Tai and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 57 (22 January 2003)

Last Updated: 28 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 57

ADMINISTRATIVE APPEALS TRIBUNAL N2002/1068

GENERAL ADMINISTRATIVE DIVISION

Re: NG SAI TAI

Applicant

And: MINISTER FOR IMMIGRATION

AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal: Ms G Ettinger- Senior Member

Date: 22 January 2003

Place: Sydney

Decision: The decision under review relating to Mr Ng Sai Tai, the Applicant, being the decision of the Minister for Immigration, Multicultural and Indigenous Affairs, the Respondent in these proceedings, dated 2 July 2002 to cancel Mr Ng's business skills visa pursuant to section 134(1) of the Migration Act 1958 is affirmed.

[Sgd] Ms G Ettinger

Senior Member

MIGRATION - business skills visa subclass 127 - cancellation of visa - acquisition of substantial ownership interest in eligible business in Australia - active participation in day to day management at senior level of business - discretion not to cancel visa - cancellation of secondary business visas - decision affirmed

Migration Act 1958 (Cth) ss 134, 135, 136, 137

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

Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257

Hope v Bathurst City Council (1980) 141 CLR 1

Re Purnama and Minister for Immigration and Multicultural Affairs [2002] AATA 237.

Re Drake (No 2) and Minister for Immigration and Ethnic Affairs (1978-80) 2 ALD 634

REASONS FOR DECISION

22 January 2003 Ms G Ettinger-Senior Member

1. The application before the Administrative Appeals Tribunal ("the Tribunal") was that of Mr Ng Sai Tai, the Applicant, for review of a decision dated 2 July 2002, (T2), by a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs, the Respondent in these proceedings, to cancel Mr Ng's business skills visa pursuant to section 134(1) of the Migration Act 1958 (the Act).

2. At the hearing the Applicant was represented by Mr Min Wang, a migration agent, and the Respondent by Mr G Cranwell of the Australian Government Solicitor.

BACKGROUND

3. On the basis of the material in the T-documents and the Applicant's evidence, the Tribunal was satisfied that on 11 March 1999, the Applicant was granted a business skills visa subclass 127. Accordingly, certain children of Mr Ng were also granted secondary visas. Ms Ng Nina Pui Shi, a daughter, is an Australian citizen who at the time of the Hearing was in Hong Kong, awaiting the birth of her child.

4. The Applicant was born on 9 February 1948, and is a Chinese national. He owns business enterprises in China and Hong Kong where he is involved in the manufacture and export of transparent plastic gift and sushi boxes, and "OPP membrane". In Australia, his company Sai Tai Company Pty Ltd ("the company"), was incorporated on 8 November 1999 (Exhibit A2/1).

5. It was not in dispute that the Applicant was present in Australia for only 21 days from the grant of the visa in March 1999, to the date of cancellation on 2 July 2002. In that period, his son, Mr Ng Chak Yin, was absent from Australia for 545 days, and in Australia for 633 days.

LEGISLATION

6. Pursuant to section 134(1) of the Act, the Respondent has the discretion to cancel a business visa in certain circumstances. As relevant section 134(1) provides:

"134 Cancellation of business visa

(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."

7. Section 134(10) sets out the meaning of "eligible business" and "ownership interest":

"134(10) In this section:

...

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.

...

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."

8. The decision to cancel a person's business visa leads to the consequential cancellation under s.134(4) of certain business visas held by members of the person's family (referred to as "secondary visas").

"134(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."

9. There were family members affected by the cancellation of Mr Ng's visa, but there were no submissions made or evidence given about that. Consequential cancellation is however not automatic if the family member would suffer extreme hardship:

"134(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. There is a three year period during which the power to cancel a visa may be exercised:

"134(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."

11. The power to cancel a visa is subject to section 135, which provides:

"135 Representations concerning cancellation of business visa

(1) Before cancelling a visa under section 134(1), (3A) or (4), the Minister must give its holder a written notice:

(a) stating that the Minister proposes to cancel the visa; and

(b) inviting its holder to make representations to the Minister concerning the proposed cancellation within:

(i) if the notice is given in Australia--28 days after the notice is given; or

(ii) if the notice is given outside Australia--70 days after the notice is given."

..."

12. The Tribunal's jurisdiction to review the respondent's decisions under sections 134(1) or 134(4) derives from section 136.

