   As was pointed out in 3(d) above, at the time of the decision to cancel the visa, the applicant owned 3 shares in the company which was equivalent to 30% ownership.   In the majority judgment in Commissioner for Superannuation v Scott (1987) 13 FCR 404 at 408 the following helpful comments were made:

"This court has on a number of occasions considered the adjective "substantial" and even where it stands alone uninfluenced by proximity to the word "wholly" has adopted a meaning which accords with the submission of the Commissioner. I refer in particular to Tillmanns Butcheries Pty Ltd v Australasian Industry Employees Union (1980) 27 ALR 367. At 382, Deane J said "the word `substantial' is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision. In the phrase `substantial loss or damage', it can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in a relative sense or can indicate an absolute significance, quantity or size. The difficulties and uncertainties which the use of the word is liable to cause are well illustrated by the guidance given by Viscount Symon in Palser v Grinling [1948] AC 291 at 317 where, after holding that, in the context there under consideration, the meaning of the word was equivalent to `considerable, solid or big', he said `applying the word in this sense, it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances of each case' ... in the context of s45D(1) of the Trade Practices Act 1974 (Cth), the word `substantial' is used in a relative sense in that, regardless of whether it means large or weighty on the one hand or real or of substance as distinct from ephemeral or nominal on the other, it would be necessary to know something of the nature and scope of the relevant business before one could say that particular actual or potential loss or damage was substantial. As at present advised, I am inclined to the view that the phrase `substantial loss or damage' in s45D(1) includes loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal."

12.     The question as to whether a particular ownership interest is substantial is a matter of fact and degree.    It is, of course, a question of determining whether the ownership interest in this particular eligible business is a substantial one.   In dollar terms it may not be a major national investment but, of course, that is not the issue here.

13.     The Tribunal has had some concerns about the reality of the applicant’s investment and work in the company.   Contrary to the impression conveyed by the applicant the investment in the Singapore entity was not her investment, but an investment made by the company itself.   This fact is clear from a reading of the deed at page 115 of the T documents.   In addition the $50,000 said to have been invested in the company on 13 September was in fact by way of a loan.   (See the loan agreement at p29 of Exhibit A1).   There is, however, evidence of a $50,000 payment to the company on 7 April 2004 a day prior to the issuing of the share certificates on 8 April 2004. (see T documents p245)

14.     After considering the evidence, I am satisfied that the applicant does have a 30% interest in the company and that she has paid for that interest.   This is not a token or nominal interest.    It is real, and is substantial.  I am satisfied that the applicant obtained, in April 2004, a substantial ownership interest in this particular eligible business in Australia and that she retains that interest.

15.     the Tribunal must next decide whether the applicant has “utilised her skills in actively participating at a senior level in the day-to-day management of that business”.

16.     There is very little evidence in the material before the Tribunal suggesting active involvement by the applicant in the day-to-day management of the company within Australia.    In reality, the applicant’s principal place of residence and place of work has been in Singapore.    No doubt she is a very competent person and her skills and knowledge are very valuable to the company in its endeavours to succeed in the Singapore market.

17.     In her oral evidence the applicant emphasised the nature and importance of her role in Singapore.    She said:

“… My role is basically one of marketing, of getting the business in.”

and speaking of her work in Singapore , she said:

“…I would be the base person to either deal with the client or also to provide the local content, which some Government agencies are concerned about.   So my job was really to provide that input, in terms of policy direction, in terms of sensitivities to the marketplace, and that was my involvement.” (Transcript p6)

Further explaining her work in Singapore, the applicant said:

“… All the supervising people and the cameramen who bring in the quality and content all come out of Perth, but they need assistance, they need somebody who can go out and hire some equipment for them which they don’t want to bring from here or they may not have it here.   So that would be my job, to get the equipment for them, get the quality, get that payment negotiated again so that if there is an extension there is no penalty and then everybody would come together in Singapore.  We would have a big meeting and then I would actually discuss with the client in terms of how the work is to proceed.” (Transcript pp17-18)

18.     Although there is a good deal of written material before the Tribunal including bank accounts, tax returns, contracts, awards and other documents concerning the company, there is surprisingly little documentary evidence  of the applicant’s work with the company.   She was asked about this by Mr Galloway and the applicant said:

“ I think it is the nature of the business.  I mean I – I talked to Derek about this, I said, “I’m facing a problem because, you know, we don’t have all the paperwork, and he said to me that because we – it is the nature of the business in the sense that you talk about it and you move very fast.   Now, there is some paperwork in terms of what I have provided in terms of strategy that we would need to follow, but a lot of it is discussion, a lot of it is immediate response, if you like.” (Transcript p9)

19.     The applicant said that she had not yet drawn any salary from the company.   When asked why not, the applicant said:

“Because we haven’t been making money, but also because for the Singapore entity the deal was that I would not draw a salary but I would get the shares in the Australian entity at a premium and that is what has happened and we’re now just beginning to rebuild the business.  So this is something that we will have to look at, say, in June like, you know, exactly how we would structure the payments.”  (Transcript p10)

20.     An important issue is whether, on all of the evidence, the applicant’s work in Singapore was “day-to-day management” of the business and if it was whether s134(b) is satisfied when the applicant is participating in the management of the company’s business activities in a foreign country namely Singapore.

