Ng and Minister for Immigration & Multicultural & Indigenous Affa irs [2003] AATA 299 (31 March 2003)

Last Updated: 3 April 2003

DECISION AND REASONS FOR DECISION [2003] AATA 299

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2002/68

GENERAL ADMINISTRATIVE DIVISION	)
	Re	ARDY JOHN WILLIAM NG

Applicant

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

The Hon C R Wright QC (Deputy President)

Date 31 March 2003

Place Perth

Decision

The decision under review is affirmed.

(The Hon C R Wright QC)

Deputy President

CATCHWORDS

Immigration - Business Skills Visa - cancellation - substantial ownership interest or active involvement in day to day management at a senior level of an eligible business in Australia.

Migration Act 1958 - s134

Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259

Freeman v Secretary, Department of Social Security (1988) 19 FCR 342

Re Wong and Minister for Immigration and Multicultural Affairs (2002) AATA 54

Re Griffiths and Migration Agents Registration Authority (2001) AATA 240

Re Birds Eye and Companies Auditors and Liquidators Disciplinary Board (2000) AATA 783 Re Harts Pty Ltd and Tax Agents Board of Queensland (1997) 97 ATC 2148

Re Ong and Minister for Immigration and Multicultural Affairs (2003) AATA 178

Re Tang and Minister for Immigration and Multicultural Affairs (2002) AATA 656

REASONS FOR DECISION

31 March 2003

The Hon C R Wright QC (Deputy President)

BACKGROUND

1. The applicant was the holder of a Business Skills (Class AD) (Subclass 127) visa issued on 30 November 1998.

2. The respondent's delegate cancelled the visa on 15 February 2002 on the grounds that the applicant -

(a) had not obtained a substantial interest in an eligible business in Australia; or

(b) was not utilising his skills in actively participating at a senior level in the day to day management of that business; or

(c) did not intend to continue to -

(i) hold such an ownership interest in; and

(ii) utilise his skills in actively participating at a senior level in the day to day management of an eligible business in Australia.

3. The respondent's delegate was also satisfied that the applicant had not made a "genuine" effort to fulfil such obligations.

4. The applicant is an Indonesian national and his spouse and 4 male children were secondary business visa holders prior to the cancellation. However none of them has lodged a joint or separate application to review the consequential cancellation of his or her visa.

5. The applicant commenced the present proceedings by lodging an application to review the decision of the respondent's delegate on 25 February 2002.

THE HEARING

6. The hearing of the application took place in Perth, WA on 11 March 2003. The applicant appeared in person and was assisted by his son Franky Ng who also acted as interpreter for his father as required. Ms Davies appeared for the respondent. The applicant and Franky Ng both gave sworn evidence. The applicant arrived in Australia for this purpose on 8 March 2003. Documentary evidence before the Tribunal consisted of:

(i) "Exhibit A" - Additional supporting documents (217 pages) prepared by the applicant.

(ii) "Exhibit B" - Section 37 Documents ("T") documents.

(iii) "Exhibit C" - Cityland Investments Pty Ltd, Constitution Financial Statements and analysis of unit costs of Farnham development.

(iv) "Exhibit D" - Document relating to the sale of Cityland, Investments Pty Ltd properties at Farnham street, Bentley.

(v) "Exhibit E" - Additional supporting documents 16 September 2002 consisting of an Agreement between Cityland Investments Pty Ltd, Ronandson Pty Ltd and Lanny Santoso dated 13 July 2001.

7. Section 134 of the Migration Act 1958 ("the Act") contains the following relevant provisions:

(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).

(3A) Subject to section 135, the Minister may cancel an investment-linked visa (other than a family member's visa), by written notice to its holder, if the Minister is satisfied that the person, or any of the persons, who held the relevant designated investment when the visa was granted has or have ceased, for any reason, to hold that investment within 3 years of that investment being made.

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

(a) the Minister cancels a person's business visa under subsection (1) or (3A); 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 permit or business visa by giving written notice to that person.

(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.

(6) The Minister is taken not to have cancelled a person's business visa under subsection (4) if the Administrative Appeals Tribunal has set aside the decision of the Minister to cancel the business visa of the relevant person to whom paragraph (4)(a) applied.

(7) If the Minister cancels a business visa under this section, the Minister must include in the notice given to its holder:

(a) the Minister's reason for the cancellation; and

(b) a statement to the effect that the holder may, within 28 days after receiving the notice, apply to the Administrative Appeals Tribunal for review of the cancellation.

