Wong and Minister for Immigration and Multicultural Affairs
[2006] AATA 903
•23 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 903
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2005/220
GENERAL ADMINISTRATIVE DIVISION ) Re TING KIONG WONG Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Mr A Sweidan, Senior Member Date23 October 2006
PlacePerth
Decision The Tribunal affirms the decision under review.
........(Sgd. Mr A Sweidan)...................
Senior Member
CATCHWORDS
Immigration – Business Skills visa – substantial ownership interest in an eligible business in Australia – active participation at senior level in day-to-day management – genuine effort
LEGISLATION
Migration Act 1958 (C’th) s 134(1) and (2)
CASES
Ong v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 178
Commissioner for Superannuation v Scott 71 ALR 408 at 412
Re Hou Lam Yam v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283 at [19]
REASONS FOR DECISION
23 October 2006 Mr A Sweidan, Senior Member Introduction
1. This is an application for review of a decision of respondent’s delegate on 12 May 2005 to cancel the applicant's business skills visa on the basis he had not met the requirements of s 134(1) of the Migration Act 1958 (C’th) (the Act), namely that he had not obtained a substantial ownership interest in an eligible business under s 134(1)(a); and had not been involved in the day-to-day management of an eligible business under s 134(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.
Background
3. The applicant is a citizen of Malaysia. On 24 April 2001 he applied for a business skills visa. At that time he was managing director of Sion Kee Trading Sdn Bhd, a company based in Sibu, Sarawak. That company’s activities included the import, wholesale and retail of hardware items, including construction materials and it imported products from various countries, including Australia.
4. At that time, the applicant had already established a company in Perth. He intended to expand the product lines for the types of goods he already imported from Australia.
5. The applicant was interviewed at the Australian High Commission, Kuala Lumpur, in connection with his visa application on 23 January 2002. The interviewer noted that the applicant had already registered a business in Perth called ‘Hardwood Flooring Pty’. The interviewer also noted that the activity of the company was importing Malaysian timber products (floorings), and that the applicant was already involved in exporting Australian health products.
6. The applicant and his spouse have four children. The eldest two, E Lin Wong (daughter) and Sing Kung Wong (son) were living in Australia at the time of visa application. The applicant purchased a home unit in Perth which was registered in his son’s name. The address of the home unit is Unit 2, 20 Morgans Street, Tuart Hill. The unit has functioned as the business address for the applicant’s company Hardwood Flooring Pty Ltd (Hardwood Flooring). E Lin Wong and Sing Kung Wong were living in the home unit at the time the applicant applied for the visa. After the grant of the visa, E Lin carried out some business-related tasks for her father.
7. The applicant was granted the business skills visa (subclass 127) on 22 February 2002. He entered Australia for the first time on the visa on 23 February 2002.
8. On 9 March 2004 the Department received a completed 24 month survey from the applicant advising that:
8.1The applicant was currently engaged in a business in Australia, Hardwood Flooring, which supplied timber products and exported health food and skylights to Malaysia;
8.2The applicant owned 100% of Hardwood Flooring, and he had invested A$250 000 - $260 000 in it;
8.3The business had made an annual loss of A$13 000;
8.4The business had sold approximately A$10 000 worth of imported goods over one year, and had exported approximately $35 000 worth of goods in one year. There had been difficulties in selling the timber products in Australia and sales were slow. There had also been difficulty in arranging exports due to the rising value of the Australia dollar;
8.5The applicant was still actively involved in a business in Malaysia, Kingrow Sdn Bhd. That company operated from the same address as Sion Kee Trading Sdn Bhd did at the time the applicant applied for the visa.
9. On 7 February 2005 a delegate issued a notice of intention to cancel the applicant’s visa. Departmental records showed that at that time the applicant had spent less than six months in Australia since first arrival on the visa.
