ARWIN RASYID and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2009] AATA 341
•8 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 341
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4808
GENERAL ADMINISTRATIVE DIVISION ) Re ARWIN RASYID Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal
Ms L R Tovey, Member
Date 8 May 2009
PlacePerth
Decision
The Tribunal affirms the decision under review.
…(sgd) Ms L R Tovey...............
Member
CATCHWORDS
IMMIGRATION – business skills visa – eligible business – genuine efforts – exercise of discretion
LEGISLATION
Migration Act 1958 (Cth), s134
CASES
Chawla and Minister for Immigration and Citizenship [2008] AATA 715
Hook and Minister for Immigration and Citizenship [2007] AATA 1798
Jo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 77
Kim v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 38 AAR 304
Kok and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 579
Koosasi v Minister for Immigration and Multicultural Affairs (2006) 43 AAR 462
Kushner and Minister for Immigration and Citizenship [2008] AATA 1170
Lau and Minister for Immigration and Multicultural Affairs [2002] AATA 703
Li and Minister for Immigration and Citizenship [2009] AATA 244
Liu and Minister for Immigration and Citizenship [2009] AATA 101
Luo and Minister for Immigration and Citizenship [2008] AATA 976
Shi v Migration Agents Registration Authority (2008) 82 ALJR 1147, [2008] HCA 31
Re Wong and Minister for Immigration and Multicultural Affairs [2002] AATA 54
REASONS FOR DECISION
8 May 2009 Ms LR Tovey, Member 1. This is an application for review of a decision made by a delegate of the Respondent on 7 September 2007 cancelling the business skills sub-class 128 (Senior Executive) visa of Mr Arwin Rasyid. Mr Rasyid is a very senior banking executive in Indonesia with an impressive business background in that country.
2. In February 2003 Mr Rasyid applied to the Respondent's Department for a subclass 131 investment linked visa. In October of that year his immigration consultant received a call from a Departmental officer who suggested that, given Mr Rasyid's background, his application could be processed as a subclass 128 visa. Mr Rasyid indicated that he did not object to that course, and in July 2004 he was granted the visa. His visa was cancelled following the issue of a notice of intention to cancel on 24 July 2007.
Legislative Background
3. Section 134 of Migration Act 1958 (Cth) ("the Act") confers a discretionary power to cancel Mr Rasyid's visa. Section 134(1) of the Act provides:
“(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.”
4. If the discretion to cancel the visa arises under s. 134(1) of the Act, then s. 134(2) of the Act provides that:
“(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.”
5. In determining whether a person has made a “genuine effort” within the meaning of s. 134(2) of the Act, s. 134(3) of the Act states:
“(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).”
6. Section 134(10) of the Act defines "eligible business" to mean:
"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."
7. By s. 134(10) of the Act, an “ownership interest” in relation to a business is defined to mean:
“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.”
Issues of Time
8. In determining this application for review, it is necessary to consider the time at which the questions identified in s. 134 of the Act are to be asked and answered.
9. Section 134(1)(a) of the Act refers to past events: it requires that the Minister be satisfied that a visa holder "has not" obtained a relevant interest. However, s. 134(1)(b) refers to the present: the requirement is that the Minister be satisfied that a visa holder "is" utilising his or her skills. It would seem to follow from s. 134(1)(b), if not s. 134(1)(a), that the eligible business must exist at the relevant date for the decision. If there is no eligible business in existence at the relevant date for the decision then a visa holder could not, at that time, be exercising his or her skills participating in the management of that business. That approach is, in my view, consistent with that adopted by Branson J in Koosasi v Minister for Immigration and Multicultural Affairs (2006) 43 AAR 462 at [9].
10. Section 134(1)(c) of the Act is also cast in the present tense, referring to the Minister being satisfied that a visa holder "does not intend" to continue to hold a relevant interest or utilise relevant skills. That intention must be assessed at the relevant date for the decision. That paragraph also suggests that the eligible business must exist at the relevant date for the decision. The intention referred to in s. 134(1)(c) relates to a business referred to in s. 134(1)(a), namely a business which the visa holder has (in the past) obtained a relevant interest. A visa holder could not presently intend to continue ownership of, and continue to participate in a business established in the past if the business has ceased to exist.
