Wong and Minister for Immigration and Citizenship
[2007] AATA 1528
•6 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1528
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W200600310
GENERAL ADMINISTRATIVE DIVISION ) Re
Chong Tiing Wong
Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Mr S Penglis, Senior Member Date6 July 2007
PlacePerth
Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
..............(Sgd. S Penglis)....................
Senior Member
CATCHWORDS
Immigration – Business Skills Visa – eligible business – participation at senior level in the day-to-day management of an eligible business – genuine efforts – turns on own facts.
LEGISLATION
The Migration Act 1958 (Cth), s 134.
CASES
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
Vean v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 133 FCR 570
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] 139 FCR 344
REASONS FOR DECISION
6 July 2007 Mr S Penglis, Senior Member 1. The applicant applies to the Tribunal for a review of a decision made by a delegate of the respondent on 13 September 2006 to cancel the applicant’s business skills visa under s 134(1) of the Migration Act 1958 (Act).
2. At the outset the Tribunal notes that, on behalf of the applicant, in the applicant’s written Statement of Facts and Contentions, submissions were made to the effect that the relevant intention notice and cancellation notice were invalid as a result of which it was submitted that the power to cancel the applicant’s visa was not enlivened and that no visa cancellation was thus effected. At the hearing of the application, although not abandoned, this contention was not the subject of any oral submissions on behalf of the applicant.
3. On behalf of the respondent it was submitted that the applicant’s assertions are contrary to the decision of the Full Court of Federal Court of Australia in Vean v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 133 FCR 570. In any event, even if the applicant’s assertions were sound, the respondent submitted that it did not deny the Tribunal jurisdiction and did not preclude the Tribunal from reviewing the decision under review. The respondent relied on numerous authorities, including 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 and Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] 143 FCR 314.
4. It would seem that, in the face of the decision of the Full Court of the Federal Court of Australia in Vean’s case, the applicant’s contention in this regard is without substance. However, it is unnecessary for the Tribunal to reach any final finding in that regard as it is clear from the other authorities to which the respondent referred the Tribunal that the applicant’s contention, even if it had substance (which the Tribunal doubts), does not impact upon the Tribunal’s power, right and obligation to carry out a full merits based review of the respondent’s decision. As was stated by the Full Court of the Federal Court in Ahmed’s case, “judgement as to the validity of actions by the Minister is for the courts, not for an administrative body such as the Tribunal”.
5. Turning then to the substantive application, the applicant was granted a sub-class 127 business owner visa on or about 28 April 2003.
6. He first arrived in Australia on 11 June 2006.
7. On or about 13 June 2003, the applicant incorporated a company called Beststar (WA) Pty Ltd (Beststar) with a view to conducting a timber importing business.
8. On or about 12 June 2003, the applicant and his wife entered into a Contract for a Sale of Land by Offer and Acceptance to purchase a house at 8 Draycott Loop, Canning Vale in Western Australia. The purchase settled on or about 18 August 2003. The purchase price was $325,000.
9. Documentary evidence before the Tribunal establishes that Beststar imported timber from Malaysia and sold it to a company called Hub International (WA) Pty Ltd on three occasions. The first occasion was on or about 7 December 2003, and the invoiced amount was $7,605. The second occasion was on or about 29 January 2004, and the invoiced amount was $12,893.40. The third occasion was on 13 December 2004, and the invoiced amount was $10,037.83.
10. The documentary evidence produced before the Tribunal also establishes that in or about July 2004, the applicant acquired a 35% shareholding in a company called Ting & Ting Pty Ltd (Ting). Ting became the registered proprietor of 20 Baltic Court, Maddington, Western Australia for a purchase price of $172,500. Other than signed answers to the questionnaire issued on behalf of the respondent in which the activity “transport and storage” is ticked on behalf of Ting, there was no documentary evidence produced before the Tribunal to indicate whether Ting has carried on business.
11. The documentary evidence before the Tribunal establishes that on or about 21 April 2004, the applicant was appointed a director of Ting.
12. The documentary evidence before the Tribunal also establishes that on or about 5 October 2005, the applicant acquired a 40% shareholding in Wong Australia Pty Ltd (Wong Australia) trading as High Road Café. There is evidence before the Tribunal that between July and September 2005, Wong Australia generated “sales” of $119 971.97. Evidence produced through the applicant’s children establishes that Wong Australia continues to trade as High Road Café and that this was the position as at the date of the decision to cancel the applicant’s visa.
13. No signed statement of evidence on behalf of the applicant was tendered to the Tribunal. The applicant was not personally present before the Tribunal and did not give any evidence.
14. Accepting for the purpose of these reasons that, through his interest in Wong Australia, as at the date of the decision to cancel his visa, the applicant had obtained a substantial ownership interest in an eligible business in Australia and intends to continue to hold that interest, the matters for determination by the Tribunal are whether or not, as at the date of the decision the subject of this application
(a)the applicant was utilising his skills in actively participating at a senior level in the day-to-day management of an eligible business; or, if not
(b)the applicant had made a genuine effort to utilise his skills in actively participating at a senior level in the day-to-day management of an eligible business in Australia in which the applicant had or would obtain a substantial ownership interest.