10. A submission in response dated 5 March 2005 was received from the applicant’s daughter. The submission described Hardwood Flooring and the efforts made to sell the timber products. The submission also referred to the efforts by the company to export Australian health food products. It was stated that difficulties had arisen due to the ‘Pham issue’, a reference to the suspension of the manufacturing licence of Pan Pharmaceutical Ltd.
11. The main customer for timber products sold by Hardwood Flooring was stated to be Austshine Pty Ltd (Austshine). Austshine trades under the name ‘Lattice Makers WA’.
12. The submission also mentioned the applicant’s interest in a joint venture concerning an accommodation hostel in Adelaide, ‘Hosana Heights’. A hostel providing accommodation for international students enrolled in nursing courses delivered by Kaylene Kranz and Associates.
13. Further information was provided about the claimed joint venture by letter dated 16 April 2005. Evidence was provided of the applicant’s shareholding in a company named Genesis Management (SA) Pty Ltd (Genesis Management), which is the holding company of Hosanna Heights.
14. The visa was cancelled on 12 May 2005, and the application for review was filed on 15 June 2005.
15. The applicant has provided four submissions to the Tribunal, dated:
15.113 June 2005;
15.228 September 2005;
15.35 October 2005;
15.48 February 2006;
16. The applicant’s claims may be relevantly summarised as follows:
16.1He has made a genuine effort to acquire a substantial shareholding in an eligible business, through:
16.1.1acquiring a 20% shareholding in Genesis Management;
16.1.2being the sole owner of Hardwood Flooring;
16.1.3having discussions with the managing director of Austshine in February 2005 about acquiring a 15% shareholding in that company.
16.2He has utilized his skills to manage an eligible business in which he holds a substantial ownership interest at a senior level through managing Hardwood Flooring; and
16.4Being a director of Genesis Management and assisting in the recruitment of Malaysian students for the college.
Evidence
17. The applicant gave evidence in support of his application and the gist of his evidence was as set out above. He provided a number of documents to which further reference is made below.
18. In addition to the applicant’s evidence he also placed the evidence of Francis Wong by telephone from Singapore before the Tribunal.
19. The evidence of Francis Wong was that the applicant had assisted in the recruitment of Malaysian students for Genesis Management and that the applicant acquired a 20% share in that company in March 2005.
20. Mr Francis Wong stated that the Genesis Equity Trust has a number of beneficiaries but the applicant is not a beneficiary of that Trust.
21. Further, Mr Francis Wong said that the applicant did not receive any of the profits made by Genesis Management Pty Ltd other than fees that were paid to him overseas.
22. The applicant also provided a number of documents demonstrating business activity after the date of visa cancellation, 12 May 2005. Those documents show inter alia evidence of:
22.1Discussions with Nick Ke, director of KePerth Trading, regarding a proposed timber based joint venture;
22.2Unloading of 7 containers of timber from Malaysia;
22.3The renewal of a lease of a property owned by the proprietor of Lattice Makers WA for storage of timber products imported by Hardwood Flooring;
22.4The sale of timber by Hardwood Flooring to G P Embleton & Co;
22.5The sale of timber by Hardwood Flooring to Planet Timbers WA;
22.6The sale of timber by Hardwood Flooring to DRB Manufacturing;
22.7The sale of timber by Hardwood Flooring to Lattice Makers WA.
Legislation and Policy
23. Subsection 134(1) of the Act provides that the Minister has a discretion to cancel the visa if 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 she is satisfied that the visa holder has made genuine efforts and intends to continue to make such genuine efforts to satisfy the requirements of subsection 134(1).
24. ‘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.
25. 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.”
26. 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 or 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.”
27. 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.
28. 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.
