Gomaidy and Minister for Immigration and Multicultural Affairs
[2006] AATA 475
•31 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 475
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/288
GENERAL ADMINISTRATIVE DIVISION ) Re NINA GOMAIDY Applicant
And
Minister for immigration and multicultural affairs
Respondent
DECISION
Tribunal Ms LR Tovey, Member Date31 May 2006
PlacePerth
Decision The Tribunal sets aside the decision under review dated 2 August 2004 and substitutes the decision that the Applicant's Subclass 127 Business Skills Visa and the subsidiary visas should not be cancelled ……......Sgd. L R Tovey....................
Member
CATCHWORDS
IMMIGRATION – business skills visa – eligible business – genuine efforts - exercise of discretion – turns on own facts
Migration Act 1958 (Cth), s134
Migration Series Instructions 133
Hindrodjojo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 724
Jo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 77
Kok and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 579
Lau and Minister for Immigration and Multicultural Affairs [2002] AATA 703
Ng and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 299
Wong and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 54
REASONS FOR DECISION
31 May 2006 Ms LR Tovey, Member 1. This is an application by Nina Gomaidy ("the Applicant") for a review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Respondent") made on 2 August 2004 to cancel her Subclass 127 business skills visa and those of the Applicant's dependants (her husband Henky Hasnawi, their children Joshua and Hans Kie, and her mother Meilawaty Sidharta) in accordance with s134 of the Migration Act 1958 (Cth) ("the Act").
BACKGROUND
2. The Applicant was granted a business skills visa (“visa”) on 12 March 2001. She first entered Australia on 8 April 2001. She has been living in Australia since December 2002.
3. On 4 March 2003 the Applicant was asked by the Respondent’s Department to complete a 24 month survey form in relation to the visa. The completed survey form, together with various documents in support, was received by the Respondent’s Department on 20 June 2003.
4. On 20 August 2003 a letter was sent by the Respondent’s Department to the Applicant requesting that she provide further information in relation to her business activities in Australia. This information was provided by the Applicant by letter dated 15 October 2003.
5. On 26 March 2004 a notice of intention to cancel the visa was sent to the Applicant. The Applicant responded to the notice of intention to cancel the visa by letter dated 18 April 2004 and provided further documentation.
6. On 2 August 2004, after taking into account all the information provided by the Applicant, a delegate of the Respondent decided to cancel the Applicant’s visa. On 13 August 2004 the Applicant filed with the Administrative Appeals Tribunal (“the Tribunal”) an application for a review of the decision to cancel her visa.
EVIDENCE
Nina Gomaidy
7. The Applicant prepared 2 written statements (exhibits A2 and A3) and gave oral evidence at the hearing.
8. The Applicant, who is now 44 years of age, told the Tribunal that she was born in Indonesia and that she completed a Bachelor of Science Degree in Business Administration in the United States of America. She returned to Jakarta in 1986 and trained in a Honda Car dealership business. She then started a family Honda dealership business. In 1990 she married Mr Henky Hasnawi. She continued to work in the family business after the birth of their 2 children. The Applicant also told the Tribunal that prior to the grant of the visa on 12 March 2001 she had visited Australia on 2 occasions.
9. The Applicant’s first entry into Australia following the grant of the visa was on 8 April 2001. The Applicant’s husband and their 2 children also attended on this occasion. This first visit lasted approximately 1 week. The Applicant told the Tribunal that during this visit she attended the Small Business Development Corporation in Perth. It appears that at about this time the Applicant made various inquiries in relation to either establishing a business in Australia or exporting products made in Australia. The Applicant then returned to Indonesia and commenced to close down the Honda Car dealership business in order to relocate her family to Perth.
10. The Applicant told the Tribunal that her next visit to Australia was for approximately 2 weeks between 26 March 2002 and 9 April 2002. During this trip the Applicant investigated the exportation of sandalwood products and investigated the possibility of exporting shark bones. Neither venture was proceeded with.
