Zheng and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 1593

Zheng and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1593 (9 June 2023)

Division:GENERAL DIVISION

File Numbers:         2022/6564 and 2022/6566

Re:Xiuming Zheng and Jiangfeng Zheng

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:9 June 2023

Place:Melbourne

The decisions under review made by the Respondent on 12 July 2022 – to cancel the Business Talent (Permanent) (Class EA) (subclass 132) visas of Mr Xiuming Zheng and Mr Jiangfeng Zheng pursuant to section 134 of the Migration Act 1958 (Cth) – are affirmed.

..............................[SGD]..........................................

Dr L Bygrave, Member

CATCHWORDS

MIGRATION – Business Talent (Permanent) (Class EA) (subclass 132) visa – visa cancellations – whether genuine effort made to obtain substantial ownership interest in an eligible business in Australia – whether genuine effort to utilise skills in actively participating at a senior level in the day-to-day management of that business – whether there is an intention to continue to make such efforts – whether cancellation would result in extreme hardship – decisions affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481

SECONDARY MATERIALS

Procedural Instruction – Business Visa Cancellation, reissued on 1 July 2020

REASONS FOR DECISION

Dr L Bygrave, Member

9 June 2023

INTRODUCTION

1. The Applicants in this matter are Mr Xiuming Zheng (Mr X Zheng) and Mr Jiangfeng Zheng (Mr J Zheng). Mr X Zheng is 59 years old and the father of Mr J Zheng, who is aged 27 years. Both Mr X Zheng and Mr J Zheng are citizens of China.

2. On 27 April 2017, Mr X Zheng submitted an application for a Business Talent (Permanent) (Class EA) (subclass 132) visa (business visa) in the ‘significant business history’ stream and named Mr J Zheng in the application as a ‘migrating family member’.[1] Attached to this application for a business visa were documents including a formal business proposal that stated Mr X Zheng wanted ‘to buy and expand an agricultural/viticultural based business in a regional area of Western Australia’[2], other business-related documents and documents relating to Mr J Zheng’s study in Australia.

   [1] Exhibit T2022/6564-T3, 45, 47.

   [2] Exhibit T2022/6564-T3, 713.

3. A business visa was granted to Mr X Zheng (the main visa holder) and Mr J Zheng (as a member of the family unit of the main visa holder) on 10 July 2018.

4. On 18 February 2022, the Department of Home Affairs (the Department) separately notified Mr X Zheng and Mr J Zheng in writing of an intention to consider the cancellation of the business visa and provided them with an opportunity to comment. Mr J Zheng was invited to comment particularly on whether the ‘cancellation of the visa would result in extreme hardship’ to him.[3] Mr X Zheng emailed written responses on 11 March 2022 and 23 March 2022 on behalf of himself and Mr J Zheng.

   [3] Exhibit T2022/6564-T3, 825.

5. On 12 July 2022, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) decided to cancel Mr X Zheng’s business visa under subsection 134(1) of the Migration Act 1958 (Cth) (the Act). A separate decision was also made on the same date by a delegate of the Minister to cancel Mr J Zheng’s business visa under subsection 134(1) of the Act.

6. Mr X Zheng and Mr J Zheng lodged separate applications for review of these decisions with the General Division of the Administrative Appeals Tribunal (the Tribunal).

7. The applications were heard jointly by the Tribunal in Melbourne on 3 April 2023. Mr X Zheng and Mr J Zheng were represented by a migration agent; they both attended the hearing and gave oral evidence in person with the assistance of an interpreter of the Mandarin language. Mr X Zheng filed further documentary evidence after the hearing and final written submissions were received from the Respondent on 5 May 2023.

   RELEVANT LEGISLATION

8. The relevant provisions for the cancellation of business visas are set out in section 134 of the Act as follows:

   Cancellation of business visas

   (1) Subject to subsection (2) and to section 135, the Minister may cancel a business visa … 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.

   (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).

