Lim and Anor and Minister for Immigration and Multicultural Affairs
[2007] AATA 1036
•31 January 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1036
ADMINISTRATIVE APPEALS TRIBUNAL N° V2005/1098
N° V2005/1100
GENERAL ADMINISTRATIVE DIVISION Re GUT HIONG LIM AND
JERRY BUDIMUYA MULYAApplicants
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal:Dr Gordon Hughes, Member
Date:31 January 2007
Place:Melbourne
Decision:The Tribunal affirms the reviewable decisions.
(sgd) Gordon Hughes
Member
MIGRATION ‑ business skills visa – cancellation of business skills visa – meaning of eligible business ‑ meaning of eligible business in Australia – meaning of substantial ownership – absence from Australia – extreme hardship to student dependant
Migration Act 1958 ss 134(1), (2), (3), (4), (5), (10)
ReJo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 469
ReYam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283
ReNgu andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 341
Hope v Bathurst City Council (1980) 144 CLR 1
Puzey v Commissioner for Taxation (2003) 201 ALR 302
Re Tang and Minister for Immigration and Multicultural Affairs [2000] AATA 997
ReLau and Minister for Immigration and Multicultural Affairs [2002] AATA 703
ReTany and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 58
Re Wong andMinister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 54
Re Negaria and Ministerfor Immigration and Multicultural and Indigenous Affairs [2004] AATA 579
ReLai andMinisterfor Immigration and Multicultural and Indigenous Affairs [2006] AATA 152
Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481
Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961
ReChen and Ors and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 628
Re Salim and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899
ReChen and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1023
Re Then and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 18
ReAziz and Minister for Immigration and Multicultural Affairs [2006] AATA 301
REASONS FOR DECISION
31 January 2007 Dr Gordon Hughes, Member
1. These applications were heard jointly by the Tribunal on 11 September 2006. The applicants were represented by Mr Konfir Kabo, a solicitor with Kabo Lawyers. The respondent was represented by Mr Tigiilagi Eteuati, a solicitor with Clayton Utz Lawyers. The matter was adjourned part-heard, pending the production of further documentary evidence by Ms Gut Hiong Lim.
2. Ms Lim provided further documentary evidence on 9 October 2006. On 24 October the Tribunal ordered that Ms Lim file a translation of the documents by 17 November 2006. On 1 December 2006 the respondent filed a statement in response to that additional material.
Gut Hiong Lim
3. Ms Lim made an application under s 136 of the Migration Act 1958 (the Act) for a review of a decision of a delegate of the Minister for the Department of Immigration and Multicultural and Indigenous Affairs (the respondent). The decision, dated 3 November 2005, was to cancel Ms Lim’s business skills visa pursuant to s 134 of the Act.
4. Ms Lim was born in Indonesia on 5 December 1954. On 5 July 2002 Ms Lim and her family were granted business skills visas and she first entered Australia under the business skills visa on 9 July 2002.
5. On 29 June 2004 the respondent wrote to Ms Lim, requesting her to complete a Form 1010: Survey of Business Migrant Class and Resident Class 24 months, otherwise known as a 24 Month Survey.
6. On 29 June 2005 Ms Lim was given a Notice of Intention to Cancel under s 134(1) of the Act on the basis that she had not obtained a substantial ownership interest in an eligible business in Australia; had not utilised her skills in actively participating at a senior level in the day-to-day management of such a business; and did not intend to continue to hold a substantial ownership interest or utilise her skills in actively participating at a senior level in the day-to-day management of eligible business in Australia.
