Effendy and Minister for Immigration and Multicultural and Indigenous Affairs

[2006] AATA 129

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 129

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2005/718

GENERAL ADMINISTRATIVE DIVISION		)
Re		Yohnny Effendy

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date17 February 2006

PlaceSydney

Decision The decision of the respondent is affirmed. 

..............................................

Professor GD Walker
  Deputy President 

CATCHWORDS

IMMIGRATION – business skills visa subclass 127 – cancellation of business skills visa and secondary visa – whether primary visa holder has a substantial ownership interest in an eligible business, whether he has “utilised his skills” in that business, and whether he continues to have a substantial interest in that business – examination of the primary visa holder’s business activities in Australia including time spent in Australia – examination of whether there will be hardship if the visa is cancelled – the respondent concedes South Pacific is an eligible business – found the applicant does not meet the criteria with regard to utilising his skills or participating in the business at senior management level on a day-to-day basis and that tribunal is not satisfied he has made a genuine effort within the meaning of s 134(2), there is no basis for the exercise of the discretion – the decision of the respondent is affirmed.

Migration Act 1958 ss 134, 134(1)(a), (b), 134(10), 135, 136, 137

Migration Series Instruction No 133: Visa cancellation under subdivision G – cancellation of business visas.  

Freeman v Secretary, Department of Social Security (1988) 19 FCR 342

Hope v Bathurst City Council (1980) 144 CLR 1

Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 31

Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257

Re Andiwidjaja and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 397

Re Drake and Minister for Immigration (No 2) (1979) 2 ALD 634)

Re Griffiths and Migration Agents Registration Authority [2001] AATA 240

Re Haman and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1113

Re Halim and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 767

Re Lau and Minister for Immigration and Multicultural Affairs [2002] AATA 703

Re Negaria and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 579

Re Yam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283

Skoljarev v Australian Fisheries Management Authority (1995) 133 ALR 690

REASONS FOR DECISION

17 February 2006	Professor GD Walker, Deputy President
Summary

1.      The applicant, Yohnny Effendy, aged 53, is a citizen of Indonesia.  He was granted a subclass 127 business skills visa on 26 November 2001, valid from 10 December 2001.  Mr Effendy’s visa also included his family unit members, his wife, Ichandhora Chiangwijaya, and their three children, Herryanto Effendy, Luisa Effendy and Rudiyanto Effendy.

2.      A delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, decided to cancel Mr Effendy’s business visa on the grounds that he does not have a substantial ownership interest in an eligible business in Australia, he does not utilise his skills in participating in that business, and does not intend to continue with that business in the future. The visas of his family unit members were also cancelled. This is the decision to be reviewed by the tribunal.

Issue

3.      The issue for the tribunal is whether it is satisfied that the applicant has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia, has made a genuine effort to utilise his skills in actively participating at a senior level in the day-to-day management of the business and whether he intends to continue to make a genuine effort and if it is satisfied that the applicant does not meet one or all of the criteria, whether it should exercise its discretion to cancel the business visa granted to Mr Effendy and his family as secondary visa holders.

Background

4.      Mr Effendy was born in Singkawang, West Kalimantan, Indonesia, on 2 July 1952 and is aged 52.   Ms Chiangwijaya was in born East Java, Indonesia, on 8 July 1951 and is aged 54.    They have three adult children:  Herryanto Effendy born 14 November 1975 and aged 30, Luisa Effendy born 17 December 1978 and aged 27, and Rudiyanto Effendy born 22 February 1980 and aged 25.   Mr Effendy included his three adult children as dependants in his application (T p51).

5.      From December 1980 to date, Mr Effendy has been the director/president of CV Lautan Mas. In that role, he assists with marketing and production including securing customer orders and supervising production (T p45).  Prior to this, he worked as a salesman and marketing manager.

6.      On 8 December 1999, Mr Effendy lodged an application for a business skills visa with the Australian Embassy in Jakarta.  On 26 November 2001, his visa, which included his wife and three dependants, was granted (T p87).   The visa was valid for a period of three years from the date of entry.  On 10 December 2001, Mr Effendy entered Australia (T p90).

