Lie and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 285
•17 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 285
ADMINISTRATIVE APPEALS TRIBUNAL )
)No W2003/48
)
GENERAL ADMINISTRATIVE DIVISION ) Re ALFIAN RUSLI LIE Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms L Savage Davis, Member Date17 March 2004
PlacePerth
Decision The Tribunal affirms the decisions under review. .........(sgd L Savage Davis)............
Member
CATCHWORDS
MIGRATION – business skills visa subclass 127 – cancellation of visa – Applicant’s failure to obtain a substantial ownership interest in a business in an eligible business in Australia – active participation in day to day management at senior level of business – whether genuine effort made – discretion not to cancel visa
Migration Act 1958 sections 134, 137
Migration Series Instructions Nos 133
Hope v Bathurst City Council (1980) 144 CLR 1
Huang v Minister for Immigration and Multicultural Affairs [2002] AATA 656
Jo v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 97
Lau v Minister for Immigration and Multicultural Affairs [2002] AATA 703
Ng v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 299
Salim and Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899
Tang v Minister for Immigration and Multicultural Affairs [2000] AATA 997
Widjojo v Minister for Immigration and MulticulturalAffairs [2001] AATA 774
Wong v Minister for Immigration and Multicultural Affairs [2002] AATA 54
REASONS FOR DECISION
17 March 2004 Ms L Savage Davis, Member 1. This is an application by Mr Alfian Rusli Lie (the applicant) for review of a decision dated 30 December 2002 of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the respondent), to cancel the business visa issued to the applicant pursuant to section 134 of the Migration Act 1958 (the Act),
2. At the hearing the applicant was represented by Mr James Chong of James Chong & Co, Barristers and Solicitors and the respondent was represented by Mr Nathan Dawson of Blake Dawson Waldron, Lawyers.
3. The documents lodged pursuant to section 37 Administrative Appeals TribunalAct1975 were received into evidence (T1-T20 1/118), Supplementary Documents Vol 1 (T21-T30 1/120), Supplementary Documents Vol 2 (T31-T40 121/415) and further documents were tendered and marked as follows:
Exhibit
Description
Date
A1
Witness Statement of Alfian Rusli Lie
2 September 2003
A2
Applicant’s Statement of Facts and Contentions
1 September 2003
A3
Supplementary Documents of Applicant
1 December 2003
R1
Respondent’s Statement of Facts and Contentions
2 October 2003
Oral evidence was given to the Tribunal by the applicant with the assistance of an Indonesian interpreter.
BACKGROUND
3. On 30 August 1999 the applicant was granted a Business Skill Migration Class visa (subclass 127) (T40/412-413). The applicant first entered Australia on 9 September 1999.
4. On 17 September 2001 the applicant was sent a Survey of Business Skills Migrant – 24 Months form (24-month survey form) (T11/59). This was completed and received by the respondent on 8 October 2001 (T12/64-72). On 2 November 2001 the respondent sought further information from the applicant (T14). On 20 July 2002 the respondent made a further request for additional information (T17). This was provided on 27 August 2002. (T19/80-114)). By letter dated 28 August 2002 the respondent notified the applicant of its intention to cancel the applicant’s Business Skill Migration Class visa (the visa) under section 134 of the Act (T20). On 30 December 2002 a delegate of the respondent notified the applicant of the cancellation of his visa (T4). On 5 February 2003 the applicant lodged an application for review of the decision to cancel his visa.
LEGISLATION
5. Section 134 of the Act empowers the respondent to cancel a business visa in certain circumstances. The relevant provisions of the Act as applies to the applicant in this case are subsections 134(1), (2), (3), and (10) that provide as follows;
“Cancellation of business visas
(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.
(3) Without limiting the generality of matters that the Minister may take into account in determining whether a person has made the genuine effort referred to in subsection (2), the Minister may take into account any or all of the following matters:
(a) business proposals that the person has developed;
(b) the existence of partners or joint venturers for the business proposals;
(c) research that the person has undertaken into the conduct of an eligible business in Australia;
(d) the period or periods during which the person has been present in Australia;
(e) the value of assets transferred to Australia by the person for use in obtaining an interest in an eligible business;
(f) the value of ownership interest in eligible businesses in Australia that are, or have been, held by the person;
(g) business activity that is, or has been, undertaken by the person;
(h) whether the person has failed to comply with a notice under section 137;
(i) if the person no longer holds a substantial ownership interest in a particular business or no longer utilises his or her skills in actively participating at a senior level of a day-to-day management of a business:
(i)the length of time that the person held the ownership interest or participated in the management (as the case requires); and
(ii)the reasons why the person no longer holds the interest or participates in the management (as the case requires).
