Greenstein and Minister for Immigration and Multicultural and Ind igenous Affairs [2003] AATA 18 (13 January 2003)

Last Updated: 21 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 18

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/741

GENERAL ADMINISTRATIVE DIVISION	)
	Re	Alan Greenstein

Applicant

And

Minister for Immigration & Multicultural & Indigenous Affairs

Respondent

DECISION

Tribunal

Ms N Bell, Member

Date 13 January 2003

Place Sydney

Decision

The Tribunal affirms the decision under review.

[Sgd] Ms N Bell Member

CATCHWORDS

IMMIGRATION - Business Skills Visa - Applicant's failure to comply with visa requirement to notify the Department of business activities - whether Applicant had made a genuine effort to obtain a "substantial ownership interest" in an "eligible business" in Australia and to "utilise his skills" in that business - examination of the Applicant's business activities in Australia and in South Africa - held that the Applicant did not satisfy the grounds for a business visa - decision of the Respondent affirmed.

Migration Act 1958 ss 134(1), 134(2), 134(3), 134(5), 134(10),

REASONS FOR DECISION

13 January 2003

Ms N Bell, Member

1. This is an application by Mr Alan Greenstein ("the Applicant") for review of a decision dated 24 April 2002 of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Respondent") to cancel the Business Visa issued to the Applicant pursuant to section 134 of the Migration Act 1958 ("the Act"). At the hearing before the Tribunal the Applicant was represented by Mr S Gerber of Counsel and the Respondent was represented by Mr G Cranwell of the Australian Government Solicitor's Office. The Tribunal had before it the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (the "T-Documents), together with the parties' Statements of Facts and Contentions. The Applicant gave oral evidence to the Tribunal.

BACKGROUND

2. The Applicant, who is aged 42, was granted a subclass 128 Business Visa on 13 June 1998. The Applicant's wife, Mrs Andrea Greenstein, and their two children, Thalya and Joshua, were granted secondary visas. All visas were valid for three years from the date of entry into Australia. The Applicant entered Australia on 21 March 1999 and departed on 4 April 1999. He entered Australia again on 8 April 1999 and departed on 10 April 1999. The Applicant next entered Australia on 1 October 2001 and departed on 15 October 2001.

3. By letter dated 13 December 2001 the Respondent notified the Applicant of his intention to cancel the Applicant's Business Visa under section 134 of the Act for failure to meet the requirements of the Visa. The Applicant submitted opposing the cancellation of his Visa on 18 January 2002. On 24 April 2002 a delegate of the Respondent decided to cancel the Applicant's visa and those of his wife and children. On 29 May 2002 the Applicant lodged an application for review of the decision to cancel his visa.

LEGISLATION

4. Section 134 of the Act empowers the Respondent to cancel a Business Visa in certain circumstances. The relevant provisions of the Act in this case are sections 134(1),(2),(3),(5) and (10) which provide as follows:

"134 - Cancellation of business visas

(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.

(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).

(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.

...

(10) In this section:

business visa means:

(a) a visa included in a class of visas, being a class that:

(i) has the words "Business Skills" in its title; and

(ii) is prescribed for the purposes of this paragraph; or

(b) a visa:

(i) to which a prescribed provision of the Migration Reform (Transitional Provisions) Regulations applies; and

(ii) that is of a kind prescribed for the purposes of this paragraph; or

(c) a return visa that is granted to a person who is or was the holder of a business permit or business visa;

that is or was granted on or after 17 February 1992.

designated investment has the meaning given by the regulations.

eligible business means a business that the Minister reasonably believes is resulting or will result in one or more of the following:

(a) the development of business links with the international market;

(b) the creation or maintenance of employment in Australia;

(c) the export of Australian goods 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.

established business in Australia visa means a business visa a criterion for whose grant:

(a) relates to the applicant having an established business in Australia; or

(b) is that the applicant is a member of the family unit of the holder of a visa a criterion for whose grant is as mentioned in paragraph (a).

family member's visa means a business visa held by a person:

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

(b) who would not have held the business visa if he or she had never been a member of the family unit of the other person.

investment-linked visa means a business visa a criterion for whose grant:

(a) relates to the holding of a designated investment; or

(b) is that the applicant is a member of the family unit of the holder of a visa a criterion for whose grant is as mentioned in paragraph (a).

member of the family unit has the meaning given by the regulations.

ownership interest, in relation to a business, means an interest in the business as:

(a) a shareholder in a company that carries on the business; or

(b) a partner in a partnership that carries on the business; or

(c) the sole proprietor of the business;

including such an interest held indirectly through one or more interposed companies, partnerships or trusts.

relevant designated investment, in relation to an investment-linked visa (other than a family member's visa), means the designated investment that was, in deciding to grant the visa, regarded as satisfying the criterion referred to in paragraph (a) of the definition of investment-linked visa.

return visa has the same meaning as in the regulations."