11. By contrast, s. 134(2)(a) and (b) of the Act refer to past events, requiring that the Minister be satisfied that a visa holder "has made" a relevant genuine effort. Those genuine efforts may have been made at any point prior to the relevant date for the decision. However, s. 134(2)(c) refers to the present, requiring that the Minister be satisfied that the visa holder "intends" to continue to make genuine efforts at the relevant date for the decision.
12. It is then necessary to identify the relevant date for the decision. In the case of the Minister, it must be the date of the Minister's decision, which in this case was 7 September 2007. So in the present case it was necessary for the Minister's delegate to consider whether she was satisfied that:
(a)an eligible business existed as at 7 September 2007;
(b)Mr Rasyid had acquired a substantial ownership interest in that business prior to 7 September 2007;
(c)Mr Rasyid was, at 7 September 2007, relevantly utilising his skills in the management of that business;
(d)Mr Rasyid intended, at 7 September 2007, to continue to hold that interest and utilise those skills;
(e)Mr Rasyid had, prior to 7 September 2007, made relevant genuine efforts; and
(f)Mr Rasyid intended, at 7 September 2007, to continue to make relevant genuine efforts.
13. This Tribunal stands in the shoes of the Minister on a review of the decision of the Minister's delegate. However, the question arises as to whether the relevant date for the Tribunal's decision is the date on which the Tribunal determines the application for review or the date on which the Minister's delegate made her decision.
14. The usual approach of the Tribunal, in considering the above matters, is to look only at events, actions and intentions that existed prior to the cancellation of the visa: ReWong and Minister for Immigration and Multicultural Affairs [2002] AATA 54 at [37]. In doing so, however, the Tribunal has taken the view that it is also entitled to consider subsequent events to the extent that those later events assist in evaluating the relevant intentions and actions of the visa holder as at the date of the cancellation of the visa: see Re Kok and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 579 at [21], Re Jo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 77 at [10]; and Re Lau and Minister for Immigration and Multicultural Affairs [2002] AATA 703 at [24].
15. The recent decision of the High Court in Shi v Migration Agents Registration Authority (2008) 82 ALJR 1147, [2008] HCA 31 casts doubt on the correctness of that approach. The question in Shi was whether the Tribunal, in conducting a review of a decision made under the s. 303 of the Act, was entitled to take account of facts and circumstances prevailing at the time of its review. The Court found that it was so entitled. The general approach of Hayne and Heydon JJ was reflected in the statement at [99] that:
"…unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act; there is nothing in the AAT Act which would provide such a limitation."
16. Similarly, in Shi Kirby J concluded at [43] that the Tribunal is not ordinarily confined to material that was before the primary decision-maker, or to consideration of events that had occurred up to the time of its decision, although in each case it is necessary to consider the precise nature and incidents of the decision that is the subject of the review. The approach of Kiefel J, with whom Crennan J agreed, may have been less reliant on the general presumption, but still led to the conclusion that it was open in that case to the Tribunal to have regard to facts and circumstances occurring after the taking of the decision under review.
17. In Re Chawla and Minister for Immigration and Citizenship [2008] AATA 715 at [27]-[29] Member Evans and I considered, but did not decide, whether the approach of treating the date of the Minister's decision as the relevant date for the Tribunal was consistent with the decision of the High Court in Shi.
18. Other cases in the Tribunal decided since Shi have not adopted a consistent approach. In Re Liu and Minister for Immigration and Citizenship [2009] AATA 101 and Re Kushner and Minister for Immigration and Citizenship [2008] AATA 1170 the Tribunal considered that the relevant date was the date of the Tribunal's decision. By contrast in Re Li and Minister for Immigration and Citizenship [2009] AATA 244 and Re Luo and Minister for Immigration and Citizenship [2008] AATA 976 the Tribunal concluded that it must consider whether the decision to cancel the business skills visa was the correct and preferable decision at the time of cancellation.
19. The Respondent contended that the ss. 134-137 of the Act "provide a temporal element which confines the primary decision-maker's and the Tribunal's attention to events and circumstances at a particular point in time". This is said to follow from the fact that the Respondent is barred from either sending notices requiring a visa holder to provide information, or giving notice of intention to cancel the visa, later than three years from the grant of the visa (if the visa holder is in Australia at the time) or the visa holder entering Australia after the grant (see ss. 137(3) and 134(9) of the Act). In the case of a notice of intention to cancel, the Respondent must invite the visa holder to make submissions within a specified time (s. 135(1) of the Act). Where the specified time ends after three years after grant or entry the Minister must not proceed with cancellation later than 90 days after the date specified in the written notice (s. 135(4) of the Act). The Respondent submits that the combined effect of these provisions is that there is a date beyond which the Minister is no longer empowered to cancel a business visa under s. 134 of the Act.