7. In its Record of Decision, the respondent informed Ms Lim that an investment of $15,000 to acquire 20 per cent ownership in a company, Austindo Pty Ltd (Austindo), did not amount to a substantial ownership interest. And that, in any event, Austindo was not an eligible business within the definition of s 134(10) of the Act. The respondent further concluded that Ms Lim had not demonstrated that she was making, or intended to make, a genuine effort to obtain a substantial ownership interest in an eligible business or to utilise her skills in actively participating at a senior level in the day-to-day management of that business, pursuant to s 134(2) of the Act. This conclusion was based largely on the lack of evidence of correspondence from Austindo to prospective buyers, the respondent's presumption that Austindo merely acted as an agent in marketing and advertising property developments for an overseas company rather than being engaged on a continuous and repetitive basis for the purpose of making a profit, and the absence of evidence of any active research, marketing, advertising or other preparatory work of benefit to an Australian based business. The respondent also took account of the fact that the applicant had spent less than two months in Australia since being granted her business skills visa, and this was considered not to be behaviour indicative of a person genuinely trying to engage in an eligible business in Australia.
8. Ms Lim told the Tribunal that she had been endeavouring to set up a business in Australia since being granted her business skills visa on 5 July 2002. She said that while she had spent most of her time in Indonesia since the granting of her visa, she had been engaged in seeking a market for products imported from Australia and she had also been seeking to source products to export from Indonesia to Australia.
9. Ms Lim described two business ventures. One related to the purchase of a 20 per cent interest in Austindo, a company acting as an agent in Indonesia for Penta Properties International (Penta). There was evidence that Ms Lim had been appointed, on 9 August 2004, as marketing director for Austindo for the region of Bandung and West Java and that she held 20 per cent of the shares in that company. Ms Lim's role with Austindo was to attract investors in Australian real estate. She said that she had promoted Penta by distributing brochures, participating in exhibitions in Indonesia, by sending letters to prospective investors and through speaking with people she met at sporting clubs.
10. Ms Lim told the Tribunal that she had invested a total of $100,000 in Austindo. She was satisfied that Austindo's financial performance, at the time of her initial investment, was good. Under cross‑examination Ms Lim agreed that the company had made a net profit of only $5,764.42 in the financial year ending 30 June 2003; but she said she had nevertheless been sufficiently confident to make an initial investment of $15,000 in August 2004. The net profit of Austindo decreased to $1,149.76 for the financial year ending 30 June 2004; but Ms Lim nevertheless made further investments including $15,000 in December 2004, $25,000 in December 2005 and $30,000 in February 2006.
11. Ms Lim said that she had participated in four exhibitions by Austindo in Indonesia; in August 2004, December 2004, October 2005 and January 2006. At the hearing, she produced documentary evidence of invitations to the December 2004 exhibition at the Mulia Hotel in Jakarta and a brochure for the January 2006 exhibition at the same venue. Subsequently, she produced documentary evidence of involvement in the August 2004 exhibition at the Klub Kelapa Gading.
12. Ms Lim told the Tribunal that she had, through Austindo, achieved two sales for which she was paid 1.5 per cent commission. She said the commission was paid into an Indonesian bank account, although no documentary evidence was produced to this effect. She told the Tribunal that she had been paid $7,265 commission on the sale of a unit for $580,000, and $8,640 commission on the sale of a unit for $480,000. No explanation was offered for the apparent inconsistency in the rate of commission. The applicant said that the commission was shared between two directors (including herself) who had contributed towards the cost of the relevant exhibition. She estimated the cost to Austindo of holding an exhibition to be approximately $4,000.
13. Aside from the investment in Austindo, Ms Lim's other major business initiative has involved the export to Indonesia of dog food and related pet products. She estimated that this enterprise had generated $160,000 in revenue.
14. Ms Lim explained that she had experience in producing dog food in Indonesia and had become aware that Australia was a well regarded source of quality dog food. She researched the Australian market via the internet and identified a suitable supplier. She said she had invested approximately $100,000 in the pet food business. She said that revenue generated by the business was paid into a bank account in Australia. She said it was not necessary for her to spend a great deal of time in Australia to conduct the business; she would arrange the transactions via email and her son, Mr Jerry Budimuya Mulya, who was studying in Australia, would arrange for the Australian supplier to be paid.
Jerry Budimuya Mulya
15. Mr Mulya is the son of Ms Lim. Pursuant to s 134(4) of the Act, Mr Mulya's visa was subject to cancellation upon the cancellation of his mother's business skills visa. Pursuant to s 134(5) of the Act, however, the respondent sent a Notice of Intention to Cancel his visa on 29 June 2005, inviting Mr Mulya to make representations as to whether the cancellation of that visa would result in extreme hardship.
