IMMIGRATION - Business Skills Visa - activities carried out by the business not eligible business - cancellation of Business Skills Visa - "substantial ownership interest" in an "eligible business" in Australia - Tribunal must determine the correct or preferable decision at the time the decision to cancel visa was made.

Migration Act 1958 ss 134(1), 134(10)

Re Tang and Minister for Immigration and Multicultural Affairs [2000] AATA 997, (2000) 32 AAR 103

Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1

Wong and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 54

1. (a) This is an application by Li Kuei Chen ("the Applicant") for the review of a decision by the Department of Immigration and Multicultural Affairs made on 9 November 2001 cancelling the Applicant's Subclass 127 Business Skills Visa pursuant to s134(1) of the Migration Act 1958 ("the Act").

(b) Mr Chen Kuo, a migration agent and solicitor of All Rights Migration & Legal Services appeared for the Applicant and Mr Nathan Cureton of Blake Dawson Waldron, Solicitors, appeared for the Respondent.

(c) The Tribunal had before it the T-documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and one Exhibit marked R1 which is a Declaration dated 19 September 1997 by the Applicant, clauses 1 and 2 of which read as follows:

"1. I will make genuine efforts to actively participate, as an owner or part-owner, in the day-to-day management at a senior level of a new or existing business in Australia which will do one or more of the following:

* develop business links with international markets;

* produce goods or services that would otherwise be imported;

* add to commercial activity and competitiveness within sectors of the Australian economy.

2. I understand and acknowledge that the Minister for Immigration and Multicultural Affairs may cancel any visas held by me and members of my family unit within 3 years of my first arrival in Australia, if:

* I have not obtained a substantial ownership interest in a business such as the one referred to in paragraph 1 above in Australia or have not made a genuine effort to do so; or

* I am not actively participating at a senior level in the day-to-day management of that business or have not made a genuine effort to do so; or

* I do not intend to continue to hold a substantial ownership interest, or continue to participate at a senior level in the day-to-day management of such a business."

2. At the commencement of the hearing there was some discussion as to the impact of the Tribunal's decision on visas held by the Applicant's husband (who was in Taiwan) and on the Applicant's son and daughter who were present in the hearing room. There were no papers before the Tribunal in respect of any of them. Mr Kuo originally intended to call the Applicant's son and daughter as witnesses and before calling the Applicant; however he called the Applicant first, and after her evidence was complete, decided not to call either the son or the daughter. I note in this context that a witness statement was not filed on behalf of the Applicant (or for that matter the son or the daughter); Mr Cureton agreed to dispense with this direction requirement as to witness statements.

3. As is generally the case in visa matters, the Tribunal was aided by the Respondent's Statement of Facts and Contentions which contains a most helpful chronology. The Respondent's Statement of Facts and Contentions dated 23 April 2002 is reproduced in these Reasons in full as follows:

"1. The references given are to pages of the s37 documents (Tp...).

Applicant signed declaration acknowledging visa requirements

26/05/98 Subclass 127 visa granted to applicant, due to expire on 26/05/03 10

30/07/98 Applicant informed Department of change of address 37

05/08/98 Information sheet about business visa obligations sent to applicant 38

09/06/00 24-month survey sent to applicant. No response was received. 39

09/07/01 Notice of intention to cancel sent to applicant 11

10/08/01 Response to notice of intention to cancel received 43

10/08/01 Applicant lodged membership application with Taiwanese Chamber of Commerce in New South Wales 55

10/08/01 Business name of "Maple International Trading" ("Maple") registered with proprietors being the applicant and TSENG Yu Chun 57

14/08/01 Maple purchased woollen garments from Australian Woolen Textile Manufacturing Pty Ltd ("Australian Woolen Textile") for a purchase price of A$3,222.00 (exclusive of GST) 86

15/08/01 Maple exported the woollen garments to Chain Honey Enterprise Co Ltd ("Chain Honey") in Taiwan for a sale price of A$3,702.00 87

