1. Previous decisions of the Tribunal have established a number of propositions relevant in the present circumstances.

1. The phrase "genuine effort" is an ordinary English phrase and the appropriate ordinary meaning of that phrase is "real and sincere endeavour or strenuous attempt" (Abbu and Minister for Immigration and Multicultural Affairs [2006] AATA 898 at [42] per DP Hotop) or "endeavour or exertion which is sincere and real" (Hook and Minister for Immigration and Citizenship [2007] AATA 1798 at [39] per DP Hotop).
2. The phrase "genuine effort" must be given its ordinary meaning within the context of the Act and the Oxford Dictionary of English defines "genuine" to mean "truly what something is said to be; authentic" and "effort" to mean "a vigorous or determined attempt" (Gunawan and Minister for Immigration and Multicultural Affairs [2006] AATA 852 at [46], per SM Sweidan).

1. The relevant visa holder must himself or herself have made some real or genuine effort (Re Yam (supra) at [53]).

1. The degree of effort made must be beyond that which is purely superficial or token (Yam (supra) at [53]).
2. The effort must involve some exertion or endeavour (Leo (supra)).
3. To constitute genuine effort, the activities must be real and substantial and not in the nature of a pretence or a sham (McAlpin and Minister for Immigration and Citizenship [2008] AATA 109 at [59] per SM Penglis).

1. Evidence showing "sporadic and desultory activity" by an applicant that "lacks the sustained and continuous quality... implicit in the requirements of s134(2)" points to a lack of genuine efforts (Koosasi and Minister for Immigration and Multicultural Affairs [2006] AATA 179 at [53], per DP Walker).
2. A lack of effort for the majority of the visa period followed by a "flurry of activity" that is "mere window dressing to give the appearance of vigorous and conscientious search for a business investment vehicle" does not constitute genuine efforts (Ng and Minister for Immigration & Multicultural & Indigenous Affairs [2003] AATA 299, per DP Wright QC at [22]).

Relevance of the subjective beliefs of the applicant

1. Efforts which cannot realistically satisfy either of the criteria in s134(2) cannot be said to be genuine efforts (Yonathan v Minister for Immigration and Citizenship [2007] AATA 1181 at [45], per SM Sweidan).
2. Deputy President Hotop in Hook (supra at [43]) interpreted the relevance of subjective beliefs differently, holding that where a person has undertaken substantial activities in a sincere endeavour to satisfy the matters referred to in paragraphs (a) and (b) of s 134(2), in the honest and reasonable belief that the activities undertaken have satisfied those matters, that person has made a "genuine effort", within the meaning of s 134(2), to satisfy those matters, notwithstanding that the activities undertaken could not have satisfied those matters (see also McAlpin (supra) at [58]).

Relevance of departmental policy in applying s134(3) factors

1. Section 134(3) provides a list of matters that the Minister may take into account when 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.
2. Notes to guide the interpretation of these matters are provided at paragraph 9.2 of PAM3. The matters that may be taken into account, and the notes to their interpretation provide as follows:

28.1 business proposals that the person has developed. PAM3 refers to whether there is a business proposal which is considered genuine, realistic and achievable;

28.2 the existence of partners or joint ventures. PAM3 refers to whether there is a formal contract with partners or joint venturers;

28.3 research that the person has undertaken into the conduct of an eligible business in Australia. PAM3 refers to whether there is written evidence of detailed consultations with business advisers and whether there is continuous, concerted and genuine research since the 'clock-start date';

28.4 the period or periods during which the person has been present in Australia. PAM3 notes that it is expected that a genuine effort would require significant time in Australia to, for example, explore business opportunities, contacts and sources of supplies, inspect premises/property and goods, develop relationships and gain an understanding of local practices.

28.5 the value of assets transferred for use in obtaining an interest in an eligible business. PAM3 refers to the transfer of sufficient funds to ensure that the business meets the requirements of an eligible business, or, if the business has not yet been established, the presence of sufficient assets in Australia to pursue research into an eligible business and to be able to establish such a business when the opportunity arises.

28.6 the value of ownership interest in the eligible business in Australia which is or has been held by the person. PAM3 refers to a visa holder with a minor, rather than substantial, ownership interest being able to demonstrate that they are working towards establishing substantial ownership.

28.7 the business activity that is or has been undertaken by the person.

28.8 whether the person has failed to comply with a notice under section 137. The MSI refers to whether there has been a failure to comply with a notice for information under section 137, i.e. mandatory monitoring of Australian address and return of survey forms; and

28.9 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 on the day-to-day management of the business:

28.9.1 the length of time the person held the ownership interest or participated in the management as the case requires; and

28.9.2. the reason why the person no longer holds the interest or participates in the management as the case requires.

Applying the genuine efforts principles to the applicant's circumstances

1. When the principles cited above are applied to the applicant's circumstances, the Tribunal finds that the following conclusions can be drawn.