16. Mr Mulya was born on 28 December 1981. On 5 July 2002 he was granted a business skills visa as Ms Lim's dependent, and he entered Australia with Ms Lim on this visa on 9 July 2002.
17. In a statement dated 2 August 2005 Mr Mulya advised the respondent that he would suffer extreme hardship if his visa were cancelled because, in effect, it would disrupt his tertiary education in Australia and would result in a degree of culture shock, given that he had been living in Australia for five years at that time. He also expressed concerns about his career prospects and the loss of friendships and general networking capability.
18. Mr Mulya told the Tribunal that he had lived in Australia for 6 years. During that time, he had visited Indonesia occasionally but had no real friends there. All his current friends were in Australia. He acknowledged that his parents lived in Indonesia, however, along with other relatives.
19. Mr Mulya said he was currently studying for a Bachelor of Multimedia Design at Swinburne University. He would finish his course upon handing in an assignment on 1 December 2006. After that, he intended to look for a job in Australia.
20. Mr Mulya said that if his visa were cancelled and he were required to return to Indonesia before completing his studies, and if he had to await the granting of a student visa to return to Australia, he would be required to recommence his final semester of study in January 2008. In the event, Mr Mulya had an opportunity to complete his studies on 1 December 2006 prior to the conclusion of these proceedings.
21. Mr Mulya said he would be unable to complete his studies in Indonesia. Comparable degrees were not readily available.
22. Mr Mulya further stated that even if he were somehow able to complete his studies in 2006, there would be a lapse of time before he could obtain another visa to return to Australia in order to work. He said that at the age of 24, he was anxious to commence employment. He said it would be hard to find suitable work in a comparable area in Indonesia, in the meantime.
LEGISLATION
23. Both applications turned on an interpretation of the Act, the key provisions of which (for the present purposes) are set out below.
24. Section 134(1) of the Act provides:
134(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.
25. Section 134(2) of the Act provides:
(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.
26. Section 134(3) lists the factors which the Minister may take into account when deciding whether or not to cancel a visa under s 134(1):
(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).
27. Section 134(4) of the Act provides:
(4) Subject to subsection (5) and to section 135, if:
(a)the Minister cancels a person’s business visa under subsection (1) or (3A); and
(b)a business visa is held by another person who is or was a member of the family unit of the holder of the cancelled visa; and
(c)the other person would not have held that business visa if he or she had never been a member of the family unit of the holder of the cancelled visa;
the Minister must cancel the other person’s business permit or business visa by giving written notice to that person.
28. Section 134(5) of the Act provides:
(5) The Minister must not cancel the other person’s business visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person.
29. Sction 134(10) of the Act defines an eligible business as:
…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.
30. Guidance on cancellation of business visas and the interpretation of the Act is provided by Migration Series Instruction 133 – "Visa Cancellation under Subdivision G – Cancellation of Business Visas" (the MSI).
31. Paragraph 4.3.2 of the MSI notes that a determination of what amounts to an eligible business relates to the achievement of stated objectives through the activities of the business, not directly to the size or scale of the business. The guideline admonishes decision makers to ensure that a business meets one of the stated objectives set out in s 134(10) of the Act regardless of the scale of the enterprise.
32. Paragraph 4.5.1 of the MSI notes that if, after 24 months, a migrant is not in business, he/she must establish that a genuine effort has been made to engage in business since arrival. The Minister may take the factors set out in s 134(3) into account when assessing the genuine effort.
33. Paragraph 4.5.1 of the MSI also gives guidance as to the interpretation of these factors. In particular it notes that, in respect of paragraph 134(3)(d) (the period or periods during which a person has been resident in Australia), the decision maker should look for a physical presence in Australia of more than six months since first arrival as a Business Skill class migrant.
34. Paragraph 4.5.2 of the MSI requires that a decision maker must give weight to all relevant factors, and while these factors may be indicative of genuine effort, the lack of them may not necessarily be decisive. A decision maker may still decide not to exercise the discretionary power to cancel the business visa even if it is assessed that no genuine effort has been made.
