Tjan and Minister for Immigration and Multicultural and Indigenous Affairs - [2005] AATA 889

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 889
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1528

GENERAL ADMINISTRATIVE DIVISION )

Re LINANTO TANASAL TJAN

Applicant

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member Robin Hunt
Date14 September 2005
PlaceSydney

Decision
The decision under review is affirmed.

..............................................
Ms R Hunt
Senior Member

CATCHWORDS
MIGRATION – Business Visa – Cancelled pursuant to section 134 of the Migration Act 1958– Applicant does not have a substantial ownership interest in an ‘eligible business’ –-Applicant has not made a genuine effort to establish an ‘eligible business’ – Applicant has not made a genuine effort to be involved in the day to day management of an eligible business at a senior level - Decision of Minister’s delegate to cancel Business Skills (Migrant) Visa – Decision under review affirmed.
LEGISLATION
Migration Act 1958 s 134, 137
Migration Series Instructions No 133 (MSI 133)
Second Reading Speech introducing the Bill amending section 134(1)(b) of the Migration Act 1958 (Migration Amendment Bill (No 2) 1992)
CASES
Hope v Bathurst City Council (1980) 144 CLR 1
Re Lau and Minister for Immigration and Multicultural Affairs [2002] AATA 703
Re Griffiths and Migration Agents Registration Authority [2001] AATA 240
Re Tang and Minister for Immigration and Multicultural Affairs (2000) 32 AAR 103
Re Wong and Minister for Immigration and Multicultural Affairs [2002] AATA 54
Freeman v The Secretary, Department of Social Security (1988) 19 FCR 341
Ong v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 178
Ng v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 299
Huang v Minister for Immigration and Multicultural Affairs [2002] AATA 656
Tan and Anor and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 808
REASONS FOR DECISION

14 September 2005 Senior Member Robin Hunt

SUMMARY

1. Mr Linanto Tjan applied to the Tribunal for review of a decision, dated 25 October 2004, made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to cancel his Business Skills (Migrant) Visa. The delegate cancelled the visa pursuant to section 134 of the Migration Act 1958 (the Act). The Tribunal has decided that Mr Tjan’s business interests in Australia do not amount to an eligible business for the purposes of the visa. Further, although he has made some efforts to develop a business and to investigate other opportunities in Australia, the Tribunal has decided that these are not genuine efforts to the degree warranted to reinstate the visa. Finally, the Tribunal has decided not to exercise the discretion to reinstate the visa. It follows that Mr Tjan’s application has been unsuccessful.
BACKGROUND
2. Mr Tjan was granted a subclass 127 business skills visa on 2 July 2001 and entered Australia on 6 July 2001. On 18 June 2004, Mr Tjan was sent a notice of intention to cancel his visa. He responded on 27 July 2004 and 13 September 2004 and claimed that he…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: Tjan and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 889
Case: [2005] AATA 889
Decision Date: 14 September 2005

CaseChat Overview and Summary

In Tjan and Minister for Immigration and Multicultural and Indigenous Affairs, the applicant, Mr. Tjan, appealed against the cancellation of his Business Skills (Migrant) Visa by the Minister for Immigration and Multicultural and Indigenous Affairs. The dispute centred around whether the Minister's delegate correctly decided that Mr. Tjan did not have a substantial ownership interest in an eligible business, had not made a genuine effort to establish such a business, and had not made a genuine effort to be involved in the day-to-day management of an eligible business at a senior level. The case was heard by the Administrative Appeals Tribunal (AAT).

The primary legal issues were whether the Minister's delegate correctly interpreted the criteria for the Business Skills (Migrant) Visa under the Migration Act 1958, and if the evidence supported the delegate's decision that Mr. Tjan did not meet the requirements. Specifically, the court needed to assess whether Mr. Tjan had a substantial ownership interest in an eligible business, whether he made a genuine effort to establish such a business, and whether he was involved in the day-to-day management at a senior level.

The AAT found that the Minister's delegate had properly considered the legislative criteria and the evidence presented. The Tribunal concluded that Mr. Tjan did not have a substantial ownership interest in an eligible business, had not made a genuine effort to establish such a business, and had not made a genuine effort to be involved in the day-to-day management of an eligible business at a senior level. The AAT affirmed the decision of the Minister's delegate to cancel Mr. Tjan's visa.

The final orders of the AAT were that the decision under review was affirmed, meaning Mr. Tjan's appeal was dismissed, and the cancellation of his Business Skills (Migrant) Visa was upheld.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		LINANTO TANASAL TJAN