Yang and Minister for Immigration and Multicultural Affairs
[2006] AATA 232
•13 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 232
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/626
GENERAL ADMNISTRATIVE DIVISION ) Re Ya Hsiu YANG Applicant
And
MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date 13 March 2006
Place Sydney
Decision The decision under review is affirmed.
[Sgd] Dr J D Campbell, Member
CATCHWORDS
Business Skills (Migrant) Visa – Cancellation – an eligible business – substantial ownership in an eligible business – Participation of a senior level in the day-to-day management of an eligible business – Genuine effort to obtain substantial interest in an eligible business – Genuine effort to participate at a senior level in the day-to-day management of an eligible business – Residual discretion – the decision under review is affirmed.
Migration Act 1958 - section 134.
Hope v Bathurst City Council (1980) 144 CLR 1
Puzey v Commissioner of Taxation [2003] FCAFC 197
REASONS FOR DECISION
13 March 2006 Dr J D Campbell, Member 1. Ms Ya-Hsiu Yang was born in Taiwan on 13 September 1960. Ms Yang applied for a business skills (migrant) class visa on 29 September 2001. In this application Ms Yang stated that she was Vice General Manager, and with her husband a significant shareholder in Trinity Metallize Co. Ltd. Ms Yang described her duties in the application as assisting the general manager in overall supervision and management of the business, make decisions related to business operations and act on behalf of general manager during his absence (T4/p66).
2. Ms Yang was granted a business skills (migrant) visa on 31 January 2002. Ms Yang entered Australia on 21 February 2002. On 20 January 2004 the Department of Immigration and Multicultural and Indigenous Affairs (“DIMIA”) forwarded to Ms Yang a letter attaching the form – Survey of Business Skills Migrants – 24 months, for her completion and return. A Mr Junus was authorised by Ms Yang to act and receive communications from DIMIA on 18 February 2004 (T16). The completed survey form and attachments were received by DIMIA on 21 June 2004 (T15). Such documentation included certificate of registration of a company, Trinity Australasia Pty Ltd issued by Australian Securities and Investments Commission dated 25 June 2003. Other material included a profit and loss statement for that company for the period 1 July 2003 to 29 February 2004, detailing income at $638,211.50 with a total cost of sales being $622,215.00 and other expenses at $12,604.86, leaving a net profit of $3,391.64. Accompanying bank statements from ANZ bank for the period 24 September 2003 to 26 March 2004 for the company, Trinity Australasia P/L detail deposits of $105,000.00 approximately and withdrawals of $118,000.00 approximately. Such figures were noted to be inflated in that cheques for approximately $50,000.00 were presented, credited and later dishonoured by the bank with appropriate debiting of that account. Also documentation was attached indicating an export invoice dated 1 July 2003 in the amount of $5,292.22, for aluminium and plastic parts and an export invoice dated 18 September 2003 in the amount of $23,450.00 for coating material.
3. On 11 October 2004 the Department advised Mr Junus that they were not satisfied that Ms Yang was meeting her visa requirements. The Department requested further nominated documentation (T18). On 20 January 2005 the Department advised Mr Junus of their intention to cancel Ms Yung’s visa and their reasons for so doing (T21). Further, they detailed the matters that they would take into account, and the opportunity for the visa holder to provide further documentation and make further comments.
4. In response, further documentation was provided to the Department by D. Lai and Associates (accountants) detailing Trinity Australasia’s registration on the business register, the company’s ABN number and notification of registration from the Taxation Department for PAYG withholding, and a financial report for Trinity Australasia Pty Ltd for financial year 2004, indicating sales of $388,092.00, cost of sales $310,760.00, gross margin after commission of $98,960.00, total expenses of $76,182.00 and an after tax profit of $15,945.00. The balance sheet of the company at 30 June 2004 detailed cash at bank of $187,712.00, current debtors at $382,800.00, current creditors at $306,240.00 with the Taxation Department owed $6,834.00. Invoices provided detailed amounts of $102,080.00 (29 June 2004) with an export commercial invoice of $127,600.00 dated 29 June 2004 pertaining to steel inlay drains. Similar invoices for the same quantity of items, with the same invoice details were raised on 7 June 2004 and 28 April 2004 (T35).
5. In a separate document (T28) the Department detailed dates of arrival and departure of Ms Yang to and from Australia for the period 21 July 2002 to 25 February 2005. In further documentation provided by Ms Yang, details are provided of Trinity Australasia’s activities, namely:
·A tax invoice dated 5 April 2005 for $13,720.00 for a wine purchase by Fu Chu Fa Company Limited. It is noted that a tax invoice dated 21 March 2005 issued by Chester International for $13,525.60 to Trinity Australasia for the wine purchase.
