Yuen and Tan and Minister for Immigration and Citizenship
[2008] AATA 546
•27 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 546
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2006/1025 & V2006/1026
GENERAL ADMINISTRATIVE DIVISION Re HEONG MENG YUEN
LILIAN GEK TIAN TANApplicants
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Regina Perton Date27June 2008
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and substitutes a decision that Mr Yuen’s visa and that of his dependants should not be cancelled.
..................[Sgd].......................
Regina Perton
Member
MIGRATION ‑ business skills visa ‑ cancellation ‑ whether eligible business ‑ whether utilising skills in actively participating at a senior level in the day‑to‑day management of business ‑ whether genuine effort – decision set aside
Migration Act 1958 ss 134(1), (2), (3), (10), 499
Re Pan and Minister for Immigration and Citizenship [2007] AATA 1724
Shi v the Migration Agents Registration Authority [2007] FCAFC 59
REASONS FOR DECISION
27 June 2008 Regina Perton 1. Heong Meng Yuen is a Singaporean citizen who was granted a business skills visa on 14 May 2003. He arrived in Australia on 6 September 2003 on that visa. His wife, Lilian Gek Tian Tan and three dependent children were also granted visas. On 22 September 2006, a delegate of the then Minister for Immigration and Multicultural Affairs (now known as the Minister for Immigration and Citizenship) cancelled Mr Yuen’s visa under s 134(1) of the Migration Act 1958 (the Act) because Mr Yuen had not complied with the terms of the visa. Since his family members were granted visas because Yuen was granted a visa, the cancellation of his visa resulted in the cancellation of their visas.
2. Under the legislative framework, discussed below, the Tribunal must decide whether Mr Yuen met visa requirements at the time of cancellation i.e. whether Mr Yuen had an interest in an eligible business at that time; whether Mr Yuen was actively participating at a senior level in the day‑to‑day management of the business; and whether he has made a genuine effort to obtain an interest in an eligible business and participate in day‑to‑day management of the business. If he does not meet the criteria, there is a residual discretion not to cancel the visa.
3. Mr Yuen submitted that the notice of intention to cancel his visa was not properly given as it was served on him by email, when there was evidence before the Department that he was overseas at the time and therefore would, normally, have been allowed additional time to respond to it. The notice was also sent to him at his last known address in Australia. The Tribunal is satisfied that the notice was validly given to Mr Yuen. However, given the Tribunal’s decision in this matter, it does not need to explain that finding further.
What are Mr Yuen’s business activities?
4. In written statements dated 14 May 2007 and 18 December 2007, Mr Yuen indicated that he held Singaporean tertiary qualifications in mechanical engineering and industrial management. He started his working life as a trainee executive with a Singaporean elevator company. He then moved to an electronics firm before gaining a position as factory manager of the Singaporean subsidiary of an Australian company specializing in aluminium security screens. In 1982, he set up a new business, Metalworks Pte Ltd, a company specializing in the fabrication of various kinds of metal products. He was a 20 per cent shareholder. In 1985, he left Metalworks and started a new business, Hevin Architecuturals Pte Ltd, which specialized in the design, fabrication and installation of metal works for the underground subway stations in Singapore. Mr Yuen owned 26 per cent of the shares in Hevin, which unfortunately was affected by an Asian currency crisis in 1997 and ceased trading in 2000. In 2000, Mr Yuen joined a company, Hoe Leong, as its sales and marketing manager. Mr Yuen stated that his task was to help the company capitalize on the growing Chinese market; which he did successfully over the next two years during which time he was promoted as Assistant General Manager (China).
5. In late 2002, Mr Yuen and his wife considered their future. Mr Yuen had been working in China since 2000 while his wife and children remained in Singapore. They decided to move their family to Australia where they could be together and believed they could provide a better quality of life for their children. They were granted business visas on 14 May 2003 and travelled to Australia on those visas on 6 September 2003. Initially, the family moved to Adelaide sponsored by the South Australian Government on subclass 130 visas.
6. Mr Yuen indicated that he explored a number of business possibilities in South Australia during 2003 and 2004, none of which was feasible. They included trying to facilitate the export of seafood, including tuna and lobsters to China but the quoted prices for the products were too high. In 2004, Mr Yuen left his previous employer to start his own business in China but said he was cheated out of $250,000 by a business partner and was hampered by the Chinese legal system from regaining that money. He stated that to earn enough income to support his family and to earn money for further business opportunities in Australia, he took a job in Dubai in July 2005. He was employed as Deputy General Manager of the Al Abbar Stainless Steel Co.