The applicant's lack of continuous activity points to a lack of genuine efforts

1. The applicant was granted his business skills visa on 2 February 2004. The company that the applicant claims to have invested in, MLN, appears to have been registered (although the applicant has not provided evidence of the exact date) in "early 2006" (T353) or "mid 2006" (T23), over two years later.

The applicant's activities lacked the requisite degree of effort

1. The Tribunal finds that the evidence in the T documents and the applicant's evidence at the hearing of the applicant's activities up to the date of cancellation does not show that the applicant made the requisite degree of effort.
2. The Tribunal finds that the efforts evidenced by the three advertisements at T358, T359-T360 and T361 can be characterised as superficial or token, and do not reveal sufficient exertion and endeavour. The applicant claims, at T352, that he conducted feasibility studies on importing musical instruments into Australia. The Tribunal is of the view that the collecting of advertisements from musical instrument retailers in Perth does not constitute a 'feasibility study'.
3. The Tribunal notes that the applicant claims to have contacted travel agents in Perth (T352). The Tribunal notes that there is no other evidence of contact with the travel agents, and the Tribunal concludes that these efforts were superficial or token, and do not reveal sufficient exertion and endeavour. The Tribunal accepts that a business plan was prepared in relation to the proposed travel agent venture at the time of the visa application (T312-T313), but finds that no efforts to pursue this plan were made after the grant of the visa.

No evidence of the subjective beliefs of the applicant

1. The applicant has filed no evidence relating to the foundation of any beliefs he may have had regarding his compliance with his visa conditions.

The applicant has not developed any business proposals

1. With reference to s134(3)(a) and the PAM3 criteria cited above, the Tribunal notes that the applicant has not developed any business proposals that are genuine, realistic and achievable, in the context of MLN or otherwise.

The applicant has not signed formal contracts with joint venturers

1. With reference to s134(3)(b) and the PAM3 criteria cited above, the Tribunal notes that the applicant has not signed any formal contracts with joint venturers or partners.

The applicant has undertaken insufficient research into conducting an eligible business in Australia

1. With reference to s134(3)(c) and the PAM3 criteria cited above, the Tribunal finds that there is insufficient documentary evidence of research into Australian businesses that the applicant claims to have carried out (see above).

The applicant has not spent sufficient time in Australia

1. With reference to s134(3)(d) and the PAM3 criteria cited above, the Tribunal finds that the 13 days the applicant spent in Australia during the lifetime of his visa (se T73) did not give him sufficient time to explore business opportunities, contacts and sources of supplies, inspect premises/property and goods, develop relationships and gain an understanding of local practices.
2. Furthermore, the Tribunal notes that applicant has not provided sufficient evidence to support his claim that he intends to permanently settle in Australia once the Singapore litigation has concluded.

1. The Tribunal has a residual discretion not the cancel an applicant's visa, even if he has not fulfilled the requirements of s134(1) and s134(2) of the Act: Kim v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCA 31.
2. As Deputy President Hotop at [51] in Hook (supra) noted, neither the Act nor specific Department policy guidelines provide specific guidance as to what considerations may, or may not, be taken into account in exercising the discretionary power. The Tribunal did note however that "Attachment 2 - NOICC - section 134" stated that Departmental officers will consider the following factors in deciding whether to cancel an applicant's visa, including in effect:

40.1 the applicant's engagement in the day-to-day management at a senior level in an eligible business;

40.2 any evidence of genuine effort that the applicant made to engage in the day-to-day management at a senior level in an eligible business;

40.3 the length of time spent in Australia since the applicant's initial arrival;

40.4 the degree of hardship which may be caused to Australian citizens or permanent residents if an applicant's visa is cancelled;

40.5 any unreasonable hardship the applicant might suffer if his or her visa was cancelled;

40.6 any ties (including family, social and business) to other countries;

40.7 the circumstances in which the ground/s of cancellation arose;

40.8 the seriousness of the ground/s for cancellation; and

40.9 the applicant's behaviour to the Department, including efforts made to comply with requests for information.

1. The residual discretion is a power that should be used sparingly and only in unforeseen and unusual situations: Bakri and Minister for Immigration and Multicultural Affairs [2007] AATA 14 at [74] per Penglis SM, regarding the exercise of the residual discretion in "highly unusual circumstances".
2. The applicant outlined in his letter to the Department dated 6 April 2007 (T374) and in his evidence before the Tribunal the reasons why he has been unable to commence business activities in Australia. He pointed to the extensive litigation involving the Singaporean company Daikin, of which he is an executive director and the demands which this made on his time. The applicant states that due to these "extenuating and unforeseen circumstances", he was forced to abandon some of his original plans. On this basis he believes that he should be given more time and that his visa should not be cancelled.
3. The Tribunal acknowledges the applicant's circumstances, but makes the following findings in this regard:

43.1 It is not a satisfactory explanation or excuse that an applicant had to spend substantial amounts of time on his or her overseas business, even where such a decision makes commercial sense: Nagaria and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 579 at [40]; Pranata and Anor and Minister for Immigration, Multicultural and Indigenous Affairs [2004] AATA 517 at [26]. The fact that the litigation made the applicant feel he needed to devote almost all his time to his overseas business does not justify in the Tribunal's view the Tribunal using its discretion in his favour.