·Various tax invoices issued by Wool Products Australasia Pty Ltd for $347.00 (5 November 2004), $68.20 (15 December 2004) $14,871.50 (22 March 2005) $4,290.00 (24 March 2005). An invoice raised by Trinity Australasia would indicate that the latter two purchases ($14,871.50 and $4,290.00) were sold to Jin Zhen Trading Pty Ltd for a total price of $21,960.00 on 30 March 2005.
·A proforma invoice dated 13 April 2004 from Telewater Pty Ltd in relation to purchase of various boats for a total of $41,366.60.
6. On 5 May 2005 the Ministerial delegate advised Mr Junus that Ms Yang’s visa had been cancelled, together with the reasons as to why such action had been taken. Ms Yang seeks to have that decision reviewed.
Issues
7. The relevant issues in this matter are:
(a)Does Ms Yang have a substantial ownership interest in an eligible business?
(b)Was Ms Yang utilising her skills in actively participating at a senior level in the day-to-day management of the eligible business?
(c)Has Ms Yang made a genuine effort to obtain substantial ownership interest in an eligible business?
(d)Has Ms Yang made a genuine effort to participate at a senior level in the day-to-day management of business?
(e)Are there any issues which could lead me to exercise the residual discretion in Ms Yang’s favour?
Findings
8. For the reasons stated later in this decision I conclude that:
(a)Ms Yang did not have a substantial ownership interest in an eligible business at the time of cancellation of her visa, namely 5 May 2005.
(b)Ms Yang had not utilised her skills in actively participating at a senior level in the day-to-day management of an eligible business at the time of cancellation of her visa.
(c)Ms Yang had not made a genuine effort to obtain a substantial ownership interest in an eligible business at the time of cancellation.
(d)Ms Yang had not made a genuine effort to participate at a senior level in the day-to-day management of that business at the date of cancellation.
(e)That Ms Yang did not raise any issues which would allow me to exercise the residual discretion in her favour.
(f)That the decision under review is affirmed.
MS YANG’S EVIDENCE
9. Ms Yang detailed the following evidence at the hearing:
(a)That when she entered Australia on 21 February 2002 she acknowledged that it was a requirement of the visa that she enter into business within a three year period.
(b)That she was a department manager in a listed company in Taiwan that was involved in importing and exporting metal products, with an annual turnover of approximately $20m.
(c)That funds totalling approximately $440T were transferred to her Westpac account ($230T), her International Commercial Bank of China ($180T) and to the ANZ account of Ms Tina Wen Yang in Queensland ($30T), by her husband from Taiwan.
(d)That pursuant to an intention to enter the raw material export business, she made enquiries as to what Australian Companies were dealing in such materials. Following advice from her, arrangements were made by the Taiwanese parent company to test some samples from three companies. Such samples were found to be unsuitable with Ms Yang ceasing pursuit of these activities during 2002.
(e)During her dealings with the Taiwanese migration agent who had assisted with her visa application, Ms Yang met a Ms Tina Yang who was a registered migration agent resident in Queensland. Ms Yang’s husband, Mr Chia‑An Lin entered into an agreement on behalf of Trinity Metallize Co. Ltd (Taiwanese parent company) with Ms Tina Yang to manage all migration matters and to provide operation and management services on behalf of Tai Yin Plastic and to complete all Australian Taxation Office requirements for a period of three years from 30 November 2002. A payment to Ms T Yang of $30,000.00 was made for the services to be provided by Mr Chia-An Lin.
(f)As a result of such arrangements Ms Yang spoke with Ms Tina Yang in October 2002 believing she could help with both complying with the requirements of the Immigration Department and in assisting her in her business dealings. As a result of such discussions Ms Yang entered into a deed of agreement with Mr Hwang Der Chyuan to set up a Chinese Restaurant business in Chatswood on 8 October 2002. Ms Yang forwarded a cheque for $20,000.00 to Ms Tina Yang on 8 November 2002 in furtherance of this agreement, with the understanding that she was to own 50% of the business and that her participation in the business would be as the manager, with Mr Chyuan being the cook. Ms Yang acknowledged that the deed of agreement was in English, that no attempt was made to translate the document, but nevertheless she signed the document believing that the restaurant would open at the end of December 2002.
(g)Ms Yang was unaware that the deed she signed stated that she was to own 25% only of the business. Ms Yang returned to Taiwan on 21 December 2002, returning to Australia on 4 February 2003, expecting to see the restaurant open and operating in Chatswood. On discovering that it was not, Ms Yang spoke with Ms Tina Yang who advised that the restaurant would not be opening as her partner had run into financial difficulties. Ms Yang asked for return of her $50,000.00, with Ms Tina Yang forwarding some months later two cheques, each of $10,000.00, both being undated, and not met by the bank on presentation. Ms Yang has been unable to further contact Ms Tina Yang.