(10) In this section:
business visa means:
(a) a visa included in a class of visas, being a class that:
(i)has the words "Business Skills" in its title; and
(ii)is prescribed for the purposes of this paragraph; or
(b) a visa:
(i)to which a prescribed provision of the Migration Reform (Transitional Provisions) Regulations applies; and
(ii)
that is of a kind prescribed for the purposes of this paragraph; or
(c) a return visa that is granted to a person who is or was the holder of a business permit or business visa;
that is or was granted on or after 17 February 1992.
designated investment has the meaning given by the regulations.
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.
established business in Australia visa means a business visa a criterion for whose grant:
(a) relates to the applicant having an established business in Australia; or
(b) is that the applicant is a member of the family unit of the holder of a visa a criterion for whose grant is as mentioned in paragraph (a).
family member's visa means a business visa held by a person:
(a) who is or was a member of the family unit of another person who held a business visa; and
(b) who would not have held the business visa if he or she had never been a member of the family unit of the other person.
investment-linked visa means a business visa a criterion for whose grant:
(a) relates to the holding of a designated investment; or
(b) is that the applicant is a member of the family unit of the holder of a visa a criterion for whose grant is as mentioned in paragraph (a).
member of the family unit has the meaning given by the regulations.
ownership interest, in relation to a business, means an interest in the business as:
(a) a shareholder in a company that carries on the business; or
(b) a partner in a partnership that carries on the business; or
(c) the sole proprietor of the business;
including such an interest held indirectly through one or more interposed companies, partnerships or trusts.
relevant designated investment, in relation to an investment-linked visa (other than a family member's visa), means the designated investment that was, in deciding to grant the visa, regarded as satisfying the criterion referred to in paragraph (a) of the definition of investment-linked visa.
return visa has the same meaning as in the regulations.”
6. Section 134(3) of the Act sets out the matters the respondent may take into account in determining whether a person has made the “ genuine effort “ referred to in section 134(2). In addition the Migration Series Instructions Nos 133 (MSI), at paragraph 4.5 lists factors that are relevant to be taken into account by decision-makers in considering whether a genuine effort has been made. They are as follows;
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 Alfian Rusli Lie’s Evidence
7. The applicant confirmed the contents of his witness statement dated 2 September 2003 with two qualifications (Exhibit A1). He requested that in paragraph 7 the date, 8 February 2002, be changed to 8 February 2001, and that a fourth export dated 10 May 2002 be added. In paragraph 22 he requested that the number 30 be replaced with the number 20. These changes were duly noted.
8. The applicant confirmed that his business Prakarsa (the business) had been registered on 10 August 2001. Although 3 people were involved in the running of the business, the applicant himself, his wife and daughter, the business was a partnership comprising himself and his wife . The applicant said the business was concerned with the export of copper chromium zircon alloys (alloys). Shortly after arriving in Australia he began to make enquiries about alloys and looking for purchasers in Indonesia. He said the document at T8/55 was proof that an export had occurred in September 2001.
9. The applicant told the Tribunal that his supplier, I & R Resources provided him with alloys. He referred to an export of alloys that cost just over $6,000 and although he broke even, made no profit. The second export made a small profit as shown by the documents at T8/53-54 detailing the cost of the order and the amount it was then sold for. He said in a subsequent export in February 2002 (T19/101), he sold alloys again to the same buyer for $7,250 and made a profit of $500. The buyer was a friend, although the applicant said he had no interest in his friend’s company.
10. The applicant explained that the discrepancy between the receipt for $7,500 and the invoice of $7,250 could be explained by the fact that the additional amount had been received to cover the costs of transporting the alloys from the airport in Indonesia to the buyer’s address. He also said that it was usual practice in Indonesia to issue a receipt first, and then the invoice as occurred in this transaction of 8 February 2002 (T19/ 101-102). His daughter prepared these documents and he gave instructions. This was because his English was not very good. Although there was no shipping bill for the export of February 2002, he said there should be, and he didn’t know why it wasn’t there. He said there should be a document like the one for the first export (T19/98).