11. A third visit to Australia occurred between 18 June 2002 and 30 June 2002. On this visit the Applicant made inquiries in relation to the creation of nail spas in Indonesia using Australian products. This venture was not pursued as the Applicant would have had to remain in Jakarta in order to develop the business.
12. In December 2002 the Applicant moved from Jakarta to Perth. A residential property in East Perth was purchased for approximately $586,000 and between December 2002 and April 2003 various amounts of money was transferred to Australia. The property in East Perth was sold in or about February 2005 and the bank loan of approximately $286,000 was repaid. It was the Applicant’s evidence that aside from various overseas holidays she has spent all her time in Australia.
13. The Applicant also told the Tribunal that she investigated the possibility of the export of incontinence products to Indonesia. In this regard, her husband, Mr Henky Hasnawi, contacted officers in a number of companies, including Slumberdry Pty Ltd and Confident Care Products, on her behalf.
14. Following this, the Applicant said that she and her sister, Dewi Gomaidy, entered into an agreement with an Indonesian company, PT Berkat Anugerah Sejahteratama (“PT Berkat”), in relation to the supply of incontinence products. PT Berkat was described by the Applicant as her “husband’s company”, albeit that he is one of a number of partners in that company. This company is a trading company dealing in chemicals.
15. The Applicant also told the Tribunal that after having established that she and her sister could obtain the supply of incontinence products she registered the business name Health Key Trading (“Health Key Trading”) in Perth. This occurred on 28 February 2003. The business is run from the Applicant’s home address.
16. It was the Applicant’s evidence that she holds a 60% interest in Health Key Trading and that her sister holds the remaining 40% interest and that Health Key Trading commenced operating on 1 April 2003. There is, however, no formal partnership agreement between the Applicant and her sister. In relation to the partnership, it was the Applicant’s evidence that she does more work for the business than her sister due to her greater command of English.
17. The Applicant accepted that she had invested only $1,747 in order to attain that share of the partnership. The reason for the small amount was due to advice that such an amount would be sufficient in order to open an initial bank account. In this regard it was the Applicant’s evidence that she and her sister would transfer additional funds as and when needed.
18. The Applicant told the Tribunal that in May 2003 she requested her husband to assist in finding a cheaper priced range of sanitary products. In this regard, the Applicant’s husband contacted a company called Buddies Australia and had a meeting in Melbourne with an officer of that company. Following these discussions Health Key Trading was appointed to sell their products in Indonesia.
19. The Applicant also told the Tribunal that she again enlisted the assistance of her husband to approach an officer of an Indonesian company, PT Thermco Indojaya (“PT Thermco”), with the view of it purchasing incontinence products. This meeting occurred in or about June 2003. Subsequently, in September 2003, PT Thermco placed an order for products to the value of $19,800. The Applicant then arranged for the export of products supplied by Buddies Australia to PT Thermco.
20. Also, in September 2003, the Applicant contacted an officer of Taiwan Medical Supplies, which is based in Taipei, and sent samples of the incontinence products for his perusal. After further negotiations Taiwan Medical Supplies placed an order with Health Key Trading for the purchase of products worth $17,000. This order was cancelled, however, in May 2004, due to the availability of a cheaper alternate product from China.
21. Further, in December 2003 and January 2004, the Applicant visited Indonesia. Whilst there she had meetings with a number of hospital administrators and others in an attempt to promote the incontinence products. In this regard, in January 2004, the Applicant had a meeting with the Director of Pantai Indah Kapuk Hospital in Jakarta. She also supplied the Director with various samples of the incontinence products.
22. The Applicant told the Tribunal that she continued to research and market the incontinence products. Following her further marketing, in March 2004 she supplied a Ms Wulan from the Women’s and Children’s Hospital in Indonesia, and a Ms Widarti, who was from the Metropolitan Medical Centre in Indonesia, with a quotation in relation to the supply of the products.
23. The Applicant also told the Tribunal that in March 2004 the Applicant advised PT Thermco that it could not act as the exclusive distributor for Health Key Trading in Indonesia until it had imported a minimum value of products. Subsequently, in March 2004 and June 2004, PT Thermco placed orders for products to the value of $17,000 and $34,000 with Health Key Trading. The latter order was later withdrawn.