(8) A cancellation under this section has effect on and from:

(a) if the person applies to the Administrative Appeals Tribunal for a review of the decision to cancel the visa--the 28th day after the day on which the Administrative Appeals Tribunal gives its decision on that review; or

(b) if:

(i) the person's visa was cancelled under subsection (4); and

(ii) the relevant person to whom paragraph (4)(a) applied has applied to the Administrative Appeals Tribunal for a review of the decision to cancel that person's visa;

the 28th day after the day on which the Administrative Appeals Tribunal gives its decision on that review; or

(c) the 28th day after the day on which the notice of cancellation is given to the holder of the cancelled visa;

whichever is the latest.

(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.

(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."

8. The Migration Series Instructions 133 "Visa cancellation under Subdivision G - Cancellation of business visas" (MSI133) is also relevant to policy issues, although not binding on the AAT (See Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259 at 266).

9. In Freeman v Secretary, Department of Social Security (1988) 19 FCR 342, Davies J drew attention to the distinction between the role of a Tribunal in reviewing decisions to cancel a benefit on the one hand, and decisions to refuse to grant a benefit on the other. In the first type of situation a Tribunal is limited to considering the events up to and including the date of the primary decision. In the second, a Tribunal may examine relevant events up to and including the date of the Tribunal's decision. This decision has been followed in several cancellation cases before the AAT.

10. Wong and Minister for Immigration and Multicultural Affairs (2002) AATA 54, paragraph 32; Re Griffiths and Migration Agents Registration Authority (2001) AATA 240 at paragraph 39; Birds Eye and Companies Auditors and Liquidators Disciplinary Board (2000) AATA 783 and Re Harts Pty Ltd and Tax Agents Board of Queensland (1997) 97 ATC 2148.

11. Whether or not an individual has obtained a "substantial" ownership interest in a business is a question of fact to be determined in the circumstances of each case (Ong and Minister for Immigration and Multicultural Affairs (2003) AATA 178.

12. The question whether or not an individual is participating in the day to day management of a business in Australia involves two principal issues:

(1) To be carrying on a "business" it must be shown that the relevant undertaking is a commercial enterprise in the nature of a going concern involving activities being pursued for the purpose of profit on a continuous and repetitive basis (Hope v Bathurst City Council (1980) 144 CLR per Mason J at p.89). See also Tang and Minister for Immigration and Multicultural Affairs (2000) AATA 997 at paragraph 20; Huang and Minister for Immigration and Multicultural Affairs (2002) AATA 656 at paragraph 11; Ong and Minister for Immigration and Multicultural Affairs (supra) at paragraph 34(a).

(2) The relevant business must be carried on "in Australia". See Huang (supra) at paragraph 12 and Ong (supra) at paragraph 29 - 33 where Senior Member M D Allen said:

"29. At the outset the question arises whether the applicant was participating in the business in Australia. In Re Huang and Minister for Immigration and Multicultural and Indigenous Affairs (2002) AATA 656, Senior Member Muller a she then was said at paragraph 12:

´Not only must he eligible business operate in Australia to comply with the act, the visa holder must participate at a senior level in the day-to-day management of the Australian business in Australia, albeit with trips overseas from time to time.'

30. The applicant submitted that it was not necessary for the applicant to participate in the business in Australia and this submission received some support from the decision of Deputy President McMahon in Re Tang and Minister for Immigration and Multicultural and Indigenous Affairs (2202) AATA 997 where at paragraph 25 he said:

´There is no evidence that the applicant actively participates at a senior level from overseas.'

31. Reference can be made to the Second Reading Speech of the Minister for Immigration introducing the Migration Amendment Bill (No 2) 1992 which introduced the new section 134 into the Migration Act 1958. It is clear from that speech (Hansard, House of Representatives, 7 May 1992 at p2678) that it was understood that migrants who arrived in Australia on a business skills visa would remain resident in Australia, That such a purposive interpretation of the legislation can be adopted cannot be doubted: see Spiegleman CJ in Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc & Others 48 NSWLR 548 at 575:

´The Australian law of statutory interpretation requires a court to consider context in the first instant, not merely after ambiguity is identified ...' (and see the authority cited at 575-6)

31. I am therefore satisfied that Senior Member Muller in Re Huang was correct and it is the business activities of the applicant in Australia that must be examined, not his business activities whilst he is residing overseas.