   …

   (4) Subject to subsection (5) and to section 135, if:

   (a) the Minister cancels a person’s business visa under subsection (1) … ; and

   (b) a business visa is held by another person who is or was a member of the family unit of the holder of the cancelled visa; and

   (c) the other person would not have held that business visa if he or she had never been a member of the family unit of the holder of the cancelled visa;

   the Minister must cancel the other person’s … business visa.

   (5) The Minister must not cancel the other person’s business visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person.

   …

   (9) The Minister must not cancel a business visa under subsection (1), (3A) or (4) unless a notice under section 135 was given to its holder within the period of 3 years commencing:

   (a) if its holder was in Australia when he or she was first granted a business visa--on the day on which that first visa was granted; or

   (b) if its holder was not in Australia when he or she was first granted a business visa--on the day on which its holder first entered Australia after that first visa was granted.

9. Subsection 134(10) defines ‘eligible business’ as:

   … 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 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.

10. Procedural Instruction (PI) – Business Visa Cancellation that was reissued on 1 July 2020 provides policy guidance in relation to monitoring and cancelling business visas.

    EVIDENCE

    Evidence about Mr Xiuming Zheng’s ownership of and/or participation in a business in Australia

11. Mr X Zheng’s documentary evidence regarding his ownership of and/or participation in a business in Australia, and information the Department sent him in written correspondence, is set out below in chronological order.

12. Mr X Zheng provided a formal business proposal dated 27 April 2017 that outlined his role as ‘General Manager and substantial shareholder’ of businesses in China and his intention ‘to establish a substantial business … [that] will make a significant contribution to Western Australia’s economy’.[4] The business proposal stated that Mr X Zheng wanted ‘to buy and expand an agricultural/viticultural based business in a regional area of Western Australia’ that has an existing cash flow/sales complimentary to his future business concept, an ‘established link to the tourism sector or similar’, ‘potential for expansion’ and preferably has a connection with overseas ‘already in place’.[5] The business proposal provided details about a winery in Western Australia that was ‘considered ideal’, information about ‘business expansion and growth plans’ and ‘trading projections and viability’, and details of Mr X Zheng’s visits to Western Australia for 10 days in 2013 and 11 days in 2016–2017 when he had meetings with an accountant and business contacts, and purchased a residence in Perth.[6]

    [4] Exhibit T2022/6564-T3, 713.

    [5] Exhibit T2022/6564-T3, 713-714.

    [6] Exhibit T2022/6564-T3, 714-717.

13. Attached to this formal business proposal was a ‘State Nomination Agreement between the Government of Western Australia and Mr Xiuming Zheng’ dated 20 February 2017 that declared a Western Australian Government State Nomination will be granted to Mr X Zheng based on the ‘substantial economic contribution’ he intends to make, that is:

    ·the ‘purchase’ of a ‘vineyard, winery or farm’ in a ‘regional’ location of Western Australia;

    ·‘net business assets in Western Australia’ of AUD$1,000,000;

    ·the investment in a ‘business to have net business assets in Western Australia of AUD$1,000,000’ at the time of the Department’s 24 month ‘Survey of Business Skills Visa Holders’;

    ·the creation of two full-time equivalent staff employment positions; and

    ·the purchase of a residence in Western Australia.[7] 

    This Agreement required Mr X Zheng to make a number of declarations including that he understood the above ‘commitments must be achieved’ by the Department’s 24 month ‘Survey of Business Skills Visa Holders’ timeframe.[8]

    [7] Exhibit T2022/6564-T7d, 720.

    [8] Exhibit T2022/6564-T7d, 720.

14. On 10 July 2018, the Department wrote a letter to Mr X Zheng to notify him that he was granted a business visa. (Mr J Zheng was also granted a business visa as a family member of Mr X Zheng). The Department’s letter to Mr X Zheng stated that as part of his application, he had signed a declaration agreeing to meet certain obligations after his arrival in Australia including completing surveys regarding his business activities in Australia approximately two years after his arrival in Australia.

15. Mr X Zheng’s travel records show that he first entered Australia on the business visa on 17 March 2019 and departed on 24 March 2019.[9]

    [9] Exhibit HB, 131.