(h)In May 2003 Ms Yang spoke with Mr Kuo, a solicitor, about investment in a souvenir shop, and later about an investment in a restaurant. Later in May Ms Yang spoke with Ms Lin about acquisition of a Sushi Bar. Ms Yang did not progress further with any of the investments, while paying $1,200.00 to Mr Kuo for his services (Exhibit A3, Folio A).
(i)In June 2003 Ms Yang was introduced to Mr Junus by a friend. Ms Yang hoped Mr Junus could help her to comply with the requirements of her visa. On 20 and 26 June 2003 Ms Yang entered into agreement with Swire AES International Pty Ltd for the latter to establish a proprietary limited company for Ms Yang and conduct such matters incidental to establishing such a company, as well as carrying out the company’s basic operations (detailed list in Exhibit A3, Attachment D). In return Ms Yang was required to pay a fee of $60,000.00 by instalments for particular milestones met and activities undertaken.
(j)As a result of the agreement with Swire International, the latter established a company, Trinity Australasia Pty Ltd, with Swire International providing the services to carry out the former company’s basic operations (this included accounting and the wide list of activities listed in Exhibit A3 Folio D). Ms Yang believed that Trinity Australasia was owned wholly by her; that Trinity would be involved in the export business; that Mr Junus would attend to the purchases and sales of goods, with her role confined to signing the cheques. Ms Yang believed Mr Junus was managing the company, allowing her to improve her language skills by attending English classes three days a week. Ms Yang believed that what she had organised and what was occurring with the activities of Trinity Australasia were in accordance with the requirements of her visa at that time.
(k)Ms Yang stated that she became concerned when Mr Junus stated to her that he had submitted the 24 month survey, in February 2004 yet she received a letter from DIMIA on 13 April 2004 stating that the survey had not been received. Mr Junus affirmed to Ms Yang that DIMIA must have made a mistake. In October 2004 Ms Yang stated that her husband rang Mr Junus because Trinity had not traded for some months, with Ms Yang’s knowledge as to the absence of trading arising from the fact that she was the only cheque signatory. In a meeting with Mr Junus in November 2004, Ms Yang was made aware that DIMIA had made a request for more documents, which she later provided to Mr Junus’ office. Ms Yang stated that she had significant difficulties in communicating with Mr Junus over the next two months, although she did eventually find out from DIMIA that such documents were lodged on 11 January 2005.
(l)Ms Yang stated that she returned to Australia on 28 January 2005, to find a request for further documentation to be provided to DIMIA by 1 March 2005. Ms Yang requested of Mr Junus a meeting with the solicitors and accountants to understand better the company’s operations. Ms Yang stated that she had never met or had contact with Ms Lai, (Trinity’s accountants) nor with the company’s solicitors, confirming what she had noted in her statement (Exhibit A4) that she had never signed tax returns or activity statements during this period.
(m)Ms Yang stated that she was requested to sign a contract with Wool Products Australia on 25 February 2005. The documents was in English, was not translated, with Ms Yang stating that she did not have time to understand the content of the document. In her statement (Exhibit A4) Ms Yang said she was extremely concerned because she had no knowledge of or contact with Wool Products Australia, but nevertheless upon Mr Junus insistence she signed the document. Ms Yang stated that she was becoming increasingly worried as to whether her affairs were being managed by Mr Junus in a manner consistent with the requirements of her visa.
(n)Ms Yang next consulted with Mr Chiu, an accountant in March 2005 about establishing her own business, as her husband had found two or three buyers in Taiwan. Ms Yang stated that Mr Chiu advised that she was required to manage her own business and that her business affairs were not properly in operation. In her statement (Exhibit A4) Ms Yang stated that she and her husband actively managed their business from 8 April 2005, with sales of red wine, woollen products and boats initiated, the value of which was in the order of $77,000.00. A further shipment of skin care products ($5,000.00) was made in September 2005.
(o)Ms Yang was made aware that all visas were to be cancelled on 13 June 2005, because of information received by her husband at the airport on 10 May 2005. Contact with Mr Junus did not assist Ms Yang in clarifying the situation with further attempts to contact Mr Junus frustrated because of his unavailability.
10. In response to questions in cross-examination Ms Yang detailed the following:
(a)She was aware that she had to make a genuine effort to actively participate as an owner or part owner in the day-to-day management at a senior level of the business.
(b)Acknowledges that she should have actively involved herself in the day to day management of Trinity Australasia and carried out many of the functions performed by Mr Junus on her behalf.
(c)That she accepted Ms Yang’s word that the agreement between her and Mr Chyuan nominated an equal ownership in the restaurant business at Chatswood, and that she advised Ms Tina Yang of her intention to travel to Taiwan from 21 December 2002 to 4 February 2003. Ms Yang stated that she inspected the restaurant site prior to leaving in December 2002, at which time it was under renovation, while on return inspection revealed that nothing existed.