20. The Respondent submits that this reflects an intention in the Act that the holder of a business visa must conduct relevant business activity, or make relevant genuine efforts, within three years of arriving in Australia on the visa. It also reflects an intention, in the Respondent's submission, that visa holders not be under threat of cancellation indefinitely. The Respondent submits that in certain circumstances the consideration of events after the Minister's decision may have the effect of disadvantaging visa holders. A hypothetical example is given of a situation where the Minister erred in his decision but the visa holder retired from the management of an eligible business between the time of the Minister's and the Tribunal's decision.
21. I do not find the above submissions of the Respondent to be persuasive. While there is some temporal limit on the Minister's power to cancel a visa, there are a number of factors affecting the latest time for making such a decision. The questions posed by s. 134 of the Act are to be answered by the Minister at the time of the Minister's decision, whenever that is. That time may well be after 3 years from the visa holder's first entry into Australia. For example, the Minister could issue a notice of intention to cancel 2 years and 51 weeks after the visa holder's entry into Australia, give the visa holder 70 days to make representations and cancel the visa within 90 days after the end of that 70 day period. Equally, there is nothing to prevent the cancellation decision being made 2½ years after the first entry into Australia. The Act does not require the Minister to look at the situation at any particular point in time other than the time of the Minister's decision. If those provisions of the Act do not require the Minister to consider the position other than at the time of the Minister's decision (whenever that is), there is no reason why the Tribunal should not consider the position as at the date of its decision. There is certainly no reason for the Tribunal to fix on the date of the Minister's decision. That this approach might, in some circumstances, disadvantage a visa holder is not a reason for declining to take that approach if it is what the Act requires.
22. Therefore, in my opinion, the provisions of the Act do not provide a statutory basis for confining that further material which the Tribunal may consider to such as would bear upon circumstances as they existed at the time of the initial decision. In my view I am required to address the questions posed by s. 134 as at the date of my decision.
Issues of Credibility
23. Mr Rasyid gave oral and written evidence in support of his application. He also called Susanto Onie, Edison Mawikere, Paul Suherman, Thomas Cullen and Dessi Natalegawa to give evidence. I found all of these witnesses to be honest and to be giving a true account of the matters they were asked to address to the best of their ability. I accept their evidence as a credible account of the relevant matters, which was not contradicted by evidence adduced by the Respondent.
Substantial Ownership Interest In An Eligible Business
24. It is firstly necessary to consider whether Mr Rasyid has obtained a substantial ownership interest in an eligible business in Australia. There appear to be two grounds on which Mr Rasyid asserts that he satisfies this requirement. The first is his interest in the Indonesian Institute of Management and its arrangements with the Australian Institute of Management. The second was his interest in a business said to be conducted by Moonbay Enterprises Pty Ltd ("Moonbay").
Indonesian Institute of Management
25. Mr Cullen, the Executive Director of the Australian Institute of Management Western Australia ("AIM"), was called to give evidence by Mr Rasyid. He gave evidence that AIM is a membership based, private sector, not for profit organisation set up in 1957 to help in the development of management and leadership skills, initially in Western Australia and now increasingly in the South East Asian region. He indicated that, while AIM is a not for profit organisation, it does run on a commercial basis.
26. Mr Cullen gave evidence that the commercial learning and development business of AIM has recently been extended into Indonesia through the Indonesian Institute of Management ("IIM"). He said that IIM was launched as the AIM "representative" in Jakarta.
27. Mr Cullen's evidence was a little vague as to the nature of the relationship between AIM and IIM. He described the arrangement as a joint venture between AIM and IIM in which the profits of IIM was distributed on a 50-50 basis, with IIM contributing its network of business contacts in Indonesia and AIM contributing its intellectual property and consultants.
28. In the course of cross-examination Mr Cullen was taken to an example which he accepted was a good example of the way programs were run. Between 30 April 2007 and 2 May 2007 a seminar was run by IIM in Indonesia. AIM provided the consultant who delivered the seminars, and invoiced IIM for the cost to AIM of doing so. IIM was responsible for securing attendees, receiving their fees and paying costs incurred in Indonesia. Any profit at the end of the year would be shared between AIM and IIM, although at the time when Mr Cullen gave evidence profits had been returned to the business of IIM and there had been no distribution.