29. 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:
29.1business proposals that the person has developed. The MSI refers to whether there is a business proposal which is considered genuine, realistic and achievable;
29.2the existence of partners or joint venturers. The MSI refers to whether there is a formal contract with partners or joint venturers;
29.3research that the person has undertaken into the 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;
29.4the 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;
29.5the 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;
29.6the 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 or 10% ownership held by the person and provides that if the person is no longer in the business the reasons for loss of ownership are relevant;
29.7the business activity that is or has been undertaken by the person. The MSI refers to whether there is a minimum of 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;
29.8whether 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
29.9if 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 on the day-to-day management of the business:
29.9.1the length of time the person held the ownership interest or participated in the management as the case requires; and
29.9.2the reason why the person no longer holds the interest or participates in the management as the case requires.
Analysis and Findings of the Tribunal
Part 1 - Notification issues
30. The applicant was granted the business skills visa (subclass 127) on 22 February 2002 and entered Australia for the first time on the visa the next day, 23 February 2002. The notice of intention to cancel the applicant's visa was issued on 7 February 2005, with the deadline for making representations set at 16 March 2005. The applicant provided two written responses via his daughter Evelyn Wong E Lin which the delegate considered, and the visa was cancelled on 12 May 2005.
31. The Tribunal finds that the notification requirements of ss 134(9) and 135(4) of the Act have been met because:
31.1The notice of intention to cancel was given to the applicant within the period of 3 years commencing on the day on which the applicant first entered Australia (s 134(9) (b)), the document having been posted to the applicant on 7 February 2005. Under Regulation 2.55(7) (a) of the Migration Regulations 1994, a document dispatched by prepaid post to an address in Australia is deemed to have been received 7 working days after the date of the document. The document is therefore deemed to have been received on 16 February 2005, which is within the three year period ending on 22 February 2005.
31.2The time specified in the notice under s 135 as the deadline for making representations, 16 March 2005, was after the expiry of the 3 year period, and the visa was cancelled on 12 May 2005, before the end of the period of 90 days commencing at the time specified in the notice.
Substantial ownership interest in an eligible business in Australia
Part 2 - Substantial ownership interest
32. The word ‘substantial’ has been considered in Ong v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 178 where Commissioner for Superannuation v Scott 71 ALR 408 at 412 was cited with approval. In Commissioner for Superannuation v Scott the Court considered a number of authorities dealing with the question of what constitutes ‘substantial’ and held (in the context of s 45D of the Trade Practices Act 1974 (Cth)) that ‘substantial’ means:
“Real or of substance and not insubstantial or nominal.”
Hardwood Flooring
33. The applicant is the sole owner of Hardwood Flooring Pty Ltd. He thus has a substantial ownership interest in the company.
Genesis Management
34. The applicant has a 20% shareholding in Genesis Management Pty Ltd. Therefore he also has a substantial ownership interest in this company.
Eligible business
35. The primary question is whether the businesses nominated by the applicant are businesses at all: Re Hou Lam Yam v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283 at [19].
36. In order to decide whether Hardwood Flooring and Genesis Management were businesses as at 30 August 2005 (the date of visa cancellation), it is necessary to identify the characteristics of a business.In Re Hou Lam Yam (supra), the Tribunal (Mrs J Dwyer, Senior Member, and Mr W McLean, Member) stated at [20] to [23]:
“Deputy President Wright considered that issue in Re Suryaty and Minister for Immigration and Multicultural and Indigenous Affairs (2003) 37 AAR 341. He said, at para 10:
The question of whether or not an individual is participating in the day to day management of a business in Australia involves two issues.
(1) To be carrying on a “business” it must be shown that the relevant undertaking is a commercial enterprise in the nature of a going concern involving activities being pursued for the purpose of profit on a continuous and repetitive basis (Hope v Bathurst City Council (1980) 144 CLR per Mason J at p8-9). See also Tang and Minister for Immigration and Multicultural and Indigenous Affairs (2002) AATA 656 at paragraph 11; Ong and Minister for Immigration and Multicultural Affairs [2003] AATA 178 at paragraph 34(a).
(2) The relevant business must be carried on “in Australia”.