43.2 An excuse is not satisfactory where it involves facts and events that arose before the visa was granted, and thus was reasonably foreseeable to the applicant: Gunawan (supra) at [11]; Teng and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 715 at [33].

43.3 The Tribunal notes that the applicant claims at T23 that "my current predicament ... began in 2002". The Tribunal also notes that the Singaporean Court document S58/2004/WA naming the applicant's overseas business as a defendant is dated 19 January 2004 (T393). In contrast, the applicant's visa was granted on 2 February 2004 (T319). The applicant therefore knew before his visa was granted, or knew very shortly thereafter, that this litigation would be a significant barrier to him satisfying his visa conditions.

43.4 An excuse is not satisfactory where the applicant failed to raise it earlier with the appropriate authorities: Teng (supra) at [33]. The Tribunal notes that the Department specifically sent a letter dated 14 January 2004 to the applicant asking him if there had been any changes in circumstances.

43.5 The applicant notably failed to inform the Department of the litigation involving his overseas company when it arose on 19 January 2004 (if it did not arise earlier). The applicant also failed to respond to and inform the Department when asked numerous times to fill out his 24 month survey. The first time the Department heard about this situation appears to be on or about 12 January 2007, some three years later. The Tribunal accepts that confidential information relating to the litigation need not have been provided to the Department (as the applicant contends at T23), but the Department clearly ought to have been at least informed of the existence of the litigation.

43.6 The residual discretion should not be exercised where giving the applicant more time would be of little practical benefit: Gunawan at [24]; Ho and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1258 at [37]; Dharsiono and Minister for Immigration and Multicultural Affairs [2006] AATA 786 at [73]; Sutoyo and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 604 at [20]; and Reed and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 335 at [22]. While the Tribunal can give applicants more time to fulfil their visa requirements, it cannot simply absolve them of these obligations altogether.

43.7 The Tribunal notes that the applicant has not provided any evidence that the Singapore litigation is going to cease at a known date in the near future. The Singapore Court has reserved it's decision and there may well be an appeal. In these circumstances the Tribunal cannot conclude that, even if the applicant was given more time, he would begin satisfying his visa conditions as required.

43.8 The applicant only spent 13 days in Australia during the lifetime of his visa and in the Tribunal's opinion has not demonstrated a serious and realistic intention to spend more time in Australia in the near future (_Burg v Minister for Immigration and Citizenshi_p [2007] AATA 1630 at [63]; Padilla v Minister for Immigration and Multicultural Affairs [2006] AATA 922 at [53]; Abbu (supra) at [47]; Tauriandy v Minister for Immigration and Multicultural Affairs [2006] AATA 183 at [66]; Jo v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 469 at [120]; Haryanto v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 317)

43.9 The applicant has not moved permanently to Australia with his family members, nor does he seem to have a realistic intention of doing so in the near future: Burg (supra) at [63]; Teo (supra) at [88].

43.10 It appears that no hardship, other than possibly 'lost dreams', will affect the applicant or his family if their visas are cancelled: Teo (supra) at [79]. The Tribunal notes the letter from the applicant's daughter, Natasha Goh Shu Hui, to the Department dated 7 April 2007 (T392) to the effect that upon graduating from school in early 2008, she intends to "sign up for a Medical Course in Australia". The Tribunal notes that such an option remains available to Ms Goh through the student visa regime, and that any denial of such an opportunity through the business skills visa regime does not constitute hardship.

43.11 The Tribunal has previously pointed out that business skills visas have no preclusion period. The Tribunal therefore should not exercise its residual discretion where it would be more appropriate for the applicant and his or her family members to take other more appropriate avenues, such as finding more suitable visas under a different visa regime, or simply reapplying at a more appropriate time in the future: Barnett and Minister for Immigration and Citizenship [2007] AATA 1454 at [37]; Nagaria (supra) at [46].

43.12 It appears that the applicant clearly does not have the capacity or the intention to satisfy his visa obligations in the near and foreseeable future. This being the case, it may be more appropriate if he applied under a different visa regime that does not have the same requirements, or reapplies in the future when the current litigation involving his overseas company has actually ceased.

1. The Tribunal affirms the decision under review because:

44.1 The applicant has by his own admission failed to obtain a substantial ownership interest in an eligible business in Australia;

44.2 The applicant has also by his own admission failed to utilise his skills in actively participating at a senior level in the day-to-day management of such a business;

44.3 The applicant has failed to make genuine efforts to obtain a substantial interest in an eligible business in Australia or to utilise his skills in actively participating at a senior level in the day-to-day management of an eligible business; and

44.4 This is not an appropriate case for the exercise of the Tribunal's residual discretion.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member

Signed: ........(sgd) T Freeman.........................

Solicitor for the Respondent Australian Government Solicitor