Thomas and Minister for Immigration and Multicultural and Indigenous Affairs

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…

CaseChat Overview and Summary

The case involves Thomas, the applicant, who is contesting the cancellation of his Business Skills Visa Subclass 128 by the Minister for Immigration and Multicultural and Indigenous Affairs. The central issue before the court was whether Thomas had a substantive interest in an eligible business and whether his 30% shareholding and involvement in the day-to-day management of the business were sufficient to meet the criteria set forth in section 134 of the Migration Act 1958. The court was required to determine if Thomas had the requisite level of participation in the management of the business and whether his involvement was at a senior level. Additionally, the court had to consider whether his participation in management occurred outside Australia and his intention to continue his ownership interest and management.

The court examined the relevant provisions of the Migration Act 1958, specifically sections 134, 135, and 136, to evaluate the preconditions for visa cancellation. The court found that Thomas's participation in the management of the business, though outside Australia, was not at a senior level, and therefore, the pre-conditions in section 134 of the Act were not satisfied. The court further noted that there was no discretion to cancel the visa under the circumstances presented. The decision relied on previous cases such as Ng and Minister for Immigration Multicultural and Indigenous Affairs, Huang and Minister for Immigration and Multicultural Affairs, Jo and Minister for Immigration and Multicultural and Indigenous Affairs, and Wong and Minister for Immigration and Multicultural Affairs, which provided guidance on similar issues.

In light of the findings, the court held that the decision to cancel Thomas's business visa was flawed and set aside the decision under review. The court directed that the business visa of the applicant not be cancelled, affirming that the pre-conditions for cancellation were not met. This decision ensures that Thomas retains his visa status and continues his involvement with the business in accordance with the law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

GENERAL ADMINISTRATIVE DIVISION		)
Re		MYRNA SUSAN THOMAS