ISSUES

5. As a preliminary issue, the Applicant submitted that, by virtue of the operation of section 134(5) of the Act, the Tribunal has jurisdiction to consider the Respondent's decision to cancel both his and his wife's and children's visas. While section 134(4) operates to compel the Respondent to cancel the visa of a member of the family unit of a primary visa holder, it does not confer jurisdiction on the Tribunal to review a decision relating to the visa of a family member. Jurisdiction to review a decision to cancel a business visa is conferred by section 136 which provides:

"136 Review of decisions

Application may be made to the Administrative Appeals Tribunal for review of a decision of the Minister under subsection 134(1), (3A) or (4)."

6. Given there is only one application before the Tribunal, the Tribunal considers that the application in relation to the Applicant's visa is all the Tribunal may review.

7. The Applicant also submitted that section 134(5) which provides that 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", means that the Tribunal must not cancel the Applicant's visa if the result would be extreme hardship to him. The Tribunal rejects this submission. It is clear that subsections 4 and 5 of section 134 should be read together. When the sections are read together it is clear that the "other person" referred to in subsection 5 is the "person who is or was a member of the family unit of the holder of the cancelled visa" referred to in subsection 4(b).

8. The Applicant conceded that the Respondent was properly satisfied of the matters set out in section 134(1)(a),(b),(c), that is, the Applicant :

* 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 continue to hold a substantial ownership interest; or

* utilise his or her skills as above.

9. The Applicant and the Respondent were also in agreement that the Tribunal should focus on events and evidence of those events relating to the period up to and including the date of the decision to cancel the visa, that is, 24 April 2002. The Tribunal agrees that that is the correct approach.

10. It remains for the Tribunal to consider whether the Respondent may be satisfied of the matters set out in section 134(2) of the Act which relate to "genuine effort" made by the Applicant to obtain a substantial interest in an eligible business and to actively utilise his skills in participation at a senior level in the day-to-day management of that business. Section 134(3) sets out a number of matters which the Minister may take into account in determining whether a person has made the "genuine effort" referred to in subsection 2. In addition, the government policy set out in the Migration Series Instructions (MSI), at paragraph 4.5.1 lists some factors to be taken into account by decision-makers in determining whether a genuine effort has been made. The Tribunal must therefore, by reference to the matters set out in section 134(3) and MSI paragraph 4.5.1, determine whether the Applicant has made a genuine effort of the kind described in section 134(2).

APPLICANT'S EVIDENCE

11. The Applicant told the Tribunal that after qualifying as a solicitor in 1984 he was employed in London from July 1985 to June 1986 and then returned to South Africa where he was appointed as a partner in a law firm. He then commenced at a small corporate finance firm at which he worked until 1990 when he was approached by a financial organisation to assist in the establishment of the Mercantile Bank. This was a small merchant bank which was established in 1991 and partly owned by the Portuguese Government and a large insurance company. The Applicant received large stock options from his employment with the Mercantile Bank. However these options began to decrease in value in 1999, with matters worsening up til the time the Applicant left the Mercantile Bank in the year 2000.

12. In 2000 the Applicant was approached by SASFIN and is now one of two executive directors of that organisation. The Applicant took over responsibility for SASFIN's stockbroking and asset management division.

13. The Applicant said that he made his first trip to Australia in December 1997 to visit his sister in Perth and was impressed with Australia. When he returned to South Africa from his trip he made contact with ACN Migration Agents in order to inquire about immigrating to Australia.

14. The Applicant said that when his visa was granted in 1998 he was advised that he would need to be in business in Australia and so began looking for opportunities in the financial services area. He said he wanted to gather an understanding of the Australian financial services market.