11. The applicant said that there also were exports in May and July 2002, all to the same person, Mr Sunya Wijaya the owner of Toko Sumber Rejeki. Again he accepted that there was no evidence of shipping of the alloys ordered on 1 July 2002 (T19/105) although he believed he had provided it. The applicant said there was a further export in June 2003 (Exhibit A3/63).
12. The applicant told the Tribunal that he was not involved in any other business. On further questioning he told the Tribunal he said he also been involved in business activity related to the export of French Fry equipment. He was referred to Exhibit A3/17 which he described as an “agreement to work together”.. This did not eventuate. As a result of disagreements as to how the sale would be financed the transaction was cancelled. The applicant was referred to Exhibit A3/11. This was an agreement of January 2003 between I & R Resources and PT PETINDO PERKASA _ INDONESIA to sell French Fry equipment. $100,000 was transferred to I & R Resources, but subsequently the agreement was cancelled and the money returned. A $100,000 investment in Green Star had been lost. He had not been involved in any other investments.
13. The applicant told the Tribunal that he has a plywood business in Indonesia. He does not sell alloys in Indonesia. He works approximately 3-4 hours per day on his Indonesian business. He spends the afternoon looking for new customers for his alloy export business. Generally he works about 20 hours per week attempting to meet new clients. He said this is a slow process in Jakarta because the traffic is bad. He also travels outside Jakarta.
14. When he is in Australia he spends time primarily with Mr Iwan of I & R Resources, looking for other products to export. He also sees his accountant, Mr Richard Tan, but said he did not see any other professionals apart from his lawyer, Mr Chong. Mr Tan had provided confirmation of this in writing (T19/81). Accounts prepared by Mr Tan showed the business made a net profit before income tax of $2,392.76 for the year ended 30 June, 2002 (T19/86).
15. Since coming to Australia he had transferred approximately $600,000 into Australia. This included $300,000 to buy a house, $100,000 lost in the Green Star investment and $100,000 in the bank. He had also bought cars. Initially he had put $20,000 into the business and all up by now had probably contributed $120,000. He referred the Tribunal to his Business Activity Statement due on 28 October 2002 (Exhibit A3/74). Looking ahead he said he was looking for new business opportunities and intended to continue with the export of alloys. He re-iterated that his daughter acts on his instructions only, although he conceded she usually signs the documents because he was in Indonesia. He said however she faxes them to him first and he then instructs her as to how to proceed.
16. The applicant has three children. One is still at university in Australia. The applicant said when he is 55 or 60 years old he would like to stay in Australia on a permanent basis.
Cross Examination
17. The applicant agreed he arrived in Australia in September 1999 and that the 24-month survey was sent by the Department of Immigration and Multicultural Affairs in July 2001. He agreed that he set up the business in August 2001, about one month after the survey was sent. He said that between September 1999 and August 2001 he had been asking friends what sort of business he could start in Australia. The applicant said that he was in partnership with his wife although there was no formal partnership deed.
18. In Indonesia he said he had a plywood company that he had owned for some 10 or so years. The plywood business was well established and he did not need to have a big input into. The applicant said that the business and home address in Australia were the same. His entire family lived at that address. His 23-year-old daughter worked for the business as an employee and he paid her.
19. The applicant agreed that he had had four exports of alloys over approximately a 10-month period and all to the same buyer. He agreed that his daughter signed the majority of documents (T8/42-, 47, 54). He said he had forgotten to sign the two export documents at T19/101-102. His daughter prepared the documents because they were in English.
20. The applicant was referred to the proof of shipping for the third export in May 2002 (Exhibit A3/57). The applicant said that he could not provide an invoice or a receipt to go with that export. He agreed that the document at T19/105 was in English and unsigned. When asked about the profit the exports had generated, the applicant said he wasn’t sure. When referred to the trading account as prepared by Richard Tan, he agreed that Prakarsa had made a gross profit of $4,300 and a net profit of $2,392.76 for the financial year ending June 2002 (T19/86).
