Hartono and Minister for Immigration, Multicultural and Indigenous Affairs
[2005] AATA 776
•12 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 776
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/307
GENERAL ADMINISTRATIVE DIVISION ) Re ANDHI HARTONO Applicant
And
MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms Robin Hunt, Senior Member Date12 August 2005
PlacePerth
Decision The Tribunal affirms the decision under review.
………………………………
Ms R Hunt
Senior Member
CATCHWORDS
MIGRATION – Business Visa – Cancelled pursuant to section 134 of the Migration Act 1958–Applicant has not made genuine effort to establish an ‘Eligible Business’ – Decision of Minister’s delegate to cancel Business Skills (Migrant) Visa – Decision under review affirmed.
LEGISLATION
Migration Act 1958 s 134, 137
Migration Series Instructions No 133 (MSI 133)
Second Reading Speech introducing the Bill amending section 134(1)(b) of the Migration Act 1958 (Migration Amendment Bill (No 2) 1992)
CASES
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291
Hope v Bathurst City Council (1980) 144 CLR 1
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
McDonald v Director-General of Social Security (1984) 6 ALD 6
Re Lau and Minister for Immigration and Multicultural Affairs [2002] AATA 703
Re Griffiths and Migration Agents Registration Authority [2001] AATA 240
ReTang and Minister for Immigration and Multicultural Affairs (2000) 32 AAR 103
Re Jo and Minister for Immigration and Multicultural and Indigenous Affairs (2004) 38 AAR 394
Re Yam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283
Re Wong and Minister for Immigration and Multicultural Affairs [2002] AATA 54
Dhanjal and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1120
Freeman v The Secretary, Department of Social Security (1988) 19 FCR 341
Ong v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 178
Ng v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 299
Huang v Minister for Immigration and Multicultural Affairs [2002] AATA 656
REASONS FOR DECISION
12 August 2005 Robin Hunt, Senior Member SUMMARY
1. Mr Andhi Hartono, the Applicant, applied to the Tribunal for review of a decision, dated 2 August 2004, made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, the Respondent, to cancel his Business Skills (Migrant) Visa. The delegate cancelled the visa pursuant to section 134 of the Migration Act 1958 (the Act). The Tribunal has decided that Mr Hartono’s business interests in Australia do not amount to an eligible business for the purposes of the visa. Further, although he has made some efforts to develop a business and to investigate other opportunities in Australia, the Tribunal has decided that these are not genuine efforts to the degree warranted to reinstate the visa. Finally, the Tribunal has decided not to exercise the discretion to reinstate the visa. It follows that Mr Hartono’s application has been unsuccessful.
BACKGROUND
2. Mr Hartono and his wife applied in 1998 for business visas to enable migration from Indonesia. It was not until 26 October 2000 that they and their four children were granted sub-class 127 business skills visas. Mr Hartono and his family then entered Australia on 17 April 2001 as the holders of these business visas.
3. In 2003, the Department of Immigration and Multicultural and Indigenous Affairs (the Department) sent Mr Hartono a standard “Survey of Business Skills Migrant – 24 months” form. Mr Hartono completed and returned the form in June 2003. On 28 August 2003, the Department asked him for more information about his business in Australia. He responded and supplied documents, including a certificate of registration of an Australian company, Mechanical Engineering Industry Pty Ltd (MEI). This certificate showed MEI was registered on 19 March 2003. A copy of the register of officers shows that Mr and Mrs Hartono were the directors of the company. Share certificates supplied showed they were the shareholders as well. On 28 August 2003, the Department again asked for more information and Mr Hartono sent copies of various MEI invoices and business letters. He also sent the Department some financial documents and a company tax return on 17 November 2003.
4. Mr Hartono failed to complete a 36 month survey form sent to him by the Department in February 2004. Then, the Department sent Mr Hartono a notice of intention to cancel his visa on 6 April 2004. He responded to the notice on 8 June 2004 but on 2 August 2004 a delegate of the Respondent, nevertheless, decided to cancel Mr Hartono’s visa.