16. On 29 January 2021, Mr X Zheng emailed the Department to advise that ‘Covid-19 in 2020’ had ‘significantly impacted [his] plan to establish a business in WA’ and request ‘additional time’ to ‘resume’ his business plan.[10]

    [10] Exhibit T2022/6564-T14, 781.

17. On 10 May 2021, the Department emailed Mr X Zheng requesting that he complete a 24-month ‘Survey of Business Skills Visa Holders’.[11]

    [11] Exhibits T2022/6564-T15, 782 and T2022/6564-T15a, 783-785.

18. Mr X Zheng emailed a response to the Department on 25 May 2021 in which he stated that he came to Australia to investigate ‘potential business projects in Western Australia’ in March 2019 and carried out the following activities:

    ·visited a local real estate property development company in Perth;

    ·visited local real estate property companies with a view to ‘purchase an apartment … and transform it into a holiday rental business’;

    ·visited many antique shops as he wants to open an antique store in Western Australia;

    ·visited hardware and building material stores as his companies in China manufacture hardware and building materials.[12]

    [12] Exhibit T2022/6564-16, 786.

19. Mr X Zheng provided photographs from this trip in March 2019 and stated in his email that upon his return to China, he consulted with people in ‘relevant business areas’ about what business was ‘feasible and suits’ him.[13]

    [13] Exhibit T2022/6564-T16, 786.

20. On 18 February 2022, the Department wrote to Mr X Zheng to notify him that his business visa was being considered for cancellation and attached documents including a ‘Notice of Intention to Consider Cancellation of your visa under Section 134 of the Migration Act 1958’ and a ‘Notice of Intention to Consider Cancellation of a visa under Section 134 of the Migration Act 1958 for each person who was granted a subclass 132 visa as a member of your family unit’.[14]

    [14] Exhibit T2022/6564-T20a, 817.

21. On 11 March 2022 and 23 March 2022, Mr X Zheng emailed a response to the Department stating that he had bought an apartment in Perth and has ‘always been willing to invest and develop in Australia’ but was prevented by the Covid-19 pandemic.[15] 

    [15] Exhibit T2022/6564-T21, 834 and 838.

22. After his business visa was cancelled on 12 July 2022, Mr X Zheng provided further emails and written submissions on 5 August 2022 that stated he has a ‘genuine intention’ to engage in business activity in Australia and outlined the following reasons for the delays:

    ·He had intended to return to Australia at the end of 2019 but was unable to travel due to the Covid-19 pandemic and lockdowns.

    ·It was ‘irrational’ for him to invest during ‘a decline in global economic activity’ and the Chinese government ‘limited the [sic] individual funds transfer from China to overseas to avoid capital outflow’ in 2020–2021.[16] As an experienced businessman, he knew that ‘good timing is crucial to the best business decision’; the right time is the increase in vaccination rates, the lockdown ending and the pandemic ‘under control’.[17]

    ·He underwent gall bladder surgery in October 2018 and so was in a ‘high-risk group’ of being infected by Covid-19.[18]

    [16] Exhibit T2022/6564-T1a, 15.

    [17] Exhibit T2022/6564-T1a, 16.

    [18] Exhibit T2022/6564-T1a, 16-17.

23. Mr X Zheng’s travel records show he visited Australia from 10 November to 21 November 2022 and from 20 January to 28 January 2023.[19]

    [19] Exhibit HB, 131.

24. In further statements dated 15 January 2023 and 3 February 2023, Mr X Zheng wrote that he had established a new company, Topular Pty Ltd, in September 2022 and had decided the ‘main business’ would be ‘purchasing vintage and fine second-hand Australian furniture’ to export to China.[20] He further wrote on 3 February 2023 that he intended to export Australian lanolin products and wines to China, and had ‘recently’ transferred funds into the business account of Topular Pty Ltd ‘for investments’.[21] Mr X Zheng provided supporting documents including:

    ·a certificate of registration and the constitution of Topular Pty Ltd;

    ·photographs of him visiting wineries and a chocolate company in November 2022;

    ·bank account transaction details;

    ·various purchase contracts and strategic cooperation agreements;

    ·an engagement letter dated 10 November 2022 with a business consultant, who would be the accountant and tax agent for Topular Pty Ltd;

    ·emails regarding the cost of freight between Perth and China; and

    ·emails and a sales contract dated 14 March 2023 about the purchase of wool quilts.  

