Haryanto and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 317

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 317

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2002/296

GENERAL ADMINISTRATIVE  DIVISION		)
Re		INGGRIANI TENDRI HARYANTO

Applicant

And THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Murray Allen, Member

Date26 March 2004

PlacePerth

Decision The decision made by a delegate of the respondent on 9 July 2002 to cancel the sub-class 127 Business Skills visa of the applicant is affirmed.

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

Member

CATCHWORDS

IMMIGRATION – Cancellation of business skills visa – applicant had acquired a substantial ownership interest in an eligible business in Australia – applicant had not actively participated at a senior level in the day-to-day management of that business – consideration of whether applicant had made genuine efforts to be so involved – relevance of involvement in management by members of the applicant’s family – residual discretion to not cancel the applicant’s visa not exercised – decision under review affirmed.

Migration Act 1958 s134, 135

Migration Series Instructions 133

Tillmans Butcheries Pty Ltd v Australasian Industry Employees Union (1980) 27 ALR 367

Hope v Bathurst City Council (1980) 144 CLR 1

Puzey v Commissioner of Taxation [2003] FCAFC 197

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

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

REASONS FOR DECISION

26 March 2004 Murray Allen, Member        

1.      On 9 July 2002 a delegate of the respondent cancelled the sub-class 127 Business Skills visa held by Ms Inggriani Tendri Haryanto (the applicant) and at the same time made decisions to cancel business visas held by members of the applicant’s family unit, namely the visas held by her husband and four children.  The applicant has applied for review of that decision but, prior to the hearing of the applicant’s application, no application had been made on behalf of the other visa holders for review of the decisions affecting them.

2.      At the hearing of the applicant’s case one of her sons, John Miller Lokanata, applied for an extension of time to make an application to the Tribunal for review of the decision concerning his visa.  After hearing evidence from Mr Lokanata I declined to grant an extension of time for the making of his application.  Consequently, the only matter before the Tribunal in these proceedings concerns the cancellation of the applicant’s visa.

3. At the hearing of the application Mr Lokanata represented the applicant and the respondent was represented by Ms Andretich, a solicitor with the Australian Government Solicitor. The Tribunal received into evidence the documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975, Exhibits A1 and A2 tendered by the applicant, and R1 tendered by the respondent.

4.      Oral evidence was given by the applicant with the assistance of an interpreter in the Indonesian language.  During the course of the applicant’s evidence the applicant contended that there was inadequate communication between herself and the interpreter and the interpreter confirmed that there were problems in communication.  I ruled that the evidence given by the applicant to that time would be disregarded and that the applicant’s oral evidence would begin afresh with a new interpreter.  This did occur.

5.      Oral evidence was also given by Mr Lokanata.

Background

6.      The background to the matter is that the applicant applied for and was granted a business visa in April 1999 and first entered Australia on 20 May 1999.  Between that date and the date of cancellation of her visa the applicant spent a total of 63 days in Australia.

7.      In June 2001 the applicant provided a 24 month survey form of her activities in Australia, and in January and February 2002 provided further information to the respondent’s department.

8.      On 25 March 2002 the delegate of the respondent notified the applicant of an intention to cancel the visa and invited representations in relation thereto by 2 May 2002.  No representations were received and the cancellation decision referred to above was made in July 2002.

Consideration

9. The respondent’s power to cancel a business visa is found within s 134 of the Migration Act 1958 (“the Act”). Pursuant to s 134(1), a discretionary power to cancel a business visa arises if the respondent is satisfied that the holder of the visa has not satisfied any one of the three matters set out in that sub-section. If the applicant has not failed to satisfy any one of the three requirements then no power to cancel would arise. I turn therefore to consider the matters specified in s 134(1).

10.     In so doing I must have regard to evidence of circumstances that existed as at the date of cancellation although, as will be referred to below, I may look at evidence of activities and transactions that occurred after the date of cancellation of the visa to the extent that it is relevant to establish intentions or the likelihood of certain outcomes as at the date of cancellation.

11. Section 134(1)(a) of the Act requires the applicant to have “obtained a substantial ownership interest in an eligible business in Australia”. The 24-month survey form provided by the applicant in June 2001 stated that, at that time, the applicant had not engaged in business in Australia (T12).

12.     The applicant was, however, subsequently connected with a business in Australia, namely the export of Australian seafood products to Indonesia via a company, Miller & Sons Pty Ltd (“Miller & Sons”), which was incorporated on 24 January 2002.  The company has 100 ordinary shares issued, the holders of which are the applicant with 35 shares, her husband with 35 shares, and Mr Lokanata with 30 shares.  The applicant and her husband are the two directors of the company and Mr Lokanata is the Company Secretary.