ISSUES AND LEGISLATIVE PROVISIONS GOVERNING
5. Section 134 of the Act empowers the Respondent to cancel a business visa in certain circumstances and provides:
(1) Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australia visa, an investment-linked visa or a family member's visa), by written notice given to its holder, if the Minister is satisfied that its holder:
(a) has not obtained a substantial ownership interest in an eligible business in Australia; or
(b) is not utilising his or her skills in actively participating at a senior level in the day-to-day management of that business; or
(c) does not intend to continue to:
(i) hold a substantial ownership interest in; and
(ii) utilise his or her skills in actively participating at a senior level in the day-to-day management of; an eligible business in Australia.
(2) The Minister must not cancel a business visa under subsection (1) if the Minister is satisfied that its holder:
(a) has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and
(b) has made a genuine effort to utilise his or her skills in actively participating at a senior level in the day-to-day management of that business; and
(c) intends to continue to make such genuine efforts.
6. In particular, sections 134(1) and (2) give rise to the main issues before the Tribunal. They are, firstly:
· Whether Mr Hartono has acquired a substantial ownership interest in an eligible business in Australia; and
· Whether Mr Hartono has utilised his skills in actively participating at a senior level in the day to day management of an eligible business in Australia.
7. If I am satisfied that Mr Hartono fails to meet one of these criteria, I must then determine:
· Whether Mr Hartono has made a genuine effort to acquire a substantial interest in an eligible business in Australia and, if so, whether he intends to continue making genuine efforts; and
· Whether he has made a genuine effort to utilise his skills in participating at a senior level in the day to day management of an eligible business in Australia and, if so, whether he intends to continue making genuine efforts.
8. If I am satisfied that Mr Hartono has made suitable efforts for the purposes of the above issues, I must not cancel his visa by virtue of section 134(2) of the Act.
9. Subsection 134(10) sets out that, in this section, business visa means a visa included in a class of visas, being a class that has the words "Business Skills" in its title. As well, the subsection provides that “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.
10. Subsection 134(3) sets out some of the 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 the 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).”
11. Further to the requirements of section 134(3), the Migration Series Instructions No 133 (MSI 133), at paragraph 4.5, lists policy factors to be considered in forming an opinion whether a genuine effort has been made. These factors are:
(a) business proposal which is considered genuine, realistic and achievable;
(b) formal contract with partners or joint venturers;
(c) written evidence of detailed consultations with at least three business advisers (accountant, lawyer, bank/financial institution, State/Territory government business development office, Austrade, business/trade association);
(d) physical presence in Australia for more than six months since first arrival as a Business Skills class migrant;
(e) transferred to, and retained in, Australia at least 50% of the funds indicated as available for transfer within two years (under Factor 4 of the Business Skills Points test);
(f) minimum A$100,000 or 10% ownership previously held by the person. If the person is no longer in business, the reasons for loss of ownership are also relevant.
(g) minimum A$100,000 business activity as indicated by turnover. This may include other business activity not considered “eligible business” but cannot include passive investment, eg, purchase of shares.
(h) failure to comply with a notice for information under s 137, ie mandatory monitoring of Australian address and return of survey forms.
Mr Hartono’s Evidence
12. Mr Hartono gave oral evidence at a Tribunal hearing. He told the Tribunal that he was a businessman with interests in Indonesia and in Singapore. He has a family company in Indonesia of which he is general manager. His wife also works in the business. He has about 100 employees in Indonesia. He is also the managing director of a company located in Singapore of which he is a part owner. Mr Hartono described himself in his application for the business visa as a self-employed distributor of industrial and engineering supplies. Mr Hartono further told the Tribunal he applied for an Australian business visa for three main reasons. He wanted to expand his existing business, he was seeking a good education for his family, and he planned to retire to Australia because it was a peaceful country. He said he was thinking of the future.