35. Paragraph 9.1 of the MSI emphasises that consequential cancellation of a family member's visa is not entirely automatic. It is not to be cancelled if the cancellation would result in extreme hardship or if the original cancellation is overturned on review by this Tribunal.
FINDINGS
Gut Hiong Lim
Eligible Business – Austindo
36. It was submitted by Ms Lim that Austindo is an eligible business because, in its role as a property marketing agent, it was involved in the development of business links with an international market, that is, the market in Indonesia for properties located in Australia.
37. The respondent contended that the only evidence of any activity by Austindo during the relevant period was what the applicant's solicitor claimed were 10 letters allegedly sent to prospective real-estate buyers notifying them of an exhibition held at Hotel Mulia on 11 and 12 December 2004. The letters in any event did not indicate that any of the persons named had any relationship with Austindo. There was no evidence that any of these letters were sent or that the exhibition was ever held. There was no evidence that any sales of property ever occurred as a result of the exhibition.
38. The Tribunal nevertheless accepts that the exhibition was held in December 2004. Furthermore, as a consequence of documentary evidence subsequently produced by Ms Lim, the Tribunal accepts that the August 2004 exhibition also took place. However, the extent of Ms Lim's involvement in either of the 2004 exhibitions remains questionable.
39. The Tribunal has considered the meaning of business in a number of decisions (see for example ReJo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 469, ReYam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283; ReNgu andMinister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 341) and in doing so has accepted and applied the definition of business as formulated in Hope v Bathurst City Council (1980) 144 CLR 1. The Court in Hope stated at pages 8‑9 that carrying on a business denotes pursuing activities for the purpose of profit undertaken on a continuous and repetitive basis which can be revealed by inspecting financial records, examining who the clients are and consideration of whether the activities are genuine and real.
40. The Full Federal of the Federal Court of Australia in Puzey v Commissioner for Taxation (2003) 201 ALR 302 also considered the meaning of business and stated at paras 47‑48:
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 CLR 8; ALR 583. What is required is that activities be engaged upon “on a continuous and repetitive basis”: Hope at CLR 9…
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 businesslike way, (although many businesses may be found which operate in a non-businesslike 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).
41. Applying these criteria, the Tribunal does not accept that Austindo is an eligible business. Its activities do not appear to have been undertaken on a continuous and repetitive basis; rather, Ms Lim appears to have engaged in sporadic, infrequent and half-hearted marketing initiatives, only three of which (an exhibition at the Klub Kelapa Gading in August 2004, and at the Mulia Hotel in Jakarta in December 2004 and again in January 2006) could be established to the satisfaction of the Tribunal. For reasons discussed below, the third of these activities occurred after the date of cancellation of the visa and can therefore be disregarded for the current purposes, although this has no impact on the Tribunal's assessment of Austindo's activities in any event. It is noteworthy that the only evidence of business activity associated with the August 2004 exhibition was a bundle of receipts totalling $9,229 and the only evidence of business activity associated with the December 2004 exhibition was the production of ten pro forma letters of invitation. There is a marked absence of repetitive acts in connection with the business, and an apparent absence of a structured and focused business plan or other indicia of permanence.
42. Given the Tribunal’s finding that Austindo is not an eligible business, the question of substantial ownership does not arise, at least for the purposes of s 134(1)(a) of the Act.
Eligible Business ‑ exports
43. In relation to the pet food business, Mr Kabo submitted that there was ample evidence that Ms Lim had been conducting business as a sole trader. Ms Lim relied upon Re Chen and Minister for Immigration and Multicultural Affairs [2002] AATA 477 in which Deputy President Block approved of the following statement made in Re Tang and Minister for Immigration and Multicultural Affairs [2000] AATA 997:
On these facts, it seems to me that Tiproll Pty Limited is not carrying on a business and its activities are therefore not an eligible business. The reference in subparagraph 134(1)(b) to the “day-to-day management of that business” indicates that an eligible business must have some element of continuity and repetition. In Hope v Bathurst City Council (1980) 144 CLR 1, Mason J considered that the use of the phrase “carrying on the business”, as a qualifier of the noun “business”, required that there be a commercial enterprise in the nature of a going concern “that is activities engaged in for the purpose of profit on a continuous and repetitive basis”. Similar qualifying words in section 134 would compel a similar result. There is no day‑to‑day activity of the business of Tiproll Pty Limited. It has had one export transaction to a company associated with Mr Tang. The evidence relating to lanolin and roller shutters does not add to the perception of a business requiring day‑to‑day management. In my view therefore what activities have been carried on by Tiproll Pty Limited cannot be described as an eligible business.