29. Mr Cullen said that Mr Rasyid had been instrumental in assisting AIM's entry into the Indonesian market. Mr Rasyid is a director of IIM and has made a significant contribution through his network of business contacts, as well as providing strategic advice as to the development of a product that would be attractive to the Indonesian market. He also participated in seminars, giving presentations and keynote addresses.
30. Mr Onie, the Managing Director of IIM, was also called to give evidence. He confirmed that IIM was launched as the official representative of AIM in Jakarta in November 2006, and that Mr Rasyid contributed to its start up. In his written statement he described the three main "shareholders" as himself (40% shares), Mr Rasyid (30% shares) and Mr Martono Kusuma (30% shares). In his oral evidence he said that IIM was incorporated in Indonesia as a limited company which operated on a commercial basis. He said that Mr Rasyid's shareholding in IIM was held through another Indonesian company as nominee for Moonbay, and that any dividends generated by IIM would be paid to Moonbay.
31. Mr Onie described the manner in which IIM would conduct seminars in Indonesia, either using consultants provided by AIM or locally engaged by IIM with the approval of AIM. IIM would also refer people to AIM to attend courses conducted by AIM in Perth, for which it was agreed that IIM would receive a 20% marketing fee. However, while IIM had sent people to Perth it had not invoiced AIM for the fee, in recognition of the significant support which AIM had provided to IIM. Mr Onie said that the main goals of IIM were to promote AIM in Indonesia and conduct seminars in Indonesia using the consultants of AIM.
32. In Mr Rasyid's written statement he said that he met Mr Onie in 2006 in Jakarta. Mr Rasyid described Mr Onie as having "started" IIM at that time. Mr Rasyid said that Mr Onie invited him to become a shareholder in the business and become a corporate advisor, and that he was now a director of IIM which was affiliated with AIM. He described the business relationship between IIM and AIM as primarily premised on the transfer of Australian expertise in executive training. Mr Rasyid said that he held shares in IIM through Moonbay and an Indonesian company which was a nominee of Moonbay.
33. Mr Rasyid gave an account of the activities of IIM which was generally consistent with that of the witnesses referred to above. He did, however, indicate that fees were not charged to persons attending the seminar in April and May 2007, which was conducted as a promotional exercise for IIM.
34. Section 134(1)(a) of the Act requires that a visa holder obtain a substantial ownership interest in an eligible business in Australia. The difficulty I have with Mr Rasyid's reliance on his ownership of IIM for this purpose is that IIM is not a business in Australia. The business is conducted by a company incorporated in Indonesia, and the relevant activities (conducting seminars, promoting AIM and referring executives to AIM) take place in Indonesia. I accept the submission of the Respondent that IIM, being registered in Indonesia and operating exclusively in Indonesia, cannot be characterised as a business "in Australia".
35. AIM may have been an eligible business in Australia, subject to the question of whether the absence of a profit motive means that it is not operating a business for the purposes of the Act. It is unnecessary to answer that question in the present case. This is because the evidence was clear that AIM and IIM were separate entities, and that Mr Rasyid neither held a substantial ownership interest in AIM nor participated at a senior level in the day-to-day management of AIM. To the extent that there was any "joint venture" involving AIM that joint venture involved the activities of IIM in Indonesia.
36. For the above reasons I do not consider that Mr Rasyid's involvement with IIM involved him obtaining a substantial ownership interest in an eligible business in Australia or participating at a senior level in the day-to-day management of such a business.
Moonbay Enterprises Pty Ltd
37. Moonbay is a company incorporated in Australia under the Corporations Act 2001 (Cth), and commenced its registration on 27 September 2006. It was registered for GST on 1 November 2007.
38. Moonbay's accounts for the financial year ended 30 June 2007 were tendered at the hearing before me. They indicate that Moonbay held approximately $100,000 in a bank account, from which it earned net interest of $36 after tax. Its liabilities were a loan for a similar amount from Mr Rasyid. Its total equity was $1,000 of paid up capital and $36 retained profits. Mr Rasyid holds 750 shares, or 75% of the equity, in Moonbay. He is one of the directors of Moonbay, together with his wife and Mr Onie.
39. In his oral evidence Mr Rasyid accepted that Moonbay had not engaged in any transactions between its formation and the cancellation of his visa.