03/09/01 Tax file number issued to TSENG Yu Chun 59

13/09/01 TSENG Chris enters residential tenancy agreement 72

24/09/01 Maple ordered goods (special inks) from Wilflex Australasia Pty Ltd ("Wilflex") for a purchase price of US$10,428.92 (A$21,385.20), and exported to Han Friend Co Ltd ("Han") in Taiwan at sale price of US$11,471.81 63-69

08/10/01 Maple ordered goods (special inks) from Wilflex for the sum of A$5,234.22, for export to Han 77

10/08/01 Australian Business Number registered for applicant and TSENG Yu Chun as family partnership 80

05/10/01 Maple purchased woollen garments from Australian Woollen Textile for a purchase price of A$5,586.00 (exclusive of GST) 88

17/10/01 Tax file number issued to applicant and TSENG Yu Chun 83

22/10/01 Maple sold woollen garments to Chain Honey in Taiwan for a sale price of A$6,421.20 89

2. Section 134 of the Migration Act 1958 ("the Act") is included at pp 13 - 17 of the s37 documents, and Migration Series Instruction ("MSI") 133 - "Visa cancellation under subdivision G - Cancellation of business visas" is included at pp21-36.

3. Essentially, section 134 provides that the Minister has a discretion to cancel a business visa if he is satisfied that the visa holder has not obtained a substantial ownership interest in an eligible business in Australia, is not utilising her skills in actively participating at a senior level in the day to day management of the business, or does not intend to continue to do these things. The Minister must not, however, cancel a business visa if he is satisfied that the visa holder has made a genuine effort to do these things, and intends to continue to make such genuine efforts.

4. "Eligible business" and "ownership interest" are defined in subsection 134(10), and discussed at par 4.3 of MSI 133. Subsection 134(10) provides that "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;

(d) the production of goods of the provision of services that would otherwise be imported into Australia;

(e) the introduction of new or improved technology; and

(f) an increase in commercial activity and competitiveness within sectors of the Australian economy."

5. Paragraph 4.3.2 of the MSI notes that eligibility relates, therefore, to the achievement of stated objectives through the activities of the business, not directly to the size or scale of the business.

6. Subsection 134(3) provides a list of matters that the Minister may take into account in determining whether a person has made genuine efforts to obtain a substantial ownership interest in an eligible business in Australia, and to utilise his skills in actively participating at a senior level in the day-to-day management of that business. Notes to guide in the interpretation of these matters are provided at par 4.5 of MSI 133. The matters that may be taken into account, and the notes to their interpretation provided in the MSI, are as follows:

(a) Business proposals that the person has developed. The MSI refers to whether there is a business proposal which is considered genuine, realistic and achievable.

(b) The existence of partners or joint venturers for the business proposals. The MSI refers to whether there is a formal contract with partners or joint venturers.

(c) Research that the person has undertaken into the conduct of an eligible business in Australia. The MSI refers to whether there is written evidence of detailed consultations with at least three business advisers (accountant, lawyer, bank/financial institution, State/territory government business development office, Austrade, business/trade association).

(d) The period or periods during which the person has been present in Australia. The MSI refers to whether there has been physical presence in Australia for more than six months since first arrival as a Business skills Class migrant.

(e) The value of assets transferred for use in obtaining an interest in an eligible business. The MSI refers to whether there has been transferred to, and retained in, Australia at least 50% of the funds indicated as available for transfer within two years (under Factor 4 of the Business Skills Points test).

(f) The value of ownership interest in eligible businesses in Australia that are, or have been, held by the person. The MSI refers to whether there is or has been minimum A$100,000 or 10% ownership held by the person, and provides that if the person is no longer in business, the reasons for loss of ownership are also relevant.

(g) Business activity that is, or has been, undertaken by the person. The MSI refers to whether there is minimum A$100,000 business activity as indicated by turnover, and provides that this may include other business activity not considered "eligible business" but cannot include passive investment, eg. purchase of shares.