7.      By letter dated 16 December 2003 from the Department of Immigration and  Multicultural and Indigenous Affairs (“DIMIA”), Mr Effendy was asked to complete a “Survey of Business Skills Migrant – 24 Months (Form 1010)” to be completed and returned by 3 February 2004 (T10 p92).   On 23 January 2004, the applicant’s migration agent, Bernard H Jong, returned the applicant’s Survey to the department together with written submissions on behalf of his client (incorrectly dated 23 September 2003) (T p96).   Mr Jong submitted that the applicant had a 100 per cent ownership interest in the business, Golden South Ocean Pty Ltd, which had been registered as a business on 12 June 2002, and had transferred A$950,000 into the business and was making a genuine effort to utilise his skills in that business. That money had been used for the purchase of property at 5 Snape Street, Maroubra, New South Wales, on 21 November 2003. The applicant now intended to export Australian livestock to Indonesia and was presently conducting extensive research in that area.  By exporting livestock, he would bolster the commercial activity and competitiveness of the livestock industry in Australia, it would increase international markets, the company would be promoting Australian products, and it would foster goodwill with international trading markets.  With regard to the day-to-day management of the company, he submitted that the applicant is accountable for and responsible for all the operations of the company and is committed to employing his skills and is persistently in contact with his fellow directors, potential suppliers and clients.  He said that he maintains the daily operations of the business via faxes, emails, letters and telephone calls.  Mr Jong submitted that Mr Effendy would successfully achieve all his visa requirements and would make a significant contribution to the business and local community (T pp96-98).  In the Survey, to question 32 “What kind of activity is carried out by the business?” Mr Effendy answered “Property Investment” (T p103).   Mr Jong also submitted to the department various documents concerning Golden South Ocean including, inter alia, financial reports and bank statements.

8. On 8 December 2004, an officer of the business skills section of the department notified Mr Jong (by email transmission) that he was considering cancelling the business skills visa of Mr Effendy under s 134 of the Migration Act 1958 (“the Act”) for failure to meet the requirements of his visa including that he had not obtained a substantial interest in an eligible business in Australia, he had not utilised his skills by participating at a senior level in the day-to-day management of an eligible business, and does not intend to continue to hold a substantial interest in an eligible business (T12 p192).   He was invited to respond by 16 February 2005 (T p195).  He was advised that the consequence of cancellation of his visa would be the automatic cancellation of those of his family members.

9.      On 10 December 2004, Bernard Huang of Bernard Handaya Jong Migration Services responded on behalf of the applicant (T13 p200).  He submitted that his client was now involved in two eligible businesses in Australia, Golden South Ocean and South Pacific Property Development Pty Ltd.   With regard to Golden South Ocean, his client had a 50 per cent ownership with his wife holding the remaining 50 per cent. The company was engaged in exporting raw materials to Indonesia and in 2004 had exported Flavex powder with a value of $118,800 and lanolin anhydrous USP with a value of US$13,500, and in doing so was increasing the business links between Australia and the international market.  He submitted Mr Effendy bears the responsibility for management of the company and had made and achieved genuine efforts to participate in the daily management, and had dedicated considerable time to researching and surveying overseas markets.

10.     With regard to the second company, South Pacific Property Development, he submitted that Mr Effendy has a 75 per cent interest in the company, which he joined in 2004.  The company, established in 1999, is a property development company situated in Queensland. It presently owns a development site in Gaythrone, Queensland, on which it intends to develop high quality home units. The company was presently researching the market to determine the best time to commence the development.  Mr Huang submitted that as a company director, Mr Effendy is responsible for management of the company’s affairs, represents the company in the area of marketing and is solely responsible for the execution of vital decisions.   Mr Huang also submitted business records for Golden South Ocean and South Pacific Property (T pp204-525).  He concluded by saying that his client had been “a very positive addition to the Australian community” and through the two businesses had met the criteria of his visa (T pp200-203).