32. In this matter it is clear that the applicant did not exercise his skills in actively participating at a senior level in the day-to-day management of an eligible business in Australia at the time of cancellation of his visa."

12. This does not mean that the visa holder is confined to working within the geographical limits of Australia. Obviously overseas trips may be a vitally important part of fostering and expanding the business. However the Act does not contemplate an absentee entrepreneur directing operations from afar. Direct "hands on" involvement within the Commonwealth of Australia is essential. A business skills visa carries with it the right of permanent residency in Australia during its existence and by departing from Australia and joining family members as secondary applicants they too can obtain this privilege. It would be strange indeed if an overseas entrepreneur could secure these advantages by directing business operations from abroad within a day or two of his first arrival and never setting foot in this country again.

THE FACTUAL ISSUES

13. When the Minister's delegate gave notice of intention to cancel the applicant's business visa on 19 October 2001, the applicant responded by claiming (inter alia) that he had formed a company Cityland Investment Pty Ltd ("Cityland") in which he had a controlling interest. That company, he said, was actively engaged in the property development market in that Cityland had purchased 2 blocks of land in Farnham Street, Bentley, WA upon which seven substantial residential dwellings had been constructed for resale on the retail housing market by Cityland and 2 joint venturers, Ronandson Pty Ltd and Lanny Santoso. The land in question had been purchased by Cityland for the sum of $458,500 (Aust) and the 3 joint venturers now held equitable interests in the development as follows:

Cityland Pty Ltd 4/7 undivided shares

Ronandson Pty Ltd 2/7 undivided shares

Lanny Santoso 1/7 undivided shares

Upon completion Cityland was to take possession of lots 4, 5, 6 and 7. The other joint venturers were to take the balance.

14. The evidence establishes that the building program has now been completed. Cityland has taken possession of its four lots. The applicant's son Franky lives in one unit, one has been sold and the remaining two are in the hands of estate agents for sale. An agreement for sale has been entered into in respect of one of these remaining units.

15. In the course of his evidence at the Tribunal hearing the applicant said that between 1998 and 2000 there was economic instability in Indonesia and, as a consequence, he had to move from one city to another in Indonesia for safety and to successfully foster his business interests in that country. He said that in Indonesia he was manufacturing foodstuffs for European countries. He also conducted a small banking company in which he and some friends had a financial interest. Regarding his business activity in Perth, WA he said "I can instruct my son by telephone and email to conduct business. All decisions from me to son - also authorisations. My son is here" (in Australia) "as a secondary holder of my business visa".

16. The applicant said it was not possible to come to Australia immediately on receipt of the letter from the Minister's delegate giving notice of intention to cancel the visa. Instead, he sent his son Franky who, at that time, was working in a bank in Singapore. The applicant said he had settled most of his affairs in Indonesia and was now free to settle in Australia.

17. The applicant said that he had intended to come to Australia to settle in July 2002, but his banking company in Indonesia would not let him do so. He came here in July 2002 for one month but had to return to Indonesia. He is still involved in property developments in Indonesia and Macasser. He also said he is presently liquidating his Indonesian assets, with a view to transferring to Australia . His funds ($500,000 Singapore) have not yet been transferred.

18. Since the Farnham Street development he has embarked on no further development of this kind in Australia, but he intended to discuss a potential project with Lanny Santoso on 12 March 2003. He intended to reinvest the proceeds of the sale of the Farnham Street units in new Australian projects. The first unit was sold at a loss, but subsequent sales are expected to produce a profit. However at the date of cancellation by the Minister's delegate (15 February 2002) the development had not progressed beyond the purchase of the land, the preparation of a draft joint venture agreement and a development feasibility study. This was the major enterprise upon which the applicant sought to resist cancellation of his visa.

19. It is desirable to put the major events into sequence in an overall chronology of the applicant's activities as follows:

Date Event

19.8.1996 Franky Ng the applicant's son purchased a residential property at 1 Bedford Road, Andross, WA.

30.11.1998 Subclass 127 Business skills visa issued to applicant.

30.11.1998 Applicant entered Australia and notified respondent that 1 Bedford Road, Andross is his contact address.

10.10.2000 Respondent sent applicant "Survey of Business Skills Migrant 24 Months" (Form 1010) for completion and return with 28 days. (This is a lengthy document requiring disclosure by visa holders of the progress of their business during the first 2 years after the grant of the visa and their future plans).