(h) Whether the person has failed to comply with a notice under s137. The MSI refers to whether there has been failure to comply with a notice for information under s137, ie. mandatory monitoring of Australian address and return of survey forms.

(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 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).

7. Section 136 of the Act provides that application may be made to the Tribunal for review of a decision of the Minister under s134.

8. In conducting its review of the cancellation decision, the Tribunal should have regard to all relevant evidence to determine whether the applicant satisfied the requirements of section 134(1) (or was making genuine efforts to do so within the meaning of section 134(2)) as at the date of cancellation (Wong and MIMIA [2002] AATA 54 at par 37).

Did the applicant have a substantial ownership interest in an eligible business in Australia?

9. The Respondent contends that as at the date of the delegate's decision to cancel the applicant's visa, 9 November 2001, the applicant did not have a substantial ownership interest in an eligible business in Australia.

10. The applicant contends that Maple was an eligible business on the basis that it satisfied paragraph (c) of the definition in section 134(10) - that it was resulting in or would result in the export of Australian goods and services. The export activities of the applicant were as follows:

* Two exports of woollen garments to Taiwan for sale prices of A$3,702 and $6,421.20; and

* Two exports of special inks to Taiwan, one for a sale price of US$11,471.81 and the other for an undisclosed amount (the purchase price was A$5,234.22).

* the special inks were not Australian goods as they were supplied from the United States of America (Tp67), notwithstanding that they were purchased from an Australian company; and

* The two sales of woollen garments were isolated transactions rather than part of an ongoing pattern of export, and were not of a sufficient scale to constitute achievement of the objective of export of Australian goods. It is noted that the first sale was not shipped to Taiwan but was carried by hand by the applicant.

12. The applicant does not contend that the business meets any other paragraph of the definition of "eligible business".

13. As such, the applicant did not have an ownership interest in a business that satisfied the definition of "eligible business" as set out in paragraph 4 above.

Was the applicant actively participating at a senior level in the day-to-day management of the business?

14. Moreover, the respondent contends that the applicant was not utilising her skills in actively participating at a senior level in the day-to-day management of an eligible business in Australia, given:

* the small number of isolated transactions entered into by Maple;

* the applicant remained actively involved in a business in Taiwan (Tp 53); and

* the applicant's presence in Australia for only 36 days since her initial entry on 23 July 1998.

Had the applicant made a genuine effort to obtain a substantial ownership interest in an eligible business and to utilise her skills in actively participating at a senior level in the day-to-day management of that business?

15. The Respondent contends that the applicant had not, at the time of the delegate's decision, made genuine efforts to obtain a substantial ownership in an eligible business and to utilise her skills in actively participating at a senior level in the day-to-day management of that business. In relation to the matters set out in paragraph 6 above, the Respondent contends:

* The applicant has not provided a business plan;

* She had not invested in any joint venture in Australia. Her business partner, Yu Chun TSENG is her son and there is no evidence that he has played an active role in the business;

* The applicant has not undertaken significant business research. The evidence that appears relevant to, but in the respondent's contention falls short of satisfying, this requirement is that Maple has a registered business name, the applicant has a tax file number, Australian Business Number, business cheque account and has consulted an accountant and a migration agent (Tp 61).

* The applicant had spent only 36 days in Australia since her initial arrival as a Business Skills migrant;

* Only limited funds appear to have been transferred to Australia to purchase the woollen garments and special inks. There is no evidence that funds have been transferred to effect further transactions;

* There is no evidence of the value, if any, of the applicant's ownership in Maple;

* The applicant's business activity as indicated by turnover falls well below A$100,000; and

* The applicant failed to complete the 24 month survey;

16. In these circumstances, the respondent contends that the applicant did not have a substantial ownership interest in an eligible business in Australia, was not utilising her skills in actively participating at a senior level in the day-to-day management of that business and had not made genuine efforts to do so. As such, the delegate's decision cancelling the visa was the correct and preferable decision at the time it was made.