21. The applicant said the business arrangement involving the French Fry equipment was with I & R Resources, and that he and Mr Iwan had signed the agreement (Exhibit A3/17). He did not have any other documents to show evidence of the discussion in regard to the French Fry equipment such as letters or faxes. He agreed that there was now no agreement in place although in his witness statement he had stated that a final agreement had been reached for this to go ahead. He was referred to Exhibit A3/11 which related to the joint venture for the sale of French Fry equipment. He agreed this was dated three weeks after the cancellation of his visa. The applicant said he had no interest in the company to which the French Fry equipment was to be sold.
22. The applicant said when he was in Indonesia he looked for clients. He works as an agent in the plywood business and is the sole distributor in Jakarta supplying about 2,000 cubic metres per month. This has been a business he has been involved in for more than 10 years and does not require much time.
23. The applicant said he had arrived in Australia on Sunday the 8th for the hearing of the 10th February. He agreed he had spent 102 days in Australia between the grant of the visa and cancellation. He said his family lives here full time. The applicant said it was his daughter and not his wife who worked in the business. He had no fax or phone records of business conversations with his daughter as they did not have a special business line for the phone. The only documents he had from professionals in Western Australia or in Australia were from Mr Tan. The applicant said there were no financial statements available for the financial year ending June 2003. Although no other business has been conducted since the cancellation of his visa he wished to continue the alloys business.
24. On re-examination the applicant agreed that there was no partnership agreement between he and his wife, but said that he did not believe this was necessary.
25. Responding to questions from the Tribunal the applicant said his wife does provide him with advice but was not very involved. His daughter did approximately 15 hours a week for the business but she was not actually paid cash. The applicant said he was unable to provide documented evidence about activities he had undertaken such as liasing on behalf of the business. He said he did the market research required himself. Since cancellation of his visa his son had started to do some work in the business.
26. The applicant was asked if he completed the 24-month survey form and confirmed he had. He said the approximate annual value of exports sold by the business had been recorded in the 24-month survey form as $150,000 because friends had told him the target had to be $100,000.
27. In re-examination by Mr Chong, the applicant said he did not complete the 24-month survey form and did not know whose writing it was. After consideration he said that it was completed by Mr Richard Tan and he had told Mr Tan to put in a figure of $150,000. The applicant agreed he had signed the form.
Final Submissions – Mr Chong
28. Mr Chong submitted that Prakarsa had been registered in the applicant and his wife’s name and whilst there was no partnership agreement, there was no legal requirement for there to be so. In Indonesia it would not be usual practice to draw up a partnership deed. He submitted that the applicant’s 50% interest in his business represented a substantial interest. It was submitted that it was an eligible business because it was engaged in continuous and repetitive transactions. There had been, it was submitted, 3 transactions prior to 30 December 2002 and one since the visa cancellation.
29. It was submitted that the three transactions meant that the business was an eligible business for the purposes of the Migration Act 1985. Whilst it did not employ people in Australia, it benefited associated businesses and clearly satisfied the requirement of s 134(10) of the Act by exporting Australian goods. It was submitted that it only had to meet one criteria and it did that by exporting Australian goods.
30. In regard to the first export on 27 September 2001, it was submitted that the airway bill (T8/55) was evidence that the alloys had been exported by Prakarsa. This was supported by the invoice and the receipt for the initial purchase of the goods (T8/53-54). Although the profit made was small, it was submitted this was a first transaction and the MSI Guidelines indicated that the size and scale of the business was immaterial.
31. In regard to the second export on 8 February 2002 it was submitted that this was evidenced by the invoice and receipt (T19/101 –102). The discrepancy of $250 between the invoice and the receipt was due to the difference in costs between arrival in Indonesia and delivery to the address of the buyer. It was submitted that although there was no airway bill, and the applicant in evidence had said he could not produce it, he had maintained that it did exist.
32. In regard to the export of 10 May 2002, (Exhibit A3/57) it was submitted that the airway bill showed Prakarsa was the shipper and that there was evidence of a receipt and invoice (Exhibit A3/58-59). Although the documents were not signed this could be explained by the usual practice of collecting the money first, then giving the receipt, then doing the invoice and then shipping.