13. Mr Hartono gave evidence that he understood his visa obligations and was aware that he needed to make a genuine effort to engage in business in Australia. Mr Hartono said he had investigated a number of potential business avenues. Initially, he investigated buying shares in an Australian business and liked the idea of being a part owner of a restaurant. However, he was concerned when he looked at the books of account of certain restaurants he was interested in. He suspected that they were not meeting their tax obligations and he did not want to become involved for that reason. He had liked the idea of buying into a restaurant because such a business employs Australians and he knew that this was expected in order to meet his visa requirements.
14. Other reasons Mr Hartono gave for not setting up business in Australia sooner, in 2001, when he and his wife arrived here, were a series of crises in Indonesia. He referred to political and other upheavals such as the recent earthquake. He also referred to currency fluctuations that affected business. He described a fall in the Indonesian currency as 700% devaluation. The strengthening of the Australian dollar was also a setback for him. He explained that he was conscious of the need to develop an Australian business and was looking for opportunities but met difficulties. He believed that his worst mistake was in taking too much time trying to diversify before he and his wife eventually decided to set up Mechanical Engineering Industry Pty Ltd (MEI), which was viable due to their existing business in Indonesia.
15. Mr Hartono said he had tried to persuade people to sell him shares in other businesses but they were reluctant to sell. He had also tried to persuade Australian engineers to work for him in Indonesia to provide preventative maintenance of Vitech products that he bought in Australia and sold in Indonesia. He favoured this idea because Australian engineers understood the machinery but found that Australian engineers did not want to work in Indonesia for fear of bomb threats. He also had wanted to set up a possible joint venture buying and selling furniture but the friends he approached to join in this venture were re-structuring and they could not agree on a price.
16. He and his wife finally set up the company, MEI as a buying house for their existing company in Indonesia. Mr Hartono said he owned 80% of the shares in MEI and his wife owned the other 20%. Their Indonesian business had been established for 30 years. It did not manufacture goods or equipment but bought and sold factory equipment. The Indonesian company bought goods to supply Indonesian and Singapore buyers. Mr Hartono told the Tribunal that he bought goods needed in factories such as bearings, couplings and sealing systems. He bought mainly in Europe, America and Japan for resale in Indonesia and Singapore.
17. Mr Hartono agreed under questioning that the goods he bought in Australia he generally could have bought in other countries. He had bought goods in Australia so that he had an Australian business for visa purposes. However, he gave evidence that there were other valid reasons to buy goods in Australia. For example, freight costs from Australia were cheaper than from some other countries. In addition, stock in Australia might not be available anywhere else. MEI had sold approximately $60,000 of goods in 2004. It was true that, if he did not have an Australian company, there would be less incentive for him to buy the goods here.
18. Mr Hartono went on to describe his more recent efforts to arrange the export of Australian salt to Indonesia. He said he had been looking into salt only in the last three months. He further said he had experienced difficulties with importing salt into Indonesia because local farmers protested to the Indonesian government about imports of salt, thinking that it should be a local industry. However, they did not understand the need to import large quantities of salt for industrial use and thought of it for eating only. Mr Hartono said Australian salt was almost 100% pure and ideal for industries such as pepper production. He was still trying to obtain permission to import industrial quantities of salt and was still talking to suppliers. He had obtained introductions from his Singapore connections. The introductions meant he would have to pay commission on any sales to his Singapore connections. He was scheduled to have a meeting about the salt project in Singapore in two days time. He gave evidence that he would be representing the Indonesian company at the meeting but also thinking about the Australian company.