24. The Applicant has now ceased the export of Australian incontinence products due to an inability to successfully compete with products emanating from China.
25. In addition to the export of the incontinence products, the Applicant made inquiries with her accountant, Ms The, as to the viability of other businesses. In this regard, the Applicant made inquiries in or about September 2003 as to the feasibility of purchasing a local marine shop and boat leasing business. Discussions were also entered into in relation to the purchase of a photographic processing shop and in this respect the Applicant sought the assistance of a business broker. Neither business venture was pursued.
26. The Applicant also advised the Tribunal that Health Key Trading has more recently engaged in the export of fresh fruit and vegetables to Jakarta. In this respect, the Applicant in her evidence said that exporting of the products commenced in November 2004 and that she was exporting goods approximately twice a month and that the amount of goods exported has been increasing. She estimated that during the first 12 months the value of the exports was over $100,000, for which her profit is approximately 5%. The Applicant also estimated that on average she would spend approximately 4 hours per day in running this business. The Applicant also told the Tribunal that her sister is not involved in this aspect of the business, although the partnership remains on foot.
27. As an indication of her further business intentions in Australia, the Applicant told the Tribunal that she and her husband purchased a property in Como in October 2005 with the view of developing properties on the site for later sale. The purchase price was $700,000.
28. It was also the Applicant’s evidence that the total amount of money transferred to Australia since December 2002 amounted to approximately $1,2000,000. Further, as at 9 November 2005 (the date of exhibit A3), it was the Applicant’s evidence that Health Key Trading had $29,084 in its bank account and that the receivables owing to it at that date was $18,000.
29. The Applicant also told the Tribunal that she and her sister moved to Perth at about the same time. Dewi Gomaidy was also initially granted a business skills visa. Another sister, Yanti, also lives in Perth.
30. In relation to the business skills visa granted to Dewi Gomaidy, it was the Applicant’s evidence that Dewi Gomaidy was similarly sent a 24 month survey form by the Respondent’s Department. It was the Applicant’s evidence that the Respondent’s Department “passed” her sister’s survey form. In this regard, the copy of the response to the survey provided by Dewi Gomaidy details her involvement in Health Key Trading. No other business interests are noted on the return survey. (See Exhibit A3, paragraph 4, annexure F).
Henky Hasnawi
31. Mr Henky Hasnawi provided a written statement (exhibit A9) and gave oral evidence at the hearing.
32. Mr Hasnawi is the Applicant’s husband. His evidence confirmed the evidence as to his wife’s meetings at the Perth Small Business Development Corporation, her investigations as to the establishment of an export business as well as his involvement in Health Key Trading.
33. He also told the Tribunal that he continues to operate two restaurants in Jakarta and that he spends approximately 4 months per year in Australia, but otherwise remains in Indonesia. It was his evidence that once his wife’s business becomes sufficient to meet their living costs he would move to Australia permanently.
34. Mr Hasnawi also confirmed that his children were living in Australia with his wife.
Sapolina The (also known as Lina The)
35. Ms The provided a written statement (exhibit A10), which was tendered by consent. Ms The is a certified practising accountant.
36. Ms The stated that she met the Applicant on 19 August 2003 and on that date discussed, inter alia, the GST system in Australia; the frequency of BAS reporting and when GST had to be charged on supplies and claimed on expenses; the preparation and lodgement of BAS; record keeping; tax returns reporting and lodgement; employer obligations; superannuation; and insurance.
37. Ms The also stated that various tasks have been performed by her for the Applicant including the preparation and lodgement of BAS each quarter; preparation of interim and annual financial statements; and preparation and lodgement of income tax returns.
38. Ms The further stated that she and the Applicant have had regular discussions concerning various business proposals and that she has answered questions concerning taxation and running a business in Australia.
39. Ms The confirmed that the Applicant had sought her advice in October 2003 in relation to the possible purchase of a local marine shop and boat pen leasing business but that it was concluded that the business was overpriced and a high risk.