11.     On 9 May 2005, a delegate of the respondent decided to cancel Mr Effendy’s subclass 127 business skills visa on the grounds that he had not obtained a substantial interest in an eligible business in Australia, he is not utilising his skills in participating at a senior level in the day-to-day management of the business, and he did not intend to continue to hold a substantial interest in the business (T2 p5).  The delegate found with regard to Golden South Ocean, a search of the records of ASIC showed no record of the company’s share structure; that financial statements provided were not signed by the company’s directors or prepared by an accountant; the company had only been involved in  two transactions, the purchase and sale of property and two exports to Indonesia of raw materials; the profit from the export transactions was only minimal and there was no evidence of future contracts; that the visa holder had only been in Australia for a total of 145 days between 10 December 2001 and 29 April 2005 and did not satisfy the delegate that he exercised responsibility in the business on  a day-to-day basis; and he had provided no documentary evidence of how he was using his management skills in the growth and development of the business. 

12.     In relation to South Pacific Property Development, the delegate found that the sole business activity of the company was the provision and management of rental properties and that a property management company was actually contracted to provide the day-to-day management of the company’s properties. The delegate found that this would suggest that the applicant’s role in the company would be limited and not exercised on a daily continuous basis.   There was also no evidence that the applicant, who continued to live overseas, was instructing others to work in the business on his behalf.   Having considered all the evidence, the delegate exercised her discretion and cancelled his visa (T pp8-11).  On the same day, letters were sent to Bernard Handaya Jong advising them of the cancellation of the visas of Ms Chiangwijaya, Mr Herryanto Effendy, Ms Luisa Effendy and Mr Rudiyanto Effendy.

13.     On 7 June 2005, Mr Effendy lodged an application for a review of that decision by the tribunal.  Separate applications were not lodged for his family members.

The hearing

14. At the hearing, the applicant was represented by Bernard Huang, migration agent, of Bernard Handaya Jong Migration Services, and the respondent was represented by Avenish Chand solicitor, Clayton Utz lawyers. The evidence before the tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) together with the evidence tendered by the parties at the hearing. Mr Effendy gave oral evidence through an Indonesian interpreter.

15. Before the hearing the applicant’s representative filed with the tribunal a bundle of company documents relating to both Golden South Ocean and South Pacific Development which were already in evidence in the T documents. He also filed a second bundle of documents relating to recent transactions by Golden South Ocean and two property management reports of Frank Knight, Gold Coast, for the periods March 2005 and April 2005 (Exhibit A2).

16.     The applicant’s representative also filed two documents with the tribunal before the hearing, a letter addressed to the AAT dated 1 June 2005 and a second letter dated 3 October 2005 (taken into evidence as Exhibit A1).  They both contain substantially the same submissions as those made to the department in response to the notice of intention to cancel the applicant’s visa.  The submissions indicated that the applicant owns two home units in Sydney, a motor vehicle and funds deposited with both Citibank and HSBC and that his son, Mr Herryanto Effendy, is also the owner of a home unit in Sydney.

17.     The applicant received his subclass 127 (business owner) visa on 29 November 2001 and first entered Australia on that visa on 10 December 2001.  He said at the hearing that from December 2001 until June 2002 he had been looking for business opportunities in Australia and in June 2002 had established Golden South Ocean Pty Limited (Golden South).

18.     On 15 August 2002 Golden South purchased a house and land at Snape Street, Maroubra with a view to redeveloping it.  Golden South was, however, unable to obtain a council permit to rebuild the property and in November 2003 resold it, realising a profit of approximately of $150,000.  It had not attempted to buy other properties, because the applicant did not think that market conditions were yet favourable for doing so.

19.     Between the time when Golden South was registered on 12 June 2002 and 9 May 2005 when the applicant’s visa was cancelled, Golden South performed three other transactions (T pp261-319):

·On 28 July 2004, it exported to Indonesia a quantity of Flavex powder (used in the manufacture of noodles and similar products).  It bought the powder for $49,050 and sold it for $59,400;

·On 1 September 2004, it exported to Indonesia a quantity of anhydrous lanolin.  The cost price was $12,375 and the sale price was $13,500; and

·On 6 September 2004, it exported to Indonesia a quantity of Flavex powder purchased for $49,050, and resold for $59,400.