33. Although there was no airway bill for the further export of 1 July 2002 it was submitted that it had occurred
34. In addition there was one post cancellation export on 6 June 2003 (Exhibit A3/63). This was evidenced by the airway bill (Exhibit A3/64) and documentary evidence of a shipment valued at $14,143.20. It was submitted that in its entirety this was evidence of a continuing business and ongoing genuine effort. With total exports valued at approximately $22,500 as outlined in Richard Tan’s letter (T19/81). Therefore the business could be described as an export business.
35. The applicant had made genuine efforts to do other business as evidenced by the agreements reached in regard to French Fry equipment. Although no transaction ultimately occurred, it was a genuine effort. The payment of $100,000 post cancellation, although subsequently returned, was evidence genuine effort was involved.
36. Although most documents were signed by the applicant’s daughter she did this at his direction and with his approval. It was submitted she was like a secretary and acted as a conduit because the applicant cannot write or speak English. Although the applicant had only spent 102 days in Australia, he was actively involved at a senior level in the day to day management of the business. This was because the primary need of the business was to locate customers. He spent approximately 20 hours per week looking for customers and doing market research which it was submitted had been recognised as management in Hope v Bathurst (1980) 144 CLR 1.
37. The 24-month survey form should be disregarded in favour of the evidence the applicant had given today. It was submitted the applicant talked about targets in his evidence and that he misconstrued or misunderstood what was required. The information provided on the 24-month survey form should not affect the credibility of his evidence today.
38. It was submitted the applicant had brought approximately $600,000 into Australia and therefore satisfied the MSI Guidelines, which required a minimum transfer of $100,000. This was evidenced by the $20,000 in capital for the business, and $100,000 that went into the French Fry equipment, although this transaction had not been completed and the money had been returned. This money was still available to be invested in a business.
Final Submission – Mr Dawson
39. Mr Dawson referred the Tribunal to Exhibit R1 which he said outlined the respondent’s position. This included a chronology that showed that Prakarsa was not even registered until one month after the 24-month survey was sent, that is, not until 13 August 2001 more than 2 years after the applicant had been granted his visa. The respondent accepted that a partnership did not have to be reduced to writing. It was submitted that the applicant could not provide evidence of activities or business research that he had done in that two years. The respondent emphasised the need for genuine effort to be made prior to cancellation.
40. It was submitted that the evidence presented in regard to the four alloy transactions indicated that all involved the same buyer. In some of these transactions there were no airway bills, documents were unsigned or if signed, had been by the applicant’s daughter. The fifth transaction it was submitted was irrelevant occurring after the date of cancellation of the visa.
41. It was accepted that there was an airway bill for the transaction of 10 May 2002 (Exhibit A3/57), However the invoice referred to 47 bars in total and the receipt to only 25 (Exhibit A3/58-59). This was typical of the discrepancies in documentation and evidence. Even if it was accepted that 4 exports occurred the total value was only between $22,000 - $25,000. Four transactions over 10 months to the same buyer did not constitute being engaged in an activity for the purpose of profit on a continuous and repetitive basis. The Tribunal was referred to the comments of Deputy President McMahon Ming Tang v Minister for Immigration and Multicultural Affairs [2000] AATA 997(paragraph 20).
42. In regard to the French Fry equipment it was submitted that this involved the same supplier as for the alloys, I & R Resources. The documentation relating to this showed that the initial agreement of 18 November 2002 was little more than a month before cancellation of the visa and three months after Notice of Intention to Cancel the visa (T20). It was submitted that the document that purports to be a joint venture document was not supported by other evidence. The $100,000 paid as a deposit was done so after the cancellation of the visa and in any event the transaction collapsed and the $100,000 was returned. This could not be described as proof of genuine effort.
43. It was submitted that for the financial year ending 30 June 2002 the partnership showed a gross profit of only some $4,300 and a net profit of $2,392.76 (T19/83-89).. The small profit realised was consistent with the fact that very little business was conducted. The applicant had registered one company, Prakarsa after receiving the 24-month business survey; very few transactions subsequently occurred; they were not continuous and repetitive and the applicant had only spent 102 days in Australia since being granted a visa on 30 August 1999. The applicant’s daughter appears to have conducted most of the business on behalf of the applicant and there is no evidence of correspondence, e-mails or minutes of meetings involving the applicant. Nor was there any evidence of what the applicant does or who he meets with in the 20 hours per week spent looking for clients in Indonesia.