13.     Commencing in February 2002 Miller & Sons exported canned and subsequently frozen seafood from Australia to Indonesia.  The goods were sourced from an Australian company known as Southern Trading Company (“Southern Trading”), a principal of which was a Mr Goh.

14.     The practice adopted was that Southern Trading would issue invoices to Miller & Sons, which would in turn on-sell and issue invoices for the goods (with a small markup in price) to an Indonesian company, PT Tanisia Utama Perkasa Mandiri (“PT Tanisia”). 

15.     Between February 2002 and June 2002 three transactions occurred and between July 2002 and February 2003 a further approximately 17 transactions occurred.   According to the financial statements for Miller & Sons tendered at the hearing (A2), in the years ended 30 June 2002 and 2003 Miller & Sons made purchases of goods to the value of $22,561 and $144,643 respectively and made sales of those goods valued at $22,949 and $153,177 respectively.  Gross profit from trading in the two years was $388 in 2002, and $8,535 in 2003.  After deducting other business expenses, profit before tax of Miller & Sons in 2002 was $188 and in 2003 $7,453.

16.     The applicant’s oral evidence was that the seafood, on its arrival in Jakarta, was used partly in a restaurant business conducted by her husband in partnership with four other persons, and partly it was onsold to other unrelated customers via PT Tanisia.  PT Tanisia is a company connected to a friend of hers by the name of Farida.  She understood Farida earned a commission from the sales but she did not know any details because her husband made all the arrangements and dealt with Farida.  She did not know what proportion of the goods were used in the restaurant or sold to others. 

17.     Mr Lokanata gave evidence that in late 2001 he had become concerned when a letter from the respondent’s department (T13) was received requesting further information about efforts to become involved in a business.  He had urged his parents to do something about a business and his father had told him to look for anything that would be useful for the restaurant his father was involved in in Indonesia.  He had located Mr Goh as a potential supplier and he had arranged the initial transactions, placing the order with Mr Goh and arranging payment through Miller & Sons’ Australian bank account, using funds transferred from Indonesia by his father.  However, after the first few transactions his father had adopted the practice of telephoning Mr Goh direct to place orders, and his father had arranged for payments to be made directly to Southern Trading’s bank account from an Indonesian bank account operated by his father.  Mr Goh organised the shipment of the goods to Indonesia by airfreight.  After that time, his only involvement had been to periodically take to the company’s accountant details of the various transactions so that the purchases and sales by Miller & Sons could be recorded in the company’s financial books.

18. In the written Statement of Facts and Contentions filed on behalf of the respondent it was contended that, although the applicant may have had an ownership interest in Miller & Sons by virtue of her 35% shareholding in that company, she did not have a substantial ownership interest in the company - and any business that the company might operate – and that Miller & Sons was not carrying on a business for the purpose of making a profit on a continuous and repetitive basis, nor was it an eligible business for the purposes of the Act.

19. Section 134(10) of the Act provides that an ownership interest in relation to a business relevantly means an interest in the business as a shareholder in a company that carries on the business. There is no dispute that the applicant is a shareholder of Miller & Sons and, therefore, has an ownership interest in any business that that company may carry on.

20.     In Tillmanns Butcheries Pty Ltd v Australasian Industry Employees Union (1980) 27 ALR 367 at 382 Dean J said that “the word ‘substantial’ is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision.  In the phrase “substantial loss or damage”, it can, in any appropriate context mean real or of substance, as distinct from ephemeral or nominal.  It can also mean large, weighty or big.  It can be used in a relative sense or can indicate an absolute significance, quantity or size.” In my opinion, in the context in which it appears in s 134 of the Act, I consider that the word “substantial” is used to indicate the degree of ownership of the business in the sense of ability to control or manage the business, rather than in any sense of requiring a minimum degree of monetary investment of particular value. It must be a degree of ownership of the business that is not insubstantial or nominal as would be the case if a person owned merely a 1% interest in a significant business. In my opinion, in the context of a company newly incorporated for the purpose of conducting a business, particularly where the balance of the shares are owned by other close family members, the applicant’s 35% ownership of Miller & Sons would constitute a substantial ownership interest in any business that Miller & Sons might conduct.

21. The question then arises of whether Miller & Sons was actually conducting any business at all and whether that business was an eligible business for the purposes of the Act.

