Budiman and Minister for Immigration and Multicultural Affairs
[2006] AATA 647
•21 July 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 647
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2005/206
GENERAL ADMINISTRATIVE DIVISION ) Re TJANDRA BUDIMAN Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Deputy President S D Hotop Date21 July 2006
PlacePerth
Decision The Tribunal affirms the decision under review.
.......(Sgd S D Hotop)...........
Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Business Skills visa – applicant obtained substantial ownership interest in eligible business in Australia – applicant has not utilised his skills in actively participating at senior level in day-to-day management of that business or made a genuine effort to do so – discretionary power to cancel applicant’s visa thereby enlivened – relevant considerations on balance favour cancellation of applicant’s visa – applicant’s visa should be cancelled – decision under review affirmed
Migration Act 1958 (Cth) s 134
Re Yam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283
REASONS FOR DECISION
21 July 2006 Deputy President S D Hotop Introduction
1. Tjandra Budiman (“the applicant”), a citizen of Indonesia, was granted a Business Skills (Subclass 127 – Business Owner) visa by a delegate of the Minister for Immigration and Multicultural Affairs (“the respondent”) under s 65 of the Migration Act 1958 (Cth) (“the Act”) on 29 January 2002. By reason of that visa, being a “permanent visa”, the applicant was permitted to remain in Australia indefinitely: see s 30(1) of the Act. The applicant first entered Australia on 19 February 2002.
2. On 23 May 2005, however, a delegate of the respondent cancelled the applicant’s visa under s 134(1) of the Act. By letter of the same date the delegate notified the applicant of that decision.
3. The applicant has applied to the Tribunal for a review of the delegate’s decision.
The Issues and the Tribunal’s Determination
4. The general issues for the Tribunal’s determination are whether any of the alternative grounds prescribed by s 134(1) of the Act (set out in paragraph 6 below) for the cancellation of the applicant’s visa is or are satisfied in this case, and, if so, whether his visa should be cancelled under that subsection.
5. For the reasons which follow the Tribunal has determined that a ground for cancelling the applicant’s visa under s 134(1) of the Act is satisfied in this case, and that his visa should be cancelled under that subsection.
The Relevant Legislation
6. Section 134 of the Act relevantly 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.
(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.
(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 (sic) 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).
...
(10) In this section:
...
eligible business means a business that the Minister reasonably believes is resulting or will result in one or more of the following:
(a)the development of business links with the international market;
(b)the creation or maintenance of employment in Australia;
(c)the export of Australian goods or services;
(d)the production of goods or the provision of services that would otherwise be imported into Australia;
(e)the introduction of new or improved technology to Australia;
(f)an increase in commercial activity and competitiveness within sectors of the Australian economy.
...
ownership interest, in relation to a business, means an interest in the business as:
(a) a shareholder in a company that carries on the business; or
(b) a partner in a partnership that carries on the business; or
(c) the sole proprietor of the business;
including such an interest held indirectly through one or more interposed companies, partnerships or trusts.
...”
The Evidence
7. The evidence before the Tribunal comprised oral and documentary evidence presented by the applicant, and the “T Documents” (T1-T63, pp 1-434) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth).
The applicant’s evidence
8. The applicant gave the following evidence-in-chief.
9. When he arrived in Australia he purchased a house in Perth (which he still owns) and began investigating business opportunities in Australia. He has returned to Australia more than 12 times since 2002 in order to look for business opportunities.
10. On 26 August 2002 he and two business associates incorporated Riverglen Holdings Pty Ltd (“Riverglen”). He invested $150,000, and acquired a 22% shareholding, in Riverglen. He also became at that time, and continues to be, a director of Riverglen.
11. The nature of Riverglen’s business activity is property development and his role is to identify suitable land sites for property development, negotiate building prices, and monitor the progress of the property developments until completion.
12. In August 2002 Riverglen purchased land in Mt Pleasant, Western Australia, for $530,000 with the intention of building two houses on that land. During the initial stage of obtaining building approval, however, he and the other directors of Riverglen accepted an offer of $625,000 for the property and it was sold for that amount in March 2003.