17. The decision to cancel the applicant's Business Skills visa should be affirmed."

4. The Applicant was in the result the only person who gave evidence before the Tribunal. She was assisted by an interpreter in the Mandarin language. I deal with her evidence in clauses 5 to 19 (inclusive) of these Reasons.

5. I might commence with a general comment as to the Applicant's evidence. It was frequently led in the sense that Mr Kuo would put lengthy questions which suggested and indeed demanded a particular answer. It was sometimes hesitant and sometimes evasive; it was moreover in many respects contradictory. On occasions the Applicant attributed her inability to answer to her lack of knowledge of the English language but was unable to answer the same question in Mandarin. I do not consider that her evidence deserves much credit.

6. (a) The Applicant's visa was conditional on her making genuine efforts to commence an eligible business within three years. She said that she mistakenly thought that the period in question was five years.

(b) The Applicant signed Exhibit R1 after it was explained to her in Mandarin by her Taiwanese agent who is fluent in both English and Mandarin. Toward the end of her evidence, she said that the agent contacted her prior to the expiry of the three-year period to warn her as to the conditions attached to the grant of her visa.

(c) I do not believe that I need to go into further detail as to the evidence surrounding the grant of the visa, the conditions attached, and the alleged "mistake" by the Applicant. Suffice it to say that I do not believe (having regard to her evidence as a whole) that she was mistaken as alleged by her as to so important a matter and consider that the probabilities strongly favour the view that from the outset she knew that she had three and not five years.

7. (a) It must be said in general terms the evidence of the Applicant revealed a profound lack of knowledge of the affairs of the business. I refer to it as such purely as a means of description since I do not believe on the evidence that there was ever a business in any commonly accepted sense of that term; Mr Cureton cited the decision of Deputy President McMahon in Re Tang and Minister for Immigration and Multicultural Affairs [2000] AATA 997, (2000) 32 AAR 103 and in particular clause 20 (with which I entirely agree) as follows:

"On these facts, it seems to me that Tiproll Pty Limited is not carrying on a business and its activities are therefore not an eligible business. The reference in subparagraph 134(1)(b) to the 'day-to-day management of that business' indicates that an eligible business must have some element of continuity and repetition. In Hope v Bathurst City Council (1980) [1980] HCA 16; 144 CLR 1, Mason J considered that the use of the phrase "carrying on the business", as a qualifier of the noun "business", required that there be a commercial enterprise in the nature of a going concern "that is activities engaged in for the purpose of profit on a continuous and repetitive basis". Similar qualifying words in section 134 would compel a similar result. There is no day-to-day activity of the business of Tiproll Pty Limited. It has had one export transaction to a company associated with Mr Tang. The evidence relating to lanolin and roller shutters does not add to the perception of a business requiring day-to-day management. In my view therefore what activities have been carried on by Tiproll Pty Limited cannot be described as an eligible business."

(b) The facts in this case resemble at least in some respects the facts in Re Tang and Minister for Immigration and Multicultural Affairs (supra). The business was housed in the apartment in which the Applicant's children live; see in this context clause 13 of the decision in Tang's case. The Applicant did not know the address of the apartment.

(c) The Applicant, although she has taken courses in accountancy at a Polytechnic in Taiwan and although she said that she knew the difference between a company, a partnership, and a sole proprietorship, displayed a quite lamentable ignorance of the constitution of the business. T pp89-90 (as two examples only) indicate the existence of a company called Maple Industrial International Trading Pty Ltd with a "B.N." of "978 330 35"; there is in fact no such entity. By contrast T p66 refers to the Applicant as the proprietor of Maple International Trading. The Applicant's evidence was that there was a partnership between herself and her son, who is sometimes referred to as Chen, and who is the same person as "Chris Tseng" who is the tenant of an apartment in George Street and in which the business, so she said, had a separate room. T p70-72 refers to a residential tenancy agreement in respect of an apartment in George Street dated 13 September 2001 between Meriton Apartments Pty Ltd as landlord and Chris Tseng as tenant. (Meriton Apartments Pty Ltd is well known as the lessor of residential furnished accommodation usually, but not always, for comparatively short periods; that accommodation is at the top or more expensive end of this market; in fact this factor and the appearance of the Applicant suggested affluence in respect of the Applicant and her family.)