44. Ms Lim claimed to have been engaging, as a sole trader, in export and import activities for the purpose of profit on a continuous and repetitive basis, qualifying it to be a business for the purposes of the Act.
45. Mr Kabo contended that Ms Lim had been actively involved in the time consuming process of negotiating and obtaining orders for Australian products. The relative lack of actual sales was attributable to the protracted, uncertain and unpredictable nature of the process. The frequency of transactions could be expected to be low, particularly in the first few years of commencing the business, and the actual number and frequency of transactions was within a reasonable range for the life cycle of the business.
46. Mr Kabo further contended for Ms Lim that it was necessary for her to stay in Indonesia to secure markets for the sale of Australian products and to source Indonesian products for sale in Australia. Her negotiation skills and understanding of the Indonesian business culture and environment were invaluable to the business in this context. He also contended that there was ample evidence that Ms Lim had been actively participating in the day-to-day running of the pet food business, notwithstanding the lack of time in Australia and the sporadic success of the activity. In this regard, he drew the Tribunal's attention to ReLau and Minister for Immigration and Multicultural Affairs [2002] AATA 703, in which the Member Carstairs stated at paras 32‑34:
Section 134(1)(b) requires that the visa holder be utilising his or her skills actively, participating at a senior level in day‑to‑day management of that business. In using the term that business the legislation directs the decision‑maker to consider the nature of the actual business undertaken. The term day–to‑day should be given its ordinary meaning. It is defined in the Shorter Oxford English Dictionary on Historical Principles as continuous(ly), routine(ly). The Macquarie Dictionary defines it as ordinary, happening every day. Consistent with these meanings, it is not a requirement that a visa holder establish a certain number of days that he or she undertakes the activity of business in order to show that he or she is involved in its day‑to‑day management. The meaning is consistent with the need to show that a business is in existence, namely continuity and regular activity.
The day-to-day management of a company like Corcom, involved in developing an export market for Australian grocery goods in South East Asia, will involve researching products, securing orders and suppliers, transacting shipping. It will also involve ideas and planning. This is clearly evidenced by the applicant’s activities in this case. The applicant had substantial commercial experience in Malaysia on which to develop Corcom as an export vehicle for sale of Australian goods into Asia. He developed Australian contacts through the proposed venture with Unipole and (T22, exhibit A31). While some of the activities undertaken by the applicant might be viewed as unsophisticated, there is nothing to suggest that they were inappropriate for the nature of the proposed business. The activities relied on the applicant’s considerable experience directly in this field in the Asian market and on his business acumen. There may not be extensive notes, or records of activity occurring every day. As Ms McKenzie submitted, the diary notes showed only entries 30 days. However, the use of the term day-to-day management does not require that that activity be recorded every day, and the input at a senior level by someone of the experience of the applicant will often be intangible.
The Tribunal is satisfied that the applicant has substantial commercial experience in the field and has applied his knowledge, contacts and business acumen consistently and continuously in the development of Corcom’s business. The Act requires that the focus be on participating at a senior level in the day-to-day management of that business. This does not require that comparison be made with senior levels of management in another business or in business generally. It is clear that the management of the Corcom is almost entirely undertaken by the applicant on behalf of the company: he is its senior management…
47. The respondent contended, on the other hand, that the four exports that Ms Lim had organised did not constitute a business. The four exports were as follows:
·30 July 2005 – Contract with Mega Indah (Singapore) for $23,573.39 worth of pet products for $3077.19 mark up;
·16 October 2005 – Contract with PT. Masakwarta Sejati (Indonesia) for $21,817.50 worth of pet products for $3450.00 mark up;
·7 November 2005 – Contract with PT. Masakwarta Sejati (Indonesia) for 71,555.19 worth of pet products for $9,333.29 mark up; and
·11 March 2006 – Contract with Shui Cheung Pte Ltd (Singapore) for $59,830.48 worth of pet products for $7803.98 mark up.