13. In May 2003 Riverglen purchased land in Victoria Park, Western Australia, for $490,000 with the intention of building four 2-storey townhouses on that land. Riverglen appointed a property consultant at a local real estate agency to look after that project and the applicant kept in contact with that property consultant on a regular basis. Riverglen subsequently entered into contracts with a building company for the building of the townhouses, but when he was notified of the cancellation of his visa in May 2005 he decided, because of the uncertainty of his future in Australia, to cancel the project, thereby incurring a penalty payment of $56,000 to the building company. Riverglen subsequently sold that property for $670,000 in December 2005.
14. In November 2003 Riverglen purchased a development site of 1.8 hectares in Beckenham, Western Australia, for $595,000 with the intention of building 19 houses on that land. Although it is still intended to proceed with that development, no action has yet been taken because of the uncertainty regarding the applicant’s future in Australia.
15. Riverglen is presently planning to export automotive products (specifically, a wool product for cleaning and polishing motor vehicles) from Australia to Indonesia. He owns a Suzuki motor vehicle dealership in Indonesia and he intends to use the product in his business and to sell it to other automotive and panel beating businesses in Indonesia. Riverglen made one “test export” of the product in 2005 and that was “successful”.
16. In 2003 he subscribed for, and was allotted, a 21% shareholding in Sanstar Corporation Pty Ltd (“Sanstar”) which was incorporated in Western Australia. He was appointed as a director of Sanstar and he was commissioned to conduct a feasibility study into the purchasing of “Pure & Natural” and “Subway” franchises. These franchise proposals, however, did not proceed because he regarded property development as a more profitable business activity. Sanstar recently purchased premises in a suburban shopping centre and leased those premises to Australia Post. Because of the uncertainty of his future in Australia he sold his shareholding in Sanstar in April 2006 but he may rejoin Sanstar in the future if his resident status in Australia is restored.
17. On 6 November 2003 he invested $20,000 in Goldmont Corporation Pty Ltd (“Goldmont”) which was incorporated in Western Australia in August 2002. He acquired a 20% shareholding in, and was appointed as a director of, Goldmont on 6 November 2003.
18. Goldmont’s existing business activity is the export of Australian-made confectionaries to Indonesia, and it is proposed also to export Australian wine to Indonesia in the future. The applicant’s role in Goldmont is to identify buyers in Indonesia and to research the Indonesian market for the distribution of Australian-made foods and wine. He has had regular meetings with his brother-in-law (a fellow director of, and shareholder in, Goldmont) and they have discussed potential clients in Indonesia and Australian-made products that are in demand in Indonesia.
19. In the year ended 30 June 2003 Goldmont exported to Indonesia chocolate-coated macadamia nuts and other food products worth $23,493. In the period from July 2003 to December 2003 Goldmont exported a further 4 or 5 shipments of Australian-made confectionaries to Indonesia, and there have since been further shipments.
20. The financial statements regarding Goldmont indicate that:
·in the year ended 30 June 2003 total trading income was $23,493, gross trading profit was $2,150, and total net assets amounted to $2,296;
·in the year ended 30 June 2004 total trading income was $201,475, gross trading profit was $18,390, and total net assets amounted to $9,065;
·in the year ended 30 June 2005 total trading income was $63,782, gross trading profit was $6,027, and total net assets amounted to $11,560. (T33, pp 147-156, Exhibit A2)
21. Goldmont has been selling Australian-made confectionaries to a duty-free shop (“Plaza Bali”) in Jakarta and Bali. After a slow start, Goldmont’s export business improved substantially in the second year, but in the third year it declined because of the decline in tourism in Bali and the high value of the Australian dollar.
22. He intends to maintain his involvement in Riverglen and Goldmont and to continue to expand the business activities of those companies. He also intends to look for other business opportunities in Australia.