15. There was no documentary evidence before the Tribunal to assist the Tribunal to determine to what extent, if any, the applicant was involved in the day-to-day management of Ting and Beststar.
16. As no oral evidence was produced from the applicant, and as none of the oral evidence produced from the applicant’s children dealt with either of those two companies or their businesses, the Tribunal is unable to make any findings of what the applicant did as a director of either of those companies. In this regard, the Tribunal notes that Mr Ong, Counsel for the applicant, did not suggest to the contrary. Rather, it was the applicant’s participation in Wong Australia that Mr Ong submitted satisfied the statutory requirement.
17. In this regard, various Minutes of Directors Meetings of Wong Australia were before the Tribunal. The first relevant Minutes were of a meeting held on 11 October 2005 wherein, among other things, it was resolved that the applicant “having the majority shareholding in the company, be and is hereby appointed managing director of the company”.
18. Under the heading “Review of the Company’s Performance” it was noted that the applicant advised the Board that
“He will want to institute a quarterly review of the company’s operating results. Accordingly the following review dates for the next 12 months shall be as follows:
(a) 20 October 2005
(b) 28 January 2006
(c) 28 April 2006
(d) 28 July 2006
The review shall consist of the following
1 Sales turnover
2 Expenses
3 Market conditions affecting the business
4 Staff matters”
19.Under the heading “Functions of each Director”, appears the following:
“It was resolved that the main areas of responsibilities for each of the Directors shall be as follows:
1. (The applicant) Managing Director
Setting the direction of the Company, Financial and corporate
management, staffing.”
20.Under the heading of “Confirmation of Managers” it was noted as follows:
“It was resolved that the two permanent managers be confirmed in their positions, namely, … Ling LAI; and … Hoo Lan NGIENG”.
21. Consistent with the Minutes of the Directors’ meeting held on 11 October 2005, meetings of the directors were held on 28 October 2005, 28 January 2006 and 28 April 2006. The minutes of each of those meetings were before the Tribunal. The sole items of business at those meetings was “a review of the company’s performance” in which the applicant “informed the Board” of the various matters which the 11 October 2005 Meeting of Directors recorded would be covered in its quarterly review.
22. In addition to the above, the Tribunal notes that in the Minutes of Directors’ Meeting held on 11 October 2005, it resolved that another director of Wong Australia, Mr Ting, would have the main area of responsibility as follows:
“Business Development Director - overseas. Sourcing of suitable products for Australian market”.
23. The Tribunal further notes that in a separate meeting of directors held on 20 April 2006, it was resolved that Mr Hua Ping Ting be appointed a director of the company and that
“His role shall be that of a Business Development Director – Australia. He shall establish business networking in Australia and source for food products for export to Malaysia.”
24. In the absence of any oral evidence from the applicant, the only oral evidence produced before the Tribunal relevant to this issue was as follows:
(a)the applicant never physically worked in the café;
(b)the applicant sometimes spoke to his eldest son to keep abreast of matters occurring at the café.
25.On the evidence before it, the Tribunal finds that :
(a)The only business of Wong Australia was the High Road Café.
(b)The applicant never worked in the café.
(c)Although called the “Managing Director”, the applicant’s main areas of responsibility were “setting the direction of the company, financial and corporate management, staffing”.
(d)The applicant reported to the Board on matters such as sales turnover, expenses, market conditions and staff matters on a quarterly basis.
(e)Business development was not one of the applicant’s main areas of responsibility.
(f)From time to time the applicant’s eldest son would inform the applicant as to what was happening at the café.
(g)The business of Wong Australia, namely the Café, was managed by two permanent managers.
26. It therefore follows that the applicant’s role within Wong Australia can best be described as that of a non-executive director.
27. On the evidence before the Tribunal and the facts which it has found, the Tribunal has no hesitation in concluding that on no reasonable meaning of the expression did the applicant participate at a senior level in the day-to-day management of Wong Australia’s business.
28. Moreover, having regard to the conclusions the Tribunal has reached with respect to the applicant’s involvement in the business carried on by Wong Australia, as well as the inability of the Tribunal on the evidence produced before it to make any findings (let alone finding favourable to the applicant) with respect to the applicant’s involvement in Ting and Beststar, the Tribunal has no hesitation in concluding that the applicant has also failed to establish that he has undertaken genuine efforts to actively participate at a senior level in the day-to-day management of an eligible business in Australia in which he had or would have a substantial a substantial. This conclusion is strongly reinforced by the fact that at no time since the issue of the applicant’s visa did the applicant permanently reside in Australia: the applicant and his wife were at all times residing in Malaysia.
29. It therefore follows that the decision review ought be affirmed.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Penglis, Senior Member
Signed: .........(Sgd. R Riberi)..................................
AssociateDate of Hearing 18 June 2007
Date of Decision 6 July 2007
Counsel for the Applicant Mr L Ong
Solicitor for the Applicant Munro Doig
Counsel for the Respondent Mr A Gerrard
Solicitor for the Respondent Australian Government Solicitor
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