20.     After the applicant’s visa had been cancelled, Golden South entered into two further export transactions (Exhibit A2):

·On 12 September 2005, it exported to Indonesia a quantity of Flavex powder, which it had acquired for $46,500 and sold for $56,250; and

·On 19 September 2005, it exported to Indonesia a further quantity of Flavex powder, which it had acquired for $46,500 and resold for $56,250.

21.     In each case the sales were on CNF terms, which the parties agreed were similar to CIF.

22.     Golden South also investigated the possibility of exporting Australian wine, zinc ingots and soap, but no sales resulted.  The possibility of exporting cattle to Indonesia has also been explored, and the Indonesian government has been approached with an application for a permit to permit the importation of the stock, but no decision has yet been received.  Mr Effendy said that he first conceived the idea of exporting cattle in February 2005, but Exhibit A2 shows that the initial enquiry came from a company called MBM in Surabaya, Indonesia, and was not received until 5 May 2005, four days before the applicant’s visa was cancelled.

23.     The applicant’s other business in Australia is South Pacific Property Development Pty Ltd (South Pacific Property), which was formed on 15 December 1999.  In 2000 it purchased a property at Enoggera, Queensland, which it developed as an industrial site.  Valued at $4.3m, the property houses 44 tenants and produces annual gross rentals of about $500,000.

24.     On 26 July 2004, the applicant acquired 150 ordinary shares in South Pacific Property, amounting to 75 per cent of its issued capital.  The evidence does not show that Mr Effendy had any role in South Pacific Property before that date.

25.     The two companies have one employee between them, Mr Herryanto Effendy, the applicant’s son.  The applicant is based in Indonesia, where he operates two companies, one of which, PT Chandrawidya Agung, supplies computers to the Indonesian government, notably for use in conducting national elections.  His other company is CV Lautan Mas, a printing company that produces printed material for government offices and examination materials for schools.

26.     Mr Effendy said that he was responsible for all of Golden South’s export transactions, both in Australia and in Indonesia.  As regards South Pacific Property, he conceded that he had no direct dealings in relation to the Enoggera industrial site beyond visiting the property once a year and receiving reports from his son every three months.  The property is managed on South Pacific Property’s behalf by a management company, the name of which Mr Effendy did not know. 

27.     The company, Knight Frank, submits detailed monthly reports covering such matters as rent received, electricity, taxes, ambulance levies, security, rubbish removal, fire levy, rates, cleaning, repairs, improvements and other matters (Exhibit A2).  The reports are sent to the applicant’s son, Mr Herryanto Effendy, as are any complaints from tenants or reports of other problems.  The applicant said he talks to his son every day by telephone about the business, but that claim was hard to reconcile with his admission that as long as the business is profitable, he does not pay much attention to it.

Applicable Legislation

28. Section 134 of the Act empowers the Minister to cancel a business visa in certain circumstances. Departmental policy with regard to the cancellation of business visa is contained in s 134 of the Migration Series Instructions No 133 – Visa cancellation under subdivision G – cancellation of business visas.

29. Section 134 of the Act empowers the Minister to cancel a business visa in certain circumstances. The relevant provisions in Mr Effendy’s case are as follows:

134.     Cancellation of business visas

(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 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).

30. Section 134(10) of the Act includes the following definitions:

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.

established business in Australia visa means a business visa a criterion for whose grant:

(a)       relates to the applicant having an established business in Australia; or

(b)is that the applicant is a member of the family unit of the holder of a visa a criterion for whose grant is as mentioned in paragraph (a)

…

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.

31. In the case of Ms Chiangwijaya and the three dependants, ss 134(4), (5) and (6) are relevant:

(4)       Subject to subsection (5) and to section 135, if:

(a) the Minister cancels a person's business visa under subsection (1) or (3A);and

(b) a business visa is held by another person who is or was a member of the family unit of the holder of the cancelled visa; and

(c) the other person would not have held that business visa if he or she had never been a member of the family unit of the holder of the cancelled visa;

the Minister must cancel the other person's business permit or business visa by giving written notice to that person.

