Hartanto and Minister for Immigration and Multicultural and Indig Enous Affairs

[2004] AATA 94

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 94

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No.   N2003/980

GENERAL ADMINISTRATIVE  DIVISION		)
Re		GUNAWAN HARTANTO

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member M Allen

Date4 February 2004

PlaceSydney

Decision The decision under review is affirmed.

(Sgd)  M D Allen
  ..............................................

Senior Member

CATCHWORDS

IMMIGRATION AND CITIZENSHIP - Cancellation of Business Skills Visa - whether Applicant had in fact established an eligible business in Australia - whether Applicant had exercised skills or made a genuine effort to exercise his skills in managing an eligible business in Australia - decision to cancel visa affirmed.

Migration Act 1958 - s 134

Re Wong and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 54

Re Huang and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 656

Hope v Bathurst City Council (1980) 144 CLR 1

Stone v Commissioner of Taxation (2003) 53 ATR 214

REASONS FOR DECISION

4 February 2004   Senior Member M D Allen

1.      By application made the 16^th day of June 2003, the Applicant sought a review of a decision by a delegate of the Respondent on 20 May 2003 cancelling his Business Skills Visa pursuant to section 134 of the Migration Act 1958.

2. Section 134 of the Migration Act1958 so far as is relevant reads:

“(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.

…

(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.”

3.      The said application for a review came on for hearing before me at Sydney on 14 January 2004. The Applicant was represented by Mr Lau who was not legally qualified, however the Applicant had comprehensively set out his case in his letter to the Respondent showing cause why his visa should not be cancelled together with submissions to the Tribunal on 14 June 2003 (document T1) and 5 October 2003 (Exhibit A1). As was pointed out in Re Wong and Minister for immigration and Multicultural Affairs [2002] AATA 54, the Tribunal must consider whether the decision to cancel was the correct or preferable decision as at the time of the said cancellation.

4.      In addition in this matter, the Applicant himself has stated:

"While I am appealing this case to the AAT I am freezing all of my business activity in Australia".

5.      The Applicant was granted a Business Skills Visa in 2000 and his first visit to Australia subsequent to that grant of that visa was on 26 January 2000. The Applicant had previously visited Australia and in 1993, the Applicant had purchased a grazing property "Macquarie Park" at Wellington, New South Wales for the sum of $A2.5 Million. That property was sold in 1999.

6.      The purchase of the said property was by medium of a company incorporated by the Applicant, Wingtask Pty Ltd. Subsequent to the sale of the property, the Applicant retained the company as his business entity in Australia.

7.      On 18 January 2002, the Applicant completed a “Survey of business migrants - 24 months” form. In that document, the Applicant conceded that neither he nor his company, Wingtask Pty Ltd, had conducted any business in Australia in the two-year period. The Applicant stated in answer to the question "Is it likely that you will become involved in business within the next 12 months"  that he was "not sure".

8.      By way of explanation, the Applicant added:

"I am not sure because it is a very hard to open a new business in Australia and the world economy is in a crisis condition. But I still intend to open the new business after the farming business…"

9.      That no business was undertaken is confirmed by a report from the company's accountants dated 24 January 2002 which states inter alia:

"We have completed your 2000 and 2001 income tax returns for the company. Please note that financial statements have not been provided due to the inactivity during these two years…"

10.     During the year 2002, the Applicant through his Australian company, arranged for two shipments of Australian beef to be shipped to Indonesia. The exporting company was Allegro Pty Ltd as neither the Applicant nor his company had a meat export licence. The circumstances of the exports are set out in the Applicant's response to the "show cause" letter forwarded to him on 14 January 2003. He stated inter alia:

"The decision came up on middle of June 2002 when we (me and my son 'Nanang Hartanto') were introduced to Mr Cathay G who owns a company named ‘Seaforth Trade Pty Ltd’… ‘The Seaforth Trade Pty Ltd’ was a company working in buying cow's meat from abattoirs in Australia then selling and exporting the meat to Indonesia through ‘Allegro Pty Ltd’… After the meeting I concluded and told Mr Cathay that I would like to do business with him and his company, because there are still opportunities available in finding a (sic) new buyers for this commodity since I do have connections with some companies or buyers in cities like Jakarta or Surabaya in Indonesia who would be willing to purchase cow's meat or even live cattle from Australia. Mr Cathay has agreed and willing to do business with my company ‘Wingtask Pty’ Ltd (sic), so I decided to engage in this business."