13. Section 137 of the Act authorises the Respondent to request a holder of a business visa to provide the Respondent with certain information. Failure to comply with a notice under section 137 without reasonable cause is an offence. In Mr Ng's case, he was unable to be contacted as evidenced by the documents before the Tribunal in Exhibit R1, because he had given an address where mail was in fact not being accepted for him. Departmental questionnaire survey forms were returned to it unreceived by Mr Ng on a number of occasions. This occurred because Mr Ng had not provided a change of address (Exhibit R3). However, he appeared to have rectified this situation eventually as there was an unsigned, undated, but otherwise completed questionnaire at T9, which has a facsimile date of 5 August 2002.

14. I was mindful that there was a warning to Mr Ng in the departmental letters that failure to comply with the undertaking to complete the survey could lead to the Respondent considering the cancellation of the visa pursuant to section 134 of the Act.

15. I noted further that the Applicant's statement of facts and contentions argued that there were discrepancies with service of the notice; however this issue was not pursued at the Hearing.

16. There was no dispute therefore that the notices were sent within the three year period stipulated in section 134(9), and that on 2 July 2002, the Respondent cancelled the Applicant's visa, and gave written notice to that effect.

17. I have noted that there are guidelines promulgated to assist decision-makers in considering the tests in the legislation, and that they are available in relation to section 134 of this Act. Whilst they do not have the force of law, they are of assistance, and may be used as a guide unless there is some contrary intention expressed in the legislation. I have not found any such contrary intention in the present legislation and have found the guidelines of assistance in my assessment of Mr Ng's application. Re Drake (No 2) and Minister for Immigration and Ethnic Affairs (1978-80) 2 ALD 634.

EVIDENCE BEFORE THE TRIBUNAL

18. The documents lodged pursuant to section 37 Administrative Appeals Tribunal Act 1975 ("T-documents") were received into evidence and further documents were tendered and marked as Exhibits. They follow:

Item	Date	Exhibit Number
Shipping documents		A1
Supporting documents from Applicant, pages 1 - 193		A2
Letters from Min Wang	26 September 2002	A3
Letter from Min Wang, Deposit slips	22 October 2002	A4
Deposit Slips		A5
T-Documents		R1
Substitute pages from PT5	2 July 2002	R2
Photocopy showing address	28 November 2001	R3
Respondent's Statement of Facts and Contentions	11 October 2002	R4

19. Oral evidence by telephone link was given by the Applicant, Mr Ng, and his daughter Ms Ng Nina. The son of the Applicant, Mr Ng Chak Yin gave oral evidence in person at the Tribunal. Ms Oyang Angeline, interpreter, assisted the Tribunal.

20. Mr Wang who represented the Applicant, initially stated that he wished to call two employees of the Applicant's company, Sai Tai Company Pty Ltd, Mr Sing Yuen Lau and Mr Hung Chun Wang, to give oral evidence. When I ascertained that Mr Lau had only been working in the company for two weeks (his evidence), or some six months, (Ms Ng Nina's evidence), I decided that whatever evidence he could give was not relevant, as on balance he had been employed after the date of the cancellation of the visa. Mr Hung appeared from the evidence about him to have been with the company a year, or a year and a half, and was at the time of the Hearing, in Hong Kong. I did not require him either, as both are contractors rather then permanent employees, and work part-time for the company. I did not feel they could assist the Tribunal with their evidence. Mr Wang did not object to my decision not to call them, nor did he later make any submissions on that point.

MR NG SAI TAI - THE APPLICANT

21. The Applicant gave evidence by telephone link from China, and with the assistance of a very competent interpreter, Ms Oyang Angeline, who was in the Hearing room at the Tribunal. He spoke about his involvement in commercial undertakings in Australia, China and Hong Kong.

22. Mr Ng told me that he was in China and had received no notice of the cancellation of his business visa.

23. When I asked Mr Ng why he was not attending the Hearing, he said that he was busy, and in any case, could not enter Australia because his visa had been cancelled. When I asked him if he had returned to Australia since that date, he said he could not do so because he had no visa, and had not had time to make inquiries about how to have his visa restored. I noted there would be no impediment to Mr Ng travelling to Australia for the hearing of his appeal at the Tribunal.