40. Ms The also stated that the Applicant had requested her to be in contact should she be aware of any viable businesses for sale.
41. Ms The confirmed that the Applicant was currently involved in exporting vegetables and fruit to Jakarta and to Bali. She advised also that the Applicant’s business revenue had doubled in the last quarter and that the Applicant had confirmed future orders.
42. Finally, Ms The expressed the opinion that the Applicant had “shown a genuine intention to continue her business commitments in Australia. She has put in considerable efforts and financial investment in the setting up and running of the business.”
STATUTORY FRAMEWORK
43. By section 134 of the Act, the discretionary power to cancel the visa is granted. In this regard, s134(1) of the Act provides:
“(1) Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australia visa, an investment-linked visa or a family member’s visa), by written notice given to its holder, if the Minister is satisfied that its holder:
(a) has not obtained a substantial ownership interest in an eligible business in Australia; or
(b) is not utilising his or her skills in actively participating at a senior level in the day-to-day management of that business; or
(c) does not intend to continue to:
(i) hold a substantial ownership interest in; and
(ii) utilise his or her skills in actively participating at a senior level in the day-to-day management of;
an eligible business in Australia.”
44. If the discretion to cancel the visa arises under s134(1) of the Act, then s134(2) of the Act provides that:
“(2) The Minister must not cancel a business visa under subsection (1) if the Minister is satisfied that its holder:
(a) has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and
(b) has made a genuine effort to utilise his or her skills in actively participating at a senior level in the day-to-day management of that business; and
(c)intends to continue to make such genuine efforts.”
45. In determining whether a person has made a “genuine effort” within the meaning of s134(2) of the Act, s134(3) of the Act states:
“(3) Without limiting the generality of matters that the Minister may take into account in determining whether a person has made the genuine effort referred to in subsection (2), the Minister may take into account any or all of the following matters:
(a) business proposals that the person has developed;
(b) the existence of partners or joint venturers for the business proposals;
(c) research that the person has undertaken into the conduct of an eligible business in Australia;
(d) the period or periods during which the person has been present in Australia;
(e) the value of assets transferred to Australia by the person for use in obtaining an interest in an eligible business;
(f) the value of ownership interest in eligible businesses in Australia that are, or have been, held by the person;
(g) business activity that is, or has been, undertaken by the person;
(h) whether the person has failed to comply with a notice under section 137;
(i) if the person no longer holds a substantial ownership interest in a particular business or no longer utilises his or her skills in actively participating at a senior level of a day-to-day management of a business:
(i) the length of time that the person held the ownership interest or participated in the management (as the case requires); and
(ii) the reasons why the person no longer holds the interest or participates in the management (as the case requires).”
CONSIDERATION OF THE ISSUES
46. The statutory framework requires the Tribunal to consider whether the Applicant has satisfied the requirements of s134(1) of the Act or is making a “genuine effort” to do so within the meaning of s134(2) of the Act. Even if neither is satisfied there remains a residual discretion not to cancel a visa if the circumstances warrant such exercise: see Kok and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 579 at para [53].)
47. Further, whilst the Tribunal is required to consider the position at the date of the cancellation of the visa, the Tribunal is also entitled to consider subsequent events to the extent that those later events assist in evaluating the relevant intentions and actions of the visa holder as at the date of the cancellation of the visa: See Kok and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 579 at para [21], Jo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 77 at para [10]; and Lau and Minister for Immigration and Multicultural Affairs [2002] AATA 703 at para [24]. This is of some relevance in this case due to the change in direction of the nature of the business of Health Key Trading, from the supply of incontinence products to the supply of fruit and vegetable produce, but only to the extent that it assists in determining the relevant intentions and actions at the date of the cancellation of the visa.
Section 134(1) of the Act:
48. The question of what is a substantial “ownership interest” of an eligible business is one of fact and degree: see Wong and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 54.
49. Further, by s134(10) of the Act, an “ownership interest” in relation to a business is defined to mean:
“an interest in the business as:
(a) a shareholder in a company that carries on the business; or
(b) a partner in a partnership that carries on the business; or
(c) the sole proprietor of the business;
including such an interest held indirectly through one or more interposed companies, partnerships or trusts.”