19. When asked why he had spent only 23 days in Australia up to the date of the cancellation of his visa, Mr Hartono said this was because his Indonesian and Singapore businesses took up most of his time and he depends on them for his living. The Australian business was part of his planning to move to Australia in the future. Mr Hartono gave, as further evidence of his intention to settle in Australia, his wife’s purchase in 1998 of an apartment in Melbourne. They did not occupy the apartment and at present it was rented. When asked whether he had family in Australia, Mr Hartono said his four children were studying and living overseas. Two were in America and the others were in Singapore and Indonesia. He had an aunt living in Australia. He and his wife lived in Indonesia as he had to spend most of his time in Indonesia. This was because their main business was in Indonesia and that was where they derived virtually all their income.
20. In response to questions about his day to day involvement in MEI, Mr Hartono gave evidence that he spent about 5 hours per week on the business of MEI. He explained that most of the MEI invoices, packing lists, purchase orders and like documents before the Tribunal had been prepared by his people in Indonesia and that he had signed them. One document was prepared and signed by his wife. He said that Ms Connie Lim in Australia did not manage the MEI business but provided some assistance to him. Mr Hartono ran the business and others followed his instructions. Ms Lim assisted by looking in Australia for goods he required and sending them to him. She was a friend he knew from Indonesia. Ms Lim obtained the goods, they came to her and she sent them on to Indonesia by air freight. She prepared the air freight documents and occasionally other documents. She sometimes did the ordering of goods too. Ms Lam made an unsworn written statement furnished to the Tribunal that she was the unpaid part-time manager of MEI and had foregone salary until the business improved.
21. Several Australian suppliers made unsworn written statements that they had done business with Mr Hartono and his wife and had meetings to discuss prospects for working together in Indonesia. The Australian accountant for MEI also made an unsworn written statement in support of Mr Hartono. The financial statements before the Tribunal showed MEI had cash assets of $10,000 at 30 June 2003. This was still shown in the interim financial statements as at 30 September 2003. The total current assets figure for 2004 in the balance sheet as at 30 September 2003 was $26,625. The company tax return for 2002/2003 showed a loss. The company’s bank account held a little under $10,000 in August 2003 according to a statement. BAS returns showed some export activity and GST accounting. A collection of bills of lading, invoices and other commercial documents showed that MEI had bought and sold goods exported to Singapore and Indonesia. These activities spanned 2003 to February 2005. Mr Hartono told the Tribunal he had achieved sales of around $60,000 by MEI.
22. Mr Hartono said that his business in Indonesia would not suffer a lot if he spent more time in Australia. He gave evidence that the problem in Australia was that he had been trying to diversify. He had concentrated too much on trying to buy into another kind of business at first before setting up MEI. He realised that his business in Australia was not good enough but he had done his best. If his visa were reinstated, he would hope to do better. He gave further evidence to the effect that he thought Australian salt had great potential. He was concentrating his current efforts on possible salt export. He agreed with the suggestion that, if he lost his visa and it were not reinstated, his life would still be alright and the visa loss would not have a big impact on him. Having a visa made it easier for him to do business in Australia.
23. There was a suggestion in the written submissions before the Tribunal that Mr Hartono had not replied to the Department’s survey in 2004 because of his poor health. Before the Tribunal were medical invoices from a hospital in Singapore and more from a hospital in Jakarta. Mr Hartono told the Tribunal that, at present, he felt well but had undergone surgery after what doctors told him was a heart attack. His wife had insisted he see his doctor in Jakarta, who had sent him to hospital, where they kept him for four days. The hospital doctors said he had suffered a heart attack and he saw another doctor in Singapore who said the same thing. He had two operations which involved a stent being inserted in an artery, one operation last year and one this year. Every six months he was required to have a check-up but he had not slowed down much or stopped work for long. His family asked him to do less and delegate more to his employees.