24. Mr Ng told the Tribunal that he liked Australia very much, he liked the climate and environment because it was similar to Hong Kong, and thus he established an office here. It was to do importing and exporting he said. In reply to questioning by Mr Cranwell, Mr Ng replied that the purpose of incorporation in Australia was to sell the products his factory in China produced, in Australia. He said he had a factory in China making environmentally sound sushi boxes for sale in Australia, and OPP membrane for lamination or as a plastic sealer. Mr Ng said that as early as ten years ago he bought OPP for manufacture in Hong Kong, but a year later moved the factory to China, and later commenced purchase of the product from Taiwan due to a price advantage.

25. When I asked him what volumes of import or export were done with Australia, he said that his older daughter took care of such things, and that she was pregnant, and presently in Hong Kong. He said that anyway, the Australian trade office would have the figures, and said I could check them out. He said that each shipment into Australia amounted to approximately AUD$70,000 - AUD$80,000. Mr Ng told the Tribunal he did not export anything from Australia. When asked how it was there was evidence of only seven sales invoices amounting to $1,034.79 for the relevant period, Mr Ng agreed that was so, but said that his sales target was higher, and that the company had to grow step by step. He agreed there were no annual accounts available, and told the Tribunal that the business plan was made by oral agreement, and through discussion with his children.

26. Mr Ng agreed that in the relevant period between April 1999 and 2 July 2002, he had been in Australia only, five days in April 1999, 10 days in January 2001 and six days in February 2002.

27. Mr Ng was cross-examined by Mr Cranwell about his reply to Question 75 of the "Survey of business migrants migrant class and resident class 24 and 36 months" questionnaire (T9) (undated and unsigned but facsimile dated as 5 August 2002), which read as follows:

"Question 75: Please outline any ideas you have which could help business migrants to settle and engage in business in Australia.

Mr Ng: Australia is a good country. However new migrants should not expect that they would do things as easy as in their old countries. Patience is the most important thing."

28. Mr Cranwell asked Mr Ng if knowing how to conduct business in Australia would not be more difficult if one did not spend time here. Mr Ng replied that he was in constant dialogue with his son and daughter, and with the clients. He also added that his business in China was worth billions of dollars, and much bigger than his Australian venture, but that once it was well established, in the future, he would spend half his time in Australia. He accepted that his time in Australia fell far short of the departmental guidelines, but added that he knew what was going on, and that his presence was therefore not required at all times. Mr Ng told the Tribunal that he was the sole proprietor and director, and chief executive of the Chinese operation and worked in it fulltime. He was accordingly asked by Mr Cranwell about PT9/59, where he had written in reply to a questionnaire regarding how much time he spent in the Australian business, that he worked 40 hours in that regard. He said that he did not intend to deceive, and that it had been his intention to spend that time on the Australian business, but that now with a second factory in China, he was very busy.

29. Mr Ng said that his daughter who ran the business in Australia, was in daily contact with him. When referred to a letter signed by him at Exhibit A2/192 where he had written that his daughter and son were the only sales employees, (which in fact appeared not to be strictly right), Mr Ng replied that he might have signed the letter, but he was busy and could not remember its contents. He said that as the business expanded, he put other employees on.

MS NG NINA PUI SHI - DAUGHTER OF THE APPLICANT

30. Ms Ng Nina gave oral evidence by telephone link from Hong Kong. She told the Tribunal that their product was OPP packing tape. Ms Ng Nina, who told the Tribunal she has a University qualification in business studies from England, said that she was the manager of Sai Tai Company Pty Ltd, and spent approximately ten months of each year in Sydney. She is an Australian citizen. She said that her brother worked with her, and also formerly three (now two), employees.

31. Ms Ng Nina said that the company's imports were worth approximately AUD$20,000 to AUD$50,000 and that the turnover was AUD$100,000. She said that she telephoned China up to five times a day to get quotes for her customers from her father, and to obtain advice from him. She said that when Australian customers paid for their goods, the money was paid into the Hong Kong bank account, and then a part was transferred back to Australia, either to the Australian company, or to her personal account. When asked whether this appeared unusual, Ms Ng Nina answered that this was the way her father wanted it. Ms Ng Nina said that there were no invoices raised for cash sales, and thus the seven invoices (amounting to $1,034.79), did not represent the activities of the business. She was unable to answer regarding the accounting practices of the company. When Mr Cranwell questioned the veracity of her answers regarding the non-raising of invoices for cash sales, Ms Ng Nina replied that if she were not selling, she would not continue arranging for the goods to be imported. As to documentation such as BAS or other reports to the ATO, Ms Ng Nina said that their accountant had told her not to worry about it in the first year.

