Gouw v Minister for Immigration, Multicultural and Indigenous Affairs

[2004] AATA 1379

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1379

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2004/407

GENERAL ADMINISTRATIVE  DIVISION		)
Re		INDA GOUW

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date22 December 2004

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.................[Sgd]..........................

Senior Member B J McCabe

CATCHWORDS

MIGRATION LAW – business visa – whether applicant has substantial ownership interest in an eligible business – whether applicant has been actively involved at a senior level in day-to-day management – whether applicant has made a genuine effort to obtain a substantial ownership interest in an eligible business – decision affirmed

Migration Act 1958

Re Purnama and Minister for Immigration and Multicultural Affairs [2002] AATA 237

Hope v Bathurst City Council (1980) 144 CLR 1

REASONS FOR DECISION

22 December 2004               Senior Member B J McCabe

introduction

1. Mr Inda Irman Gouw is the applicant in these proceedings. He holds a business skills visa (sub-class 127) issued on 11 January 2001. He entered Australia using the visa on 31 January 2001. His wife and five children also hold visas. The Minister’s delegate wrote to the applicant and his wife and children on 31 December 2003 advising of his intention to cancel the visas because the applicant had not satisfied the criteria in s 134 of the Migration Act 1958 (the Act). The applicant was allowed to make representations within the time prescribed under s 135. The delegate proceeded to cancel the visas on 4 May 2004. The applicant has asked the Tribunal to review the delegate’s decision.

2.      I am satisfied the delegate’s decision is the correct and preferable one in the circumstances. The application must therefore fail. Mr Gouw’s visa and those of the secondary applicants were properly cancelled. I will explain my reasons below.

the material before the tribunal

3. The Tribunal was provided with the documents required pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). The respondent also filed a set of supplementary T documents.  The applicant filed two letters that concerned his company’s business transactions.

4.      Mr Gouw gave evidence through an interpreter. His son Henry also gave evidence.

5.      The applicant was represented by Mr Scheelings, a registered migration agent. Mr Steele represented the respondent.

the factual background

6.      The applicant is a prosperous businessman in Indonesia. He deals in whitegoods, air conditioners and appliances. He has a retail operation in Jakarta and does some “project” work (for example, he sells appliances in bulk to apartment complexes and hotels). He is married, and has five children.

7.      The applicant said in his oral evidence that he became concerned about the political situation in Indonesia during the 1990s. His retail operation was shut down as a result of the unrest at one point. He sent his older school-age children to Australia for an education one by one.  He came to Australia on a number of occasions himself. He decided to migrate to this country and applied for a business visa. He was granted a visa and entered this country from Indonesia on that basis on 13 January 2001.

8.      Mr Gouw did not stay in Australia for long. Movement records in the supplementary T documents show the applicant spent a total of 86 days in Australia between 13 January 2001 and 31 December 2003 (the date on which the delegate issued the notice of intention to cancel the visa). The 86 days in Australia included a total of 43 days spent in this country after the beginning of September 2003.

9.      Mr Gouw registered a company called International Enterprises (Aust) Pty Ltd around early 2001. The Tribunal was not provided with a company search, but the evidence Mr Gouw gave in relation to the structure of the company seemed uncontroversial. Mr Gouw owns all of the shares in the company. He and his wife and two of their daughters (one of whom lives in Australia) are directors of the company.

10.     The company does not have a place of business. It does not have any employees. It does not have a business adviser or accountant. It has carried out two transactions during the relevant period (that is, between the date the applicant entered Australia on the business visa and the decision to cancel the visa). It exported a container-load of mandarins to Indonesia. The order was not repeated. The applicant says the competition from other exporters was too fierce, and the Australian product too costly. The company also exported some rice flour after the notice of intention to cancel the visa was issued. Correspondence from a customer (exhibit 3) suggests further orders of flour were cancelled because of the appreciation of the Australian dollar. Mr Gouw mentioned difficulties in securing reliable supplies. The company also arranged a shipment of pears to Indonesia in August-September 2004. Mr Gouw was actively involved in facilitating all three transactions.

11.     During the relevant period the company has had an annual turnover of less than $100,000. An amount of $43,000 deposited with the company by the applicant remains in the bank. The company has no other assets.