40. On 11 January 2008 Moonbay entered into a Memorandum of Understanding and Buy Back Agreement with Total Designs & Development Pty Ltd trading as M2000 Car Rental. Under that agreement, Moonbay agreed to provide M2000 Car Rental with 20 new Hyundai accent vehicles for a fixed monthly rental for a minimum term of 11 months. At the end of the term M2000 Car Rental agreed to purchase the vehicles. Mr Suherman, the director and owner of M2000 Car Rental, gave evidence confirming this transaction, and indicated that car rental began in March 2008. An invoice and receipt of the rental for April 2008 was also tendered in evidence. Mr Rasyid gave evidence that he paid for the purchase of the vehicles for $250,000 in February 2008. While I note that the payment was made from Mr Rasyid's own account due to some difficulties with internet banking, nothing turns on that for present purposes.
41. While I accept that Mr Rasyid, through his shareholding in Moonbay, held a substantial ownership interest in this business of renting cars to M2000 Car Rental, I am not satisfied that the business was an "eligible business" as defined in s. 134(10) of the Act. I am satisfied that If M2000 Car Rental had not rented the cars it required from Moonbay it would have obtained them from another source. In those circumstances it is difficult to conclude that Moonbay's business created or maintained employment in Australia. Moonbay did not itself engage employees for that purpose and, as M2000 Car Rental would have obtained the vehicles from another source if they had not been provided by Moonbay, the transaction had no effect on the number of employees engaged by M200 Car Rental. There is no evidence that Moonbay's participation in the transaction increased commercial activity and competitiveness within sectors of the Australian economy. None of the other criteria in s. 134(10) of the Act appear to be satisfied.
42. Mr Rasyid's written evidence indicated that it was envisaged that Moonbay would receive fees for executives referred to AIM and IIM by Moonbay. In his oral evidence he indicated that an in-principle fee arrangement had been agreed between the parties but that they were still to "agree and design a fee arrangement". There was no evidence before me of Moonbay having received a fee, or of Moonbay referring persons to AIM or IIM. In those circumstances, it does not seem to me to be possible to describe this arrangement as a business, much less an eligible business.
43. The other arrangement which Moonbay had was a consulting agreement with an Indonesian consulting company called PT Optimus Capital in December 2007. Mr Rasyid indicated that, since the signing of that agreement, Moonbay had provided consulting services and anticipates earning up to $15,000 in fees from that activity. The period over which those fees would be earned was not specified in Mr Rasyid's statement. This was not an issue that was explored by either party in the course of Mr Rasyid's oral evidence.
44. The evidence as to this consulting arrangement with PT Optimus Capital does not establish that it satisfies any of the elements of the definition of "eligible business" in s 134(10) of the Act.
45. For the above reasons I am satisfied that Moonbay's activities since its formation do not constitute an eligible business for the purposes of the Act.
Conclusion
46. I therefore conclude that Mr Rasyid has not at any time since the grant of his visa obtained a substantial ownership interest in an eligible business in Australia or been participating at a senior level in the day-to-day management of such a business. Subject to the operation of s. 134(2) of the Act, my discretion to cancel Mr Rasyid's visa is therefore enlivened.
Genuine Efforts
47. Section 134(2) of the Act prohibits me from cancelling Mr Rasyid's visa if I am satisfied that he has made a "genuine effort" to do the prescribed things and intends to continue to make such genuine efforts. The first question for me to consider is whether Mr Rasyid has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia.
48. In Hook and Minister for Immigration and Citizenship [2007] AATA 1798 at [39] the Tribunal expressed the view that the phrase “genuine effort”, in s 134(2) of the Act, is an ordinary English phrase and should be given its ordinary meaning. In that case the Tribunal expressed its view that the appropriate meaning of that phrase for present purposes, having regard to dictionary definitions, is "endeavour or exertion which is sincere and real". I agree with that observation.
49. In the present case I am not satisfied that the activities which Mr Rasyid and others described in their evidence amounts to the making of a genuine effort to obtain a substantial ownership interest in an eligible business in Australia. Mr Rasyid appears to have had discussion about the possibility of investing in a number of different businesses with a range of people. However, these discussions have never passed beyond their preliminary stages before Mr Rasyid decided against making the investment. Examples given include discussions with Mr Sariaatmadja in relation to an investment in an integrated control system business and with Mr Natalegawa in relation to a restaurant business. While I accept Mr Rasyid's account of these discussions in its entirety, I do not consider that any of the discussions advanced to a point where Mr Rasyid took action which could relevantly be described as genuine efforts to obtain an ownership interest in an eligible business.