32. When asked whether she was responsible for the day to day management of the company in Australia, Ms Ng Nina said that she deferred to her father for decisions, but agreed that she had:

* signed and submitted the forms to ASIC for registration of Sai Tai Company Pty Ltd;

* organised marketing and sales of the company in Australia;

* applied for the Tax File Number;

* interviewed prospective employees, but said she sought her father's permission to employ them;

* arranged purchase orders;

* arranged and signed the lease at Sussex St;

* made the shipping arrangements;

* talked to the clients.

MR NG CHAK YIN - SON OF THE APPLICANT

33. Mr Ng Chak Yin gave oral evidence at the Tribunal. He said that he helped his sister in the business in Australia for the first two years, but forgot, it seemed, that the record showed that he had been out of Australia for 545 days in the relevant period April 1999 to July 2002. He agreed that had been so. He has no formal qualifications, but has undertaken some preliminary studies in design, and said that his duties included market research, talking to clients and marketing his father's products in Australia which consisted of plastic gift boxes, sushi boxes, Christmas decorations and sticky tape, he said.

CONSIDERATION AND FINDINGS

34. I had to take into account all the evidence, both written and oral, submissions, legislation and case law to make the correct and preferable decision in regard to the appeal against the cancellation of Mr Ng Sai Tai's business skills visa dated 2 July 2002, noting the effect it had on the consequential visas.

35. There was no evidence given, and no submissions made regarding any hardship with regard to the secondary visas, and I have not dealt with those.

36. I was mindful that cases which are relevant to the decision making process are as follows: Freeman v Secretary, Department of Social Security (1988) 19 FCR 342, Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257 and a line of Tribunal cases which have followed the above authorities, supporting the proposition that the Tribunal is limited to events at the date of the primary decision in cases of review of decisions cancelling subclass 127 visas pursuant to section 134 of the Act (Re Purnama and Minister for Immigration and Multicultural Affairs [2002] AATA 237).

CONSIDERATONS RELATING TO SECTION 134(1) AND 134(10) OF THE ACT

37. In relation to section 134(1) of the Act, I had to consider that the Minister has the discretion to cancel a business visa such as Mr Ng's, if the Minister is satisfied that a number of indicia have not been satisfied. These relate to an eligible business in Australia, which is defined in section 134(10) of the Act as follows:

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

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

(b) the creation 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."

38. Accordingly, in order to establish the threshold issue which was whether Mr Ng had an eligible business in Australia, I took into account the evidence to decide whether the Applicant satisfied the following criterion, "the development of business links with the international market", In doing so, I considered the evidence and submissions. I noted the evidence before me that the products the company distributed in Australia, if indeed they were distributed in the quantities claimed, were sourced in China and imported to Australia, by Mr Ng. I noted that goods worth approximately HK$100,000 were imported into Australia. Mr Cranwell submitted that this did not constitute the development of business links with the international market. I agreed in part with that submission, deciding however, that dealing with his own factories in China which exported their products to Australia, could be considered in a way so as to enable Mr Ng to marginally meet the definition of the development of business links internationally.

39. I moved then to consider whether the company was involved in "the creation or maintenance of employment in Australia",noting the evidence that it had two family members operating it, one of whom had spent approximately half of the relevant time outside of Australia. I was mindful of Mr Cranwell's submissions that the evidence regarding the number and length of employment of the employees was conflicting, and agreed with that submission. From what I could understand, the company had two part-time contractors working approximately 15 hours a week (evidence of Mr Ng). I was mindful of the evidence given that start-up is slow, and Mr Ng's evidence that you have to take it step by step. I noted that Mr Lau, sales assistant told me he had been with the company two weeks, while Ms Ng Nina said he could have been with the company six months. There were no employment records before me, and no indications of how much, or whether Ms Ng Nina was paid for her services as the manager of the company in Australia, neither was there such information available with regard to her brother who apparently also worked in the company. According to Mr Ng's letter at Exhibit A2/192, only his son and daughter were the sales people for his company in Australia, although when asked about that statement in cross-examination, he said that he was busy and could not remember what he had written. Accordingly, although the Applicant's children said that they worked in the company, and there may have been up to two part-time contractors working, I found that the criterion, "the creation or maintenance of employment in Australia", was only marginally met.

40. I moved then to consider the next criterion which was "the export of Australian goods or services" which from the evidence of all concerned, the company clearly did not do. Neither was there any evidence at all before me to consider the following three criteria (d), (e) and (f) of the "eligible business" definition.