50. As indicated above, it was the Applicant’s evidence that she holds a 60% interest in Health Key Trading and that her sister, Dewi Gomaidy, holds the remaining 40% interest. I accept that evidence and find that such is capable of amounting to a substantial “ownership interest”. The Applicant is a partner in a partnership that carries on the business.
51. The definition of “eligible business” within the meaning of s134(1) of the Act is provided for in s134(10) of the Act. Relevantly:
“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.”
52. Thus, a business must meet at least one of the criteria within the definition of s134(10) of the Act in order to be classified as an “eligible business” within the meaning of s134(1) of the Act.
53. In this regard, it was the Applicant’s submission that the primary way in which Health Key Trading satisfies the definition is that it engages in the export of Australian goods or services. It was also submitted that, albeit to a lesser extent, Health Key Trading involves the development of business links with the international market. In relation to these matters, the evidence was clear that the business had exported the incontinence products to Indonesia and there had been an order to export goods to Taiwan Medical Supplies, a company based in Taipei, although that latter order was subsequently cancelled. Events subsequent to the date of cancellation of the visa demonstrate that Health Key Trading has exported fruit and vegetable produce.
54. Health Key Trading has, as such, been involved in only a limited number of transactions. However, a business may be carried on within the meaning of s134(1) of the Act notwithstanding that “it is done in a small way”: see Lau and Minister for Immigration and Multicultural Affairs [2002] AATA 703 at para [28].
55. Further, as also noted in Lau and Minister for Immigration and Multicultural Affairs [2002] AATA 703 at para [29]:
“Both the legislation and the policy manual make plain that commercial realities are to be taken into account. Many genuine business attempts will fail despite the best efforts of participants. Furthermore, export activity . . . involve(s) considerable lead-time in developing markets and in securing reliable suppliers and attractive prices.”
56. The above, in my view, reflects the position in this case. Commercial realities must be taken into account and time spent developing markets ought be recognised. In this regard, as indicated above, it was the Applicant’s evidence, which I accept, that she had explored a number of possible business ventures before establishing Health Key Trading. Further, Health Key Trading was only registered once the Applicant and her sister were satisfied that they could obtain a regular supply of the incontinence products. Health Key Trading has been successful in exporting incontinence products and, albeit after the date of cancellation of the visa, fruit and vegetable produce.
57. I also accept that Health Key Trading is being carried on with a profit motive, albeit small at present, and that the Applicant has acted in a business-like manner notwithstanding that there is no separate business address: see Hindrodjojo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 724 at para [23].
58. There has, in my view, also been repetition of activity in the nature of conducting research, promotion and developing links with suppliers, although there has now been a change in direction from the sale of incontinence products to the sale of fruit and vegetable produce since the date of the cancellation of the visa: see also Hindrodjojo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 724 at para [23].
59. I am, accordingly, satisfied that Health Key Trading is an “eligible business” as required by s134(1) of the Act and that the Applicant has a substantial ownership interest in such business. I am, therefore, satisfied as to the requirements of s134(1)(a) of the Act.
60. By s134(1)(b) of the Act, a visa may be cancelled if the visa holder is not utilising his or her skills in actively participating at a senior level in the day-to-day management of an eligible business.
61. In relation to this, it was the Applicant’s evidence that, in addition to caring for her children, she, inter alia, researched the various business opportunities, arranged for contacts to be made with Australian suppliers, promoted the incontinence products overseas through various meetings with hospital administrators and filled orders and completed the associated accounts work. The amount of time she spent on the business, of course, fluctuated, and depended on the nature of the activity undertaken. To some extent, this evidence is supported by that of the Applicant’s husband and Ms The.
62. It was also the Applicant’s evidence, which I accept, that she undertook the primary role in the partnership of Health Key Trading given that she had a greater command of English as compared to that of her sister, Dewi Gomaidy.
63. Further, it was accepted by counsel for the Respondent that the Applicant has been involved in the senior management of the business by virtue of the business having only 2 partners.