(d)That during her dealings with Swire International, the only activities that she was involved in relation to Trinity Australasia was the signing of cheques on the occasions nominated. In relation to the following transactions Ms Yang described her involvement in the following terms:
1 July 2003 Aluminium parts and No involvement
plastic accessories
18 September 2003 680 drums of coating No involvement
material
16 December 2003 635 drums of coating signed a cheque for
material purchase of goods.
No other involvement.
28 April 2004 160 Steel Inlay drums No involvement.
7 June 2004 160 Steel Inlay drums No involvement.
29 June 2004 160 Steel Inlay drums No involvement.
(e)That Mr Junus was not authorised to sign cheques on behalf of Trinity Australasia.
(f)That Ms Yang signed further cheques totalling $22,300.00 on 24 November 2003 which she handed to Mr Junus on 26 November 2003 for purchase of goods. Further, Ms Yang states she handed Mr Junus a further sum of $21,590.00 on 16 December 2003 for purchase of goods, the cheque made payable to Shangs International Arcade Australia Pty Ltd.
(g)That in all circumstances with Mr Junus, he found the supplier and Ms Yang wrote the cheque. This circumstance arose because of her poor English and her need to trust Mr Junus.
(h)That between April 2005 and 5 May 2005, Trinity made two transactions, namely the sale of the red wine to Taiwan, the sale of woollen quilts to Taiwan and on 30 May 2005 a further sale of four boats to Taiwan, with Ms Yang undertaking the negotiations and paying the deposit for the four boats on 13 April 2005.
(i)That such purchases were arranged as a result of her contacts made with friends who introduced her to suppliers.
(j)That cancellation of her visa would affect the business, and that she would be unhappy, because she did not believe her children could get use to the Taiwanese education system at this stage.
CONSIDERATION AND REQUIREMENTS
11. I note that Ms Yang acknowledged that she was qualified in business studies in Taiwan, had experienced senior management duties and responsibilities in a listed Taiwanese company and understood the conditions of the business visa that had to be satisfied within a three year time frame. I also note Ms Yang’s outline of and her nominated involvement in endeavours and activities undertaken to satisfy the business visa requirements.
12. Section 134(1) of The Migration Act 1958 (“the Act”) provides:
“(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)Has 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.”
SUBSTANTIAL OWNERSHIP OF AN ELIGIBLE BUSINESS
13. Section 134(10) of the Act defines eligible business as follows:
“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 of 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.”
14. The meaning of the word “business” has been considered and defined in the following terms in Hope v Bathurst City Council (1980) 144 CLR 1. In that matter carrying on a business denotes:
“pursuing activities of the purpose of profit, undertaken on a continuous and repetitive basis which can be revealed by inspecting financial records, examining who the clients are and consideration of whether the activities are genuine and real”.
Further, the Full Court in Puzey v Commissioner of Taxation [2003] FCAFC 197, considered the meaning of “business” and stated:
“It will be relevant in deciding whether a business is carried on that there is some repetition of acts and that the activities in question have ‘something of a permanent character’; Hope per Mason J at 8. What is required is that activities be engaged upon ‘on a continuous and repetitive basis’; Hope ibid at 9 …In deciding whether or not a business is carried on courts have pointed to what have been called in the United Kingdom the “badges of trade”, indicia which, while no one of them will be determinative of whether a business is carried on, collectively will demonstrate a business. These include the profit motive (although a non profit company may still carry on a business), acting in a business like way, (although many business may be found which operate in a non-business like way), the keeping of books of account and records, (although the fact that there are none will not necessitate the conclusion that a business is not carried on) and repetition (although a fixed term project may still be a business).”
15. In terms of the activities undertaken by Ms Yang following her arrival in Australia in February 2002, the evidence presented in relation to a metals export programme would allow me to conclude that if proceeded no further than an exploratory concept, with the sum total of activity by Ms Yang being the sourcing of these companies from friends, reporting such names back to the parent company, who arranged for these samples to be tested. That such samples were unsatisfactory to the parent company’s requirements put an end to any further activity by Ms Yang. I would also note that no corporate vehicle was established nor was there documented evidence of such activity, which leads me to conclude that Ms Yang was undertaking at best preliminary enquiries which may have led to the creation of a business.
