Basuki and Ors and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 630
•21 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 630
ADMINISTRATIVE APPEALS TRIBUNAL )
)No W2002/292-295
GENERAL ADMINISTRATIVE DIVISION ) Re SUJANTO BASUKI
DENNY KUMALA
CHRISTOPHER BRIAN
ALDO ALBERTUS BASUKIApplicants
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr M Allen, Member Date21 June 2004
PlacePerth
Decision The Tribunal decides that the decisions made on 10 July 2002 to cancel the subclass 127 business skills visas held by the applicants are set aside. The visas remain valid and effective.
…...........(sgd M Allen)......................
Member
CATCHWORDS
IMMIGRATION – cancellation of business skills visas – principal applicant has a substantial ownership interest in an Australian company – the business of that company is an eligible business – the principal applicant has actively participated in the senior management of that business – the principal applicant intends to continue to hold a substantial ownership interest in, and be actively involved in the management of, that eligible business – power to cancel visas of principal applicant and his family members does not arise – decisions to cancel visas set aside.
Migration Act 1958 (Cth) s 134
Tillmanns Butcheries Pty Ltd v Australasian Industry Employees Union (1980) 27 ALR 367
Hope v Bathurst City Council (1980) 144 CLR 1
Puzey v Commissioner of Taxation [2003] FCAFC197
Re Jo and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 77
Re Yam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283
REASONS FOR DECISION
21 June 2004 Mr M Allen, Member 1. On 10 July 2002 a delegate of the respondent cancelled the subclass 127 business skills visa held by Sujanto Basuki (“Mr Basuki”) and those held by members of his family unit, namely his wife (“Ms Kumala”) and his two sons (Christopher, then aged 17 years, and Aldo, then aged 15 years). All four visa holders have applied to the Tribunal for review of those decisions.
2. At the hearing of the proceedings all of the applicants were represented by Mr Chong and the respondent was represented by Ms McPherson, a solicitor with the Australian Government Solicitor. The Tribunal received into evidence the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1 – T37 and S1 – S9), Exhibits A1 – A12 tendered by the applicants and R1 tendered by the respondent.
3. Oral evidence was given by Mr Basuki with the assistance of an interpreter in the Indonesian language. Written statements of evidence from Mr Basuki and Ms Kamala were also received into evidence (A4 and A5 respectively).
Background
4. The background to the matter is that Mr Basuki and his family applied for business skills visas in April 1998 and the visas were granted in March 1999. Mr Basuki first entered Australia under his visa on 2 April 1999, Ms Kamala and Christopher first entered Australia on 21 May 1999, and Aldo first entered Australia on 30 May 1999.
5. On 22 November 2001 the respondent’s department sent Mr Basuki a 24 month survey form to be completed and returned. After various rounds of correspondence between the department and Mr Basuki’s representatives, the form was returned to the department under cover of a letter dated 4 March 2002 (received by the department on 5 March 2002) and on 6 March 2002 a delegate of the respondent gave notice of intention to cancel the visas to all the holders by letters dated that day. The notices of intention to cancel invited representations to be made by 16 April 2002 and in April and May 2002 additional information was provided to the department by Mr Basuki’s representatives. As noted above the cancellation decisions were made on 10 July 2002 on the basis that Mr Basuki had not satisfied any of the requirements in s 134(1) of the Migration Act 1958 (“the Act”), nor had he made genuine efforts to satisfy those requirements in accordance with s 134(2) of the Act.
Consideration
6. The respondent’s power to cancel a business visa held by a person such as Mr Basuki is found within s 134 of the Act. Pursuant to s 134(1) a discretionary power to cancel a business visa arises if the respondent is satisfied that the holder of the visa has not satisfied any one of the three matters set out in that sub-section. If the holder has not failed to satisfy any one of the three requirements then no power to cancel arises.
7. In considering the matters specified in s 134(1) I must have regard to evidence of circumstances that existed as at the date of cancellation although, as will be referred to below, I may look at evidence of activities and transactions that occurred after the date of cancellation of the visa to the extent that it is relevant to establish intentions or the likelihood of certain outcomes as at the date of cancellation.
8. Section 134(1)(a) of the Act requires Mr Basuki to have “obtained a substantial ownership interest in an eligible business in Australia”.