(5) The Minister must not cancel the other person's business visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person.

(6) The Minister is taken not to have cancelled a person's business visa under subsection (4) if the Administrative Appeals Tribunal has set aside the decision of the Minister to cancel the business visa of the relevant person to whom paragraph (4)(a) applied.

32.     Paragraph 4.3.2 of the Migration Series Instructions (MSI) notes that eligibility relates to the achievement of the stated objectives through the activities of the business, not directly to the size or scale of the business.

33.     Paragraph 4.5.1 of the MSI also provides guidance as to whether a genuine effort has been made for statutory purposes.  While the guidelines are not binding on the tribunal and should not be applied so as to impose requirements which go beyond the statute (see Re Drake and Minister for Immigration (No 2) (1979) 2 ALD 634), the guidelines militate against inconsistency in decision making (see Skoljarev v Australian Fisheries Management Authority (1995) 133 ALR 690 at 695). The guidelines state:

4.5      What is a “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 the 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,   mandatory monitoring of Australian address and return of   survey forms.]

4.5.2While 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 “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.

Consideration of the Law and Findings of Fact

34.     The tribunal should have regard to all relevant evidence to enable the making of findings of fact in relation to the cancellation of Mr Effendy’s visas and those of his family unit members as at the date of the decision, that is 9 May 2005:  Freeman v Secretary, Department of Social Security (1988) 19 FCR 342; Re Griffiths and MigrationAgents RegistrationAuthority [2001] AATA 240. The tribunal has in the past held that it is entitled to look at activities after the date of visa cancellation and up to the date of the hearing (see Re Lau and Minister for Immigration and Multicultural Affairs [2002] AATA 703; Re Halim and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 767).

35.     The predominant view now, however, is that the tribunal cannot take into account material relating to facts arising after the date of cancellation:  ReYam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283, Re Andiwidjaja and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 397 at para 37, Re Haman and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1113 at para 523, Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257 at 264.

36. The decision to cancel Mr Effendy’s business skills visa was made pursuant to s 134(1) of the Act on the grounds that the delegate concluded that (T p8):

(a)he 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)do not intend to continue to:

(i)hold a substantial 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.

The terms “ownership interest” and “eligible business” are defined in s 134(10), set out above.

37. Section 134(2) provides that the Minister must not cancel a business visa under s 134(1) if the Minister is satisfied that the person:

(a)has made a genuine effort to obtain a substantial ownership 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.

When considering whether a person has made the genuine effort referred to in subsection (2), the Minister may take into account the matters set out in subsection (3), set out above. It is on s 134(2) that the applicant primarily relies.

38. Turning then to s 134(2)(a), the first issue is whether the tribunal is satisfied that Mr Effendy has made a genuine effort to obtain a substantial ownership in an eligible business in Australia. What constitutes an “eligible business” is defined in s 134(10), set out above. The tribunal notes the case of ReYam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283 as a useful guide to the meaning of the relevant provisions. With regard to the words “genuine effort”, Senior Member Dwyer notes at paragraph 88 that:

The Act does not specifically include any requirement that the “genuine effort” must be likely to succeed, or must meet any threshold level, beyond being genuine.

39. The applicant’s representative submitted in his statement of facts and contentions that the applicant has a substantial ownership interest in both Golden South Ocean and South Pacific Property Development. The respondent in her statement of facts and contentions rejected that (Exhibit R2), submitting that Golden South Ocean is not an eligible business because it is not a “business” for the purpose of s 134, as defined in Hope v Bathurst City Council (1980) 144 CLR 1 at 8‑9 as “activities undertaken as a commercial enterprise in the nature of a going concern, that is, activities engaged in for the purpose of profit on a continuous and repetitive basis”. The company’s purchase of property at Maroubra was “more in the nature of a one off investment” and the export transactions to Indonesia were of relatively low value and few in number. The respondent does, however, concede that South Pacific is an eligible business.