15. The Applicant said that in March 1999, while in Australia, he saw a colleague at the ANZ Bank, visited Business Victoria and spoke to a range of people including an Executive Search Consultant, with a view to obtaining employment in Australia in the financial services area. He said that he opened a National Australia Bank current account together with a Bankers Trust Investment account. He said that, under South African law, he is limited to taking out of South Africa a travelling allowance amount of AUS$50,000 per year. He also said that AUS$150,000 can be invested overseas but those monies must be returned to South Africa at the conclusion of the investment.

16. The Applicant said that when he visited Australia again in April 1999 he saw a number of people in the financial services industry and that after that visit he kept in contact with a number of South Africans living in Australia in order to pursue opportunities in the financial services area.

17. The Applicant said that when he visited Australia again in October 2001 his personal asset base had been all but wiped out and that he was in the process of rebuilding his position. He said that he regarded this trip to Australia as the last one before finally immigrating. The applicant said that during this time he was focusing on the following three opportunities for business involvement in Australia:

* By Nature - a therapeutic goods business;

* Redback Mufflers - an automotive parts business; and

* Austhings - a corporate gifts business.

18. In relation to Austhings, the Applicant said that at the time of his enquiries the business was only two or three months old and being run by friends from South Africa. The owners of the business considered it too early to enter into arrangements with the Applicant but invited him to continue discussions at a later date.

19. In relation to Redback Mufflers, the Applicant said that the proprietor of the business was, again, a friend from South Africa who had established a very successful mail order business in South Africa and had had dealings with the Applicant's bank. He said he had discussions with the proprietor about the company, which he was taking an option on, and for which he was looking for other investors. The Applicant said that he intended to discuss the matter further with his friend when he returned to Australia.

20. In relation to By Nature, the Applicant said that his brother-in-law who is a naturopath owned that business. The Applicant said that he had made enquiries in South Africa about importing the company's products into South Africa but was prevented from doing so by pharmaceutical regulations there. He had also investigated the possibility of manufacturing the company's products in South Africa but found this was similarly unfeasible. The Applicant said that he had discussions with his brother-in-law in October 2001 about obtaining the rights for the distribution of the company's products in Melbourne. He said that he considered it a good business opportunity and that he intended to pursue it.

21. The Applicant said that his brother-in-law agreed to give him an option to take the distribution rights for Melbourne and that when he left Australia in October 2001, as far as he was concerned, he had a firm agreement to exercise that option over the next twelve months. He said that the option was a verbal agreement with his brother-in-law that he would have the right to exclusive distribution in Melbourne. His brother-in-law gave him a copy of his standard distribution agreement when he was in Australia in October 2001, and it had been the Applicant's intention to return to Australia in March 2002 and to either have the document signed or to take up the option. The Applicant said that he has not signed the distribution agreement because he received the Notice of Intention to cancel his visa in December 2001, which made it, in his view, impossible to take any firm steps. The Applicant also said that he has not registered a company in Australia nor a business name.

22. The Applicant referred the Tribunal to page 71 of the T-documents, a letter from the Applicant's brother-in-law, Martin Kilov, the Director of By Nature, to the Business Skills Section of the Department of Immigration and Multicultural Affairs. The letter is in accordance with the Applicant's evidence of the arrangement. The Applicant told the Tribunal that at the time of October 2001 whilst in Australia he needed to consider his personal arrangements and the appropriate structure by which to enter into the agreement with his brother-in-law. This included whether he should form a company or a trust or some other commercial entity. He said he was unable to obtain a consultation with his brother-in-law's legal advisers in order to ascertain whether the business was appropriately structured.

23. In cross-examination the Applicant agreed that By Nature is run partially out of his brother-in-law's residence and partially from a large distribution warehouse in Sydney. He said that the capital investment required by him to exercise the option for distribution in Melbourne would be small because he would be taking the goods on consignment and would only need a small office infrastructure to support his business activity. The Applicant said that he would regard a small capital investment as being somewhere between AUS$100,000 and AUS$250,000 and noted that, were he to immigrate to Australia, he would bring all of his funds from South Africa with him, including the proceeds of the sale of his house or, if necessary, he would borrow in order to fund his investment. When queried as to why he was prepared to rely on an undocumented agreement with Mr Kilov for exclusive option rights, the Applicant said that he had known Mr Kilov for 15 years and had no reason to distrust him.