7. Mr Yuen claimed that during 2005 and 2006 he continued to explore business opportunities in Australia. He stated that in January 2006, through his position at Al Abbar, he met Paul Lawrence, a director of a Sydney-based company, Lisus Technology Pty Ltd (Lisus). Mr Lawrence was unsuccessful in having his products taken up by Al Abbar or its subcontractors at that time. Mr Yuen stated that in the second half of 2006 he decided to explore whether a move to Sydney might be in order, with him acquiring an interest in Lisus in exchange for the contacts he could bring to that company. He stated that he spoke further to Paul Lawrence to sound him out on his proposals and to Lisus’s managing director, Steven Polgar. Mr Yuen stated that before he could negotiate further with Lisus, his visa was cancelled. Mr Yuen stated that he still continued with his plans to invest in Lisus after the cancellation.
8. Lisus was incorporated in 2005 with the shareholders being Mr Lawrence and Mr Polgar. Mr Yuen stated that he bought 400 shares in Lisus for a total sum of $100,000 in late 2006. He stated that he was made the company’s general manager. There is some documentary evidence of Lisus gaining orders in Dubai in October 2006. In May 2007, Mr Yuen expressed optimism about the company’s future. Lisus subsequently ceased trading.
9. On 28 May 2007, Mr Yuen’s solicitors provided a bundle of documents to the Tribunal and the Department, including letters between Mr Yuen and Mr Polgar purporting to have been sent prior to the date of cancellation.
10. In his later statement dated 18 December 2007, Mr Yuen indicated that when Lisus went into administration, he joined Mr Polgar in setting up Linox Technology Pty Ltd (Linox). Linox was registered in August 2007 with Mr Polgar holding a 60 per cent share and Mr Yuen, 40 per cent. Mr Yuen indicated that they operated out of the premises of the former company, Lisus, re-engaging some of the Lisus staff. He and Mr Polgar jointly manage Linox, although they each have different regions for which they are responsible. The company undertakes design of stainless steel fittings and arranges for their manufacture. Mr Yuen works full time for Linox, whose sales are growing.
11. At the hearing, Mr Yuen provided further details of his work history, his attempts at setting up businesses in South Australia and the timing of his initial involvement in Lisus. Mr Yuen said that he had left Lisus around July 2007 after a conflict with Mr Lawrence.
12. Under cross-examination, Mr Yuen stated that he first met Mr Polgar in person on 15 October 2006. Mr Yuen stated that he paid $100,000 to become a shareholder of the company. Asked how he paid the money to Lisus, Mr Yuen said that he had paid progressively by transfers of case. Mr Yuen could not recall the dates but said one transfer was $50,000 and there were three or four other smaller amounts. Much of the money had come from his wife’s redundancy payout after she left her long term position as executive secretary at a multinational company in Singapore. Mr Yuen believed all the money had been paid to Lisus by December 2006. Mr Yuen was adamant that discussions about him joining Lisus took place before the cancellation of his visa.
13. Steven Polgar, Mr Yuen’s fellow shareholder and director of Linox, provided written statements dated 18 May 2006 and 18 December 2007 and gave oral evidence at the hearing. He indicated that his former partner in Lisus, Paul Lawrence made contact with Mr Yuen in early 2006. He said that he had telephone contact with Mr Yuen in mid-2006, with Mr Yuen asking if Lisus might be interested in him joining their company. Mr Polgar said that Mr Yuen had worked for Lisus from October 2006 to July 2007. He said that the breakup of the partnership of Lisus occurred because Mr Lawrence was focussed on his work in Singapore, where he was based. He described the business operations of Linox and Mr Yuen’s role as well as the contracts that Linox had obtained, including stainless steel fittings in the façade of the new law school at Sydney University. After giving his evidence, Mr Polgar provided a further statement in April 2008, to which he attached a graph showing the steadily growing sales of Linox from August 2007 to March 2008; details of Mr Yuen’s travel for Linox during that period; and their clients and suppliers. Under cross-examination, Mr Polgar recollected that Mr Yuen paid for his shareholding in Lisus in more than one instalment around November 2006.