1.11.2000 The applicant registered Cityland Investments Pty Ltd.

November 2000 Cityland purchased 26 and 28 Stafford Road, Kenwick, WA for commercial development, but it was subsequently found the land was contaminated and the properties were resold at a loss of $11,000.

Cityland also examined the possibility of purchasing showrooms at 176 Leach Highway, Myarce WA with a view to leasing them out to commercial interests. Nothing came of this proposal.

23.11.2000 Applicant advised the respondent in the following terms:

"Mr Ardy John William Ng

1 Bedford Road

Ardross WA 6153

Form 1010 - 24 months survey

Visa No: 7000624650S

Sections 66, 67, 68

S.66 I am currently still conducting feasibility studies into the businesses examined to date as to which one would best suit my requirements.

S67 I have set up a company - Cityland Investments Pty Ltd that will be utilized to carry out the business once established.

Some of the businesses currently under review since my arrival in Australia include the following:

1. Property development

I have examined various residential, commercial development sites suitable for development and negotiations have been entered into two possible acquisitions but the negotiations were not successful.

2. Franchise - ice Cream Parlour "Baskin & Robin"

These types of business have been reviewed but no decision made as to whether they would be suitable for my requirements.

3. Newsagency - "Court News Agency"

Again these types of businesses have been examined but no decision made as to suitability.

4. Mechanical Repair Workshop - "Willeton Garage"

I am presently examining these types of businesses with a view of purchasing an existing business.

S68 It is my intention to commence or be involved in a business within the next twelve months. Once I have finished my research into the Mechanical Repair Workshop. I will assess all outcomes and make a decision as to which business would best suit me and proceed accordingly.

Ardy John William NG 23 November 2000."

None of the projects mentioned have ever proceeded beyond the investigation stage. The degree of investigation or analysis of each project was not explored in evidence.

8.12.2000 The applicant returned the 24 month survey to the respondent.

24.4.2001 The respondent by letter requested further information from the applicant in the following terms:

"We have considered the information you have provided and are unable to assess whether you have made genuine efforts. You are now required to provide us with

further information and supporting documents demonstrating genuine efforts. While not exhaustive the following is a suggested list of documentation you may provide as evidence:

q evidence of funds transferred to, and currently in Australia available for business activity, (eg bank statements);

q business plans;

q business agreements you may have entered into;

q evidence of requests for assistance/information re potential business activity;

q registration with any business related agencies;

q subscription to any relevant business publications;

q evidence of attendance at English language courses (if appropriate);

q copy of title deeds to any business-related or other property purchases;

q any other evidence you consider appropriate.

You should be aware that failure to provided satisfactory evidence of your efforts to engage in business may result, under the provisions of sections 134 to 136 of the Migration Act 1958, in the cancellation of your visa and those held by your family members.

Please provide your response by 29 May 2001."

28.4.2001 The applicant replied as follows:

"In response to your letter (dated 24 April 2001) on the above matter, we would like to explain our situation clearly with you as well as providing some supporting documents with it. Nevertheless, you should be aware that we are doing extremely our best despite all circumstances that has hampered our progress.

1. Enclosed is copies of our bank statements for the last 6 months (Dec 00 - April 01) as well as copies of Term Deposit slips, for some of the necessary funds in setting up business in Australia (Perth).

As you can see, there are about AUD 150,000 of funds available at the moment and this fund is unencumbered (clean in nature) and readily to be used for business purposes anytime. On the other hand, we still have majority of the funds in Indonesia, which again can be transferred if necessary.

2. Business plans

In the past we have been in negotiation with several business potential partners, however due to some circumstances that has been happening in Indonesia, devaluation of Rupiah currency against Australian dollar and some others incidents hampered our negotiation process.

Currently we are in negotiation process with ´Premier Export Pty Ltd' based in Perth on exporting certain type of meat supply to hotels in Bintan, Riau Islands in Indonesia. Bintan is a resort island and has many hotels, and these hotels are in need of meat supply, especially from Australia due to the recent outbreak of Foot and Mouth disease. Riau Islands is not affected by the current turmoil happening in Jakarta (politic instability) thus we believed that negotiation should go on smoothly in due time.

3. Copy of title of deeds of property purchased.

Enclosed is the copy of the title deeds of the property in Perth at 1 Bedford Road, Ardross 6153 which we are using as the current home-office based. The property is currently under the name of Franky William Ariawan Ng, sone of Ardy John William Ng. The current market value of the property is AUD 350,000 (at the present price).