(d) There are two other persons who were also referred to by the Applicant as "Chen"; one is Chen, an employee of the business who introduced it to one of its two suppliers (referred to by the Applicant as Chow) and who was paid, according to her original evidence on a piece-work basis, and by which is meant that he was paid for what he actually did. At a later stage of her evidence, she said that Chen (the employee), never received any payment because he helped her as a friend. Yet another Chen figured in the business in a shadowy way, the precise nature of which was difficult to ascertain. Some documents included in the T-documents were signed on behalf of the business, according to the Applicant, not by her but by one of the Chens. It is difficult to determine whether all of the various documents signed on behalf of the Applicant were signed by the same person, but this may be the case. T p 87 is also a document on the letterhead of Maple International Trading Pty Ltd (an entity which does not exist) and purporting to be signed on behalf of that non- existent entity by someone who has qualified his signature by including the word "for". Other similar documents (T pp89-90) are not so qualified.

(e) After the Applicant received a Notice of Intention to Cancel under s134 of the Act (T11) she consulted Mr Kuo. As to what advice precisely he gave her is not totally clear and particularly as to whether she should form a company. From the bar table, Mr Kuo made mention of the possibility of utilising a company. A business name was registered; in addition the Applicant sought and obtained an Australian Business Number and a Tax File Number; it is conceivable, (although this is uncertain) that she was advised to utilise a corporate structure but rather elected in favour of the use of a partnership. No written partnership agreement was entered into, and there was no evidence of any kind before me as to the terms of the (oral) partnership between the Applicant and her son, and in particular as to what capital if any was contributed and as to how profits and losses were to be apportioned. The Applicant said that she paid her son $1000.00 per month; however this may have been in respect of maintenance. It must be remembered that the Applicant's son was, at all relevant times, a full time student in commerce at the Sydney campus of a Queensland University. She said that he expects to complete his studies at the end of this year.

8. The business in all of its existence entered into only four transactions. Two of them (in comparatively small amounts) related to the export of Australian woollen garments while two others related to the export of ink which had been imported from the United States of America. In all cases the goods were exported to Taiwan; in all cases the mark-up (or gross profit) was 30 per cent of cost although the gross profit was reduced in some cases by freight paid by the business. Payments (and in this regard the evidence was quite remarkably vague and contradictory) were routed through a bank in Australia whose name she could not remember, except for the fact that it contains an "M".

9. The Applicant and her husband have a home in Taiwan and together manage two factories employing more than 40 people. The Applicant, works from eight to five each day; although the evidence was not clear as to this aspect, her role would appear to be mainly administrative.

10. The Applicant has, as the Respondent's Statement of Facts and Contentions indicates, spent only 36 days in Australia. She flew into Australia for the hearing a little while before the hearing date. As set out previously in these Reasons, she did not know where the business was conducted or who its bankers were. The Applicant said that she gave the papers concerning the four transactions to which I have referred, to the accountant to the business, and to whom she referred as a Cantonese person (but whose name was not specified). It was Mr Kuo who told the Tribunal from the bar table that the accountant is a Vietnamese/Chinese person named Ngo. It is to be noted that the accountant was not called to give evidence and nor, for that matter, were any books of account of any kind produced. One might have thought that there would (at the very least) be evidence in the form of bank statements evidencing the transactions in question; there was not. Similarly there was no evidence by either of the Chens or for that matter, by either of the son or the daughter of the Applicant.