40.     Before the applicant’s visa was cancelled on 9 May 2005, Golden South had engaged in only three other transactions in almost three years.  The two transactions entered into after cancellation, like the previous three, were quite close together in time and if anything suggested a slackening in Golden South’s business activity.  But in any event, for the reasons given above, they are post-cancellation and cannot be taken into account.  The same is true of the negotiations over the proposed export of cattle.

41. With regard to s 134(2)(b), whether the tribunal is satisfied that the applicant has actively participated at a senior level in the day-to-day management of the eligible business, the respondent contends in her statement of facts and contentions (Exhibit R2) that the applicant has not utilised his skills in either company. The applicant said he had personally managed all of Golden South’s export sales, but they were sporadic, few in number and of relatively low value. The only other evidence of his participation in Golden South were nine emails sent to his Australian agent requesting information on Flavex powder and zinc ingots.

42.     There is no evidence that he has utilised his skills in South Pacific, as the property owned by the company is managed by Frank Knight Property Management.  The applicant in his statement of facts and contentions submits that Mr Effendy constantly makes controlling decisions that fundamentally affect Golden South Ocean and South Pacific as ongoing concerns.  In his oral evidence he said he was in daily telephone contact with his son in connection with the Enoggera industrial estate but, as was noted above, the rest of his evidence was not consistent with that assertion.

43.     He claimed that he works 50 hours a week in the Golden South business (T p9) but he spent only 145 days in Australia between his initial arrival in December 2001 and the cancellation of his visa in May 2005 (T p9).  The delegate concluded that “Given the limited nature of the business’s activity, I am not satisfied that he has exercised responsibility in the business on a continuous and daily (as opposed to occasional) basis” (T pp9-10).  I agree with that conclusion.  The evidence clearly shows that Mr Effendy’s day-to-day activities are concerned with the two businesses that he still operates in Indonesia.

44. Finally, with regard to whether the tribunal is satisfied that the applicant meets the criteria in s 134(2)(c), the respondent in her statement of facts and contentions (Exhibit R2) submits that the applicant has not made a genuine effort to obtain a substantial ownership in an eligible business or utilise his skills in the day-to-day management, at a senior level, of that business. His efforts to date have been purely superficial or token, including the three exports in 2004 by Golden South and his investigations into the possibility of exporting wine and cattle to Indonesia did not occur until after the decision to cancel his visa. A genuine effort for these purposes must go beyond that which could be considered superficial or token: See Re Yam, supra. There is no other evidence that the applicant meets any of the criteria in s 134(3).

45. I am therefore not satisfied that the applicant has made a genuine effort within the meaning of s 134(2).

46. The tribunal has a discretion not to exercise the power to cancel a business visa even if the criteria set out in s 134(1)(a) to (c) are not satisfied (Re Negaria and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 579). A common ground on which that discretion can be exercised in favour of an applicant is that further time should be given to the visa holder to undertake what was required of him or her (Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 31, paragraph 21).

47.     It was argued on the applicant’s behalf that he could not leave Indonesia until his Australian businesses were going well, to the extent that they would be able to support him and his family, although the applicant had not himself offered that explanation in his evidence. 

48.     The evidence as a whole gives no reason to think that the applicant would be able to satisfy the conditions of his visa if he were given more time to do so.  His points about the currently high exchange rate and the need to obtain an import permit for cattle are not relevant to the exercise of the discretion because the obligation on the applicant is to manage a business.  Exchange rates and the need for overseas permits would not prevent genuine efforts of the kind required that did not need foreign exchange or permits from overseas governments.  The evidence therefore provides no basis for the exercise of the discretion in the applicant’s favour.

49.     In my view the decision should be affirmed.

I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:         .....................................................................................
  Associate

Date/s of Hearing  7 February 2005
Date of Decision  17 February 2006
Representative for the Applicant               Mr B Huang, Bernard Handaya Jong   Migration Services
Representative for the Respondent          Mr A Chand, Clayton Utz lawyers