4. Other relevant documents

Other documents such as evidence of business request, registration and such shall be included in due course.

We hope that all the above measures which we had undertaken can be seen as a potential business transaction and rest assure that we are doing our best and effort to do all necessary requirements in sustaining our PR (business) visa as has been granted by your good government.

You can contact me personally at 62 812 7063268 if any questions arise or send any correspondent to our address which you have in your record."

The meat supply proposal mentioned in paragraph 2 came to nothing because according to the applicant, the supplier did not trust him to pay because of Indonesia's instability. The applicant says he is now establishing cold storage facilities in Indonesia in anticipation of importing Australia meat into Indonesia in the future.

13.6.2001 Cityland purchased 16 and 16 Farnham Street, Bentley.

13.7.2001 Deed of Agreement between Farnham Street joint ventures.

13.7.2001 Feasibility study as to Farnham Street joint venture.

12.10.2001 Notice of intention to cancel sent to respondent and secondary visa holders.

19.10.2001 Applicant replied to Notice of Intention to Cancel as follows:

"We believed that the grounds for cancellation do not exist in our case for several reasons:

1. We have set up a company - Cityland Investment Pty Ltd, ABN 34 095 119 476 which we are using to conduct our business activity.

The directors for Cityland Investments Pty Ltd are Ardy John William Ng, Franky Ng and William Ramadan.

A check of departmental records might have shown that I have only spent a total of 72 days in Australia however it does not mean that I was not involved in the daily management of the company. I have instructed my son (Franky Ng) to reside in Australia to conduct business on my behalf with my guidance from Indonesia. I will be able to come to Australia only after July 2002 in which I would have retired from my job in Indonesia completely and would concentrate all my efforts to my business in Australia.

2. Currently Cityland Investments Pty Ltd is engaging itself in property development business activity. Cityland has purchased blocks of land in Farnham Street, Bentley WA 6152, in which would be demolished and subdivided into 7 (seven) unit of residential houses. We have purchased the land together with our joint partners (Ronandson Pty Ltd and Lanny Santoso) for the amount of AUD 458,500. Our shares of the land would accounted for 4/7 of the land value, Ronandson would account for 2/7 while Lanny Santoso would account for the remaining 1/7.

Construction of the building would be performed by Summit Projects in Perth for the amount of AUD 528,935 for the development of such lands into 7 (seven) unit of residential houses. As we speak, we are currently lodging application for the demolition of the lands to the council (City of Canning) and hopefully the construction of the units would have started by early December 2001.

For the construction cost, I am presently in negotiation with both BankWest and National Bank for the cost, in which the bank would contribute around AUD 300,000 and the remaining amount, would be from our sides.

In order to support our case, I would include the following documents:

a. Copy of the Contract for Sale of the land (14-16 Farnham St, Bentley)

b. Deed of agreement between Cityland, Ronandson and Lanny Santoso in regards of the shares of the property

c. Approval of the subdivision of the lands by Western Australian Planning Commission (WAPC) into 7 (seven) residential unit houses

d. Copy of invoices from James Chong & Co (our barristers and solicitors) in regards of the fees paid to State Revenue Departments and some other legal fees incurred for this projects

e. Feasibility study by the builder (Summit Project) on the following project which would lead to the contract, and finally

f. Bank statement of Cityland Investments Pty Ltd from June 2001 to 8 October 2001

g. Copy of loan application form submitted to National Bank

h. Copy of the indicative approval from BankWest (via our finance broker) on this project.

3. At the present time, we are engaging with negotiation with potential buyers from Singapore and Indonesia on the purchases of the unit houses upon completion. Detail of the negotiation and any agreement in which we would achieve shall be forwarded to your department soon.

4. By looking at above evidences, it showed that we have made a genuine effort to conduct business in Australia, which would not only help us in our Business Skills requirements but also help Australian citizens or permanent residents whom would involve in this projects. This project is only the starting point of our company's business activities and once I personally come to Australia on July 2002, similar projects and more would come eventually and imagine what benefits it would bring to Australian citizens (and permanent residents) and to the country as a whole.