23. His daughter, Juliana, is studying marketing and advertising at Curtin University, and she lives in his house in Perth. He expects that she will complete her degree course in 2006.
24. In cross-examination the applicant gave the following evidence:
·he is actively involved in running 2 businesses – namely, an automotive business and a property development business – in Indonesia, and he spends approximately 60 hours per week on those businesses which are his main source of income;
·in the period from 19 February 2002 (when he first entered Australia) to 23 May 2005 (when his visa was cancelled), he had spent 151 days in Australia;
·Riverglen does not employ anyone in Australia;
·as regards Goldmont’s export business activities, although he became a shareholder and director of that company in November 2003, he had previously assisted his brother-in-law (one of the company’s founding directors) in developing the company’s business of selling Australian-made confectionary to Plaza Bali duty free shops in Indonesia;
·after the successful establishment of that business relationship between Goldmont and Plaza Bali, his brother-in-law invited him to join Goldmont and to take charge of the company’s selling operations;
·he acted as Chairman of meetings of the Board of Directors of Goldmont on 20 January 2003 and 15 May 2003 (at the invitation of his brother-in-law before he himself became a director) and on 22 December 2004 and 26 February 2005, and all of those meetings were held in Jakarta, Indonesia;
·Goldmont employs one person in Australia for the purpose of arranging shipments of goods to Indonesia;
·he does not intend to sell his Indonesian businesses;
·he may move to Australia in the future if his Australian businesses become sufficiently profitable, but he presently has no definite plans to move to Australia.
Additional evidence
25. The “T Documents” contain voluminous documentation verifying the incorporation of Riverglen and Goldmont, containing details of the directors and shareholders of those companies, and evidencing the abovementioned business activities of those companies.
Analysis and Findings
26. The respondent concedes that:
·the applicant obtained, and at all material times held, a “substantial ownership interest” in Riverglen and Goldmont, for the purposes of s 134(1)(a) of the Act;
·the business carried on by Goldmont was, at all material times, an “eligible business in Australia”, for the purposes of s 134(1)(a) of the Act.
In the Tribunal’s opinion, having regard to the evidence before it, each of those concessions was rightly made.
27. As regards the former matter, the Tribunal finds, on the basis of the evidence before it, that the applicant, as at the date of cancellation of his visa, held, and presently holds, a 22% shareholding in Riverglen and a 20% shareholding in Goldmont, and that each of those shareholdings constitutes a “substantial ownership interest”, for the purposes of s 134(1)(a) of the Act, in the relevant company.
28. As regards the question whether the business carried on by Goldmont was, at all material times, an “eligible business in Australia”, for the purposes of s 134(1)(a) of the Act, the Tribunal is satisfied, on the basis of the evidence before it, and finds, that that business was, at all material times, an “eligible business” (as defined in s 134(10) of the Act) in Australia in that it constituted a business that was resulting in the export of Australian goods (see para (c) of the abovementioned statutory definition of the expression “eligible business”).
29. The matters which remain in dispute between the parties, as regards s 134(1) of the Act, are whether, as at the date of cancellation of the applicant’s visa (namely, 23 May 2005):
· the business carried on by Riverglen was an “eligible business”;
· the business carried on by Sanstar was an “eligible business”;
·the applicant was “not utilising his... skills in actively participating at a senior level in the day-to-day management of” an “eligible business in Australia”.
Was the business carried on by Riverglen an “eligible business”?
30. The expression “eligible business” is exhaustively defined in s 134(10) of the Act (set out in paragraph 6 above). As regards the criteria specified in paragraphs (a)-(f) of that statutory definition, the Tribunal, on the basis of the evidence before it, is not satisfied that any of those criteria was fulfilled in the case of Riverglen. More specifically:
·as regards the criterion specified in para (b), the applicant’s evidence was that Riverglen does not employ any person in Australia, and there is no evidence before the Tribunal that, at the relevant time, Riverglen’s business was resulting, or would result, in the creation or maintenance of employment in Australia;
·as regards the criterion specified in para (c), the Tribunal notes that the minutes of meetings of the Board of Directors of Riverglen held in the period from 17 March 2003 to 15 February 2005 (T44, pp 239-247) refer exclusively to property development and property investment and do not mention the present or future export of any Australian goods or services, and there is no documentary evidence before the Tribunal that, as at 23 May 2005, Riverglen’s business was resulting, or would result, in the export of Australian goods or services.