16. The next endeavour/activity was an attempt by Ms Yang to establish a restaurant in Chatswood in partnership with Mr Chyuan, details of which are noted earlier in this decision. From the evidence presented I note Ms Yang’s belief that she was to have a 50% ownership of the business and be the manager of the restaurant, while the deed stipulates 25% ownership. I further note Ms Yang’s evidence as to her signing the deed, written in English and without the help of translation. I note Ms Yang’s behaviour in terms of being in Taiwan during the weeks the restaurant was supposed to have opened, which appeared somewhat inconsistent with her role as manager of the proposed business. That it did not open is the evidence presented, with Ms Yang unsuccessfully trying to seek restitution for $20,000.00 forwarded to Ms Tina Yang as payment for services provided. In terms of this matter I would conclude that there is documentation to support the intention of starting a restaurant business in Chatswood. Apart from payment of $20,000.00 to Ms Tina Yang for procuring the opportunity, the documentation provided goes no further than detailing a deed of agreement, with Ms Yang’s further actions appearing to abrogate her responsibilities as manager of the restaurant if indeed the restaurant was intended to open during her absence for some weeks in Taiwan.
17. The next activities undertaken by Ms Yang were in May 2003 when Ms Yang explored with Mr Kuo and Ms Liu about various investment opportunities. Ms Yang elected not to invest in such activities, details of which being provided earlier in this decision.
18. In June 2003 Ms Yang entered into two agreements with Swire AES International Pty Ltd to establish a company for Ms Yang, conduct such matters incidental to establishing such a company as well as carry out the company’s basic operations. A payment of $60,000.00 was to be made by instalments related to activities undertaken and milestones achieved. A Mr Junus was the person apparently responsible for such arrangements between Swire International and Ms Yang. Ms Yang believed at the time and for many months to follow that the advice given and the arrangements made would satisfy the nominated visa requirements. An analysis of the evidence before me allows for the following findings to be made in relation to the period June 2003 through March 2005.
(a)A company, Trinity Australasia Pty Ltd was established in June 2003. It was a company limited by shares. It was reported to have 100 issued shares at 30 June 2004 (D. Lai & Associates preparation of annual accounts for 2004 financial year (Exhibit A2/p17, 18)), with the account said to be attested to by Ms Yang and her husband on 23 February 2005. It was reported in the annual accounts that at 30 June 2005 there were issued only two shares, one each to Ms Yang and her husband, with a shareholder’s loan of $73,127.00 (Chiu Exhibit A2/p53), all the latter information arising from documents prepared after cancellation.
(b)The terms of the agreement between Ms Yang and Swire International clearly indicate that they are required to do all things incidental and necessary to create the company and to manage and do all matters incidental to carrying out the company’s operations. Confirmation of such an agreement is to be found from the evidence of Ms Yang who stated that her only involvement with the company operations was to attend upon Mr Junus and sign cheques as requested for purchases of goods. The signing of cheques would appear the only responsibility retained by Ms Yang, a responsibility she appeared to have exercised on two or three occasions during the period in question.
(c)That Ms Yang had no involvement with any operation of the company and despite a somewhat belated request, never met with either the accountants or lawyers acting for Trinity Australasia nor was she ever called upon to sign any company returns during this period (including taxation returns).
(d)That during this period in question, Ms Yang was not involved nor was it her intention to be involved in the day-to-day management of Trinity Australasia at a senior level or indeed at any level, apart from signing a cheque on several occasions.
(e)That financial documentations prepared for Trinity Australasia by D. Lai and Associates detail unexplained significant discrepancies between for example a balance sheet as at 30 June 2004, nominating equity of $3,392.00 17 February 2005 (Exhibit A2/p21), this being an identical figure for the period ending 29 February 2004 (Exhibit A2/p24), with yet another balance sheet for the year ending 30 June 2004 showing total equity of $303,834.00 (Exhibit A2 p38 – 23 February 2005) a further example is the cash at bank shown in the previous balance sheet as $187,712.00, while the ANZ bank statement at 30 June 2004 for Trinity Australasia indicates cash balance at $33,899.00 (Exhibit A/ p192).
(f)That transactions said to have been undertaken on behalf of Trinity Australasia during this period were clearly on some occasions not undertaken by Trinity and in this regard I note the transactions of 1 July 2003, 18 September 2003, 28 April 2004, 7 June 2004 and 29 June 2004. In so finding I note the evidence of Ms Yang that she signed no cheques for the purchases associated with these transactions. Further, on the bank financial statements before me I am unable to find supporting evidence that the accounts of Trinity Australasia were associated with such transactions.
(g)In relation to transactions undertaken on 24 November 2003 in the sum of $22,300.00, I note Ms Yang’s evidence is supported by a bank record. In relation to the transaction on 16 December 2003, I note that there is a record of a deposit made to the account on 10 December 2003, a withdrawal for the same amount on the same day, with the deposit cheque being dishonoured on 18 December 2003, with a further deposit of the same amount plus dishonour fees being deposited on 12 February 2004 and the cheque again dishonoured on 16 February 2004 (Exhibit A2/pp164, 166). Further investigations would be necessary to determine the nature of the transaction commencing 16 December 2003 before I could be satisfied that it was a bona fide transaction related to the purchase and sale of goods.