9. Mr Basuki claims to have been involved in three businesses in Australia, namely the businesses conducted via three companies named Penta Trade Pty Ltd (“Penta”), which was incorporated on 23 March 2000; Tristar Australia Enterprises Pty Ltd (“Tristar”), which was incorporated on 31 July 2001; and S A Villa Pty Ltd (“Villa”), which was incorporated on 15 February 2002.
Penta
10. In March 2000 Mr Basuki, his three brothers (Phillip, Widung and Effendi), and his brother-in-law (Rudy) each became the owner of one $1.00 share in the capital of Penta. The same 5 people were appointed as the directors of the company at that time. The company gained a tax file number and an Australian business number in June and July 2000 respectively.
11. Mr Basuki’s evidence was that Penta only engaged in one transaction, namely the purchase of 3 valves from a company based in Sydney for a total price of $2,196.66 (T documents page 166). Penta then sold the valves to an Indonesian company, PT Kota Minyak Automation (“PT Kota”), for US$1,264.90, which represented approximately AS2, 456 (T documents page 168).
12. Mr Basuki said that he had no connection with PT Kota. He said that he was trying to break into the Indonesian market for that type of valve, which at the time was dominated by German and Chinese products.
13. The financial statements for Penta for the years ended 30 June 2001 and 2002 were tendered (part of Exhibit A2). The financial statements show sales of $1,772 in 2001 and $3,704 in 2002, and purchases of $9,937 in 2001 and $4,604 in 2002. The company was shown as having “finished goods” on hand at 30 June of $8,350 in 2001 and $9,707 in 2002. The company was also shown as having interest bearing liabilities of $11,492 in 2001, and $17,306 in 2002. Mr Basuki said that these loans were made by him to the company for the purchase of goods in Indonesia. He said that Penta had maintained a small office in his brother’s house in Perth and had paid $3,600 rental for that space in the 2002 year.
Tristar
14. In July 2001 Mr Basuki acquired 40 $1.00 shares in the capital of Tristar, and his brother, Effendi, and brother-in-law, Rudy, each acquired 30 shares. All three became directors of the company. Mr Basuki said that this company was established with the intention of exporting products from Australia to Indonesia and also to engage in other suitable business activities, particularly the development of real estate in Australia.
15. In December 2001 Tristar acquired a property in Applecross at a price of $420,000 with the intention of demolishing the existing house and building a new residence for sale.
16. Between March 2002 and the date of cancellation of the visas in July 2002, Tristar was involved in 4 export transactions. In March and June of that year Tristar purchased speaker cabinets, each to the value of $2,250 from a business in Victoria and onsold them to an organisation in Jakarta known as the Indonesia Music Institute.
17. In April 2002 Tristar purchased steel plate at a cost of $20,259 and onsold the steel to an Indonesian company PT Basuki Pratama Engineering (“PT Basuki”) at a price of $21,271.
18. In June 2002 Tristar purchased 20 kilograms of brazing alloy from a Victorian company at a cost of $5,397 and onsold it to an Indonesian company PT Intertool Wahana (“PT Intertool”) for a price of $6,000.
19. After the cancellation decision Tristar was involved in two further exports of brazing alloys and related goods (sourced from and sold to the same parties as the June 2002 transaction), a further export of steel plate (sourced from and sold to the same parties as the April 2002 transaction); the purchase and export of a centrifugal fan and the export of specialised plastic security products.
20. In June 2002 Tristar sold the Applecross property for the sum of $515,000 without having built a new house on the land.
21. According to the financial statements for Tristar (and disregarding the value of the Applecross property that was bought and sold during the 2 years of these accounts), in the year to June 2002 the company purchased goods for sale to the value of $30,156 and sold goods to the value of $32,271. In the year to 30 June 2003 the company purchased goods for sale to the value of $40,885 and sold goods valued at $43,693.