CONSIDERATION AND FINDINGS
24. Mr Hartono presented as an amiable and honest witness who gave a believable account of his attempts to carry on business in Australia. Mr Hartono did set up an Australian business when he and his wife became directors and shareholders of MEI. As well, I accept that he had a substantial interest in the business of MEI, being the owner of 80% of the shares while his wife owns the remaining 20%. I further accept that it was he who managed the business of MEI that operated in Australia. Although he was always overseas, apart from 23 days spent in Australia, Mr Hartono made the decisions and was the person responsible for what business took place. However, I do not accept that the limited time that Mr Hartono expended on these activities amounted to day to day management. I accept that Mr Hartono has explored various options for doing business in Australia although there was no independent documentary evidence of these attempts before the Tribunal. Mr Hartono’s heart condition goes some way towards explaining why he did not respond to the Department’s request for further information in 2004.
Substantial interest in an eligible business
25. The first question at issue for the Tribunal is whether Mr Hartono, at the date of the cancellation, had an eligible business for the purposes of section 134(1) of the Act. The meaning of an “eligible business” is set out in section 134(1), paragraphs (a) to (f), of the Act. For Mr Hartono’s business to qualify, it must meet at least one of the criteria. Cases such as Hope v Bathurst City Council (1980) 144 CLR 1 provide guidance about the term ‘business”. The case of Hope is authority that carrying on a business is an activity undertaken on a continuous and repetitive basis for the purpose of profit. The business concerned does not have to reach a threshold of size or turnover to qualify as an eligible business although size and turnover may indicate that a business is performing well. Also, see the Tribunal decision in Tang v Minister for Immigration and Multicultural Affairs (2000) 32 AAR 103 as to the need for activities for profit on a continuous and repetitive basis.
26. It is clear that Mr Hartono does have a substantial interest in an Australian business, being that of MEI. The business has links with the international market but has created no direct employment in Australia. Ms Lim is a part-time unpaid manager and there are no other Australian employees. Ms Lim helps by locating goods, placing some orders and arranging air freight. It is difficult to see that MEI brings any business benefit to Australia. Mr Hartono admits it is not good enough. MEI has exported goods purchased in Australia but the evidence suggests that the goods were manufactured elsewhere and could have been purchased in overseas countries such as the USA, Europe and Japan. I accept that MEI achieved substantial sales of $60,000 or so. The goods exported were not Australian goods as such. Mr Hartono is an international businessman looking for the most convenient market. Mr Hartono’s Australian business does not manufacture goods or provide services that would otherwise be imported into Australia and there is no evidence that MEI’s activities have increased commercial activity and competitiveness within sectors of the Australian economy. Therefore, on balance, I am unable to find that the business of MEI, Mr Hartono’s only present business in Australia, is an eligible business according to the definition of that term in section 134(10).
27. As well, MEI does not exhibit the signs of business referred to in the cases above. The business has had a turnover of about $60,000 since inception and has not made a profit sufficient to pay any income tax. It ran at a loss in 2002/2003 even though it paid no salaries. Profit for MEI has been only $1,000 although exports were worth $60,000 in 2004. Again, I find no useful pointer in its performance to make MEI qualify as an eligible business. It has not been performing well. It has not carried on activities for profit on a continuous and repetitive basis. I therefore find that Mr Hartono has no eligible business in Australia despite his efforts. He has not met section 134(1)(a) of the Act. Having made this finding, it is unnecessary to make a finding under paragraphs 134(1)(b) and (c).
Genuine effort to obtain a substantial ownership interest in an eligible business
28. Although Mr Hartono does not presently have an eligible business, Mr Hartono may be able to show that he has made a genuine effort to obtain a substantial ownership interest in an eligible business for the purposes of section 134(2)(a). His visa must not be cancelled if he has made genuine efforts to obtain a substantial ownership interest and eligible business in Australia. In addition to this, he must have made genuine efforts to actively participate at a senior level an eligible business as provided by s134(2)(b) and intend to continue to make such genuine efforts as provided by section 134(2)(c) of the Act. Matters that may be taken into account are set out in section 134(3). Guidance may also be sought from the Migration Series Instructions 133 (MSI 133).