In Hope v Bathurst City Council Mason J said at pp 8-9:
Although it has been common ground that “business” is used in its ordinary meaning in s.118(1) [the phrase used was “carrying on a business”], the courts below have refrained from saying what that meaning is. This is perhaps understandable because, as a glance at the Shorter Oxford Dictionary will show, the word has many meanings. Ironically it is the last meaning given by the Shorter Oxford Dictionary, "19. A commercial enterprise as a going concern", that comes closest to the popular meaning which the courts appear to have acted on in the present case. In truth it is the popular meaning of the word as used in the expression "carrying on a business", rather than the popular meaning of the word itself, that is enshrined in the statutory definition. It is the words "carrying on" which imply the repetition of acts (Smith v. Anderson (1880) 15 Ch D 247, at pp 277-278 ) and activities which possess something of a permanent character. This conclusion serves to emphasize that it is necessary to engage in a process of construction in order to arrive at the meaning of the word in s. 118 (1). I accept, then, that "business' in the sub-section has the ordinary or popular meaning which it would be given in the expression "carrying on the business of grazing". It denotes grazing activities undertaken as a commercial enterprise in the nature of a going concern, that is, activities engaged in for the purpose of profit on a continuous and repetitive basis. Putting aside the question whether the activities have a "grazing" character, the critical issue for decision is whether the material before the Court reasonably admits of different conclusions on the question whether the appellant's activities constitute a "business". On the facts as found, I conclude that the appellant's activities amounted to a business and that no other conclusion was reasonably open. In this respect I agree with what Reynolds J.A. said in his dissenting judgment. Transactions were entered into on a continuous and repetitive basis for the purpose of making a profit. The activity had a permanent character in that it had been carried on without interruption since 1965. The appellant sought customers by advertising and kept appropriate financial records. The land, though small in area, was put to its best potential use and the pastures were improved and facilities including fences were provided for that use. There is nothing in the findings to suggest that the activities were other than genuine and real.(emphasis added)
Mason J, in Hope, quoted from the reasons for decision of the majority in the Court of Appeal. Glass J had held that the relevant activities “did not amount to a genuine, real or significant business”, and Samuels JA expressed the view that “significant” meant “important”, “real”, “genuine” or “weighty”.. Mason J held that it was an error to hold that the magnitude or size of activities was relevant to the issue of whether they constituted a business. He endorsed the view that “a man may carry on a business though in a small way”.
From the reasons of Mason J, in Hope, we understand that, in deciding whether activities constitute the carrying on of a business, it is relevant to consider:
(i)Whether transactions are entered into on a continuous basis for the purpose of making a profit;
(ii)Whether the activity has a permanent character, and how long it has been established;
(iii)Whether customers are sought and financial records are kept; and
(iv)Whether the activities are genuine and real.”
Hardwood Flooring
37. It is the Tribunal’s view for the reasons set out below that this company is not a business for the purposes of s 134 of the Act. Therefore, it is also not an eligible business.
38. The applicant provided documents relating to:
38.1The import of timber products into Australia by the applicant’s company, Hardwood Flooring. Those products all have been purchased from Kingrow Sdn Bhd.
38.2The sale of timber products by the company.
38.3The sale of skylights by the company to Kingrow Sdn Bhd.
38.4The purchase of health products by the applicant himself and Hardwood Flooring from various businesses based in Australia:
39. However the Tribunal notes that:
39.1There are no documents evidencing the exporting of the health products and the sale of those products in Malaysia, other than stamps on the invoices indicating that the GST paid was refunded under the Tourist Refund Scheme. Many of the products were purchased by the applicant personally before the applicant’s visa was granted and before Hardwood Flooring was registered as a business on 15 December 2001.
39.2Many of the invoices issued after the registration of the business have been issued to the applicant personally rather than to the business. Some invoices have been issued twice, to the applicant personally, and the company;
39.3The timber products have all been sourced from the applicant’s Malaysian business, Kingrow Sdn Bhd.