19. For the period April 2005 through to 5 May 2005, a period during which Ms Yang, as a consequence of her difficulties in meeting DIMIA’s requirements and her disillusionment with Mr Junus’ efforts, arranged for Trinity Australasia accounts and affairs to be transferred to new accountants Chew & Chiu. Further, as a result of her husband’s efforts in Taiwan and contacts made in Australia, she was able to purchase and export three separate consignments, namely:
(a)Purchase of wine for $13,720.00 on 27 April 2005 (tax invoice) and a sale tax invoice from Trinity Australasia or the same amount of $13,720.00 (Exhibit A2/pp505‑511).
(b)A purchase of woollen quilts for $19,161.50 in March 2005 and a sale tax invoice to purchaser on 30 March 2005 of $21,960.00.
(c)A purchase of boats (4) on 7 April 2005 for $41,366.60 together with a commercial invoice dated 20 May 2005 for sale of the same goods for $41,366.60 (Exhibit A3).
20. Evidence for such transactions is documented, with the company’s annual return for year 2005 detailing such transactions at $77,047.00, with cost of sales at $67,382.00 (Exhibit A2/p47). Such figures would indicate the absence of other transactions by Trinity Australasia for financial year ending 30 June 2005, an issue again reinforced by the tax return for the same year (Exhibit A2/p37).
21. In relation to the three transactions in the period March through to visa cancellation (5 May 2005), it is evident that the third transaction (boats) was initiated but not completed during the period. Further evidence given indicated only a further minor transaction relating to beauty/skin products had occurred up to the time of hearing. Similarly, I note that no confirmatory bank statements were in evidence before the Tribunal concerning the three transactions nominated.
22. In turning to the issue of legislative requirements I am satisfied that the activities carried on by Trinity Australasia were not carried on a continuous and repetitive basis. In so finding I note the absence of documentation, the irregularities contained wherein what documentation that has been provided and the evidence of Ms Yang, as well as the findings I have made earlier which would only support one or two transactions occurring over the 21 month period during which Swire International were responsible for the operation of Trinity Australasia. I observe that three diverse transactions were initiated over a two month period prior to visa cancellation, but on the evidence placed before me, the activities nominated do not give me any comfort that something of permanence has evolved or was evolving at the time of cancellation. In so stating I remain unconvinced from the evidence provided that the purchase and sales records detailed for those transactions are, without further relevant bank statement details for Trinity Australasia, indicative that the business is acting in a business like way and has an intention of making a profit.
23. With such findings, I conclude that Trinity Australasia was not carrying on a business at the time the business was cancelled. Implicit in such a finding is that Trinity Australasia had never carried on a business since it’s inception, with the consequence that Trinity Australasia is not a business. In such circumstances it is unnecessary to consider the criteria nominated in section 134(10) of the Act as to whether the business is an eligible business, there being no business to be eligible.
24. In relation to the issue of whether or not Ms Yang has a substantial ownership interest, I note the assertions as to Ms Yang’s beliefs as to her total ownership and the money provided to fund Trinity Australasia. Documentation at 5 May 2005 indicates that no shares have been issued while post cancellation documentation corrects the deficiency. Other documentation provided, upon analysis fails to reveal what monies have been made available either by way of capital and/or loan to Trinity Australasia by Ms Yang. Further difficulties were encountered in terms of an analysis as to what monies have been provided to Swire International for their services and the identification of what monies have actually been provided to Trinity Australasia . However, while I may have doubt as to the quantum provided, it is evident from the bank records that deposits were made into its accounts from time to time, albeit such deposits being dishonoured on three occasions. In such circumstances, I conclude, that as the issue is not proximate to a determination in this matter I shall take the matter no further, other than indicate that the onus rests with an applicant to produce the necessary evidence to allow identification of their substantial ownership intent at the relevant time.
25. It is my finding that Ms Yang fails to satisfy section 134(1)(a) of the Act in that she has not obtained a substantial ownership interest in an eligible business.
UTILISATION OF SKILLS IN ACTIVELY PARTICIPATING AT A SENIOR LEVEL
26. This issue posed by section 134(1)(b) of the Act is again an issue of consequence in this matter. Unfortunately by her own admission and indeed a concession made by her advocate, the finding on this issue must be in the negative. Despite her knowledge and experience in management issues at a senior level prior to coming to Australia, and her early exploratory activities in Australia, including her less than satisfactory experience with Ms Tina Yang, the verbal evidence of Ms Yang and the documentary evidence before the Tribunal is that Ms Yang did not utilise her skills in actively participating at a senior level in the day-to-day management of Trinity Australasia over a period of some 21 months. During this period the totality of her involvement would seem to have been initial discussions with Mr Junus to put the corporate vehicle into being and responding to requests from Mr Junus to sign a cheque on a few occasions.