29. Mr Hartono’s contentions were largely directed to establishing that he had made genuine efforts to make a go of some business activity in Australia and that his efforts were continuing. If I agree that Mr Hartono has made such genuine efforts, subsection 134(2) requires me to decide that his visa should not be cancelled. Mr Hartono gave convincing oral evidence about his efforts although they fell short of any immediate signs of success. He also failed to produce any solid independent evidence of his efforts of his plans towards an eligible business. There is a statement that MEI is an authorised distributor of certain products and a letter from an accountant before me. The written statements before the Tribunal do not convince me that Mr Hartono’s efforts are directed to an eligible business. The business of MEI is not an eligible business at this point and its only activities continue to be the export of overseas manufactured goods or possible involvement is activities such as salt export of which there are no immediate arrangements in place.
30. The Tribunal’s review requires its satisfaction that Mr Hartono met the requirements of the Act at the time of the delegate’s cancellation decision, not at the time of the Tribunal’s decision. When looking at whether Mr Hartono was making a genuine effort, the Tribunal must again examine this as at the date of cancellation. Mr Hartono’s intentions and genuine efforts may be illustrated or substantiated by some subsequent events but the genuine effort must have occurred or be illustrated in some way at the date of the cancellation. It follows that Mr Hartono’s evidence about his attempts to arrange exports of Australian salt over the last three months are of very limited relevance to the Tribunal’s consideration. His recent post cancellation attempts to export salt and the like do not assist me to reach a decision in favour of Mr Hartono. I find that Mr Hartono had not made a genuine effort to acquire a substantial interest in an eligible business in Australia at the time of the visa cancellation. I have followed the approach adopted in Freeman v The Secretary, Department of Social Security (1988) 19 FCR 341 that the jurisdiction of the Tribunal in respect of a cancellation is to determine the correct or preferable decision at the time that the decision to cancel was made. This approach has been followed in a number of cases, such as that decided by Deputy President Forgie in Re Griffiths and Migration Agents Registration Authority [2001] AATA 240 and in other Tribunal decisions such as Re Wong and Minister for Immigration and Multicultural Affairs [2002] AATA 54 and Re Lau and Minister for Immigration and Multicultural Affairs [2002] AATA 703.
Genuine effort to participate at a senior level in the day to day management of an eligible business
31. Although I am not satisfied that MEI is an eligible business and that Mr Hartono has made genuine efforts to establish such a business, I have considered the full range of factors described in section 134(2) in order to assist me to determine whether I should exercise my discretion under section 134(4). I have gone on to consider whether Mr Hartono has made and continues to make a genuine effort to participate at a senior level in the day to day management of such a business, as provided by section 134(2)(b) and (c). In coming to a view as to whether Mr Hartono has made a genuine effort to actively participate in the day-to-day management of MEI for the purposes of subsection 134(2) and (3), I have had particular regard to the cases of Tang and Wong. In Tang, the Tribunal noted that the Act is intended to benefit business owners who make the decision to settle in Australia and actively manage that business. Mr Hartono told the Tribunal that he was planning to move to Australia in the future. He has no immediate plans to settle himself or his children here. He told the Tribunal that he has to continue to live and work in Indonesia at present because that is where he and his wife derive their income. He also told the Tribunal that his children are all studying overseas. I note he and his wife own an apartment in Melbourne and operate it as a rental property. These are not strongly indicative of making a genuine effort to participate at a senior level in the day to day management of any businesses in Australia.