64. Accordingly, I am not satisfied that the Applicant is not utilising her skills in actively participating at a senior level in the day-to-day management of that business within the meaning of s134(1)(b) of the Act.
65. Finally, I find that s134(1)(c) has no application to the circumstances of this case. There is no evidence before me to suggest that the Applicant does not intend to continue to hold a substantial ownership interest in an eligible business and utilise her skills in actively participating at a senior level in the day-to-day management of an eligible business. Indeed, the Applicant’s evidence, which I accept, is to the contrary.
66. Accordingly, I am satisfied that the discretion to cancel the Applicant’s visa pursuant to s134(1) of the Act does not arise.
Section 134(2) of the Act:
67. If I am incorrect in relation to the above, it is necessary to consider whether the Applicant has made a “genuine effort” to obtain a substantial ownership interest in an eligible business, utilise her skills in actively participating at a senior level in the day-to-day management of that business and intends to continue to make such genuine efforts as required by s134(2) of the Act.
68. Assistance can be derived from the Migration Series Instruction 133 in relation to whether a person has made a “genuine effort” within the meaning of s134(2) of the Act. Migration Series Instruction 133, paragraph 4.5.1 relevantly provides:
“. . . Decision makers may take account of these notes to guide them in interpretation . . . .
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 migrant;
e.transferred to, and retained in, Australia at least 50% of the funds indicated as available for transfer within two years . . .
f.minimum A$100,000 or 10% ownership previously held by the person. If the person is no longer in business, the reasons for the 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 s137, ie mandatory monitoring of Australian address and return of survey forms.”
69. Further, Migration Series Instruction 133, paragraph 4.5.2 states that:
“While failure to meet one or more of these indications 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.”
70. With reference to the Migration Series Instruction 133, it was counsel for the Respondent’s submission that the Applicant did not provide a detailed and realistic business plan; that there was no written evidence of detailed consultations with at least three business advisors; that there was minimal evidence provided as to the value of assets transferred to Australia by the Applicant; and that the turnover of Health Key Trading was well below the minimum amount of $100,000. It was conceded that the evidence suggested that the Applicant had contributed to the senior management of the business. The other matters outlined in paragraph 4.5.1 were not relied upon.
71. As to the creation of a business plan, it would appear that no formal documents were created by the Applicant. On the other hand, it is equally clear that the Applicant had carefully explored and rejected other business ventures, such as the exportation of vitamins, sandalwood and shark bones, the creation of the nail spas, the purchase of a marine shop and boat leasing business and the acquisition of a photographic processing shop. The Applicant has, of course, exported the incontinence products and, post the date of cancellation of her visa, the fruit and vegetable products. To a large extent it would appear that the Applicant has relied upon her prior business experience in exploring the potential business opportunities and in undertaking these ventures. That, however, does not mean that her efforts were not “genuine” in the required sense.
72. Also, the evidence is that the Applicant sought and obtained the advice of an accountant in relation to the purchase of the marine shop and boat leasing business and had sought the assistance of a business broker in relation to possible acquisition of a photographic processing shop. The Applicant, in addition, had initially sought the advice of the Small Business Development Corporation in Perth.
73. As to the value of assets transferred to Australia, as indicated above, the evidence of the Applicant was that in total approximately $1,200,000 has been transferred since December 2002. Whilst the funds initially transferred by the Applicant to Australia for the purposes of the business was only $1,747, it would appear that this amount was chosen following advice as to an amount required in order to establish a banking account for the business. Of course, moneys can be transferred for both genuine and fictitious reasons and, in my view, the amount transferred cannot in all cases speak on the genuineness of the reasons. In any event, it was also the Applicant’s evidence, which I accept, that she and her sister, Dewi Gomaidy, were in a position to transfer additional funds to the business as and when required.
74. As to the business turnover of $100,000 as indicated by paragraph 4.5.1(g), as already noted, Health Key Trading is currently a small business. Each new business must have its first sale and many genuine businesses fail. It should also be noted that this factor, of itself, is not determinative of the issue of “genuine efforts”. Moreover, in some cases, this factor has been held to be irrelevant: see Kok and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 579 at para [46].