22.     The decision of the High Court in Hope v Bathurst City Council (1980) 144 CLR 1 is authority for the proposition that carrying on a business denotes activities for the purpose of profit undertaken on a continuous and repetitive basis, and is also authority for the proposition that a business may be carried on even though it is done in a small way. A Full Court of the Federal court has recently summarised the position (in the context of income tax legislation) as follows in Puzey v Commissioner of Taxation [2003] FCAFC197 (per Hill and Carr JJ, with French J agreeing):

“46.     The question whether a person is carrying on a business is a conclusion to be drawn from all relevant facts and circumstances.  There are some relevant propositions which can, however, be stated.  First, as was said by Barwick CJ, in Fairway Estates Pty Ltd v Federal Commissioner of Taxation 70 ATC 4061 at 4069 and it is self-evident, every business must have a first transaction.  And there may be a business, even if that business is small in scope:  cf Thomas v Federal Commissioner of Taxation (1972-3) 46 ALJR 397 at 401 with Hope v Bathurst City Council (1980) 144 CLR 1 at 10.  A person may carry on a business, notwithstanding that the person had some other activity, such as full time employment.  It is not necessary in concluding that a business is carried on that the acts to be undertaken are acts of the person seeking to establish he or she is carrying on a business.  So a person may appoint another to take the steps which constitute the business activity:  Ferguson v Federal Commissioner of Taxation (1979) 26 ALR 307 at 319 and, at least if the facts in Commissioner of Taxation v Lau at 218 involved a business, that case is another example.

47.      It will be relevant in deciding whether a business is carried on that there is some repetition of acts and that the activities in question have “something of a permanent character”; Hope per Mason J at 8.  What is required is that activities be engaged upon “on a continuous and repetitive basis”; Hope ibid at 9.  However, perhaps not too much attention should be given to the concept of repetition where the activity is one, such a plantation operation, where the activity will continue over a relatively long period of time but where there will be significant periods of what may be referred to as inactivity.  Business does not mean being busy.

48.      In deciding whether or not a business is carried on courts have pointed to what have been called in the United Kingdom the “badges of trade,” indicia which, while no one of them will be determinative of whether a business is carried on, collectively will demonstrate a business.  These include the profit motive (although a non profit company may still carry on a business), acting in a business like way, (although many businesses may be found which operate in a non-business like way), the keeping of books of account and records, (although the fact that there are none will not necessitate the conclusion that a business is not carried on) and repetition (although a fixed term project may still be a business).”

23.     On the evidence before me Miller & Sons was incorporated for the purpose of conducting a business, it obtained Australian business and tax file numbers, it maintained books of account and prepared periodic financial statements, and filed regular Business Activity Statements for taxation purposes.  By the time of the visa cancellation it had entered into three export transactions in four months with a value of about $22,000 and, subsequently, over a period of more than 18 months, conducted transactions having a value of more than $175,000.  In my opinion the company had, by the time of cancellation, sufficient indicia of carrying on a business and had engaged in transactions on a sufficiently continuous and repetitive basis – albeit with small profits only being generated – to enable me to conclude that it did conduct a business.  In arriving at that conclusion I have not overlooked that the business had a single line of products, a single supplier and, it would seem, a single customer.

24. Accordingly, I find that the applicant, at the date of cancellation of her visa, had acquired a substantial ownership interest in an Australian business. The next question to be answered is whether that business was an eligible business for the purposes of s134(1)(a) of the Act.

25. Section 134(10) of the Act provides that an “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.”

26.     The respondent’s department has issued policy instructions concerning business visas known as “Migration Series Instruction 133” (“MSI 133”).  Paragraph 4.3.2 of MSI 133 refers to eligibility being related to “the achievement of stated objectives through the activities of the business, not directly to the size or scale of the business.”  Paragraph 4.3.3 of MSI 133 states that the eligible business definition “… may be met by a business whose activities come within the definition although the business may be small.  There is no requirement in law for the activities to be on any particular scale; it is sufficient for the business to demonstrate that its activities have achieved one of the stated objectives.” Such statements of opinion are not binding on me, but in my opinion they represent fairly the correct interpretation of s134(10) in the context in which it appears.

27. Significantly, in my opinion, the provisions of s134(10) and MSI 133 indicate that no particular scale of the nominated outcomes is required. In my opinion that does not mean, however, that a business (genuinely so called) that achieved one of the outcomes in a purely nominal way - such as a single export of nominal value – would be sufficient.