39.4The skylights were sold to Kingrow Sdn Bhd.
39.5The applicant has not provided detailed profit and loss statements or any Business Activity Statements for Hardwood Flooring.
39.6In the 24 month survey, the applicant stated Hardwood Flooring had made a loss of A$13 000.
40. In the Tribunal’s view the sale of timber to the Australian companies should be characterised as the export of Malaysian products to Australia by Kingrow Sdn Bhd without Hardwood Flooring having any material role in the process. This is demonstrated by the applicant’s following instruction to his daughter E-Lin:
“Note: E-Lin prepare inv for Kingrow S/B (As Supplier) to Hardwood Flooring (As purchaser) for the above items for the six containers. Any doubt or unclear call me at home (Sibu) for the copy of the BL (Bill of Lading; will inform shipping company to fax to you tomorrow.
and
E-Lin
Pls check the following items and sent an invoice to MR Ling of Lattice Makers WA.”
The latter instruction resulted in the issue of Tax Invoice No. K0008 to Austshine in the precise terms of the applicant’s request.
41. The applicant also supplied a copy of a contract for the sale of timber products by the Malaysian company Kingrow Sdn Bhd to an Australian company, but the Australian buyer is Planet Timbers, not Hardwood Flooring. In the Tribunal’s view this indicates that Hardwood Flooring was established by the applicant to give the appearance of him managing an import business in Australia when in fact he was exporting timber products from Malaysia to other Australian companies using his own Australian business as a token intermediary. In the Tribunal’s view, the delegate’s conclusion that Hardwood Flooring played little or no part in any international trade is correct.
42. As noted by the delegate, the trading activity of Hardwood Flooring occurred principally in 2002 and 2003. The documents show almost no activity in 2004 or in 2005 up to the date of visa cancellation. In the Tribunal’s view it is clear that over this period the company did not enter into transactions on a continuous basis for the purpose of making a profit.
43. The Tribunal finds that Hardwood Flooring is not a business in the sense of being “a commercial enterprise in the nature of a going concern with activities engaged in for the purpose of profit on a continuous and repetitive basis” and accordingly it is not an eligible business.
44. There is some evidence of business activity but it seems substantially focussed on finding a market for the applicant’s Malaysian businesses, Kingrow and Corica. There does not appear to be any profit motive. Significant exports are made by the Malaysian company but meaningful profits are not recouped by Hardwood Flooring. Consequently any economic benefits flow on to the Malaysian economy and not the Australian economy and that is reflected in the fact that Hardwood Flooring has recorded a loss.
45. In any event, the applicant’s evidence was that the bulk of the timber which Hardwood Flooring imported remains in a warehouse unsold.
46. On the applicant’s own evidence the claimed health foods export idea did not eventuate.
Genesis Management
47. Genesis Management Pty Ltd is the Trustee of the Genesis Management Trust and the business conducted by it in that capacity appears to be an eligible business. The applicant supplied financial statements for the Genesis Management Trust for the years ended 30 June 2002, 2003, 2004 and 2005. In each year there was substantial turnover and increasing profits.
48. However, in the Tribunal’s view there is insufficient evidence to establish that the company, Genesis Management Pty Ltd, itself (being the entity in which the applicant owns shares) carries on any business in its own right.
49. The evidence at the hearing was that there are three distinct entities: Genesis Equity Trust (which owns Hosanna Heights), Genesis Management Trust (which ultimately receives the profits from the business enterprise) and Genesis Management Pty Ltd, the trustee of both trusts, the beneficiaries of which are the same.
50. The applicant’s shareholding is limited to the trustee, Genesis Management Pty Ltd. He is not a beneficiary of either of the trusts. All revenue flows to the Genesis Management Trust whose profits after tax are distributed in their entirety to Genesis Equity Trust. Genesis Management Pty Ltd made no profits in its own right and received no share of the profits of the trust. The applicant’s evidence was that he received a small fee for each student recruited to Hosanna Heights.
