Commonwealth Numbered Acts

MIGRATION AMENDMENT ACT (No. 2) 1992 No. 84, 1992 - SECT 9

9. After section 50 of the Principal Act the following sections are inserted
in Division 3 of Part 2: Cancellation of business permits and business visas

"50A.(1) Subject to subsection (2) and to section 50B, the Minister may cancel
a business permit or a business 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 permit or 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
        50D;

   (i)  if the person no longer holds a substantial ownership interest in a
        particular business or no longer utilises his or her skills in
        actively participating at a senior level of a day-to-day management of
        a business:

        (i)    the length of time that the person held the ownership interest
               or participated in the management (as the case requires); and

        (ii)   the reasons why the person no longer holds the interest or
               participates in the management (as the case requires).

"(4) Subject to subsection (5) and to section 50B, if:

   (a)  the Minister cancels a person's business permit or business visa under
        subsection (1); and

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

   (c)  the other person would not have held that business permit or business
        visa if he or she had never been a member of the family unit of the
        holder of the cancelled permit or 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 permit or
business visa under subsection (4) if the cancellation of that permit or visa
would result in extreme hardship to the person.

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

"(7) If the Minister cancels a business permit or 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 permit or 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 permit or 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 permit or 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 permit or visa; whichever is the
        latest.

"(9) The Minister must not cancel a business permit or business visa under
subsection (1) or (4) unless a notice under section 50B 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 permit or business visa - on the day on which that first
        permit or visa was granted; or

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

"(10) In this section:
'business permit' means:

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

   (b)  a permanent entry permit prescribed for the purposes of this
        definition, being a permit a criterion for whose grant:

        (i)    relates to the applicant's involvement in business in
               Australia; or

        (ii)   is that the applicant is a member of the family unit of the
               holder of a business permit or a business visa; that is or was
               granted on or after 17 February 1992;
'business visa' means:

   (a)  a business skills visa; or

   (b)  a business skills (senior executive) visa; or

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

   (d)  a visa prescribed for the purposes of this definition, being a visa a
        criterion for whose grant:

        (i)    relates to the applicant's involvement in business in
               Australia; or

        (ii)   is that the applicant is a member of the family unit of the
               holder of a business permit or a business visa; that is or was
               granted on or after 17 February 1992;
'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;
'member of the family unit', in relation to the holder of a business permit or
business visa, means a person who, if the holder were an applicant for a
business visa, would be a member of the holder's family unit within the
meaning of the regulations;
'return visa' has the same meaning as in the regulations. Representations
concerning cancellation of business permit or business visa

"50B.(1) Before cancelling a permit or a visa under subsection 50A(1) or (4),
the Minister must give its holder a written notice:

   (a)  stating that the Minister proposes to cancel the permit or 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.

"(2) The holder may make such representations to the Minister within the time
specified in the notice.

"(3) The Minister must give due consideration to any representations.

"(4) If:

   (a)  the time specified in the notice ends after the end of the period
        referred to in subsection 50A(9); and

   (b)  at the end of the period of 90 days commencing at the time specified
        in the notice, the Minister has not made a decision on whether to
        proceed with the cancellation; the Minister is not to proceed with the
        cancellation.

"(5) If the Minister decides not to proceed with the cancellation, the
Minister must give its holder written notice to that effect. Review of
decisions

"50C. Application may be made to the Administrative Appeals Tribunal for
review of a decision of the Minister under subsection 50A(1) or (4). Provision
of information - holders of business permits or business visas

"50D.(1) The Secretary may by written notice require the holder of a business
permit or a business visa to give the Secretary such information as is
specified in the notice.

"(2) The Secretary may not require information under subsection (1) unless the
information is to be used by the Secretary or the Minister for the purpose of
the administration of this Act or of regulations made under this Act.

"(3) A notice under subsection (1) is only valid in the period of 3 years
commencing:

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

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

"(4) Without limiting the generality of the information that may be required
under subsection (1), the Secretary may require the holder to advise the
Secretary in writing of any change in the address of the holder during a
period specified in the notice.

"(5) A notice under subsection (1) must state that the information must be
provided within a period of 28 days commencing on a day specified in the
notice.

"(6) The day specified in the notice may be:

   (a)  the day on which the notice is issued; or

   (b)  a later particular day; or

   (c)  the day on which an event specified in the notice occurs.

"(7) A person who, without reasonable excuse, fails to comply with a notice
under subsection (1) commits an offence at the end of every successive 28 day
period that is contained in the period commencing on the day specified in the
notice and ending when the person complies with the notice.

"(8) Subsection 4K(2) of the Crimes Act 1914 does not apply to an offence
under subsection (7).

"(9) A person must not, in purported compliance with a notice under subsection
(1), knowingly give information that is false or misleading in a material
particular.

"(10) In this section:
'business permit' has the same meaning as in section 50A;
'business visa' has the same meaning as in section 50A. Penalty: $5,000.".