28.     Having regard to the outcomes referred to in para 25 above and the evidence concerning Miller & Sons’ business activities, it is clear that factors (d) and (e) are not applicable.  In relation to factors (b) and (f) there is no evidence before me that would allow a conclusion that the export of seafood would involve the creation or maintenance of employment in Australia, or any increase in commercial activity or competitiveness within sectors of the Australian economy – certainly not given the quite small scale of activity undertaken by Miller & Sons and the fact that it did not employ any employees.

29.     In relation to factor (a), it is significant, in my opinion, that Miller & Sons’ export business involves a single supplier and a single customer in Indonesia which is, in a substantial part, a business conducted by the applicant’s husband.  To that extent I do not consider that it can be said to involve the development of business links with the international market.

30.     In relation to factor (c) it is clear that prior to the time of cancellation, and more extensively thereafter, Miller & Sons did export Australian goods.  Although the quantity and value of seafood exported has not been great, by the time of cancellation a number of transactions had occurred and there was reason to expect (as in fact eventuated), that they would continue.  It was and continued to be a scale of activity that was not nominal and, in my opinion, achieved the stated objective.  I am satisfied that at the time of cancellation Miller & Sons had, and expected to continue to export Australian goods and in those circumstances I am satisfied that its business was an eligible business.

31. It follows from the above that the power to cancel the applicant’s visa did not arise because of a failure to satisfy s 134(1)(a) of the Act. I therefore turn to consider whether the applicant satisfied s 134(1)(b), which requires that the applicant must be “utilising ... her skills in actively participating at a senior level in the day-to-day management” of the eligible business conducted by Miller & Sons.

32.     The applicant’s evidence was that she and her husband are involved in three businesses in Indonesia.  The first is a children’s’ clothing manufacturing business, which she and her husband have operated for more than 30 years.  The business employs more than 100 people and the applicant’s role involves the choosing of samples, the supervision of production and the dispatch of goods to customers.  She said that she spends at least 8 hours each working day at the factory.

33.     The second business that she and her husband own involves the purchase of plants and other materials from various parts of Indonesia that are made into medications in the same factory premises as the clothing business.  This business has been operated for about 20 years and her husband is the principal manager of it.  She was not aware of the monetary value of the turnover of the business, but said that on average she expected to spend about 60 days per year working in this business.

34.     The third business that the family is involved in in Indonesia is the restaurant business referred to above, in which her husband is one of the five partners who own and operate it.  Her husband is actively involved in the management of the business and the applicant spends no time in its operations.

35.     In relation to Miller & Sons, the applicant demonstrated in her oral evidence that she knew very little about its operations.  She was not aware that she had a 35% ownership interest, saying that she had thought that she and her husband and her son simply owned the whole business together.  She had heard of Southern Trading and knew that it was the supplier of the seafood that was exported to Indonesia, and on two occasions she had been invited to dinner in Australia with Mr Goh.  On one occasion she had telephoned Southern Trading from Indonesia to enquire about the time of arrival of one consignment.  She had been aware that the company had accountants in Australia but she had not dealt with them.  Her son was responsible for that.

36.     The applicant said that the idea of becoming involved in shipping seafood to Indonesia had been her husband’s idea and she did not know how many shipments there had been since early 2002, nor did she know anything about the profit margin or profitability of the business.  She did not know how Miller & Sons arranged payment for the supplies, but she did know that money received from the sale of the products in Indonesia went into the bank account in Indonesia in her husband’s name.  She did not know about the transfer of money from Indonesia to Australia to pay for the goods.  Overall, the applicant said that she could not be definite about how much time she spent on the seafood business but that sometimes it might amount to 2-3 hours per fortnight.

37.     On the evidence I am satisfied that the applicant has not been involved in any significant way in the operations of Miller & Sons, whether at a senior level or otherwise.  I am satisfied that the business was the result of efforts by the applicant’s husband and son and that they are the people who have been involved in the management of that business.  I am satisfied that the applicant’s time is more than fully taken up with her other business activities in Indonesia and that there has been no meaningful involvement in the management of Miller & Sons.  That reality, plus the fact that the applicant has spent only 63 days in Australia between the time of her first arrival and the date of cancellation of the visa, leads me to the conclusion that the applicant has not utilised her skills in actively participating at a senior level in the day-to-day management of the business of Miller & Sons.