    [20] Exhibit HB, 7 and 11.

    [21] Exhibit HB, 15.

25. At the hearing, Mr X Zheng provided oral evidence about his family circumstances, which included that both his mother and his sister became unwell about one month before he was granted the business visa in 2018 and he needed to provide care for them in China. He said they passed away at the beginning of the Covid-19 pandemic.

26. Mr X Zheng also provided oral evidence about his businesses in China and whether he had plans to come to Australia. He said he works 10-hour days every day for his five companies in China but can manage these businesses online from Australia with the assistance of the companies’ managers in China. He said he wants to come to Australia ‘immediately’ but could not explain why he had not yet moved to Australia.

27. Regarding his business plans in Australia, Mr X Zheng told the Tribunal that he had decided his initial business plans for purchasing a winery and/or real estate were ‘unworkable’ after he completed research and ‘field investigations’. He said he had researched potential business investments in Australia in 2018 and 2019 but could not recall any details. Following the hearing, Mr X Zheng filed the following translated documents: an agreement dated 14 November 2018 for a desktop report titled ‘Analysis and Research Report on the Australian Wool Market’; an agreement dated 1 December 2018 for an ‘Analysis Report on Investment in the Australian Real Estate Market’; and a consulting contract dated 2 December 2019 for a desktop report titled ‘Investigation on Mining Investment in Australia’.

28. Mr X Zheng also said he had ‘ideas’ for business activities in Western Australia in 2020 and 2021 but was unable to put these plans into action because of the Covid-19 pandemic. He did not tell the Tribunal about these ideas. He acknowledged that the registration of the company, Topular Pty Ltd, in September 2022 was more than four years after his business visa was granted. Mr X Zheng said Topular Pty Ltd is the only company he has registered in Australia, and he is the sole director and shareholder of this company. He said the registered address for Topular Pty Ltd is the apartment where his son lives and, although Topular Pty Ltd currently has no employees, he intends to recruit two or three staff including a business manager.

29. In relation to any revenue that has been generated by Topular Pty Ltd, Mr X Zheng confirmed that the sole contract to date was for the export of one shipment of Australian woollen quilts that was due to arrive in China on 21 April 2023 and his assistant, Ms Wang, had dealt with the signing of the contract and the freight details. He accepted that the profit for this contract was only expected to be about AUD$7,200 but said this was a similar profit margin to other businesses. Mr X Zheng also said that, despite various documents he has filed with the Tribunal relating to ‘purchase contracts’ between Topular Pty and other businesses, he has not pursued – and does not intend to pursue – any other business investments or contracts for the export of Australian wines, vintage and second-hand furniture, or lanolin oil.

    Evidence about Mr Jiangfeng Zheng’s university study in Australia

30. The evidence about Mr J Zheng shows that he arrived in Australia in October 2013 aged 18 years. He subsequently undertook English study and university bridging courses in Western Australia, and completed a Bachelor of Commerce (International Business) degree at Curtin University in 2020. He is currently studying for a Master of Marketing coursework degree at the University of Western Australia that he is due to complete in June 2023. He is financially supported by his father and lives in an apartment purchased by Mr X Zheng in 2016.

1. Written submissions dated 5 August 2022 set out that Mr J Zheng was planning to undertake further study in Australia, the cancellation of the business visa has ‘totally disrupt[ed] his career plan’ and ‘his life would be ruined’ if he is required to return to China.[22] Mr J Zheng also provided an undated written statement in which he said he has ‘worked hard to gain the necessary knowledge and skills to help grow [the] family business and it would be devastating to have to leave Australia before [he is] able to put [his] education into practice’.[23]  

   [22] Exhibit HB, 4.