12.     The company is not actively trading. Mr Gouw says he has been diligently attempting to identify fresh business opportunities. In the course of his evidence he spoke of discussions about dealing in various goods, including wall-paper, furniture, air-conditioners and appliances, swimming pool pumps, wine, air conditioning ducting constructed in plywood and various types of fruit. The applicant also investigated obtaining a franchise coffee shop and a fish and chips shop in Brisbane. None of the discussions went very far. They certainly did not result in business plans or other activities that might lead to the realisation of the opportunities.

13.     Mr Gouw clearly has ambitions for his children. He said he wanted to build a business here for them. He said he was unable to leave a business to them at this stage, as they were too inexperienced. Mrs Gouw spends most of her time in Indonesia, where she has taken over the day-to-day management of the retail operations. The older four children have all been educated in Australia.

14.     Henry Gouw is the applicant’s 19 year old son. Henry gave evidence of his experience in Australia. He spoke of his concerns about what would happen if he were have his visa cancelled. Mr Scheelings conceded at the outset of the hearing that none of the secondary visa holders would suffer extreme hardship within the meaning of the Act if their visas were cancelled. Henry confirmed he would be inconvenienced – his studies would be interrupted, and most of his friends lived in Australia – but there was no evidence that extreme hardship might follow from a cancellation decision.

the legislation

15. Section 134(1) says the Minister may cancel a business visa if the Minister is satisfied the visa 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.

16. Section 134(2) goes on to say the Minister may not cancel a visa under sub-section (1) if the Minister is satisfied the visa 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

17. Section 134(3) sets out a number of matters to which the Minister must have regard when deciding whether or not the applicant has made a “genuine effort” in the sense contemplated in s 134(2).

18. Section 134(4) says the visas of family members are cancelled automatically if the primary visa holder’s visa is cancelled. The only exception to this rule arises if the cancellation will result in extreme hardship to the secondary visa holder: s 134(5).

19.     The Tribunal exercises the Minister’s powers upon review. My task is to make the correct and preferable decision in the circumstances that prevailed at the time of the Minister’s decision (ie, as at 4 May 2004): see Re Purnama and Minister for Immigration and Multicultural Affairs [2002] AATA 237 at para 27.

application of the law

20.     The applicant holds most or all of the shares in a registered Australian company, but the company was only engaged in two discrete transactions in the relevant period. I have some doubt as to whether the company could be said to be conducting a business at all: two isolated transactions of that kind do not suggest there was a going concern. There was no repetition or regularity or system (see Hope v Bathurst City Council (1980) 144 CLR 1). Even if one accepts there was a business, however, it is difficult to see how a reasonable person could be convinced the company was engaged in an eligible business as that term is defined in s 134(10).

21.     I am also satisfied the applicant has not been closely involved with the day-to-day administration of the business, such as it is. He said he was involved with the two major transactions and with the discussions in relation to other opportunities, and there are a number of email communications from him included in the T-documents. But it appears he left the day-to-day administration of the company to his daughters while he spent most of his time overseas. He pointed out his daughters were not experienced in business, but it was not an onerous responsibility: the company was not really doing very much anyway. 

22. It follows the applicant cannot satisfy the criteria in s 134(1). Mr Scheelings conceded as much. However he insisted the applicant was making genuine efforts within the meaning of s 134(2).

23. I have considered the matters set out in s 134(3). The applicant was unable to point me to specific proposals that have been developed; there are no joint venturers or partners; there is limited evidence of research (although the applicant says he has been hampered by his poor English); the company does not have any assets apart from the relatively modest amount deposited into its bank account; the applicant has been present in Australia for comparatively short periods; and there has been little business activity. Mr Scheelings could not suggest any other matters that I should take into account.

24. I am unable to identify any evidence that suggests the applicant has made (and would make) genuine efforts within the meaning of s 134(2).

25. I am not aware of any other facts or circumstances that would justify exercise of the residual discretion in s 134(1) not to cancel the visa.

26.     I note there are secondary visa holders, but during the hearing the applicant conceded they would not suffer extreme hardship if the visas were cancelled.  Henry Gouw spoke of inconvenience, but that is not enough to meet the demanding standard inherent in the expression extreme hardship.  

conclusion

27.     The decision under review must be affirmed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate:  Thomas Ritchie

Date of Hearing: 10 December 2004
Date of Decision: 22 December 2004
The applicant was represented by Mr Scheelings.          
The respondent was represented by Mr Steele.