What is the legislative framework?
14. Section 134(1) of the Migration Act 1958 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.
15. The Full Federal Court in the matter of Shi v the Migration Agents Registration Authority [2007] FCAFC 59, considered the extent and date at which a decision maker should consider the actions of a person after the date of the cancellation of a licence i.e. at the date of cancellation or the date of the Tribunal decision sometime later. The majority in Shi (Nicholson & Tracey JJ) considered that the facts at the date of cancellation were the primary consideration. Nicholson J stated (at paragraphs 17 & 18) that:
17 The decision which the primary decision-maker considered was whether the registration of the appellant should be cancelled as at 14 July 2003, necessarily on the evidence available as at that date. It was that decision which the Tribunal was required to review.
18 Applying the principles set out … [in] the authorities, I am unable to agree that it was open to the Tribunal to take into account evidence occurring after 14 July 2003, save as any such evidence may have cast light upon the decision as at that date.
16. The Tribunal accepts that s 134 of the Act contemplates that consideration should be given to a person’s intention. Therefore, while the exercise of the discretion at the time of cancellation of the visa is the primary focus, what happens after that date may well be relevant as it is in this case.
Was Mr Yuen involved in an eligible business at the date of cancellation?
17. Section 134(10) of the Act defines eligible business as one that the Minister reasonably believes is resulting in 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 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.
18. At the date of cancellation of the visa, Lisus may well have been an eligible business, given its focus on the international market as well as the employment of Australian staff. However, the Tribunal is not satisfied that Mr Yuen was involved in the business at the date of cancellation of the visa in September 2006. The evidence from both Mr Yuen and Mr Polgar indicates that he commenced work with Lisus in October 2006 and that he invested money in the company after that time.
19. The Tribunal finds that Mr Yuen was not involved in a senior management or investment role in an eligible business on the date of cancellation of his visa.
Was Mr Yuen making a genuine effort to obtain substantial ownership of an eligible business and to participate in day‑to‑day Management?
20. Section 134(2) and s 134(3) of the Act provide:
(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.
(3) Without limiting the generality of matters that the Minister may take into account in determining whether a person has made the genuine effort referred to in subsection (2), the Minister may take into account any or 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).
21. On 15 March 2007, the Department issued a new Procedures Advice Manual 3 (PAM3) which sets out the procedures to be followed in the making of decisions under s 134 of the Act. PAM3 replaced Migration Series Instruction 133 (MSI-133) and was issued pursuant to s 499 of the Act which authorises the Minister to give written directions to decision-makers.
22. In paragraph 9.2 of PAM3, genuine effort refers to evidence that the visa holder has exerted himself or herself to get into business in Australia or be involved in the management of the business at a senior level, on a day-to-day basis. It also refers to an expectation that the visa holder will continue to make sustained and continued efforts to meet visa requirements throughout the three-year period. PAM3 lists the following factors which aim to assist decision‑makers in determining whether a genuine effort has been made under s 134(3) of the Act:
·business proposals/plans which are genuine, realistic and achievable;
·the existence of partners or joint venturers by formal contract or written agreement;
·continuous and genuine business research such as written evidence of detailed consultations with business advisors (accountant, lawyer, bank/financial institution, business/trade association);
·physical presence in Australia for a significant time;
·transfer or investment of sufficient funds (other than for personal use) to ensure that the business meets the requirements of an eligible business;
·failure to comply with a notice for information under s 137, including notification of address and return of relevant survey forms.
23. In assessing Mr Yuen’s claims against the guidelines in PAM3 and s 134(3) of the Act, the Tribunal accepts that Mr Yuen had invested in Lisus by December 2006 and was employed by the company at some time after he returned to Australia on 24 October 2006. Mr Yuen and Mr Polgar gave evidence about telephone calls between them prior to the relevant date as well as contact with their former business partner, Mr Lawrence. A number of the letters purported to have been written in September 2006 by Mr Yuen and Mr Polgar are clumsily and oddly expressed and their reliability in corroborating dates on which negotiations concerning employment and investment took place is questionable. Mr Lawrence was not available to give evidence due to the litigation taking place in relation to the winding up of Lisus.
24. Mr Yuen may well have had the intention to invest in Lisus prior to or on the date of cancellation of the visa. However, the Tribunal is not satisfied that at the relevant date, his plans had been formally agreed to by contract or written agreement. He did not arrive back in Australia until late October 2006 after a significant period working in Dubai. He had not yet transferred substantial funds to Australia.