   [23] Exhibit HB, 103.

2. At the hearing, Mr J Zheng told the Tribunal that he could live with his father if he returned to China and that his mother, who he usually visits annually, also lives in China. Mr J Zheng said that he expects to complete his final exams for his Master of Marketing degree at the University of Western Australia in June 2023 and is planning to undertake further study in Australia, such as a PhD.

   CONSIDERATION

3. The issues for determination by the Tribunal are:

   ·in relation to Mr X Zheng:

   owhether there are grounds for the cancellation of Mr X Zheng’s business visa in accordance with subsection 134(1) of the Act; and

   oif so, whether the conditions for the bar on cancellation under subsection 134(2) of the Act are met.

   ·in relation to Mr J Zheng, if the Tribunal affirms the decision under review to cancel the business visa of Mr X Zheng:

   owhether the condition required for the bar on cancellation in subsection 134(5) of the Act is met, that is, whether the cancellation of Mr J Zheng’s business visa would result in extreme hardship.

4. For completeness, I am satisfied the evidence before the Tribunal shows the Minister gave both Mr X Zheng and Mr J Zheng notice about their intention to cancel the business visas as required by subsection 134(9) and section 135 of the Act.

   Issue: Are there grounds for the cancellation of Mr X Zheng’s business visa in accordance with subsection 134(1) of the Act?

5. The exercise of the discretion to cancel Mr X Zheng’s business visa in accordance with subsection 134(1) of the Act requires that I am satisfied that he:

   ·has not obtained a substantial ownership interest in an eligible business in Australia; or

   ·is not utilising his skills in actively participating at a senior level in the day-to-day management of that business; or

   ·does not intend to continue to hold a substantial ownership interest in and utilise his skills in actively participating at a senior level in the day-to-day management of an eligible business in Australia.

6. I note that the term, ‘eligible business’, is defined in subsection 134(10) of the Act (and set out in paragraph 9 above). PI – Business Visa Cancellation notes the Act does not define a ‘business’ but states:

   a business may be regarded as being a “commercial enterprise in the nature of a going concern, that is, activities engaged for the purpose of a profit on a continuous and repetitive basis” (Hope v Bathurst City Council (1980) 144 CLR 1).

   In ascertaining whether activities constitute the carrying on of a business … [a decision-maker may] consider factors such as whether:

   -    transactions are entered into on a continuous basis for the purpose of making a profit

   -    the activity has a permanent character, and how long it has been established

   -    customers are sought and financial records are kept

   -    the activities are genuine and real.[24]

   [24] Procedural Instruction – Business Visa Cancellation reissued on 1 July 2020, part 10.3.

7. PI – Business Visa Cancellation further lists the following evidence that a visa holder may provide to demonstrate their compliance with the ‘eligible business requirements’:

   -    recent financial statements, business bank account statements, quotes, purchase orders, contracts, invoices or receipts for business transactions conducted in the last 12 months

   -    recent Australian taxation returns and Business Activity Statements, demonstrating that the business is currently operating and registered for taxation purposes in Australia and

   -    certificates of business registration and/or licensing and business insurance policies.[25]

   [25] Procedural Instruction – Business Visa Cancellation reissued on 1 July 2020, part 10.4.

8. Based on the evidence before the Tribunal, I am satisfied that the only ‘business enterprise’ relevant to Mr X Zheng’s business activities in Australia is Topular Pty Ltd, which was registered as a company on 2 September 2022. I accept that Mr X Zheng is the sole shareholder of Topular Pty Ltd and therefore holds a substantial ownership interest in the company. I also accept that a bank statement for Topular Pty Ltd showed the balance of available funds on 29 March 2023 was over AUD$1.5 million (this balance has increased from AUD$100,000 on 15 November 2022 and approximately AUD$599,000 on 25 January 2023).[26]

   [26] Exhibit HB, 17 and 100.