21.     In Ng and Minister for Immigration Multicultural and Indigenous Affairs [2003] AATA 299 Deputy President Wright QC commented at [12}:

“This does not mean that the visa holder is confined to working within the geographical limits of Australia. Obviously overseas trips may be a vitally important part of fostering and expanding the business. However the Act does not contemplate an absentee entrepreneur directing operations from afar. Direct “hands on” involvement within the Commonwealth of Australia is essential. A business skills visa carries with it the right of permanent residency in Australia during its existence and by joining family members as secondary applicants they too can obtain this privilege. It would be strange indeed if an overseas entrepreneur could secure these advantages by departing from Australia and directing business operations from abroad within a day or two of his first arrival and never setting foot in this country again.”

22.     Senior Member Muller (as he then was) said in Huang and Minister for Immigration and Multicultural Affairs [2002] AATA 656 at [12}:

“Not only must the eligible business operate in Australia to comply with the Act, the visa holder must participate at a senior level in the day-to-day management of the Australian business in Australia, albeit with trips overseas from time to time.”

23.     However I find that I concur with the following well reasoned opinion expressed by Member Allan in Jo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 77 at paragraph 33:

“ I agree with the views expressed by Senior Members Muller and Allen and Deputy President Wright that the business skills visa provisions of the Act are designed to permit persons to migrate to Australia and to take up residence in this country. However, I do not believe that it can be said that the Act demonstrates a requirement that the visa holder become ordinarily resident in Australia immediately in the sense that he or she spends the majority of his or her time in this country, only taking trips overseas from time-to-time. A number of factors have influenced that conclusion. In the first place, there is nothing in the documentation provided to me concerning the application made by the applicant for his visa (S1 - S4) that indicates that the Australian government had any requirement that overseas businesses be disposed of or the applicant's involvement in them scaled down. Specifically, the 24 months survey form that is used by the government to obtain information from visa holders asks the question (in section 7): "are you still actively involved in a business outside Australia?" and contains the statement: "note that there is no expectation or requirement that you discontinue any business outside Australia".. Secondly, the MSI at clause 4.5.1, when dealing with the issue of what constitutes "genuine efforts" in relation to the establishment of a business and involvement in its management, refers to whether or not the visa holder has been physically present in Australia for more than 6 months since first arrival. Bearing in mind that a cancellation decision will often be made between 3 and 3 ½ years after the first arrival, an expectation that the visa holder may have spent only 6 months in Australia suggests that, so far as the respondent is concerned, the visa holder is not expected to spend the majority of his or her time in this country - and may indeed spend as little as 15% of the total time between first arrival and cancellation. Finally, I note that s 134(1)(a) specifically refers to an interest in an eligible business in Australia but s 134(1)(b) does not specifically require the active participation in the management of that business to occur in Australia. It would have been very easy for Parliament to have specified in s 134(1)(b) that the management activities must occur in Australia if that had been the intention.”

24.     It seems to me, on reading the legislation and the guidelines (see T5 of T documents) that the purpose of the business skills visa is to attract to Australia successful individuals with special business skills and some capital, who can, over time, advance the interests of the Australian economy and therefore the community.   The guidelines recognise that the individuals may reside at least initially for significant periods in another country and be involved in business activities in that country.   The aim is to encourage business people to become owners or part-owners of an Australian business and to be actively involved in working for that business and managing it at a senior level.    Modern means of communication allow business people to manage a business from almost anywhere in the world.   There is no requirement that a person who obtains a business skills visa has to immediately spend all or even most of his or her time within Australia.    The granting of the visa and the other requirements do suggest however, that the ultimate objective is the eventual settlement within Australia of the individual concerned.

25. The term “management” should not be interpreted narrowly. The applicant is clearly a key player in the Singaporean operation of the company. She markets the business, but also makes the necessary arrangements when production teams arrive to make videos or do other creative work. The applicant is also involved to a degree in policy issues and strategic planning. She had made a significant number of visits to Australia since obtaining her visa and has had some limited involvement in the business here. The Tribunal finds that the applicant is involved at a senior level in the day to day management of the business in Singapore, its principal market, and that this is sufficient to satisfy s134(1)(b) of the Act.

26. The Tribunal is further satisfied on the evidence that the applicant intends to continue to hold a substantial ownership interest in the company and to continue to utilise her skills in the manner required by s134(1)(b). Indeed the evidence indicates an intention to increase her investment and involvement in the company.

Conclusion

27.     After carefully considering all of the material before it, the Tribunal  finds that none of the preconditions for cancellation set out in s134(1) is satisfied and therefore there is no discretion to cancel the visa.

Decision

28.     The Tribunal sets aside the decision under review and directs that the business skills visa of the applicant not be cancelled.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  16 May 2005
Date of Decision  5 July 2005
Counsel for the Applicant         Mr  J Galloway  
Solicitor for the Applicant          John Galloway and Associates
Counsel for the Respondent     Ms L McPherson
Solicitor for the Respondent      Australian Government Solicitor