22. The purchaser of the steel plate from Tristar, PT Basuki, is a company in which Mr Basuki owns 30%. Mr Basuki said that it is a company that was established by his family in 1981 and he had originally owned 75% of it – but 5 or 6 years ago he reduced his interest to 30%, his sister owning the other 70%. PT Basuki’s main business interest involves the making of ovens and dryers of various kinds and for that purpose uses mainly aluminium and stainless steel. The steel plate that was purchased from Tristar was of no use to PT Basuki in its businesses. Rather, Mr Basuki said that PT Basuki’s involvement was merely as a convenience. It cleared all the documentation through Indonesian customs, arranged for the payment of import duties in Indonesia, and stored the steel plate on its premises so that other buyers, arranged by Mr Basuki, could come and inspect it. Mr Basuki said that the steel plate exported in April 2002 was ultimately purchased by an Indonesian steel trader named PT Putreco, a company in which he had no involvement but which he had found as the buyer. PT Putreco preferred to deal with an Indonesian company and for that reason Tristar had not invoiced PT Putreco directly. PT Basuki onsold the steel to PT Putreco taking a 1% margin as commission along the way.
23. Similarly, Mr Basuki said that he owned 10% of PT Intertool, the purchaser of the brazing alloy exported by Tristar. Once again, PT Intertool was not the end purchaser of the product but merely arranged the movement of the goods through customs by virtue of its import licence, and then onsold to an eventual purchaser (who did not have an import licence) found by Mr Basuki. The ultimate purchaser was a company named PT Bintang Agung and once again PT Intertool took a 1% commission on the resale.
24. In the case of the centrifugal fan that was exported in February 2003, again the ultimate buyer was a Mr Sarjono to whom PT Basuki sold for a 1% commission for similar reasons.
25. Mr Basuki said that in November 2002 Tristar’s activities were such that it had decided to rent an office in a building in Risley Street, Booragoon, where secretarial services were provided by the building owner.
Villa
26. Although Villa was incorporated in February 2002, the original shareholders and directors were unconnected at that time with Mr Basuki. According to a business plan contained within Exhibit A1, the primary objective of Villa was to acquire land on which it would develop student accommodation. For that purpose Villa acquired land in East Victoria Park near Curtin University at a price of approximately $500,000 in March or April 2002.
27. Mr Basuki’s evidence was that he had been interested in becoming involved in student accommodation and had discussed the idea with acquaintances in about February 2002 and again a few months later. He subsequently discussed the matter with a Mr Richard Tan, his migration and business adviser, who had introduced him to another consultant, Mr John Hoon. Mr Tan and Mr Hoon had been involved in the original establishment of Villa and invited Mr Basuki to become a shareholder and director. At that stage Villa had 6 or 7 shareholders and had acquired the land in East Victoria Park.
28. In October 2002 Mr Basuki acquired 150,000 shares in Villa at a cost of $150,000 and made a $150,000 loan to the company. Although Mr Basuki’s evidence was that he had acquired a 23% shareholding in the company, it is apparent from the documentation (part of Exhibit A2 and document SB12, which is part of Exhibit A3) that he acquired an 18.18% shareholding in Villa at that time. He also became a director of the company at that time.
29. Mr Basuki said that work had since been done on designing the accommodation to be built on the land and getting quotes for the construction cost. At the time of the hearing of the present proceedings the directors of Villa were not happy with the proposed construction costs and at that stage no final decisions had been made about how to proceed with the proposed development.
30. It is apparent that at the date of cancellation of his business visa Mr Basuki had not acquired an ownership interest in Villa, nor had he participated in the day-to-day management of that company and any business that it may have operated. Accordingly, it is unnecessary to consider further Villa’s position in relation to whether the requirements of s 134 (1)(a) were satisfied.
Does Mr Basuki Have a Substantial Ownership Interest in Penta or Tristar
31. Section 134(10) of the Act provides that an ownership interest in relation to a business relevantly means an interest in the business as a shareholder in a company that carries on the business. There is no dispute that Mr Basuki is a shareholder of Penta and Tristar and, therefore, has an ownership interest in any business that those companies may carry on. Is that interest a substantial one?
32. In Tillmanns Butcheries Pty Ltd v Australasian Industry Employees Union (1980) 27 ALR 367 at 382 Dean J said that “the word ‘substantial’ is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision. In the phrase “substantial loss or damage”, it can, in any appropriate context mean real or of substance, as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in a relative sense or can indicate an absolute significance, quantity or size.” In my opinion, in the context in which it appears in s 134 of the Act, I consider that the word “substantial” is used to indicate both the degree of ownership of a company or a business in the sense of ability to control or manage the business, and also the absolute monetary value of the interest. It must be a degree of ownership of and investment in the business in a relative or value sense that is not insubstantial or nominal. In my opinion, in the context of companies newly incorporated for the purpose of conducting a business, particularly where the balance of the shares are owned by other family members, Mr Basuki’s 20% interest in Penta and 40% interest in Tristar do constitute substantial ownership interests in any business that those companies might conduct.