50. I also accept that in 2004 Mr Rasyid, together with Mr Mawikere, explored the possibility of establishing a business exporting cars from Perth to Jakarta, and held discussions with car dealerships in Perth and Jakarta. They also experimented by personally purchasing one car each and arranging for the shipment of the vehicles to Jakarta, to ascertain what was involved in the export. However, the car market in Jakarta changed in 2005, so that the profit margin resulting from the price differential between cars in Perth and Jakarta was reduced. The business did not proceed.
51. The effect of Mr Rasyid's evidence was that he engaged in a number of preliminary discussions and had one vehicle exported to Jakarta for his personal use. I do not consider that this activity, whether taken alone or in combination with other discussions, amounts to the making of relevant genuine efforts.
52. Some of the Respondent's closing submissions sought to attack the veracity of Mr Rasyid's evidence, doubted whether some of the meetings ever took place and suggested that Mr Rasyid had merely engaged in a "flurry of activity" after receiving notice of the intention to cancel his visa to avoid that consequence. I do not accept those submissions. However, while I accept the content of Mr Rasyid's evidence I do not consider that the activities which he describes, taken as a whole, were sufficiently strenuous or sustained to amount to relevant genuine efforts.
Exercise of Discretion
53. It is clear that there remains what is sometimes referred to as a "residual discretion" not to cancel a visa if the circumstances warrant such exercise: see Kim v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 38 AAR 304 and Kok and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 579 at [53]. Perhaps a better way of expressing the requirement is that, the discretion to cancel Mr Rasyid's visa having been enlivened, I must consider how the discretion should be exercised.
54. I consider that in all the circumstances of the present case I should exercise my discretion to cancel Mr Rasyid's visa. In my view Mr Rasyid has failed, since first arriving in Australia on the visa in 2004, to either obtain a substantial ownership interest in an eligible business in Australia or make genuine efforts to do so. The failure to comply with that condition of the grant of his visa should prima facie lead to cancellation.
55. I have taken account of the fact that in 2003, at the request of the Indonesian government, Mr Rasyid took a position as Vice President Director with PT Bank Negara Indonesia, a government bank. In 2005 he took a position as President Director/CEO of PT Telekomunikasi Indonesia, a telecommunications company. These appointments effectively precluded Mr Rasyid from actively pursuing a business in Australia at the relevant time. However, there is no suggestion in the evidence than that these commitments were not voluntarily accepted by Mr Rasyid. The fact that Mr Rasyid has concentrated on the pursuit of other opportunities outside Australia may explain why he did not obtain an interest in an eligible business in Australia or make genuine efforts to do so. However, it does not appear to me to provide a ground for refusing to cancel his visa.
56. I have also taken account of the fact that Mr Rasyid has purchased a residential property in Australia, and made investments in Australia. However, the investments which Mr Rasyid has made in Australia will not be lost if his visa is cancelled, and investment of that kind is not the basis on which the visa was granted.
57. I also recognise that Mr Rasyid did not initially seek a subclass 128 visa, and that the suggestion for his application to be dealt with as an application for a business skills visa came from the Respondent's Department. However, in my view having obtained a subclass 128 visa it was incumbent upon Mr Rasyid to comply with the conditions of the grant of that visa. The cancellation of that visa would not prevent Mr Rasyid from seeking a different kind of visa which was more appropriate to his circumstances.
58. Finally, I take account of the fact that Mr Rasyid spent only 51 days in Australia between first entering Australia on the visa on 20 August 2004 and the cancellation of the visa on 7 September 2007. This is not a case where the visa holder has established residence in Australia, so that the cancellation of the visa would not lead to an uprooting of the visa holder's life. That is a factor which counts in favour of the cancellation of the visa.
59. Having regard to all of the above matters, I consider that I should exercise my discretion to cancel the visa.
Decision
60. For the above reasons I would affirm the decision under review.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Ms LR Tovey, Member
Signed: ..sgd T Freeman.....................
AssociateDates of Hearing: 5 and 6 May and 22 August 2008
Date of last Written Submission 7 November 2008
Date of Decision 8 May 2009
Representative for the Applicant Mr P Mugliston and Mr Shakur
Representative for the Respondent Mr S Thackrah
Solicitors for the Applicant Fiocco's Lawyers
Solicitors for the Respondent Mr S Shakur
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