24. The Applicant said that he did not exercise the option notwithstanding his verbal agreement with his brother-in-law prior to the date of the cancellation of his visa because he had received the Respondent's Notice of Intention to cancel in December 2001. However, the Applicant agreed that he had not conducted a thorough market study in relation to his brother-in-law's business, and agreed that there was no formal business plan in relation to his decision to pursue the option.

25. The Applicant said that he saw himself as being able to develop a number of businesses and did not have to be confined to one business only. He also agreed that he thought the distribution business could be run initially from his home as a part-time business. He conceded that prior to the date of the decision to cancel his visa, he had done nothing to generate interest in the supply of By Nature's products in Melbourne, there was no formal agreement for an option, he had made no investment in the business, he had devised no formal business plan and he had undertaken no written consultations with business advisers. The Applicant, however, pointed out that he has a thorough understanding of the retail market.

26. In cross-examination the Applicant also agreed that he has spent only 33 days in Australia throughout the two-year period of the operation of the visa and that there was a gap of some 18 months between his second and third visits. However the Applicant suggested that time spent in Australia was not indicative of the effort he had made to involve himself in business in Australia and referred to the "global village" and the use of electronic communication in the business world.

27. The Applicant told the Tribunal that from 1999 he has had a progressive financial decline and said that until he obtained employment with SASFIN in 2001 he was unable to pursue investment in Australia. However, he maintained that had he sold all of his assets in South Africa he would have had funds to invest in an Australian business. The Applicant said that he was limited, however, during his first year of employment at SASFIN by diminution of his personal asset base and the need to settle his debt to Mercantile Bank and to give at least six months notice of his intention to leave SASFIN.

SUBMISSIONS

28. Mr Gerber for the Applicant submitted that the Applicant's endeavours to obtain work do not detract from his efforts to obtain a substantial interest in an eligible business and urged the Tribunal to conclude that the two are not mutually exclusive. He submitted that the Applicant's investigations and discussions in relation to Redback Mufflers, Austhings and By Nature are evidence of a genuine effort in relation to these three businesses. In particular, Mr Gerber submitted that the Applicant's agreement with Mr Kilov in relation to an option for Victorian distributorship, although undocumented, save for the letter on page 71 of the T-documents, is clear evidence of a genuine effort to obtain a substantial ownership interest.

29. As to whether By Nature constitutes an "eligible business", Mr Gerber submitted that if the Applicant exercised the option he would have created employment in Australia for himself, thus satisfying the requirement in the Act.

30. As to whether the Applicant intended to continue to make genuine efforts to obtain a substantial interest in an eligible business, Mr Gerber submitted that the existence of the option is evidence of that as is the Applicant's evidence of his intention to proceed with that option, which was interrupted by the Notice of Intended Cancellation of the visa.

31. In relation to section 134(3) of the Act Mr Gerber submitted that the Tribunal is not obliged to take the matters listed in that section into account. However, Mr Gerber addressed some of the factors in the provision. In relation to the development of business proposals, he submitted that the Applicant's discussions with various persons would be regarded as business proposals. In relation to the existence of partners or joint venturers, Mr Gerber submitted that the various people with whom the Applicant had had discussions could be classed as potential partners or joint venturers. As to the amount of time spent by the Applicant in Australia, Mr Gerber submitted that, in the age of advanced communication technology, it is not necessary for a person to conduct business dealings face to face. Mr Gerber also pointed out that the Act describes no minimum amount of assets or invested funds that a person must transfer to Australia. He also pointed out that, after some difficulty in relation to the Applicant's correct address, the Applicant did comply with notices required under section 137 of the Act.

32. Mr Gerber made similar submissions in relation to MSI paragraph 4.5.1, although he submitted those to be simply internal instructions of the Department, with the Tribunal not being bound by them. He submitted that the MSI are not policy documents.

33. Mr Gerber also submitted that the Applicant's intention to conduct his Victorian distributorship from home had no bearing on the question of whether the Applicant had made a genuine effort referred to in section 134(2). Similarly, it was submitted, the Applicant having spoken to people who were friends, associates, and family in relation to his business enquiries does not detract from his genuine effort.

34. Mr Cranwell for the Respondent submitted that the Tribunal should have regard to the factors set out in section 134(3) of the Act and should also have regard to the MSI which, he submitted, is a statement of policy.