Do Penta and Tristar carry on an eligible business?
33. The decision of the High Court in Hope v Bathurst City Council (1980) 144 CLR 1 is authority for the propositions that carrying on a business denotes activities for the purpose of profit undertaken on a continuous and repetitive basis, and that a business may be carried on even though it is done in a small way. A Full Court of the Federal court has recently summarised the position (in the context of income tax legislation) as follows in Puzey v Commissioner of Taxation [2003] FCAFC 197 (per Hill and Carr JJ, with French J agreeing):
“46. The question whether a person is carrying on a business is a conclusion to be drawn from all relevant facts and circumstances. There are some relevant propositions which can, however, be stated. First, as was said by Barwick CJ, in Fairway Estates Pty Ltd v Federal Commissioner of Taxation 70 ATC 4061 at 4069 and it is self-evident, every business must have a first transaction. And there may be a business, even if that business is small in scope: cf Thomas v Federal Commissioner of Taxation (1972-3) 46 ALJR 397 at 401 with Hope v Bathurst City Council (1980) 144 CLR 1 at 10. A person may carry on a business, notwithstanding that the person had some other activity, such as full time employment. It is not necessary in concluding that a business is carried on that the acts to be undertaken are acts of the person seeking to establish he or she is carrying on a business. So a person may appoint another to take the steps which constitute the business activity: Ferguson v Federal Commissioner of Taxation (1979) 26 ALR 307 at 319 and, at least if the facts in Commissioner of Taxation v Lau at 218 involved a business, that case is another example.
47. It will be relevant in deciding whether a business is carried on that there is some repetition of acts and that the activities in question have “something of a permanent character”; Hope per Mason J at 8. What is required is that activities be engaged upon “on a continuous and repetitive basis”; Hope ibid at 9. However, perhaps not too much attention should be given to the concept of repetition where the activity is one, such a plantation operation, where the activity will continue over a relatively long period of time but where there will be significant periods of what may be referred to as inactivity. Business does not mean being busy.
48. In deciding whether or not a business is carried on courts have pointed to what have been called in the United Kingdom the “badges of trade,” indicia which, while no one of them will be determinative of whether a business is carried on, collectively will demonstrate a business. These include the profit motive (although a non profit company may still carry on a business), acting in a business like way, (although many businesses may be found which operate in a non-business like way), the keeping of books of account and records, (although the fact that there are none will not necessitate the conclusion that a business is not carried on) and repetition (although a fixed term project may still be a business).”
34. In relation to Penta, I accept Mr Basuki’s evidence that he and his brothers intended to establish a business via that corporate vehicle. Nevertheless, the company appears to have only ever entered into one transaction of a very small value that Mr Basuki was aware of. Although I accept that every business must have a first transaction and that size alone will not be a determining factor, I conclude that the lack of repetition and permanence means that Penta never reached the point where it could be said that it was carrying on a business in any meaningful way. Accordingly, I conclude that Penta did not carry on a business in Australia at all and it could not be an eligible business.
35. The same cannot be said about Tristar. It is clear that the company was established by Mr Basuki and his brothers for the purpose of conducting a business and a number of transactions have occurred both prior to and after the date of cancellation of the visa. The company has maintained financial records and has the general indicia of a business. Accordingly, I conclude that at the date of cancellation Tristar did conduct a business in Australia. It follows, and I so find, that Mr Basuki had acquired a substantial ownership interest in the Australian business conducted by Tristar at the date of cancellation of his visa. The next question to be answered is whether that business was an eligible business for the purposes of s 134(1)(a) of the Act.
36. Section 134(10) of the Act provides that an “eligible business” means a business that the Minister “reasonably believes is resulting or will result in one or more of the following:
(a) the development of business links with the international market;
(b) the creation or maintenance of employment in Australia;
(c) the export of Australian goods or services;
(d)the production of goods or the provision of services that would otherwise be imported into Australia;
(e)the introduction of new or improved technology to Australia;
(f)an increase in commercial activity and competitiveness within sectors of the Australian economy.”