41. Accordingly, I found that even though the company had to satisfy one of the criteria to qualify as an "eligible business", it did so, albeit marginally, as far as clauses (a) or (b) of the definition were concerned.

42. I therefore moved to consider the Applicant's situation in regard to tests pursuant to section 134(1) of the Act.

WHETHER MR NG MEETS THE TESTS IN SECTION 134(1) OF THE ACT

43. I was mindful that the evidence and submissions of the parties dealt with subsections (a) and (b) of section 134(1) of the Act, and not subsection (c) which, according to the evidence, clearly did not play a part in this case. I am mindful that although I have found that Mr Ng only marginally meets the criteria of having an eligible business, I have nevertheless held that Sai Tai Company Pty Ltd is an eligible business, and hence I moved to consider the tests in section 134(1) of the Act.

"134 Cancellation of business visa

(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."

44. In considering the evidence and submissions of the parties firstly in relation to section 134(1)(a) of the Act, I noted the submissions both for and against Mr Ng having obtained a substantial ownership interest in an eligible business in Australia. In considering this, I was mindful that the documentation indicated Mr Ng owned 25 percent of the equity in Sai Tai Company Pty Ltd (Exhibit PT9/59), and that the value of the share capital was $1. There was also documentary evidence of seven sales amounting to $1023.79 for the relevant period. On the face it, that did not seem to amount to a substantial ownership interest. Ms Ng Nina also gave evidence that invoices were not raised for cash sales, and said that there was no documentation available with regard to these. I noted also there were no annual accounts available.

45. However I considered Ms Ng Nina's evidence that sales matched the imports, namely that turnover had been approximately $100,000 in the relevant period, and that funds had been transferred to Australia. I noted from Exhibit A5 that certain funds had been transferred from Hong Kong to Australia, both to the company account and Ms Ng Nina's account. All she could say about that, was that some of the funds transferred to her were for her salary, and others for the company.

46. Accordingly, I could not be satisfied that the Applicant has obtained a substantial ownership interest in an eligible business in Australia (section 134(1)(a)). The condition for cancellation under s.134(1)(a) is therefore met.

47. I next moved to consider Mr Ng's position pursuant to section 134(1)(b) of the Act, and to consider whether or not Mr Ng is utilising his skills in actively participating at a senior level in the day-to-day management of his Australian business.

48. The evidence of the Applicant and his children was that although his daughter managed the Australian company, he had daily input through telephone calls, giving pricing for goods, and authority for various activities such as the hiring of staff.

49. My consideration of the evidence included noting that Mr Ng had spent only 21 days in Australia in the relevant period. Mr Ng appeared not to know much at all about what was happening with the company in Sydney. He did not bother to attend the Hearing, had not received the documents from his migration agent in that regard, and had not made further inquiries about his visa. I noted that his evidence regarding the employees conflicted with that given by Ms Ng Nina, and noted that Ms Ng Nina signed and managed the following events.

* she signed and submitted the forms to ASIC and those for registration of Sai Tai Company Pty Ltd;

* she organised marketing and sales of the company in Australia;

* she applied for the Tax File Number;

* she interviewed prospective employees, but said she sought her father's permission to employ them;

* she arranged purchase orders;

* she arranged and signed the lease at Sussex Street;

* she made the shipping arrangements;

* she talked to the clients.

50. I was mindful that Hope v Bathurst City Council (1980) 141 CLR 1 is authority in this area, and discussed the concept of carrying on a business, importing some continuity and repetitive involvement into a commercial enterprise. Mr Ng did not, in my opinion have repetitive and continuous involvement in the day to day activities of the business, such as it is. He agreed his daughter managed the business, although both he and Ms Ng Nina insisted his advice and permission was often sought. I could not make any decision from the telephone records provided, as it was difficult to determine which calls were personal, and which were involved with the business. I found that the Applicant, by his very absence from Australia, has not been actively participating at a senior level in the day to day management of the business in Australia. The visa can thus be cancelled on the ground of failing to meet the requirement of s.134(1)(b).

WHETHER MR NG MEETS THE TESTS IN SECTION 134(2) OF THE ACT

51. Although I was satisfied that there were, at the relevant time, grounds for cancelling the Applicant's business visa and that the tests pursuant to section 134(1) of the Act were made out, I needed further to be satisfied regarding the tests set out in section 134(2), which reads as follows:

"(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)."