35. In relation to the physical presence of the Applicant in Australia, Mr Cranwell submitted that the 33 days spent in Australia by the Applicant falls vastly short of the six-month period indicated in the department policy as necessary. He noted that the Applicant's first visit to Australia was largely devoted to obtaining employment and that it was only during the Applicant's second visit to Australia in October 2001 that he entered into discussions about acquiring ownership interests in any businesses. Mr Cranwell submitted that the Applicant's efforts to obtain employment must be distinguished from his efforts to obtain a substantial ownership interest.

36. In relation to the three businesses explored by the Applicant, Mr Cranwell noted that Redback Mufflers was a business in an area in which the Applicant had no experience and no knowledge of risk or market dynamics. He submitted that this was not a serious proposal. Similarly in relation to Austhings, Mr Cranwell submitted that it was generally agreed that it was too early to be looking at serious investment in that company, and so this was also not a serious proposal.

37. In relation to By Nature, Mr Cranwell noted that this appeared to be the most serious of the Applicant's attempts to engage in a business in Australia but noted that it was a business which his brother-in-law ran from home, that the first specific discussion about becoming an exclusive distributor in Victoria took place in January 2000 and that nothing further appears to have happened until October 2001. Even so, it was submitted, there is no written document evidencing the existence of an option and Mr Kilov, at page 71 of the T-documents, refers to an "understanding that there would be an option" and to "anticipating formalisation of the proposed agreement".. Mr Cranwell submitted that this falls short of anything concrete, that there was no formal contract with partners or joint venturers, that the business proposal was not genuine, realistic or achievable, that no market study had been made, that no business plan had been developed, that no business advisers had been consulted, that no turnover had been generated and that no funds had been applied.

38. As to whether the business was an eligible business within the terms of the Act, Mr Cranwell submitted that there was no real evidence as to who would be employed beyond the vague assertion that jobs would be created, no evidence as to what the expected turnover of the business would be and no evidence as to the size of the proposed capital contribution. In this respect Mr Cranwell referred to the MSI guideline of AUS$100,000 minimum investment.

39. Given the apparent difficulty in relation to the correct address for service of documents on the Applicant, Mr Cranwell made no argument in relation to the factor in section 134(3) concerning compliance with notices under section 137 of the Act.

40. Mr Cranwell submitted, in relation to the Applicant's capacity to acquire a substantial ownership interest in an eligible Australian business, that according to the Applicant's evidence, following the decline of the Mercantile Bank he was not in funds to acquire the relevant interest. Mr Cranwell submitted that after the Applicant took the position with SASFIN in January 2001 he was obliged to stay for at least six months, being the notice period required, and, given his need to build up his wealth again, he was in no position to leave that organisation for a further period of twelve months. He submitted that the Applicant was in no position to immigrate to Australia prior to the end of 2001 when the Respondent issued the Notice of Intention to cancel.

41. Mr Cranwell also drew the Tribunal's attention to the range of interests pursued by the Applicant which included the muffler business, a natural products business and a corporate gifts business. He submitted that, given that the Applicant's background is in financial services and law and given also that all of these discussions took place with people already known to the Applicant, this indicates that he did not take his enquires very far a field and did not try very hard to obtain a substantial ownership interest.

CONSIDERATION

42. The issue for the Tribunal to consider is whether the Applicant made a genuine effort to obtain an interest in an eligible business in Australia. The Tribunal accepts the Applicant's evidence as follows:

* he sought employment in the financial services area, particularly during his visit to Australia in March and April 1999;

* he had discussions with the proprietors of Redback Mufflers, Austhings and By Nature with a view to investigating the possible acquisition of an interest in those businesses. However the Tribunal does not consider, on the Applicant's own evidence, that discussions in relation to Redback Mufflers and Austhings were either fruitful or extensive;

* discussions with By Nature extended further as evidenced at page 71 of the T-documents but had not, at the date of the Respondent's decision to cancel the Applicant's visa, resulted in any formalisation of agreement and the undocumented option has not yet been exercised by the Applicant.