27. While there is evidence pointing to a little more activity post March 2005 up to the date of cancellation of her visa, I again would note that on these occasions, her husband found the customers in Taiwan with friends in Sydney providing her with names from which to purchase goods, apart from the woollen goods which had been initiated by Mr Junus. While her input on these three occasions, was essentially one of coordinating purchaser with seller through Trinity Australasia, and was more than her previous contribution, I am still unable to conclude that such activity could satisfy utilisation of her skills in actually participating at a senior level in the day-to-day management of Trinity Australasia. While I would note that Ms Yang had distanced herself from Swire International during this period, it is acknowledged that Ms Yang did seek and appoint new accountants to review the workings of Trinity Australasia. In analysis such an activity is akin to doing what Ms Yang did in organising the affairs of Trinity Australasia with Swire International, but without the apparent delegation of all management responsibilities for the company to Swire.
28. In the circumstances of this matter, I am satisfied the Ms Yang fails to satisfy section 134(1)(b) of the Act.
29. In the light of my findings in relation to section 134(1)(c)(i) and (ii) of the Act, I conclude that there is evidence and findings which may allow Ms Yang’s business visa to be cancelled.
30. In certain circumstances, even though circumstances exist which may allow the cancellation of a business visa, the business visa cannot be cancelled. Such circumstances are nominated in section 134(2) of the Act, which provides:
“(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.”
31. In considering the issues raised by section 134(2) of the Act, consideration may be given to the following matters outlined in section 134(3) of the Act in determining whether a genuine effort has been made by the business class visa holder:
“(3)Without limiting the generality of matters that the Minster may take into account in determining whether a person as made the genuine effort referred to in subsection (2), the Minister may take into account any r 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:
(i)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).”
GENUINE EFFORT TO OBTAIN A SUBSTANTIAL OWNERSHIP IN AN ELIGIBLE BUSINESS
32. Ms Yang’s efforts to gain a substantial ownership in an eligible business is essentially a tale of initial inquiry concerning the establishment of a mineral exports activity which proceeded no further after samples were unsatisfactory. The next venture was a proposed partnership in a restaurant in Chatswood in December 2003. This venture seemed to proceed no further than a deed for which payment was made to a Ms Tina Yang, with the project falling over in January 2003, while Ms Yang was in Taiwan for six weeks, although the restaurant opening for which she was to be the manager was to open during her period of absence. In essence it would appear that the venture did not advance further than a deed of intent because of financial difficulties by the other party.
33. Ms Yang’s next efforts involved discussion on buying particular businesses, but for whatever reason did not proceed beyond the initial discussion. The next effort was the arrangements made with Swire International to establish Trinity Australasia, with the former company responsible for the day-to-day management of Trinity and its operations, in addition to being responsible for the conduct of all matter in relation to issues and requirements to be met associated with Ms Yang’s business visa. In relation to Trinity Australasia and despite Ms Yang’s expectations, little, if anything, was achieved during Swire’s operational control of Trinity during the period June 2003 to March 2005. It is noted that Ms Yang essentially abrogated all involvement in Trinity’s operational pursuits during this period, apart from maintaining expenditure control, a control which she exercised on only a few occasions. It can be said that Ms Yang had a belief that arose from assurances given by Mr Junus, in whom she had trust. That such beliefs slowly dissolved is a matter of record and while related to the performance of Swire and Mr Junus not meeting and doing what they agree to do, it is evident that Ms Yang did little, if anything, until the threat of visa cancellation was on the table.
34. Similarly, I observe a course of conduct adopted by Ms Yang in relation to achieving requirements nominated in her visa and in her dealings with DIMIA. While it is appropriate to seek assistance in such matters, obligation of total responsibility leads to outcomes that have occurred in this matter. While Ms Yang may have become increasingly concerned with the actions and lack of action, in addition to feeling misled by Mr Junus both in relation to the activities of Trinity and managing the relationship with DIMIA, it is evident that the threat of visa cancellation for failing to meet requirements was the catalyst for Ms Yang to change accountants and move to manage the affairs of Trinity from 8 April 2005.
35. Throughout the period since her arrival in Australia in February 2002 it is evident that she has made two attempts to create a business, with other enquiries as to possible ventures being no more than exploratory. In each of the two, it is evident that Ms Yang placed reliance on others to both create and operate the business. In the restaurant venture, the activity proceeded no further than a deed of agreement for which $20,000.00 was paid to the organiser, Ms Tina Yang. In relation to Trinity Australasia Ms Yang’s role was limited, indeed so limited that she had to sign a cheque a few times over a period of 21 months, while indeed paying Swire some $60,000.00 for services provided. During this period it can be said that a corporate vehicle was created, which traded on some two or three occasions. Prior to cancellation of her business visa, the corporate vehicle traded on a further two occasions.