44. The applicant had not made a genuine effort to obtain a substantial ownership in an eligible business in Australia. There was no evidence of feasibility studies or research; the joint venture involving French Fry equipment was evidenced by only one document and did not eventuate; other activities such as investigating the purchase of plywood have been preliminary enquires only and the total value of exports have a value below the figure of $100,000 referred to in the MSI.
CONSIDERATION AND DECISIONS
45. In reaching its decision the Tribunal took into account the documentary and oral evidence, the submissions made at the hearing and the authorities cited. The first issue for the Tribunal to consider is whether it should exercise the discretion to cancel the applicant’s visa because he has not obtained a substantial ownership in an eligible business in Australia.
46. The Tribunal notes that in conducting its review and reaching its decision, the primary focus is whether the applicant satisfied the requirements of the Act at the time of cancellation. What occurred after the date of cancellation however may be relevant to adequately addressing that matter (Wong v Minister for Immigration and Multicultural Affairs [2002] AATA 54; Lau v Minister for Immigration and Multicultural Affairs [200] AATA 703). Cases such as Hope v Bathurst City Council (1980) 144 CLR 1 provide guidance as to the interpretation of the term ‘business”. Hope (supra) is authority that carrying on a business should be understood as activity undertaken on a continuous and repetitive basis for the purpose of profit. The Tribunal notes also that the business does not have to reach a threshold of size or turnover to qualify. The meaning of an “eligible business” is outlined in s134(10) of the Act and to qualify it must meet at least one of the criteria.
47. The applicant and his wife entered into a partnership and registered the business name Prakarsa on 13 August 2001 (T12/63). As a half owner of that business the applicant has satisfied the requirement to obtain a “substantial ownership interest” as required by section 134(1)(a) of the Act. The respondent submits that it is not however an “eligible business” within the meaning of section 134 of the Act.
48.The only business activities that have come to fruition involve the export of alloys, although there is dispute as to whether all transactions actually were completed. The documentary evidence in regard to the transactions is not complete in all cases and documents are unsigned. Of the exports that are said to have occurred prior to the cancellation of the visa only that in September 2001 is evidenced by a shipping bill (T19/98) and signed invoices and receipts (T8/53-54). Accepting that at least one transaction occurred the result is the export of Australian goods (section 134(10) (b) of the Act). However even if all four exports did occur, this limited number of exports, as well as the quantities involved is not in the Tribunal’s view sufficient to support the conclusion that the business will result or is resulting in ”the development of business links with the international market”; “the creation or maintenance of employment in Australia” or an increase in commercial activity and competitiveness within sectors of the Australian economy”. The impact in Australia could only be described as so minimal as to be virtually negligible. Notwithstanding that a small amount of profit has been recorded for the financial year ending June 2002 these transactions cannot be described as continuous and repetitive. Accordingly the Tribunal is not satisfied that Prakarsa is an eligible business and so the basis for cancellation of the applicant’s visa under section 134(1)(a) of the Act is met.
49. Even however if the Tribunal was satisfied that the applicant’s acquisition of his interest in the business “is resulting or will result in “the export of Australian goods or services”, thus qualifying as an eligible business, the applicant is still required to demonstrate, in order to avoid the prospect of visa cancellation, that he utilises his skills “actively participating at a senior level in the day to day management of the business”. In considering section 134(1)(b) of the Act the Tribunal notes the decisions it has been referred to including Ming Tang v Minister for immigration and Multicultural Affairs [2000] AATA 997; Huang v Minister for Immigration and Multicultural Affairs [2002] AATA 656 and Eddy Walujo Widjojo v Minister for Immigration and Multicultural Affairs [2001] AATA 774.
50. The applicant’s evidence was that he spends approximately 20 hours per week attempting to meet new clients. He was however unable to provide any evidence as to meetings he had, or the names of potential clients. By way of explanation he said that it is a slow process in Jakarta where the traffic is bad. I do not accept this is a reasonable explanation for his inability to document any of his activities in Indonesia relevant to Prakarsa. The applicant has said that his daughter prepared the documents based on his instructions and signed documents on his behalf. There was however no evidence detailing any written instructions he had ever given to his daughter. He was at times confused in regard to detail; for example he did not know why documents such as shipping bills were not available. I found the applicant’s evidence to be unreliable and his recollection poor. For example he first confirmed that he had completed the 24-month survey form, then said he had not and did not know whose writing was on the form. On further questioning he said the form was completed by his accountant. The applicant had to be reminded that the business had also attempted to export French fry equipment.