32. In Huang v Minister for Immigration and Multicultural Affairs [2002] AATA 656, the Tribunal noted that an Applicant was expected to manage the Australian business in Australia albeit with trips overseas from time to time. Mr Hartono has not made trips overseas from time to time. Rather, his conduct has been the reverse. He travels to Australia only occasionally. Although, in Wong, the Tribunal found an Applicant who had not visited Australia other than for a holiday was making a genuine effort of the kind required, I do not find, on balance, that Mr Hartono has put sufficient time into the management of any Australian business to meet expectations for the visa when his case is compared with Huang and Tang. The amount of time Mr Hartono has spent in Australia since his visa was granted is very limited. Mr Hartono is a director with a substantial ownership interest but his practical involvement in MEI’s management is largely his signing of forms prepared by other people when Ms Lim locates goods or when he is despatching an MEI order to one of his overseas companies. This does not amount to any great depth of involvement envisaged by Parliament when passing the Act. The second reading speech of the Minister for Immigration and Ethnic Affairs when introducing the Migration Amendment Bill (No. 2) 1992 indicates that the expectation was that migrants who arrived in Australia on a business skills visa would remain resident in Australia. Also see Ong v Minister for Immigration and Multicultural Affairs [2003] AATA 178. Further, in Ng v Minister for Immigration and Multicultural Affairs [2003] AATA 299, the Tribunal commented that the Act does not contemplate an absentee entrepreneur.
33. Mr Hartono has family and other business commitments and, although no one other than Mr Hartono ran the business, his involvement in MEI required only about five hours a week and he was overseas throughout almost the whole duration of his visa. Although it is not necessary for me to make a finding under section 134(1)(b), I am not satisfied on balance that Mr Hartono actively participates in day-to-day management of this business. Further, his evidence does not lead me to conclude that he is making a genuine effort to do so in the future for the purposes of section 134(2)(b). The MEI business is intermittent and sporadic and indications are that it does not require Mr Hartono’s day to day attention. His other business ventures are merely speculative as discussed further below.
34. While Mr Hartono gave evidence of some negotiations having taken place in relation to the establishment of salt exports and other activities, no detail of these negotiations was before the Tribunal and no business plan, or other documentation. It was not made clear to me whether this was designed to be business for MEI or another entity or what Mr Hartono’s role would be. Although Mr Hartono saw great potential he was still hampered by government restrictions and problems in Indonesia. To date, the customer base for MEI has been derived from Mr Hartono’s overseas business interests and the negotiations for salt exports involve his Singapore company’s interests. Mr Hartono gave evidence that MEI was a buying house for his Indonesian business. There was no evidence of new business prospects beyond his present businesses established in Singapore and Indonesia. It follows I cannot be satisfied that Mr Hartono has made, continues and intends to make a genuine effort to utilise his skills in actively participating in the management of MEI or any other business entity on a day-to-day basis at a senior level. The evidence before me of future prospects and intentions do not reach a level to satisfy me that Mr Hartono meets the tests set out in subsections (2)(b) and (3). Equally, I am unable to conclude on the evidence before me that Mr Hartono intends to continue to make such efforts for the purposes of section 134(2)(c).
35. Nevertheless, I am required to consider whether I should exercise the discretion available under subsection 134(1), that is, the Minister may cancel a business visa where he finds failure to meet sections 134(1)(a), (b) or (c), but is not required to do so. However, I have not found any evidence of any matter which convinces me that I should exercise the discretion available. Although Mr Hartono has undoubted business skills, he has not shown sufficient involvement and commitment to the purposes of the grant of the visa to persuade me that the visa should not be cancelled.
36. The Tribunal is therefore not satisfied on the basis of the evidence before it that Mr Hartono has acquired an interest in an “eligible business in Australia”. Nor is it satisfied that he has made genuine efforts to utilise his skills in “actively participating at a senior level in the day to day management of an eligible business” or that he has made “genuine attempts” to acquire an eligible business interest and intends to continue to make such genuine efforts. The Tribunal therefore affirms the decision made on 11 March 2004 to cancel Mr Hartono’s visa.
decision
37. The decision under review is affirmed.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Robin Hunt
Signed: .....................................................................................
Zoe McDonald
AssociateDate of Hearing: 4 July 2005
Date of Decision: 12 August 2005
Solicitor for the Applicant: Mr J Galloway
Solicitor for the Respondent: Australian Government Solicitor
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