11. After the visa was cancelled in November 2001, the Applicant decided, so she said, to see what happened and it is for this reason that no further transactions were entered into. If there were a business in the ordinary sense (and I refer in this context to a going concern where there is continuity in the sense referred to by Mason J in Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 cited in Re Tang and Minister for Immigration and Multicultural Affairs (supra), one would not have expected it to cease so abruptly. In Wong and the Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 54, Deputy President Handley noted that the correct approach in respect of a cancellation is to determine the correct or preferable decision at the time that the decision to cancel was made. It is relevant, in the view of the Tribunal, that four transactions were entered into between notice of intention to cancel and cancellation; after the last of the four transactions, all activities simply ceased. All of this is indicative of the absence of a going concern with continuity. Moreover, all four transactions involved sales to Taiwan at precisely the same mark-up in accordance with documentation of doubtful provenance, and such that it must occasion doubt as to those transactions themselves.

12. The Applicant said of the room in the apartment that it contained a telephone, a desk and a computer but not a fax and that outside fax facilities were utilised. There was no evidence which would suggest that the telephone and computer were devoted solely to use in the business; it is hardly likely that a computer and telephone would have been made available and so little used; it is much more likely that they were used by the children and as regards the computer to aid their studies. The children could have given evidence on this aspect but were not called.

13. The son, according to the Applicant, received $1,000.00 per month. He is as I have said, a full-time student who expects to graduate at the end of this year.

14. Of the four transactions, two related to woollen goods and two to ink. Mr Kuo sought to suggest that the ink transactions could, notwithstanding that they related to American products qualify for the purposes of the test because services were included; he was unable to refer to any services and it does not seem that there were any. The ink was purchased in Australia but imported from the United States of America. As to why then it was transported first from the USA to Australia and then onwards to Taiwan is difficult to comprehend.

15. The two woollen garment transactions involved a Mr Gow to whom she was introduced by Chen, the employee (and being the person who never received any remuneration).

16. It was suggested to the Applicant that if all four consignments were paid for by the Taiwanese purchaser and the proceeds banked to the Australian bank account there would be a credit balance of about $35,000. She said that there is in fact a balance of $1,500 dollars because of "other transactions" (not detailed) and including payments to Gow, although other evidence suggested it was that money came in from Taiwan for the purpose of purchasing the goods which were then exported to Taiwan. One imagines that the purchases preceded the sales but this is not certain. All of the evidence as to money was so remarkably vague and uncertain and also contradictory that the Tribunal does not know how the money flow was organised. As I have said, no bank statements or books of account were produced and their absence must result in a negative inference as to whether there were any, or if there were, whether they would have been helpful to the Applicant. Negative inferences arise from the failure on the part of the Applicant to furnish evidence of the nature specified in these Reasons.

17. (a) It was put to the Applicant that she had applied for (and obtained) the visa in order to further the education of her children and for no other reason. She agreed that the education of her children was a motive, but said that she did intend to establish a business catering both for exports from Australia and also imports into Australia.

(b) Mr Cureton put to the Applicant that her visa required her to make genuine efforts to actively participate as an owner or part-owner on a day-to-day basis in management at a senior level of a new or existing concern. The Applicant said that she felt that she could perform such duties with the aid of a computer and through e-mail. She also said (repeatedly) that she intended to rely on her son once he completed his studies.

18. Although the evidence of the Applicant, inclusive of cross-examination and re-examination took most of the hearing day, one thing became abundantly clear, and that is that there never was a business in any going-concern sense of the nature referred to by Mason J in Hope's case cited in Tang's case, but rather four isolated transactions all involving a purchaser in Taiwan and where the gross profit margin was the same in all four cases.

19. I do not think it necessary for me to go into the evidence in greater detail notwithstanding its length. A consideration of the transcript would demonstrate how remarkably unsatisfactory it was. The Applicant appeared to know nothing about any aspect of the alleged business including the address of the business or its banker or its books and records, and appears to have played no role whatever otherwise than as financier (in a manner not apparent to the Tribunal) of the four isolated transactions, in circumstances where the lack of any evidence indicates that the Tribunal should view those transactions with caution. The absence of any evidence as to the business by its employees, bankers or accountant must cause the Tribunal to doubt its existence. The Tribunal has come to conclusion that on a balance of probabilities (and perhaps even more than that) it is likely that the Applicant applied for the visa in order to further the education her children. Her presence in Australia for a mere 36 days is consistent with visits to see them.