51. The applicant has spent 102 days in Australia up to the date of cancellation of his visa. Mr Chong referred the Tribunal to the unreported decision of Rudy Karim Jo and Minister for Immigration and Multicultural Affairs [2004] AATA 97. In that decision Member Murray Allen, whilst agreeing with the view that the business skills visa provisions of the Act are designed to permit persons to migrate to Australia and to take up residence in this country said;
“… However, I do not believe that it can be said that the Act demonstrates a requirement that the visa holder become ordinarily resident in Australia immediately in the sense that he or she spends the majority of his or her time in this country, only taking trips overseas from time to time.” (para 33)
52. Member Murray Allen went on to list a number of factors that had led him to that position and concluded;
“In the circumstances, and although I am very conscious of the desirability of consistency of decision making in this Tribunal, I consider the views expressed in cases such as Huang, Ong and Ng, to the extent that they require only a person’s management activities in Australia to be considered for the purposes of determining whether a person has been actively involved in the senior management of an Australian business to go too far and beyond that which the Act requires. In my opinion activities undertaken outside Australia can also be taken into account if they can be directly related to the management of the Australian business. Put it another way, once it is established there is an eligible business in Australia, then in my opinion the management activities in relation to that business can take place in either Australia or overseas”. (para 36)
53. The applicant said a substantial amount of his time was spent travelling and attempting to make business contacts in Indonesia. No evidence was provided of any specific meetings, ongoing negotiations or records of his movements or activities and therefore the issue of where they occurred is not relevant. Whilst the Act does not prescribe any specific period that the visa holder is required to be in Australia, participation at a senior level in the day to day management by necessity would require presence in Australia for significant periods or evidence of contact on a regular basis with in this case the applicant’s daughter. Accordingly the Tribunal concludes that the applicant has not been actively participating at a senior level in the day to day management of the business.
54. There is one further matter for the Tribunal to consider. The applicant’s visa must not be cancelled if he has made genuine efforts to obtain a substantial ownership interest and eligible business in Australia and intends to continue to make such genuine efforts (s134(2) of the Act). Matters that may be taken into account are set out in section 134(10) (3). Guidance may also be sought from the MSI.
55. It was submitted on behalf of the applicant that the export of alloy post the visa cancellation and the agreement to export and supply French Fry equipment were evidence of genuine effort. The agreement between the applicant and I & R resources in regard to French Fry equipment was signed one month before the visa was cancelled and did not eventuate. This is notwithstanding that the applicant in his witness statement says that a final agreement was reached (Exhibit A3 para 31). I do not accept that this agreement, supported by brief correspondence between the applicant and I & R Resources only, as sufficient to satisfy the spirit of section 134(2) of the Act. The lack of documentation to support the venture leads me to conclude that it was not a genuine business proposal. The subsequent French Fry equipment venture also did not eventuate and in any event the applicant was not a party to that agreement, although he wrote a cheque for $100,000 payable to I & R Resources on behalf of the (exhibit A3/9-15). The one of export of alloy again to the same customer in Indonesia post visa cancellation also is not sufficient to satisfy section 134(2) of the Act. There has been no further exports or evidence of efforts to establish this business. The applicant’s assertion as to how he has spent his time whilst overseas is not supported by any documented evidence.
55. The Tribunal is therefore not satisfied on the basis of the evidence before it that the applicant has acquired an interest in an “eligible business in Australia”. Nor is it satisfied that the applicant has utilised 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 do those things and intends to continue to make such genuine efforts.
56. The Tribunal therefore affirms the decision made on 30 December 2002 to cancel the applicant’s visa.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Ms L Savage Davis, Member
Signed: .................(sgd V Wong)................................
AssociateDate/s of Hearing 10 February 2004
Date of Decision 17 March 2004
Counsel for the Applicant Mr J Chong
Solicitor for the Applicant James Chong & Co
Counsel for the Respondent Mr N Dawson
Solicitor for the Respondent Blake Dawson Waldron
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