25. After considering all the relevant matters, including factors in s 134(3) of the Act, the Tribunal is not satisfied that at the relevant date, Mr Yuen met the requirements of s 134(2) of the Act.
Should the residual discretion to cancel the visa be exercised in this case?
26. Even though the Tribunal has found that Mr Yuen does not meet the criteria in s 134 of the Act, the Tribunal retains discretion as to whether his business visa ought to be cancelled
27. The Tribunal is satisfied that Mr Yuen is genuine in his wish to remain in Australia with his family. Mr Yuen’s wife and children have lived in Australia since 1 January 2007. Evidence from Ms Tan to the Tribunal indicated that the arrangements for the move to Australia had commenced before the cancellation of the visa. The children have been attending school in Sydney. The Yuens have purchased a home there. Mr Yuen invested in Australian companies shortly after his visa cancellation. He attempted to set up a viable business during the first year or so after the grant of the business visa but was thwarted in doing so by both the cost factor and the loss of a substantial amount of money in his Chinese venture. The Tribunal accepts that in such circumstances, with a family to support, he would choose to take up a position in Dubai that paid well.
28. The Tribunal is satisfied that Mr Yuen is an experienced and versatile business person. He is entrepreneurial as has been demonstrated by his work history in setting up new businesses in Singapore, China and in Australia (Linox). Mr Yuen is fluent in English and Chinese, as is his wife, a skilled executive secretary. Mr Yuen is now a partner in a viable business that provides employment to Australians. Linox’s business continues to grow.
29. The Tribunal concurs with the comments of Senior Member McCabe in Re Pan and the Minister for Immigration and Citizenship [2007] AATA 1724 (at paragraph 24 and 25):
24. I agree the Tribunal should only have regard to facts and circumstances occurring before the date of the cancellation decision when considering whether the statutory criteria in ss 134(1) and (2) have been satisfied – although evidence about things which transpired afterwards might still be relevant to the extent that the evidence sheds light on the true state of affairs existing before the cancellation decision was made. But the legislation suggests matters arising at a later point might still be taken into account when considering whether to exercise the residual discretion. The residual discretion is designed to give the decision-maker flexibility to deal with unanticipated circumstances. It would be surprising if that flexibility were to be limited temporally, particularly given s 134(8) provides that the cancellation decision does not take effect until after it has been confirmed by the Tribunal.
25. …it is also consistent with a legislative intention that the decision-maker retain the flexibility to permit visa-holders to stay if they generate (albeit belatedly) good ideas or opportunities that might advance Australia’s national interests. Section 134 of the Act is different in that sense to the legislation under consideration in Shi. In Shi, the agent was licensed to carry out a particular function. Evidence of what transpired after the cancellation decision could only serve to mitigate what had already occurred - but the Full Court found the legislation did not allow for the consideration of mitigating circumstances. Nicholson J explained the legislation evinced an intention that the cancellation should take effect as soon as it was clear the circumstances justifying cancellation were found to exist: at [13]-[16]. The position is different in this case. The applicant is given a visa at least partly because of the benefits that might accrue to Australia as a result of his business endeavours. That legislative purpose would be frustrated if the Tribunal were prevented from taking into account evidence about potential benefits simply because the applicant did not begin pursuing them until late in the day.
30. The Tribunal believes it appropriate to exercise its discretion not to cancel Mr Yuen’s visa. Having determined that Mr Yuen’s visa should not be cancelled, the Tribunal does not need to consider the individual circumstances of his wife and children, as the cancellation of their visas was purely as a consequence of the cancellation of Mr Yuen’s business visa, and therefore the restoration of his visa will result in the restoration of theirs.
DECISION
31. The Tribunal sets aside the decision under review and substitutes a decision that Mr Yuen’s visa and that of his dependants should not be cancelled.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member
Signed: ...............[Sanjiv Shah]......................
AssociateDates of hearing: 19 December 2007, 7 April 2008
Date of decision: 27 June 2008
Counsel for applicant: Mr A Krohn
Solicitor for applicant: Hunt, McCullough, Kollias & Co.
Advocate for respondent: Mr G CarrollSolicitor for respondent Australian Government Solicitor
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