9. However, I am satisfied there is no evidence that Mr X Zheng undertook any business activities in Australia prior to the registration of Topular Pty Ltd in September 2022, which was more than four years after he was granted a business visa. I also find that, to date, Topular Pty Ltd has only exported a single shipment of Australian woollen quilts that was due to arrive in China on 21 April 2023 and had an expected profit of approximately AUD$7,200. I find no evidence that Mr X Zheng intends to continue to export Australian woollen quilts, or either has engaged or intends to engage in any business activities in Australia for the purpose of a profit on a continuous and repetitive basis. I particularly note that Mr X Zheng was unable to inform the Tribunal at the hearing about any future business activities to be pursued by Topular Pty Ltd or how he intends to utilise the funds of AUD$1.5 million currently deposited in the bank account of Topular Pty Ltd.

10. I am further satisfied that Mr X Zheng has not started (or does not intend to start) any of the business activities that he stated he would in his correspondence with the Department. For example, Mr X Zheng has not:

    ·purchased an agricultural/viticultural business in a regional area of Western Australia as he declared in the ‘State Nomination Agreement between the Government of Western Australia and Mr Xiuming Zheng’ on 20 February 2017;

    ·purchased any real estate for the purpose of a holiday rental business as he stated to the Department on 25 May 2021 (his purchase of an apartment in 2016 has been used by Mr J Zheng as his residence while studying in Western Australia); or

    ·established a business for the purpose of exporting Australian wines, or vintage and second-hand furniture, and/or lanolin oil as he submitted to the Department on 15 January 2023 and 3 February 2023.

11. I acknowledge that Mr X Zheng commissioned research to be undertaken in 2018–2019, which comprised general desktop research about the wool, mining, viticulture and real estate industries in Australia. However, it is clear from both Mr X Zheng’s oral evidence and his lack of business activities that he has no intention of investing in any of these industries. In particular, in view of the extended delay of more than four years, I find no connection between Mr X Zheng commissioning a desktop report on the ‘Analysis and Research Report on the Australian Wool Market’ in November 2018 and the export of a single shipment of woollen quilts to China by Topular Pty Ltd in April 2023.

12. There is no evidence before the Tribunal that Mr X Zheng has filed financial statements, Australian taxation returns or Business Activity Statements that would demonstrate that Topular Pty Ltd is currently operating and registered for taxation purposes in Australia. He has not provided information about financial records or customers that would show the business activity has a permanent character, and the activities are genuine and real.

13. Finally, I am satisfied on the basis of Mr X Zheng’s oral evidence in relation to the business activities of Topular Pty Ltd that his assistant, Ms Wang, has dealt with most of the day-to-day management of the business, such as enquiring about freight and shipments, and signing the contract for the export of one container of woollen quilts. I find no evidence before the Tribunal that Mr X Zheng has utilised his skills to actively participate at a senior level in the day-to-day management of Topular Pty Ltd, or that he intends to do so in the future. I place no weight on Mr X Zheng’s oral evidence that he would like to come to Australia ‘immediately’ as he has provided no reason why he has not yet moved to Australia. I also consider that Mr X Zheng has significant business responsibilities in China that require him to work every day, and he has provided no evidence that he intends to divest any of these responsibilities.

14. For these reasons, I am satisfied there is insufficient evidence to show that Mr X Zheng has either obtained a substantial ownership interest in an eligible business in Australia or has an intention to do so, or that Mr X Zheng is utilising his skills in actively participating at a senior level in the day-to-day management of that business or has an intention to do so.

    Issue: Are the conditions for the bar on cancellation under subsection 134(2) of the Act met?

15. Subsection 134(2) of the Act requires that I must not cancel Mr X Zheng’s business visa if I am satisfied that he has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia and utilise his skills in actively participating at a senior level in the day-to-day management of that business, and that he intends to continue to make such genuine efforts.

16. ‘Genuine effort’ is not defined in the Act but PI – Business Visa Cancellation states:

    genuine effort means there should be evidence that the visa holder has exerted themselves to get into a business in Australia and be involved in the management of the business at a senior level on a day to day basis.[27]

    [27] Procedural Instruction – Business Visa Cancellation reissued on 1 July 2020, part 12.2.