5. I hope such a short letter would influence your decision in revoking our visas (in which we treasured the most and would do anything to keep it) and please do not use the ground of my short stay in Australia as an excuse of me not involving in management of the company on daily basis. I have entrusted my son (Franky Ng) to help me while I am still in Indonesia and once I moved permanently to Australia on July 2002, I will take over things myself."

This letter was signed by Franky Ng on his father's behalf.

15.2.2002 The applicant's visa, and those of his family who were secondary visa holders were cancelled.

DISCUSSION

20. In my opinion it is plain from the above descriptive chronology of events that none of the applicant's activities (with the possible exception of the Farnham Street development) has resulted in his obtaining a substantial ownership interest in an "eligible business" in Australia, as that term is defined in s134(1)) of the Act.

21. Nor, in my opinion, can it be said that the applicant had made a genuine effort to obtain such an ownership interest by the time his visa was cancelled. This being so the additional and accumulative tests of genuine effort contained in s134(2)(b) and (c) need not be considered.

22. In my opinion the chronology of events clearly illustrates that the applicant did nothing constructive to plan or develop a business in Australia between the date on which his visa was issued and the date on which he was required to complete the 24 month survey, nearly 2 years later. One could be forgiven for suspecting that the flurry of activity since then (again with the possible exception of the Farnham Street venture) has been mere window dressing to give the appearance of vigorous and conscientious search for a business investment vehicle.

23. On the basis of these conclusions alone it can be seen that the applicant is exposed to visa cancellation under s134(1)(a) and is not saved from that consequence by the provisions of s134(2). If I am wrong in reaching these conclusions, I turn to consider on the hypothetical basis that the applicant has obtained a substantial ownership interest in an eligible business or has made a genuine effort to do so, whether, before the date of cancellation, he was utilising his skills "in actively participating at a senior level in the day-to-day management of that business" or was making a genuine effort to do so.

24. Again (with the possible exception of the Farnham Street venture) my opinion is that the applicant fails both tests. Indeed this seems to be implicitly acknowledged in the applicant's letter to the respondent of 19 October 2001. Before receipt of the 24 month survey for completion the applicant had spent only a few days in Australia. By 19 October 2001 he had been here for a total of 72 days - a little over two months in a period of just under 3 years.

Note (d) to paragraph 4.5 of Migrant Series Instructions 133 suggests that "physical presence in Australia for more than 6 months since first arrival as a Business Skills class migrant "should be required as a yardstick to gauge ´genuine effort' under s134(3) over the initial 24 month period".. Whatever the criterion, it is clear to me that the applicant has not utilised his skills in day-to-day management of a business in Australia.

25. As to Cityland and the Farnham Street venture the points raised in the applicant's letter of 19 October 2001 require consideration. Accepting the assertions of fact therein at face value it is obvious from paragraph 1 that the applicant considers that giving his son guidance as to the Cityland project from Indonesia qualifies for day-to-day management as required by the Act. Plainly it does not. Nor does it amount to a genuine effort to do so. To some extent this is putting the cart before the horse, however, because there is still the preliminary issue whether the Cityland development at Farnham Street was an "eligible" business. It appears to me that not only is it not a "business" in the sense discussed in Hope v Bathurst City Council (supra), but one cannot reasonably conclude that it is an enterprise which, even if it were a "business", could be classified as an "eligible business" as defined in s134(10) (with the possible exception of s134(10)(b) and (f).)

26. However it seems to me that the provision of "employment" in the sense of providing limited fee earning opportunities to architects and real estate agents and the provision of a one off building contract whereby a builder could engage employees and subcontractors to build the units at Farnham Street is not the "creation or maintenance of employment in Australia" contemplated by the s134(10) definition of "eligible business" in paragraph (a). Section 134(10)(f) appears to be so broad and all encompassing that it could apply in the applicant's favour if the Farnham Street venture was a "business" but, as I have already said, it is in my opinion that it does not.

CONCLUSION

27. In my opinion the applicant's activities up to and including the date of visa cancellation by the respondent did not constitute conduct satisfying the requirements of s134(1) and did not provide the defence against cancellation provided by s134(2). As I have already mentioned the question of hardship to secondary visa holders under s134(5) does not arise.

28. The decision under review is affirmed.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC (Deputy President)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing 11 March 2002

Date of Decision 31 March 2003

Counsel for the Applicant Applicant appeared in person

Solicitor for the Applicant Assisted by Franky Ng

Counsel for the Respondent Ms Davies

Solicitor for the Respondent Blake Dawson Waldron