20. (a) The term "eligible business" is defined in s134 (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;

(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."

(b) The business referred to previously in these Reasons could conceivably come within paragraph (a) or (c) of the definition, but on the evidence does not come within either.

(c) Section 134(1) of the Act reason as follows:

(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

(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;

21. (a) Mr Kuo's central contention was that the Applicant did export some Australian goods (and being woollen garments) even though the quantity involved was small and there were only two isolated transactions involving Australian goods. (The two ink transactions cannot be taken into account in any event since they did not relate to Australian goods and as I have said there were no services involved.) Mr Kuo contended in effect since there is no test of scale in the legislation, those two transactions were sufficient to satisfy the test. He cited, on more then one occasion, Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223 and referred indeed in this context in particular to paragraph 5.50 at p 186 of the book "Introduction to Australian Administrative Law" by Margaret Allars (Australia, Butterworths, 1990) which reads as follows:

"An abuse of power occurs where an exercise of power is so unreasonable that no reasonable person could have so exercised the power. This classic test of unreasonableness, as expressed by Lord Greene Mr in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, forms the ground for an order of review under s 5(1)(e) coupled with ss 5(2)(g) of the ADJR Act. Section 5(1)(e) coupled with s 6(2)(g) contains the same formula as a ground for challenging prior conduct engaged in or proposed to be engaged in for the purpose of making a decision to which the ADJR Act applies. Lord Greene's test for unreasonable administrative action as "a decision...so unreasonable that no reasonable authority could ever have come to it", or "something so absurd that no sensible person could ever dream that it lay within the powers of the authority" is obviously circular; ibid at 230, 229. It provides no independent test of what amounts to unreasonable action. All that the test indicates is that the decision must in some sense be an extreme one, which most people would find difficult to fathom. Indeed Lord Greene observed that there needs to be "something overwhelming" before a decision can be said to be unreasonable in this narrow sense: ibid at 230. In Wednesbury Corporation itself the plaintiff failed to establish as unreasonable a condition attached to a licence to run a cinema on Sundays, banning children under 15 years from attending unless accompanied by an adult."

(b) I think, with respect to Mr Kuo, that he may not have recognised that the Tribunal's function is that of an administrative and not a judicial review. I do not think his citation is relevant. The Tribunal, standing in the shoes of the Respondent, must determine whether or not his decision was the correct and preferable decision. Having due regard to the test in Wong and Minister for Immigration, Multicultural and Indigenous Affairs (supra) referred to previously in these Reasons, the Tribunal considers that on the evidence before it there never was a business or any genuine attempt to establish a business of any kind in any real sense; in any event (and even if there was a business which appears to be unlikely in the extreme) the Applicant was never involved in it in the manner required by the legislation. It is clear that compliance with the visa terms would require day-to-day involvement at senior management level by the Applicant herself; the legislation is framed in a way which makes it clear that the Applicant must herself be involved and that it is not permissible for her to delegate or to use an agent. It may in this electronic age be true to say that management at a distance is possible with the aid of a computer and email but there was no real evidence that this in fact occurred. The very documents evidencing the transactions to which I have referred, were signed on behalf of the Applicant by someone else and perhaps the Chen who was alleged to be an employee. The Applicant may have been responsible for the provision of funds but in the absence of any documents even this in not clear. The Applicant falls very far short of providing evidence which would support the proposition that she made any attempt to satisfy the visa conditions; on the contrary the evidence strongly suggests that there was no such attempt and that the visa was obtained simply and only to further the education of her children in Australia.

22. Any question of the effect of this decision on the Applicant's husband and children was not raised before me.

23. In all the circumstances the decision under review must be affirmed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Block, Deputy President

Signed: H. Sim .....................................................................................