48. Only the first two of the above contracts were entered into before Ms Lim's visa was cancelled. The respondent contended that the Tribunal should adopt the approach taken in ReTany and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 58, where the Tribunal found (at para 30) that, for the purposes of s 134(1) of the Act, it should confine [its] consideration to the material that relates to relevant events or matters occurring up to, but not after, the date of cancellation of the visa.
49. The Tribunal accepts the respondent's contention that the extent to which the Tribunal may consider events occurring after the cancellation period is limited to an assessment of those events in determining whether genuine efforts were made before cancellation: Re Wong andMinister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 54.
50. It follows, as contended by the respondent, that for the purposes of assessing the applicant's claim pursuant to s 134(1) of the Act, the Tribunal should confine its consideration to the material that relates to the relevant events or matters occurring up to, but not after, 3 November 2005. In the entire period of over three and a half years since being issued her visa, Ms Lim's business activity had been limited to organising two exports. The respondent submitted that two exports in a period of over three and half years would not be seen as pursuing activities for the purpose of profit, undertaken on a continuous and repetitive basis or activity of a permanent character.
51. The Tribunal accepts the respondent's contention that Ms Lim's dog food export activity is not classifiable as an eligible business for the purposes of s 134(1). The activity does not appear to have been undertaken on a continuous and repetitive basis. The successful exports appear to have been ad hoc and opportunistic, rather than the result of a structured approach to business activity. Like the activity carried out through Austindo, Ms Lim's export activity does not have a sense of permanence, structure or other indicia which one would normally associate with a business.
52. The respondent further contended that even if the Tribunal found that the two exports could constitute a business, there was no evidence that the alleged business was a business in Australia as required by s 134(1) of the Act. Ms Lim is based in Indonesia. She was not in Australia from the time that she entered into the first contract until two days before her visa was cancelled. There was no evidence that Ms Lim had paid any Australian tax on income from the exports, no evidence of an Australian Business Number or any other evidence which connected the running of the business with Australia. Ms Lim was simply organising for goods to be shipped from Australia to Indonesia and Singapore. This was being done by email from Indonesia. There was, according to the respondent, no difference between the activity that Ms Lim was carrying out in Indonesia and that of any other foreign import/export business. The alleged business was therefore not a business in Australia. In the same way, there was no evidence that Austindo was a business in Australia during the period when Ms Lim has involvement with Austindo.
53. Were it necessary to decide the point, the Tribunal would accept the respondent's contention that Ms Lim's export business was not situated in Australia. When reaching this conclusion, it would concur with the arguments advanced by the respondent on this point. Given, however, that the Tribunal does not consider that Ms Lim's export activity constitutes an eligible business, it is unnecessary to make a finding in this regard.
Genuine Effort
54. Regardless of the Tribunal's finding that Ms Lim has not satisfied s 134(1) of the Act, the Minister would be precluded from cancelling Ms Lim’s business visa if satisfied that, for the purposes of s 134(2), Ms Lim had made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; had made a genuine effort to utilise her skills in actively participating at a senior level in the day-to-day management of such a business; and had intended to continue making such genuine efforts.