As regards the latter criterion, the Tribunal notes the applicant’s oral evidence that Riverglen is presently planning to export a wool product for cleaning and polishing motor vehicles from Australia to Indonesia and that one “test export” of the product (which was “successful”) occurred in 2005, but the Tribunal is not satisfied, on the basis of that evidence, that the criterion specified in para (c) was fulfilled as at 23 May 2005. It was not suggested by the applicant that any of the other criteria – namely, those specified in paras (a), (d), (e) and (f) – was fulfilled in the case of Riverglen.
31. The Tribunal finds, therefore, that, as at 23 May 2005, the business carried on by Riverglen was not an “eligible business” for the purposes of s 134(1)(a) of the Act.
Was the business carried on by Sanstar an “eligible business”?
32. There is no evidence before the Tribunal that, at any material time, any of the criteria specified in paras (a)-(f) of the statutory definition of the expression “eligible business” was fulfilled in the case of Sanstar.
33. Accordingly, the Tribunal finds that, as at 23 May 2005, the business carried on by Sanstar was not an “eligible business” for the purposes of s 134(1)(a) of the Act.
Was the applicant “not utilising his... skills in actively participating at a senior level in the day-to-day management of” an “eligible business in Australia”?
34. It necessarily follows from the abovementioned findings that neither Riverglen’s business nor Sanstar’s business was, at the relevant time, an “eligible business” for the purposes of s 134(1)(a) of the Act, that, as regards Riverglen and Sanstar, the applicant was “not utilising his... skills in actively participating at a senior level in the day-to-day management of” an “eligible business in Australia”, for the purposes of s 134(1)(b) of the Act, and the Tribunal so finds.
35. As regards Goldmont’s business – which was, at the relevant time, an “eligible business in Australia” – the question whether the applicant, as at 23 May 2005, was “not utilising his... skills in actively participating at a senior level in the day-to-day management of that business”, for the purposes of s 134(1)(b) of the Act, necessarily arises.
36. According to the evidence before the Tribunal, the applicant has been a director of, and a 20% shareholder in, Goldmont since 6 November 2003, and he was the chairman of meetings of the Board of Directors on 20 January 2003 and 15 May 2003 (before he himself became a director), and 22 December 2004 and 26 February 2005 (after he became a director). The minutes of those meetings (T41, pp 193-196) – which, the Tribunal notes, are the only minutes of such meetings which are in evidence before it – contain only the following references to the applicant’s activities:
·20 January 2003 – “Mr Budiman suggested that the company should approach Indonesian and Singapore Foods importer to appoint us as their purchasing agent in Australia. The Board has agreed to appoint Mr Liem to carry out the task.” (sic)
·15 May 2003 – “Mr Budiman recommend the Board to look at the possibility of exporting other products such as Australian honey, beef and lamb through the company’s business network in Indonesia and Singapore. The Board has agreed to appoint Mr Sidjono to research about the market condition.” (sic)
·26 February 2005 – “Mr Budiman recommended that the company should employ one full time staff to assist the company in sourcing for Australian food products for export to Indonesia and Singapore. The Board has agreed to appoint Mr Budiman to carry out the task.”
The Tribunal also notes that all of the abovementioned meetings of the Board of Directors were held in Jakarta, Indonesia, although the Tribunal accepts that, for the purposes of s 134(1)(b) of the Act, the required active participation at a senior level in the day-to-day management of the relevant eligible business need not take place exclusively, or even substantially, in Australia.