51. The Tribunal reached the same conclusion in relation to Hardwood Flooring, namely, that in the sense that a business can be defined as an entity which engages in activities for the purpose of making a profit, Genesis Management Pty Ltd is not a business as it does not make a profit for itself but, rather, for the trusts in which the applicant has no interest.
Active participation at a senior level in the day-to-day management of an eligible business
52. It follows that the Tribunal finds that the applicant has not utilised his skills in actively participating at a senior level in the day-to-day management of an eligible business.
Genuine effort 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 the eligible business
53. The Tribunal addressed the question of what constitutes a ‘genuine effort’ in Re Hou Lam Yam (supra). The Tribunal stated at [53]:
“We are of the view that the word “genuine” and the matters mentioned in s134(3) show that there is a requirement of a level of effort beyond that which is purely superficial or token. Further, it is necessary that Ms Yam establish that she herself has made some real or “genuine effort”.”
54. The Tribunal finds that the applicant has not made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia and to utilise his skills in actively participating at a senior level in the day-to-day management of that business.
55. In the Tribunal’s view, the evidence indicates that:
55.1The applicant resides in Malaysia and continues to be heavily involved in the management of a Malaysian business, Kingrow Sdn Bhd, whose activities involve the import, wholesale and retail of hardware items, including construction materials;
55.2Kingrow Sdn Bhd has exported timber products to Australia, and the products have been purchased by Austshine and Planet Timbers;
55.3The Australian business set up by the applicant, Hardwood Flooring, has had only a token role in the import and sale of goods obtained from Kingrow Sdn Bhd.
55.4Hardwood Flooring is not an eligible business.
56. The Tribunal finds that there is little evidence to suggest that the health products bought from Australian companies have been obtained for purposes relating to the conduct of an eligible business in Australia.
57. With regard to Genesis Management, in the Tribunal’s view, the applicant’s investment constitutes passive investment only. He is a shareholder in the company but not a director, and as already noted, even if contrary to the Tribunal’s findings this is an eligible business, there is little evidence to substantiate the claim that he has been marketing the company’s business overseas. Therefore, even if this shareholding constituted a genuine effort to obtain a substantial ownership interest in an eligible business, the Tribunal is of the view that the prohibition on visa cancellation under s 134(2) does not arise because the applicant has not made a genuine effort to utilise his skills to actively participate at a senior level in the day-to-day management of that business.
58. The applicant has provided evidence of discussions with Austshine regarding the possibility of an acquisition of a 15% shareholding the company. It was said that a tentative agreement for a 15% acquisition had been reached, and the applicant would be appointed to be a director. However, the managing director of Austshine stated that the applicant was
“…considering a few options and will give us a firm answers in twelve months or thereabout”
In the Tribunal’s view, the lack of urgency on the applicant’s part in relation to finalising those negotiations undermines his claim to have been genuinely committed to obtaining a substantial ownership interest in an eligible business and participating at a senior level in the management of such a business.
59. In Re Hou Lam Yam (supra), the Tribunal concluded that for the purpose of reviewing the decision to cancel a business skills visa, it should confine its consideration to material placed before it which relates to relevant “events, actions or intentions” which occurred or which were held (as the case may be) prior to, or at the time of, the date of the decision. While the respondent contends that as some of the activities referred to in the documents mentioned above occurred after the date of visa cancellation, they should not be taken into account, the Tribunal has taken them into account, but they do not change the Tribunal’s views as set out above.
Decision
60. The Tribunal affirms the decision under review.
I certify that the preceding 60 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 3 - 4 July 2006
Date of Decision 23 October 2006
Solicitor for the Applicant Self-represented
Solicitor for the Respondent Mr A Gerrard, Australian Government Solicitor