17. Further, there is an expectation the visa holder will make ‘sustained and continued efforts’ to meet visa requirements, and a visa holder’s ‘efforts overall’ should be assessed.[28]

    [28] Procedural Instruction – Business Visa Cancellation reissued on 1 July 2020, part 12.2.

18. I have considered the evidence in relation to the matters listed in subsection 134(3) of the Act. As set out above, I am satisfied that Topular Pty Ltd was registered by Mr X Zheng in September 2022 and a bank statement dated 29 March 2023 shows the company has available funds of more than AUD$1.5 million. I am also satisfied that the only business activity undertaken by Topular Pty Ltd as at the date of the Tribunal hearing was the export of a single shipment of Australian woollen quilts that was due to arrive in China on 21 April 2023 and have an expected profit of approximately AUD$7,200.

19. I am satisfied there is no evidence before the Tribunal about:

    ·any business proposals or plans undertaken by Mr X Zheng that show ‘comprehensive research, feasibility and due diligence studies, and analysis of the proposed markets’;[29]

    ·any business partner that Topular Pty Ltd has engaged with or any involvement by Topular Pty Ltd in a joint venture that indicates future business activity;

    ·any business research undertaken by Mr X Zheng such as detailed consultations with business advisors or continuous, concerted and genuine research demonstrated by meeting notes, email enquiries and/or marketing surveys.

    [29] Procedural Instruction – Business Visa Cancellation reissued on 1 July 2020, part 12.5.

20. For completeness, I find the documentation filed by Mr X Zheng shows that, at most, he has commissioned general desktop research in relation to the wool, real estate and mining industries; and undertaken personal visits to properties and wineries in March 2019 and November 2022. I accept Mr X Zheng and his assistant, Ms Wang, have made some preliminary inquiries of various businesses via email. I also accept Mr X Zheng has filed an ‘engagement letter’ dated 10 November 2022 with a ‘business consultant’ to provide ‘accounting and tax services’, although there is no evidence of any services being provided to date.[30]

    [30] Exhibit HB, 79-81

21. Mr X Zheng has provided minimal explanation to the Tribunal about why he decided not to proceed with his business plan in 2017–2018 to purchase a winery and has not proceeded with his plans to export Australian wines, vintage and second-hand furniture, and lanolin oil. I am satisfied that, since Mr X Zheng was granted a business visa on 10 July 2018, he has spent the following periods in Australia: seven days in March 2019, 11 days in November 2022 and eight days in January 2023. He also told the Tribunal that he arrived in Australia several days before the hearing. I find the very limited time Mr X Zheng has spent in Australia over the past five years – notwithstanding the impact of the Covid-19 pandemic – does not demonstrate he has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia and utilise his skills in actively participating at a senior level in the day-to-day management of that business.

22. I have considered Mr X Zheng’s submissions since January 2021 that his circumstances are ‘special’ and he should be given a further chance. I accept Mr X Zheng’s statements that he underwent gallbladder surgery in October 2018 although he provided no supporting medical evidence, and I note this surgery did not prevent him visiting Australia for seven days in March 2019. I also accept Mr X Zheng had caring responsibilities for his mother and his sister in China, although he provided no documents to support this fact and his oral evidence was unclear in terms of the timeframes for their illnesses and his care.

23. In relation to the impact of the Covid-19 pandemic, I note this did not affect international travel until March 2020 (approximately 20 months after Mr X Zheng was granted a business visa) and Mr X Zheng was again able to travel to Australia in November 2022. While I accept that the Covid-19 pandemic affected Mr X Zheng’s travel to and business investment in Australia in the period from March 2020 to November 2022, I find no objective and substantial evidence that this prevented him from establishing an eligible business in Australia from 10 July 2018 to the present – a period of almost five years. In particular, the Covid-19 pandemic did not prevent Mr X Zheng from undertaking detailed research and exploring business opportunities, contacts and sources of supplies; developing business relationships or options for joint ventures; or registering a business and opening a bank account etc. There was nothing to prevent Mr X Zheng from conducting business meetings via videoconference during the Covid-19 pandemic and his son, Mr J Zheng, was living in Western Australia during this period if in-person meetings were required. I therefore place limited weight on Mr X Zheng’s submissions that the Covid-19 pandemic prevented him from obtaining a substantial ownership interest in an eligible business in Australia and utilising his skills in actively participating at a senior level in the day-to-day management of that business.