37. According to the abovementioned minutes, the only relevant activity to be conducted by the applicant after he joined Goldmont related to the “sourcing for Australian food products for export to Indonesia and Singapore”. There is, however, no evidence before the Tribunal regarding any specific activities conducted by the applicant as a director of Goldmont for the abovementioned purpose or, indeed, in relation to the day-to-day management of Goldmont’s business. The Tribunal accepts the applicant’s evidence that he had previously assisted his brother-in-law (one of Goldmont’s founding directors) in developing the company’s business of selling Australian-made confectionary to a buyer in Indonesia, but it notes that that activity occurred at a time when the applicant was not a director, an officer or a member of Goldmont.
38. In the Tribunal’s opinion, the evidence before it falls far short of establishing that the applicant had, prior to and/or as at 23 May 2005, been “actively participating at a senior level in the day-to-day management of” Goldmont’s business.
39. Accordingly, the Tribunal, having regard to the whole of the evidence before it, is satisfied that, at all material times, the applicant was “not utilising his... skills in actively participating at a senior level in the day-to-day management of” Goldmont’s business, for the purposes of s 134(1)(b) of the Act.
40. It follows from the abovementioned findings that the Tribunal also finds that, as at 23 May 2005, the ground specified in para (b) of s 134(1) of the Act for cancelling the applicant’s visa was satisfied in this case, and that the discretionary power conferred by s 134(1) to cancel that visa is thereby enlivened.
Is the exercise of the discretionary power to cancel the applicant’s visa prohibited by s 134(2) of the Act?
41. Pursuant to s 134(2) of the Act, if the Tribunal is satisfied that, as at 23 May 2005, the applicant fulfilled the requirements specified in paras (a), (b) and (c) of that subsection, it “must not” cancel his visa pursuant to s 134(1) of the Act.
42. The Tribunal has found (see paragraphs 27 and 28 above) that the applicant in fact obtained, and held as at 23 May 2005, and presently holds, a “substantial ownership interest” in Goldmont, and that Goldmont’s business was, at all material times, an “eligible business in Australia”. It necessarily follows a fortiori from those findings that the Tribunal is satisfied that the applicant fulfilled the requirement specified in para (a) of s 134(2) of the Act.
43. The Tribunal, on the other hand, has also found (see paragraph 39 above) that, at all material times, the applicant was “not utilising his... skills in actively participating at a senior level in the day-to-day management of” Goldmont’s business. The question arises, however, whether the Tribunal is satisfied, for the purposes of para (b) of s 134(2) of the Act, whether the applicant, as at 23 May 2005, had “made a genuine effort” to do so.
44. Section 134(3) of the Act (set out in paragraph 6 above) lists (non-exhaustively) matters that may be taken into account in determining whether a person has made the “genuine effort” referred to in s 134(2). Departmental policy guidelines regarding the matters listed in s 134(3) are contained in the Migration Series Instructions – specifically, in “MSI-133: Visa Cancellation under Subdivision G – Cancellation of Business Visas”, which relevantly states:
“4.5 What is ‘genuine effort’?
4.5.1 If, after 24 months, a migrant is not in business, he/she must establish that a ‘genuine effort’ has been made to engage in business since arrival. The Minister must assess ‘genuine effort’. S 134(3) of the Act lists any or all of the factors which the Minister may take into account:
...
[Notes referring to factors listed above. Decision makers may take account of these notes to guide them in interpretation of 4.5.1.
a.business proposal which is considered genuine, realistic and achievable;
b.formal contract with partners or joint venturers;
c.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.physical presence in Australia for more than six months since first arrival as a Business Skills class migrant;
e.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.minimum A$100,000 or 10% ownership previously held by the person. If the person is no longer in business, the reasons for loss of ownership are also relevant.
g.minimum A$100,000 business activity as indicated by turnover. This may include other business activity not considered ‘eligible business’ but cannot include passive investment, eg, purchase of shares.
h.failure to comply with a notice for information under s 137, ie mandatory monitoring of Australian address and return of survey forms.]