37. The respondent’s department has issued policy instructions concerning business visas known as “Migration Series Instruction 133” (“MSI 133”). Paragraph 4.3.2 of MSI 133 refers to eligibility being related to “the achievement of stated objectives through the activities of the business, not directly to the size or scale of the business.” Paragraph 4.3.3 states that the eligible business definition “… may be met by a business whose activities come within the definition although the business may be small. There is no requirement in law for the activities to be on any particular scale; it is sufficient for the business to demonstrate that its activities have achieved one of the stated objectives.” Such statements of opinion are not binding on me, but in my opinion they represent fairly the correct interpretation of s 134(10) in this context.
38. Significantly, in my opinion, the provisions of s 134(10) and MSI 133 indicate that no particular scale of the nominated outcomes is required. In my opinion that does not mean, however, that a business (genuinely so called) that achieved one of the outcomes in a purely nominal way – such as a single export of nominal value – would be sufficient.
39. Having regard to the outcomes referred to in [36] above and the evidence concerning the business activities of Tristar, I conclude that factors (d) and (e) are not relevant to this case. In relation to factors (b) and (f) there is no evidence before me that would permit a conclusion that Tristar’s export activities would involve the direct creation or maintenance of employment in Australia, or any increase in commercial activity or competitiveness within sectors of the Australian economy. Given the relatively small value of the goods exported by Tristar any indirect achievement of those outcomes would be nominal, in my opinion.
40. In relation to factor (a), I accept the evidence of Mr Basuki that the Indonesian companies with which he is associated were not the ultimate purchasers of the goods exported. I accept that the goods were sold to unrelated parties and to that extent I find that the export activities of Tristar have resulted in the development of business links with overseas purchasers of Australian goods.
41. In relation to factor (c), it is clear that prior to the date of cancellation, and more extensively thereafter, Tristar did export Australian goods. Although the quantity and value of the goods exported had not been great by the time of cancellation there had been several transactions and there was, in my opinion, reason to expect (as in fact eventuated), that they would continue. The scale of activity was not, in my opinion, nominal, the stated objective was achieved, and there was reason to expect that it would continue to be achieved. I am satisfied that at the time of cancellation Tristar had, and expected to continue to, export Australian goods. I am therefore satisfied that the business was an eligible business.
42. It follows from the above that the power to cancel Mr Basuki’s visa did not arise because of a failure to satisfy s 134(1)(a) of the Act. I must, therefore, consider whether Mr Basuki satisfied s 134(1)(b), which requires that he must be “utilising ... his skills in actively participating at a senior level in the day-to-day management” of the eligible business conducted by Tristar.
Was Mr Basuki involved in the management of Tristar?
43. Mr Basuki gave evidence that as the largest shareholder and the most experienced businessman of the three directors, he played a role of Managing Director in relation to Tristar. He agreed that both his brother Effendi and his brother-in-law Rudy are experienced businessmen in their own right and that they each held a business skills visa and would rely, at least to some extent, on their involvement in Tristar to satisfy their requirements regarding those visas. However, Mr Basuki said that Rudy had spent most of his time in Indonesia prior to the cancellation of Mr Basuki’s visa.
44. Mr Basuki said that he was happy to leave much of the day-to-day administration of Tristar’s affairs to his sister and Rudy. This consisted of such matters as contacting suppliers of the Australian goods, arranging the documentation for the export transactions, attending to banking matters and liaising with the company’s accountants for the preparation of periodic returns to the Australian Taxation Office and the preparation of annual financial statements. However, because he (ie Mr Basuki) is the most experienced of the group and because he has greater contacts in Indonesia with potential customers, his role was more important than that played by the other participants in the management of Tristar. Specifically, Mr Basuki said that it was his role to identify Australian products that may be of interest to Indonesian buyers and to find those buyers from amongst his many business contacts in Indonesia.
45. Mr Basuki said that he was not involved to a great extent in the management of the Indonesian companies with which he is associated. Although he owned 30% of PT Basuki, that company is essentially managed by another director and a manager and Mr Basuki said that he would spend only about one or two hours a day on the affairs of PT Basuki. Mr Basuki said that he spent about 30 hours a week on the affairs of his Australian company, a large part of which was made up of travel within Indonesia. He said that in a typical week he would make two or three visits to a customer or potential customer, and he travelled to the city of Bandung about once a week and to the cities of Surabaya and Semara about twice a month each.