43. There is no evidence before the Tribunal to establish that the Applicant's proposed distributorship in Victoria will result in the development of business links with the international market, the export of Australian goods or services, the local production of goods that would otherwise be imported into Australia, the introduction of new or improved technology to Australia or an increase in commercial activity and competitiveness within sectors of the Australian economy. The Applicant submitted that the proposed business would create employment for at least for the Applicant and he made mention, in his evidence, of the possibility of employment for his wife. On this basis, it is arguable that the Victorian distributorship may be classified as an eligible business within the meaning of the Act. For the purposes of analysis of whether the Applicant made a "genuine effort", the Tribunal will proceed on the basis that the proposed distributorship is an eligible business.

44. The Tribunal considers that it is appropriate for it to have regard to the matters set out in section 134(3) of the Act. In relation to those matters the Tribunal finds, on the basis of the T-documents and the Applicant's evidence, as follows:

* no written business proposal was developed in relation to any of the businesses investigated by the Applicant. There is no evidence before the Tribunal of the detail of the proposed By Nature distributorship;

* although, as per page 71 of the T-documents, there is a yet-to-be formalised understanding between the Applicant and his brother-in-law, they were not in legal partnership and there is no evidence of a joint venture;

* there is no evidence of the Applicant having conducted research into the businesses he considered;

* the Applicant has spent only 33 days in Australia in the period up to the date of the decision to cancel his visa;

* the assets transferred to Australia by the Applicant at the date of the decision to cancel were a total of AUS$48,133, all deposited in the National Australia Bank and BT Funds Management and not used in the acquisition of an ownership interest in a business;

* no business activity has been undertaken by the Applicant.

45. The Tribunal notes the MSI is a document setting out policy of the Respondent. Paragraph 4.5.1 of the MSI is as follows:

"(a) business proposal which is considered genuine, realistic and achievable;

(b) formal contract with partners or joint venturers;

(c) written evidence of detailed consultations with at least 3 business advisers (accountant, lawyer, bank/financial institution, state/territory government, Business Development Office, AUSTRADE, Business/Trade Association);

(d) physical presence in Australia for more than 6 months since first arrival as a business skills class migrant;

(e) transfer to, and retained in, Australia at least 50% of the funds indicated as available to transfer within two years;

(f) minimum Australian $100,000 or 10% ownership previously held by the person. If the person is no longer in business, the reasons for loss of ownership are also relevant;

(g) minimum Australian $100,000 business activities as indicated by turnover. This may include other business activity not considered "eligible business" but cannot include passive investment eg purchase of shares;

(h) failure to comply with a notice for information under s.137 ie mandatory monitoring of Australian address and return of survey forms."

46. In considering the matters set out in MSI paragraph 4.5.1 and their application to the Applicant's circumstances, the Tribunal concludes, on the basis of the Applicant's evidence and the T documents, that matters (a) to (g) are not present. Given that there was some confusion as to the Applicant's address and that the Applicant ultimately complied with the Notice, the question of compliance with a section 37 Notice does not arise.

47. Taking all of these matters into account, the Tribunal concludes that the Applicant did not make a genuine effort to obtain a substantial ownership interest in an eligible business in Australia. It follows that he did not make a genuine effort to utilise his skills in actively participating at a senior level in the day-to-day management of that business.

48. In reaching this conclusion the Tribunal was mindful of the financial difficulties experienced by the Applicant and of his need to rehabilitate himself financially in order to pursue involvement in a business in Australia. It appears to the Tribunal that he was, of necessity, more focussed on his financial difficulties and later on his new employment with SASFIN than he was on the obtaining of a relevant business interest in Australia. That is not to say that these activities must be mutually exclusive, but together with other circumstances as found above by the Tribunal, and in the absence, to any significant degree, of any of the positive indicators set out in section 134(3) or in paragraph 4.5.1 of the MSI, the Applicant's concentration on his activities in South Africa indicates a lack of genuine effort to obtain a substantial interest in an eligible business in Australia.

49. It follows that there is no basis on which the Applicant can avail himself of the provisions of section 134(2) of the Act and, given that he has not obtained a substantial ownership interest in an eligible business in Australia, the Tribunal considers that the Respondent decided appropriately to cancel the Applicant's business visa pursuant to section 134(1) of the Act.

DECISION

50. The Tribunal affirms the decision under review.

I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member

Signed: L Bonouvrie

Associate

Date of Hearing 13 December 2002

Date of Decision 13 January 2003

Counsel for the Applicant Mr S Gerber

Solicitor for the Respondent Mr G Cranwell