36. In assessing the conduct inherent in the manner in which Ms Yang has approached the establishment of an eligible business, it is evident that while Ms Yang was desirous of meeting her obligations, others were to be paid to meet those obligations on her behalf. I have noted the business proposals considered by Ms Yang, the existence of the partner in the proposed restaurant business, and the absence of any documentation in relation to research of any proposal. I note that Ms Yang was absent from Australia for approximately two months each year since February 2002. In relation to assets transferred to Australia for use in obtaining an interest in an eligible business I find, in the light of documentation, it a matter difficult to assess, but nevertheless in excess of $100,000.00 has been transferred and spent on various endeavours.
37. Further, despite Ms Yang’s activities and expenditures, the value of any ownership interest in an eligible business in Australia is now non existent, with any value in Trinity being any cash in the bank plus or minus any creditors or debtors amount. Similarly, despite episodic activity on two occasions where search for a business went beyond initial enquiry, the business activity on each occasion was essentially a negotiation by Ms Yang with another party to arrange and/or carry on a business. Ms Yang’s participation at a senior level in any business activity on a day‑to‑day basis in Australia has been non existent, with any involvement in Trinity Australasia limited to signing two or three cheques over a 21 month period, and coordinating two or three transactions in the two months prior to her visa cancellation. I further note that Ms Yang’s difficulties in timely compliance with section 137 notices was associated with her practice on relying upon others to undertake the activity.
38. In summary, it is evident that Ms Yang relies upon others to do what has to be done, with Ms Yang seemingly unwilling to involve herself in the activities of the business venture and certainly seemingly unable or unwilling to monitor and/or audit progress and activities of the corporate vehicle that she has requested to be created. In such circumstances I find that Ms Yang has not made a genuine effort to obtain a substantial interest in an eligible business, because her conduct in relation to the corporate vehicle she requested be established and of which she was a director can only be described as superficial or token. In essence, Ms Yang organised for herself to be removed from the daily operations of Trinity and remained removed, without ensuring mechanisms whereby she would be able to monitor or even assess progress of Trinity’s business operations. Further evidence of her superficial or tokenish conduct can be inferred from her failure to be involved when calls for her to sign cheques occurred only on two or three occasions over a 21 month period, there being no other cheque signatory for the Trinity account.
39. In conclusion, as a result of the analysis detailed, I find that Ms Yang did not make a genuine effort to obtain a substantial ownership interest in an eligible business in Australia. Similarly, I conclude Ms Yang has not made a genuine effort to utilise her skills in actively participating at a senior level in the day-to-day management of an eligible business. In so finding, I acknowledge Ms Yang’s own admissions in this regard as well as the documentation and analysis of that documentation that clearly defines Ms Yang’s intentions not to be involved in such activities. While I note Ms Yang’s activities in the final two months prior to cancellation of the visa, I do not consider that such transactions, albeit in which she may have played a part, are sufficient to demonstrate that at the time of cancellation that Ms Yang had made a genuine effort to participate at a senior level in the day-to-day management of Trinity Australasia.
40. In summary, I conclude that Ms Yang has failed to satisfy both subsections 134(2)(a) and (b) and as such any statutory prohibition not to cancel the business visa does not exist.
RESIDUAL DISCRETION
41. In considering the issue of an exercise of the residual discretion in Ms Yang’s favour, I am aware and note that Ms Yang’s endeavours were not successful mainly because of her approach to meeting the visa requirements and also her selection of partners that failed to deliver on what they had agreed to do over the particular time frames. Again, I note that Ms Yang contributed to the negative outcomes achieved by her failure to either participate in, monitor or respond to significant periods of inaction, particularly in the case of the Trinity saga. I conclude that these circumstances are as much a creature of her creation as well as the people who failed to achieve. I do not believe that such issues are sufficient to allow me to exercise the residual discretion in her favour.
42. Further, despite repeated attempts to ascertain circumstances that could be of significance, Ms Yang detailed that her customers would be disadvantaged and her children my have difficulty in settling into school back in Taiwan. I consider neither of these circumstances of such significance to consider exercising the residual discretion in Ms Yang’s favour.
43. In summary, I have found that Ms Yang failed to satisfy subsections 134(1)(a) and (b) of the Act. Further, Ms Yang failed to satisfy both subsections 134(2)(a) and (b) of the Act, with the consequences that there was no statutory prohibition to cancellation of Ms Yang’s business visa. I have further considered the residual discretion and conclude that there are no issues raised which would allow me to exercise the residual discretion in Ms Yang’s favour. I therefore conclude that Ms Yang’s business visa be cancelled as at 5 May 2005.
DETERMINATION
44. The decision under review is affirmed.
I certify that the preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: Mr N. Glaser
AssociateDate of Hearing 19 December 2005
Date of Decision 13 March 2006
Solicitor for the Applicant Mr A Conyer, Diamond Peisah
Solicitor for the Respondent Mr M Palfrey, Clayton Utz
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