46. Mr Basuki said that he had liaised closely over the relevant time with a Mr Fisher from the Australian Trade Commission’s office in Jakarta and he had attempted to negotiate an agency arrangement with a major Australian electrical appliance company, and also the purchase of an Australian business based in Sydney that made audio speakers. Neither of those transactions had eventuated.
47. Mr Basuki agreed that much of the documentation relating to Tristar’s export transactions and general administration were signed by, or referred to his brother-in-law or his sister, that being consistent with their role in the administrative management of the company.
48. Mr Basuki said that when he was in Australia he did involve himself in the affairs of Tristar. By way of example he referred to attending an onsite meeting at the Applecross property with a designer, who had been retained to design a residence to be built on the property.
49. For the reasons that I gave in Re Jo and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 77 at [35], I consider that a business can be managed and strategically directed from almost anywhere in the world and that management input at a senior level by an experienced business person will often be intangible, and may involve ideas and planning, as much as researching products, securing orders and suppliers and transacting shipping. I agree also with the comments of Senior Member Dwyer and Member McLean in Re Yam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283 at [95] that a business may be successfully run without necessarily requiring daily management. What is required is that there be sufficient management for the needs of that specific business.
50. In the case of Tristar, the picture that has been painted, and which on the evidence I accept, is of a business that has been established for the purpose of exporting Australian products to Indonesian buyers and that, although several experienced business people are involved, Mr Basuki has played a senior role in the strategic direction of that company. He is obviously an experienced and successful businessman in Indonesia and I accept that he has many contacts with people who might reasonably be expected to purchase Australian products. I accept that Mr Basuki has been predominantly involved in the identification of Australian products and finding Indonesian buyers for those products. In my opinion that has been a sufficient degree of involvement on a regular basis in the senior management needs of Tristar’s eligible business. In these circumstances I find that Mr Basuki has not failed to satisfy the requirements of s 134(1)(b) of the Act, and the power to cancel his visa does not arise under that provision.
51. The third limb of s 134(1), namely paragraph (c), which relevantly requires Mr Basuki to “intend to continue to hold a substantial ownership interest in, and actively…[participate] at a senior level in the day-to-day management of, an eligible business in Australia”.
52. On the evidence before me it is apparent that Mr Basuki did continue to hold his ownership interest in Tristar after the date of cancellation of his visa and Tristar did continue to undertake export transactions of the kind that it had undertaken prior to the cancellation. In my opinion those continued activities were in no small part due to Mr Basuki’s continuing efforts on behalf of the company.
53. In addition to that, Mr Basuki gave evidence that he did intend to continue operating a business in Australia and that he expected to spend greater periods of time in this country as his business activities here expanded. He had bought a house with his brother-in-law but he did not expect his family would live in that house. He anticipated that his family would purchase another home in due course in this country.
54. In my opinion, at the time of cancellation of his visa, Mr Basuki did intend to continue to be involved in the ownership and management of Tristar, and other businesses such as that to be conducted by Villa, which he subsequently became involved in. In my opinion Mr Basuki did not fail to satisfy the requirements of s 1324(1)(c).
55. For the reasons expressed above I am satisfied that Mr Basuki did not fail to satisfy any of the provisions of s 134(1) and, accordingly, the power to cancel his visa did not arise. The decision in relation to Mr Basuki’s visa must, therefore, be set aside.
56. In relation to the visas held by the members of Mr Basuki’s family, the power to cancel their visas under s 134(4) of the Act arises only if Mr Basuki’s visa is cancelled under s 134(1). In view of my conclusions regarding the position of Mr Basuki, the power to cancel the visas of the other applicants does not arise, and the decisions made to cancel their visas must also be set aside.
57. My decision is that the decisions made on 10 July 2002 to cancel the business visas held by the four applicants are set aside. The visas remain valid and effective.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Allen, Member
Signed: ........................(sgd V Wong)....................
AssociateDate/s of Hearing 22-23 September 2003
Date of Decision 21 June 2004
Counsel for the Applicant Mr ChongCounsel for the Respondent Ms McPherson, Australian Government Solicitor
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