38. Accordingly, the power to cancel her visa under s 134(1)(b) of the Act does arise. Having reached that conclusion, it is unnecessary to consider whether or not at the time of cancellation the applicant had any intention to continue to hold an ownership interest in Miller & Sons and to be involved in the management of the business, as required by s 134(1)(c). On this point the applicant’s evidence was, however, that it was necessary to continue to operate the businesses in Indonesia and there were no immediate plans to spend more time in Australia or to become more actively involved in the Australian business. In those circumstances I consider that the power to cancel the visa would also arise under s 134(1)(c).

39. Having determined that the discretionary power to cancel the visa did arise under s 134(1) of the Act, I must then consider the requirements of s 134(2). That sub-section provides that a business visa must not be cancelled if the Minister (or the Tribunal) is satisfied that the holder of the visa has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and to utilise his or 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.

40. Section 134(3) provides that for the purpose of deciding whether a person has made those genuine efforts, 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 the 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:

(j)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).”

41.     MSI 133 provides guidance in the interpretation of the factors that may be taken into account, and although these are not binding on the Tribunal, there is good reason why they should be applied in the interests of consistency of decision making: see Skoljarev v Australian Fisheries Management Authority (1995) 133 ALR 690 at 695 and 696, per Davies J.

42.     In relation to business proposals that the visa holder has developed, MSI 133 refers to proposals that are considered genuine, realistic and achievable.  The applicant’s evidence was that she originally intended to become involved in exporting children’s’ clothes to Australia but decided against that course of action when she learned that it was difficult to import acrylic children’s clothes into this country.  She surveyed shops in Australia that sold baby clothes and discussed possibilities with her friends in Australia but her efforts to research a business opportunity in Australia were interrupted by her husband having a heart attack in the middle of the year 2000.  For some months he was unable to work and only slowly was able to get back into work.   She had been totally committed to their other businesses in Indonesia during this time.  As noted above, the applicant’s evidence was that the seafood export business had been something that had been researched and initiated by her husband and son.  Apart from that business there is nothing to indicate that the applicant at any time developed business proposals in any formal sense that might be considered genuine, realistic and achievable.

43.     As regards the existence of partners or joint venturers for the business proposals, MSI 133 refers to the need for formal contracts with partners or joint venturers.  This provision is not applicable in the present case.

44.     As regards research that the applicant has undertaken into the conduct of an eligible business, the MSI 133 refers to a need for written evidence of detailed consultations with at least 3 business advisers.  There is evidence from the applicant that her husband at one stage consulted a migration agent who had helped them prepare their original application for a business visa, and that person was responsible for the incorporation of Miller & Sons in anticipation of a business being established.  Apart from that, Mr Lokanata gave evidence that he arranged for the engagement of the accountant who subsequently prepared the various tax returns and financial statements for the company.  In the circumstances I do not consider that the applicant has conducted any meaningful research into the conduct of businesses in Australia.

45.     In relation to the period during which the applicant was present in Australia, the MSI refers to a physical presence for more than 6 months since first arrival.  In the present case it is agreed that the applicant spent only 63 days in this country prior to cancellation, a period that is substantially less than the nominated 6 month period.

46.     As regards the value of assets transferred for use in obtaining an interest in a business in Australia the MSI refers to a business visa holder transferring and retaining in Australia at least 50% of the funds indicated as available for transfer within 2 years.  In the present case there is no evidence before me as to what amount was nominated by the applicant in the original application for a business visa, as available for transfer to Australia.  The applicant’s evidence was that she did not know how much had been nominated at that time and that she did not know how much money had been sent to Australia as an investment in Miller & Sons for the purposes of the seafood export business.  It appears from the financial statements of Miller & Sons (A2) that at 30 June 2002 the company had total assets of $1,768 and net assets or shareholders’ equity of $232.  Those amounts had increased to $24,772 and $5,448 respectively at 30 June 2003.  In the circumstances the amount transferred to Australia for investment in a business (over and above the paid up capital of the company of $100.00) is, in my opinion, an insubstantial amount only and the value of the ownership interest is similarly insubstantial.  The value of the ownership interest is substantially less than the minimum of $100,000 nominated by the MSI.

47.     As regards business activity that has been undertaken by the person in a business, the MSI refers to turnover of a minimum $100,000 and in this respect the business of Miller & Sons satisfies that factor.

48. The factors identified in s 134(3) in relation to genuineness of effort are not an exhaustive list of factors relevant to that issue. The factors are specifically stated to not limit the generality of matters that may be taken into account. In the course of the hearing an issue emerged that, in my opinion, is relevant to the issue of genuineness of efforts made by the applicant – specifically why she, rather than her husband, had been the principal applicant for the visa.