As stated above, two exports of meat have taken place.

11.     The Applicant has also purchased a motor vehicle and a residential apartment in Sydney but such activities do not constitute the conduct of a business.

12.     The concept of what constitutes a business was set out by the Full Court of the Federal Court in Stone v Commissioner of Taxation (2003) 53 ATR 214 at paragraph 74:

" Whether a person is carried on a business will depend upon a number of factors and no single factor will be determinative in a particular case. Thus, it will be relevant to determine whether a relevant activity is carried on in a businesslike way and in accordance with commercial principles. If there is a system in the activity, coupled with repitition and continuity, that will be indicative of a business…"

Cf Mason J (as he than was) in Hope v Bathurst City Council (1980) 144 CLR 1 at 8 where his Honour stated that a business is denoted by a commercial enterprise in the nature of a going concern and that its activities are engaged in for profit on a continuous and repetitive basis.

13.     I do not consider that two exports of beef to Indonesia by the Applicant's company acting as an importer constitutes the conduct of a business in Australia.

14.     In addition, migration records reveal that the Applicant has, in the period between the grant of his visa and its cancellation, spent a total of 129 days only in Australia.

As pointed out in Re Huang and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 656:

"Not only must the eligible business operate in Australia to comply with the Act, the visa holder must participate at a senior level in the day-to-day management of the Australian business in Australia, albeit with trips overseas from time to time."

In this matter, that situation has been reversed, with the company doing no real business in Australia until after two years and the completion of a two year survey when the said company acted as an exporter/importer of two only shipments of beef and the Applicant has spent the bulk of his time outside of Australia.

15.     As was pointed out in Re Huang (supra) at paragraph 6:

“The relevant legislation is contained in the Migration Act 1958.  It is directed towards overseas business people who wish to use their business skills to establish a significant business in Australia with a view to providing employment opportunities for Australians, export markets for Australian goods and introducing new technology to Australia (among other aims).  A Business Skills visa is designed to allow the overseas business person to travel to and from Australia and to live in Australia while conducting the business.  It envisages that the holder of such a visa will acquire a significant interest in the Australian company and play a significant role in the day-to-day management of the company.  It also envisages that the business person will probably wish to have close family members accompany them while they live in Australia…..”

16.     The Applicant has complied with none of the above criteria. I am satisfied that the two export/import activities concerning beef by the Applicant through his Australian company were nothing more than a belated attempt to demonstrate some semblance of business activity following the two-year survey and that the Applicant's intention is, and at all time was, as stated by him at document T8 that he needs the visa for his retirement.

17.     Having regard to all the evidence before me, I am satisfied that the Applicant at the time of the cancellation of his visa was:

(i) not utilising his skills in actively participating at a senior level in the day-to- day management of an eligible business in Australia; and

(ii) the Applicant had not made a genuine effort to utilise his skills in actively participating at a senior level in the day-to-day management of an eligible business in Australia; and

(iii) no eligible business had in fact been, or sought to have been, established in Australia.

18. As the Applicant has failed to comply with section 134 of the Migration Act 1958, the decision under review is affirmed.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of:

Senior Member M D Allen

Signed:         (K. Wong)            .......................................................................................
  Associate

Date of Hearing  14 January 2004
Date of Decision  4 February 2004
Representative for the Applicant    Mr A. Lau
Solicitor for the Respondent          Mr B. Cramer, Blake Dawson Waldron