4.5.2 While failure to meet one or more of these indicators may normally lead to a visa being cancelled, it will not necessarily mean that a visa will be cancelled. The decision maker must give weight to all relevant factors in a case (of which those set out in subsection 134(3) above may only be some) and reach a decision on that basis. For example, while the factors listed in 4.5.1 above may be indicative of ‘genuine effort’, lack of them will not necessarily be decisive. The decision maker must decide, on the ordinary meaning of the words, whether the visa holder has made a ‘genuine effort’. A decision maker may still decide not to exercise the discretionary power to cancel the business visa even if it is assessed that no genuine effort has been made.”
Although these guidelines are not binding on the Tribunal, it will have regard to them where relevant.
45. In Re Yam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283 the Tribunal (at para 53) expressed the following views regarding the concept of “genuine effort” for the purposes of s 134(2) of the Act:
·the relevant visa holder must himself or herself have made some real or genuine effort;
·the degree of effort made must be beyond that which is purely superficial or token;
·relevant efforts may suffice for the purposes of s 134(2) even if they fall short of the matters specified in s 134(3).
These views have subsequently been adopted by the Tribunal in various cases and are adopted by the Tribunal in the present case. The Tribunal would simply add that, in its opinion, the phrase “genuine effort” is an ordinary English phrase and that the appropriate ordinary English meaning of that phrase for present purposes is “real and sincere endeavour or attempt”.
46. The evidence before the Tribunal regarding the applicant’s activities in relation to the business of Goldmont was referred to in paragraphs 36-37 above, and the Tribunal has found, having regard to that evidence, that, at all material times, the applicant was “not utilising his... skills in actively participating at a senior level in the day-to-day management of” that business, for the purposes of s 134(1)(b) of the Act. That evidence is, furthermore, insufficient to satisfy the Tribunal that, in the period up to 23 May 2005, the applicant had “made a genuine effort to utilise his... skills in actively participating at a senior level in the day-to-day management of” that business, for the purposes of s 134(2)(b) of the Act. In this connection the Tribunal notes that, in the period of over 3 years from 29 January 2002 (when the applicant was granted the visa) to 23 May 2005 (when the visa was cancelled), the applicant spent only 151 days in Australia. There is very little evidence before the Tribunal regarding how the applicant occupied his various visits to Australia in that period but the Tribunal is prepared to infer from the evidence before it that, as regards Riverglen and Goldmont, he devoted substantially more of that time to the business of Riverglen than he did to the business of Goldmont. As regards the applicant’s presence in Indonesia, his evidence was that he spends 60 hours per week on his Indonesian business interests. There is, in short, insufficient evidence before the Tribunal from which it might reasonably infer that the applicant has “made a genuine effort to utilise his... skills in actively participating at a senior level in the day-to-day management of” Goldmont’s business.
47. Having regard to the whole of the evidence before it and to such of the abovementioned considerations and guidelines which it regards as relevant, the Tribunal is not satisfied that the applicant has, at any time, “made a genuine effort to utilise his... skills in actively participating at a senior level in the day-to-day management of” Goldmont’s business, for the purposes of s 134(2)(b) of the Act.
48. For the sake of completeness, the Tribunal adds that it is likewise not satisfied that the applicant has, at any time, “made a genuine effort to utilise his... skills in actively participating at a senior level in the day-to-day management of” the business of Riverglen or of Sanstar, for the purposes of s 134(2)(b) of the Act. In the case of Sanstar, there is no evidence before the Tribunal on the basis of which it could be so satisfied. In the case of Riverglen, however, there is some evidence before the Tribunal – namely, the applicant’s oral evidence that Riverglen is presently planning to export a wool product for cleaning and polishing motor vehicles from Australia to Indonesia and that one “test export” of the product (which was “successful”) occurred in 2005 – which may indicate that the business of Riverglen may, on the basis of its proposed export of Australian goods, develop into an “eligible business” for the purposes of subss (1) and (2) of s 134 of the Act (see para (c) of the definition of the expression “eligible business” in s 134 (10) of the Act). The Tribunal has nevertheless found (see paragraph 31 above) that, as at 23 May 2005, Riverglen’s business was not an “eligible business” for the purposes of s 134(1)(b) of the Act. The Tribunal is likewise not satisfied, on the basis of the abovementioned evidence regarding Riverglen’s planned export activity, that, as at 23 May 2005, the applicant had made a “genuine effort” to develop Riverglen’s business into an “eligible business”: see Yam (above) at para 55.