75. It is to be noted, also, that the Migration Series Instruction 133 are a guide only and are not binding on the Tribunal: see Ng and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 299 at para [8].
76. Further, as stated in Kok and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 579 at para [22]:
“. . . no weight should be given to the guidelines in MSI133 if they are clearly more restrictive than the words of the section itself, and the factors referred to in s134(3) cannot be the basis for rejecting relevant efforts which are genuine, simply because they fall short of the examples given in section 134(3). For an effort to be genuine it must not be false or fictitious and the level of effort must be something that is real and beyond that which is purely superficial or token.”
77. The efforts, of course, must be those of the relevant visa holder: see Kok and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 579 at para [22]. I find this to be clearly satisfied on the evidence.
78. In relation to the efforts made by the Applicant, I accept that she researched a number of business opportunities in Australia and ultimately commenced exporting incontinence products but that this aspect of Health Key Trading failed due to the availability of a cheaper rival product. Further, as also already indicated, she holds the main interest in the business and performed a greater amount of work for the business as compared to her sister. Health Key Trading is now exporting fruit and vegetable products. As to this latter venture, whilst this occurred after the date of the cancellation of the Applicant’s visa, this, in my view, is indicative of her intentions at the time of cancellation.
79. All of the above matters are, of course, set against the background that the Applicant has qualifications in business and participated in a family Honda Car dealership in Indonesia. She has, also, effectively made Perth her home since December 2002.
80. In my view, in view of all the circumstances of this matter, the Applicant has made the requisite “genuine effort” within the meaning of s134(2) of the Act.
81. Accordingly, on this alternate basis, it is my view that the visa should not be cancelled.
Discretion:
82. Finally, whilst it is unnecessary to consider the residual discretion not to cancel the visa given the above, this may have been a case when the discretion not to cancel the Applicant’s visa ought to have been exercised: see Kok and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 579 at para [53].
83. In this regard, as indicated above, it was the Applicant’s evidence that the Respondent’s Department “passed” the 24 month survey returned by her sister Dewi Gomaidy. The survey details only the involvement in Health Key Trading.
84. As also indicated above, it was the Applicant’s evidence, which I accept, that Dewi Gomaidy held only a 40% interest in Health Key Trading and was the lesser active participant in the running of the business.
85. In relation to the position of Dewi Gomaidy, counsel for the Respondent accepted that the presence of the Applicant’s sister is a relevant consideration, although submitted that there was no information as to whether Dewi Gomaidy placed further information before the Respondent’s Department in response to the 24 month survey. There is some force in that submission. The Tribunal also did not hear from Dewi Gomaidy.
86. If, however, the material relied upon by Dewi Gomaidy in response to her 24 month survey was substantially the same as that relied upon by the Applicant this would demonstrate a clearly inconsistent approach by the Respondent’s Department.
87. Decisions can, of course, be consistent, yet incorrect. Notwithstanding this, if the material replied upon in response to the 24 month surveys by the Applicant and her sister were substantially the same, to cancel the Applicant’s visa in circumstances where her sister’s visa was not cancelled would, in my view, be anomalous.
88. If the completed surveys were substantially the same, then it may have been appropriate to exercise the residual discretion not to cancel the Applicant’s visa. In view of my findings in relation to ss134(1) and 134(2) of the Act, it is unnecessary to consider the application of this residual discretion.
DECISION
89. For the above reasons, the Tribunal sets aside the decision under review dated 2 August 2004 and substitutes the decision that the Applicant’s Subclass 127 Business Skills visa and the subsidiary visas should not be cancelled.
I certify that the 89 preceding paragraphs are a true copy of the reasons for the decision herein of Ms L Tovey, Member
Signed: .....................................................................................
AssociateDate of Hearing 15 November 2005
Date of Decision 31 May 2006
Counsel for the Applicant Mr S Walker
Solicitor for the Applicant Ms SanLing Chan
Counsel for the Respondent Mr D Blades
Solicitor for the Respondent Australian Government Solicitor
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