52. I had therefore to determine whether the Applicant has made, and will continue to make a genuine effort to obtain a substantial ownership interest in an eligible business in Australia, and whether he has made, and will continue to make a genuine effort to utilise his skills in actively participating at a senior level in the day to day management of that business. I noted that section 134(3) set out the matters to be taken into account when determining whether a person has made genuine efforts referred to in section 134(2) of the Act.

53. In applying the guidance given in Paragraph 4.5.1 of the "Migration Series Instruction: Cancellation of Business Visa" guidelines, I found as follows from the evidence before me:

* (a) There is no business proposal or business plan available; it was said to have been oral, and discussed with the children by Mr Ng. He gave little evidence of participation in the operations of the company, and did not describe the activities of the Australian operation at all. Neither did he appear to have the correct information regarding employees.

* (b) There are no formal contracts at all apart from a lease and storage.

* (c) No evidence has been given regarding consultations with business advisers, and no submissions made in that regard.

* (d) Mr Ng has spent 21 days between the granting of his visa in March 1999 and its cancellation by the Respondent's delegate 2 July 2002 in Australia.

* (e) On receiving notice of the proposed cancellation of his business visa, and over a period in 2002, Mr Ng transferred approximately $100,000 to Australia.

* (f) & (g) There was no documentation that more than seven sales totalling $1,034.79 had been made in the relevant period, although Ms Ng Nina gave evidence which I did not accept, that sales amounted to $100,000. I based that on the fact that she said no invoices were raised in Australia for cash sales, and that the payments for Australian sales were made in Hong Kong. That evidence does not accord with any established business principles, and I did not accept its veracity. No company accounts have been produced and the evidence of the Applicant and his children was that there were none in existence. There were no written financial reports in respect of the Australian operations.

* (h) Mr Ng gave an address in Sydney for service of notices which did not accept his mail, and ultimately, the survey forms to which he was required to reply. Mr Wang acknowledged on his behalf that he should have advised a change of address, and did not.

54. Throughout the relevant period, the Applicant was in Australia for only 21 days. He was not involved to any extent in the day to day management of the business. Aside from his cash investment, the Applicant has not shown any commitment to the business in Australia or his managing it, whether through the time he devoted to it or his level of interest in it. I therefore find that the Applicant's conduct was inconsistent with the making of a genuine effort to actively participate, and find that he did not make a genuine effort to actively participate at any level in the management of Sai Tai Company Pty Ltd in Australia. I was satisfied that neither condition in section 134(2)(a) nor section 134(2)(b) was met.

55. For the above reasons and bearing in mind that the Applicant spent only 21 days in Australia from the date his visa was granted in March 1999 until the Respondent's delegate cancelled it on 2 July 2002, I find that the Applicant did not, at the date of cancellation, hold an intention to continue making the genuine efforts required by section 134(2) of the Act.

56. After taking into account all of the evidence and submissions, I was satisfied that the discretionary power in section 134(1) of the Act should be exercised, and the decision under review should be affirmed.

57. The decision to cancel a person's business visa leads to the consequential cancellation of secondary visas under section 134(4), subject to two provisos. First, written notice of intended cancellation, complying with section 135, must have been given to each secondary visa holder within the three year period required by section 134(9) of the Act to provide them with the opportunity to make representations to the Respondent about the impact of cancellation. I find that notices of intended cancellation were given to the secondary visa holders at the same time and to the same address used for giving notice to the Applicant. Secondly, the power to cancel must not be exercised if cancellation would result in extreme hardship to a holder of the secondary visas (section 134(5)). No material was put before the Tribunal prior to, or during the hearing about extreme hardship that would result to the Applicant's secondary visa holders from the cancellation of his visa.

58. For the reasons given above, the Tribunal affirms the decision under review to cancel the Applicant's business skills visa and the business skills visas of the secondary holders.

DECISION

59. The decision under review relating to Mr Ng Sai Tai, the Applicant, being the decision of the Minister for Immigration, Multicultural and Indigenous Affairs, the Respondent in these proceedings, dated 2 July 2002 to cancel Mr Ng's business skills visa pursuant to section 134(1) of the Migration Act 1958 (the Act) is affirmed.

I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

Associate L Bonouvrie

Date of Hearing: 14 January 2003

Date of Decision: 22 January 2003

Representative for the Applicant: Mr Min Wang, Migration Agent

Solicitor for the Respondent: Mr G Cranwell, Australian Government Solicitor