49. Having regard to the aforementioned conclusions regarding the requirement specified in para (b) of s 134(2) of the Act, it is unnecessary for the Tribunal to consider the requirement specified in para (c) of s 134(2).
50. Because the Tribunal is not satisfied that, as at 23 May 2005, the applicant fulfilled the requirement specified in para (b) of s 134(2) of the Act, it necessarily follows that s 134(2) of the Act does not operate to prohibit the exercise of the discretionary power, conferred by s 134(1) of the Act, to cancel the applicant’s visa.
Should the applicant’s visa be cancelled in exercise of the discretionary power conferred by s 134(1) of the Act?
51. The only additional matter specifically raised by the applicant for the Tribunal’s consideration in the exercise of its residual discretion whether or not to cancel the applicant’s visa was the fact that his daughter, Juliana, is presently in her final year of full-time university study in Perth. It was submitted that the cancellation of the applicant’s visa – necessarily resulting in the cancellation of Juliana’s visa (held by her as a member of the applicant’s family unit) – would interfere with her final year of study and thereby cause her hardship. The Tribunal notes that it was not submitted that visa cancellation would result in extreme hardship to Juliana; nor did she herself make an application to the Tribunal for review of the relevant decision on that basis.
52. The Tribunal accepts that cancellation of Juliana’s visa would result in some hardship to her, although the extent of that hardship is difficult to estimate. The Tribunal notes that no evidence was presented to it from Juliana, either orally or in writing, in that regard. As presently advised, the Tribunal is not satisfied that the fact that cancellation of the applicant’s visa will necessarily result in the cancellation of Juliana’s visa is itself a compelling reason not to cancel the applicant’s visa.
53. The Tribunal has regard to the following considerations which, in its opinion, militate in favour of cancellation of the applicant’s visa:
·its finding that in the period from 29 January 2002 (when the visa was granted) until 23 May 2005 (when the visa was cancelled), he was not utilising his skills in actively participating at a senior level in the day-to-day management of an eligible business in Australia, nor had he made a genuine effort to do so;
·during the abovementioned period he spent a total of 151 days in Australia;
·during the abovementioned period he and certain members of his family unit have continued to reside in Indonesia;
·he has substantial businesses in Indonesia to which he devotes about 60 hours per week and from which he derives most of his income;
·he has no definite plans to move to Australia.
The Tribunal notes, on the other hand, that the applicant has invested $150,000 in Riverglen and $20,000 in Goldmont, and owns a house in Perth (in which Juliana currently resides). The Tribunal also notes the applicant’s evidence that he wishes to continue doing business in Australia, to expand his current businesses in Australia, and to keep looking for other business opportunities in Australia.
54. Having regard to the whole of the evidence before it and all of the relevant circumstances of this case, the Tribunal is not satisfied that they, on balance, militate against cancellation of the applicant’s visa. Rather, the Tribunal is satisfied that they, on balance, militate in favour of cancellation of the applicant’s visa.
55. The Tribunal concludes, therefore, that the correct or preferable decision in this matter is that the applicant’s visa should be cancelled.
Decision
56. For the above reasons the Tribunal affirms the decision under review.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: ..........(Sgd S da Motta)...................................
AssociateDate/s of Hearing 5 May 2006
Date of Decision 21 July 2006
Counsel for the Applicant Mr A Goldfinch
Solicitor for the Applicant Stables Scott
Counsel for the Respondent Mr A Gerrard
Solicitor for the Respondent Australian Government Solicitor
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