24. For the reasons set out above, I am not satisfied the conditions for the bar on cancellation under subsection 134(2) of the Act are met.

    Issue: Would the cancellation of Mr J Zheng’s business visa result in extreme hardship?

25. Subsection 134(5) of the Act states that Mr J Zheng’s business visa  must not be cancelled if the cancellation of that visa would result in ‘extreme hardship’ to him.

26. ‘Extreme hardship’ is not defined in the Act; however, PI – Business Visa Cancellation states:

    it means the visa holder would face the utmost or highest degree of hardship if their visa were to be cancelled. The relevant hardship must be a necessary consequence of the cancellation of the visa, a mere possibility or probability would not be sufficient to constitute extreme hardship.[31]

    [emphasis added]

    [31] Procedural Instruction – Business Visa Cancellation reissued on 1 July 2020, part 18.2.

27. I have also had regard to the Federal Court of Australia decision of Man Ki Kim v Minister for Immigration and Ethnic Affairs (Kim) in which Foster J stated:

    it is, in my opinion, important to approach the phrase “extreme hardship” in a broad way. Clearly, it imports a high degree, perhaps a very high degree of hardship, but it must be applied in the context of the facts of the particular case. “Hardship” is in itself a relative term. What may be a “hardship” to a sensitive person, or one in a particularly vulnerable situation, may be no great burden at all to a person of more stoical disposition or in a more protected situation. Similarly, the word “extreme” must be evaluated against the facts of the particular case. Such an evaluation cannot, consistently with the duties imposed upon the decision-maker by the Act, be approached in a dismissive or perfunctory fashion. A full and proper consideration of the person allegedly suffering the hardship or prejudice must be undertaken.[32]

    [32] (1995) 37 ALD 481 at [25].

28. I accept Mr J Zheng’s submissions that he would like to stay in Australia and that he believes it would be difficult for him to return to China. However, I find no objective and supporting evidence that Mr J Zheng would experience extreme hardship as contemplated by the Act if the business visa is cancelled. I note that the evidence of both Mr J Zheng and Mr X Zheng was that he could live with his father in China and would continue to be financially supported by his father. Furthermore, Mr J Zheng’s mother is in China. Mr J Zheng speaks and writes the Mandarin language and would be in a position to obtain employment in China.

29. In relation to Mr J Zheng’s concern about his studies in Australia, I understand the date of this decision should not prohibit Mr J Zheng from completing the final examinations in June 2023 for his Master of Marketing degree.

30. There is no evidence that the cancellation of the business visa would prevent Mr J Zheng from undertaking further study in Australia. The cancellation of the business visa does not prevent Mr J Zheng from applying for other types of visas if he wishes to continue his study or undertake work in Australia. I note that, at the time of the hearing, Mr J Zheng had not made any enquiries about other visa options available to him.

31. Based on the evidence, I am not satisfied Mr J Zheng would experience extreme hardship and consequently, the prohibition in subsection134(5) of the Act does not apply.

    DECISION

32. The decisions under review made by the Respondent on 12 July 2022 – to cancel the Business Talent (Permanent) (Class EA) (subclass 132) visas of Mr Xiuming Zheng and Mr Jiangfeng Zheng pursuant to section 134 of the Migration Act 1958 (Cth) – are affirmed.

    ...........................[sgd].............................................

    Associate

    Dated: 9 June 2023

Date of hearing:

Date of final submissions:

03 April 2023

05 May 2023

Advocates for the Applicant:

Australia H&J Pty Ltd (Migration Agents)

Solicitors for the Respondent:

Australian Government Solicitor