49.     The applicant gave evidence that she applied for the business visa as the principal applicant, rather than her husband, because the migration agent who had advised them at the time told them that her husband would be considered to be too old, notwithstanding that her husband was the principal business decision maker in the family.  When the visa had been granted she had understood that a business had to be established in Australia but she believed that it would be sufficient for her husband to develop and carry on the business with assistance from her son in Australia.  She had understood that if a business was established in Australia then she and her husband would be able to move backwards and forwards between Australia and Indonesia so that they could devote considerable time to their Indonesian businesses whilst their son looked after the Australian business.  Her husband’s illness had delayed their efforts but once Miller & Sons had been established and the export business commenced, it had developed in the way that she had expected, with her husband and son being the main persons involved in the operations.

50.     The applicant said that she has three other sons living in Indonesia.  The oldest, Feller, graduated from an American university and is now working in a business owned by his girl friend’s parents.  A second son, Michael, has recently graduated from an Indonesian university and is now working in the family business.  A third son, Jeff, is at high school in Indonesia. 

51.     Mr Lokanata gave evidence that he had been told by his father in 1999 that he must stop studying in Indonesia and must study in Australia.  From mid 1999 he had studied in Australia, graduating with a Bachelor degree in Management and Information Systems and had recently started a Bachelor of Arts in Audio Engineering.  He also studies Mandarin and Japanese languages part time at TAFE.  He returns to Indonesia each year for several months for holidays and is close to his brothers.  He would much prefer to remain living in Australia.  He said that in early 2003 his father had told him that he was not prepared to finance the Bachelor of Arts degree and wanted him to do a Masters degree or work in Australia.  Shortly before the hearing he and his father had an argument about what study he should be doing in  Australia.

52. In relation to this issue I agree with the written submissions filed on behalf of the respondent after the hearing that the Act distinguishes clearly between an applicant for the principal visa (in this case the applicant) and those persons who are granted visas by virtue of being members of the family unit of that person. It is clear from sections 134(4) and (5) (relating to the cancellation of visas held by other members of the family unit) that sections 134(1) and (2) deal specifically with what is required of a principal visa holder. It is that person who must acquire an ownership interest and utilise skills in active involvement in the management of an eligible business – or make genuine efforts to do so.

53. Although there is nothing to prevent family members from being involved in the management of the relevant business, that involvement cannot, in my opinion, be a substitute for the personal involvement of the principal visa holder as required by sections 134(1) and (2).

54. It follows, in my opinion, that the efforts of the family members cannot assist the applicant satisfy the requirements of s 134(1) (regarding the acquisition of an ownership interest or involvement in management) or s 134(2) (in relation to genuineness of efforts).

55. Having regard to the above, in my opinion it cannot be said that the applicant has made genuine efforts to be sufficiently involved in the day-to-day management of an Australian business at a senior level. Although there is, in my opinion, an eligible business in Australia, the reality is that it is managed from Indonesia by the applicant’s husband and it is, in effect, a supplier of goods for the husband’s restaurant business. I find that the applicant has not made genuine efforts to be relevantly involved in the management of the Australian business and does not intend to do so. Section 134(2) of the Act does not, therefore, prevent the cancellation of the applicant’s visa.

56.     There remains, however, a residual discretion within the Tribunal to not cancel the applicant’s visa: Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 31 per Kiefel J.The factor considered above is relevant to the exercise of that residual discretion, as would the impact of cancellation decisions on all the visa holders.   No other factors were identified by the parties.

57.     On the evidence I do not consider that there is sufficient reason to exercise the discretion in favour of the applicant.  Although a business has been established in Australia it is a minimal one in the sense that it has only one supplier and only one customer, and it is primarily a source of supply for the restaurant business in Indonesia.  The applicant and most of the members of her family have made no effort to migrate to Australia in any meaningful sense and have spent limited time here.  Two of her sons who have graduated from universities have made no attempt to settle here.  The only member of the family who has spent significant time in Australia is her son, Mr Lokanata.  Notwithstanding his desire to stay in Australia, on balance I consider that the decision to cancel the applicant’s visa was the correct or preferable one, and I affirm the decision made by the respondent’s delegate on 9 July 2002.

I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Murray Allen, Member

Signed:         ..............(Sgd. Ms V Wong)................................
  Associate

Date/s of Hearing  18 and 19 September 2003
Date of further written
  Submissions   8 December 2003
Date of Decision  March 2004  
Solicitor for the Applicant          Represented by son, John Miller Lokanata
Solicitor for the Respondent     Joanne Andretich