55. Mr Kabo contended that Ms Lim’s investments, management and involvement in the business demonstrated a genuine effort to comply with the requirements of her visa for the purposes of s 134(2). In this regard, he drew the Tribunal's attention to ReLau and Minister for Immigration and Multicultural Affairs [2002] AATA 703 in which the Member stated at para 27:
Clearly, the legislation contemplates in s134 that consideration be given to a person’s intention. This suggests that, while it is true that the exercise of the discretion at the time of cancellation of the visa is the focus, in order to properly address the matters raised in s134 it may be relevant to address matters that go to occurrences after the date of cancellation, to confirm or deny the correctness of views relevantly to be formed under those sections. These legislative provisions contrast with those addressed in Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257 where the Federal Court was addressing a power to cancel a student visa. The legislation set out prescribed circumstances under which the Minister must cancel if a condition that fell within the prescribed circumstances was not met. The legislative provisions for cancelling a business visa, however, require the decision-maker to address the matter of cancellation quite differently, setting out the circumstances in which the Minister may cancel, but must not if satisfied of efforts and future intentions.
56. The Tribunal does not accept that there is evidence that Ms Lim has made the requisite genuine effort. There is an absence of overt business planning or other structured preparatory activity in relation to the future advancement of Austindo or the export business, and no evidence that any alternative or additional business ventures are under serious and active contemplation. Furthermore, the limited time which Ms Lim has spent in Australia since being granted a business visa – a total of 42 days – is difficult to reconcile with a previous genuine effort to promote and participate in an eligible business in Australia, and there is no evidence that she intends to spend more time in Australia in the future. To the contrary, Ms Lim expressed the view to the Tribunal that her interests in Austindo and the export business were best served by her remaining in Indonesia. The Tribunal is cognisant of paragraph 4.5.1 of the MSI which recommends, albeit by way of guidance only, that a physical presence in Australia of more than six months from arrival should be demonstrated.
Residual Discretion
57. Against the above criteria, the Tribunal concludes that Ms Lim has not made a genuine effort for the purposes of s 134(2) of the Act. There remains, however, the question of whether the Tribunal considers it appropriate to exercise the residual discretion vested in the Minister under the Act not to cancel the applicant's business visa: Re Negaria and Ministerfor Immigration and Multicultural and Indigenous Affairs [2004] AATA 579. As emphasised in MSI 2.5, a business visa does not have to be cancelled even if there are grounds for cancellation under subdivision G of the Act and cancellation is not prevented by subsection 134(2).
58. The exercise of the discretion requires that the applicant offer an explanation for his or her inaction that is satisfactory, as a precondition to the grant of further time or other exercise of the discretion in the applicant's favour: ReLai andMinisterfor Immigration and Multicultural and Indigenous Affairs [2006] AATA 152. Similarly, MSI 4.5.2 states:
While failure to meet one or more of these indicators [in MSI 4.5.1] may normally lead to a visa being cancelled, it will not necessarily mean that a visa will be cancelled. The decision maker must give weight to all relevant factors in a case (of which those set out in subsection 134(3) … may only be some) and reach a decision on that basis. For example, while the factors listed in 4.5.1 … may be indicative of 'genuine effort', lack of them will not necessarily be decisive. The decision maker must decide, on the ordinary meaning of the words, whether the visa holder has made 'genuine effort'. A decision maker may still decide not to exercise the discretionary power to cancel the business visa even if it is assessed that no genuine effort has been made.
59. The Tribunal considers that there has been no evidence advanced on behalf of Ms Lim which would warrant the exercise of the residual discretion not to cancel her business skills visa.
Jerry Budimuya Mulya
60. The respondent contends that Mr Mulya will not suffer from extreme hardship as a result of the cancellation of his visa.
61. In Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481 at 487, Foster J considered the meaning of extreme hardship and said:
…it is, in my opinion, important to approach the phrase “extreme hardship” in a broad way. Clearly, it imports a high degree, perhaps a very high degree of hardship, but it must be applied in the context of the facts of the particular case. “Hardship” is in itself a relative term. What may be a “hardship” to a sensitive person, or one in a particularly vulnerable situation, may be no great burden at all to a person of more stoical disposition or in a more protected situation. Similarly, the word “extreme” must be evaluated against the facts of the particular case. Such an evaluation cannot, consistently with the duties imposed upon the decision-maker by the Act, be approached in a dismissive or perfunctory fashion. A full and proper consideration of the person allegedly suffering the hardship or prejudice must be undertaken…
In addition to what I have already said, I consider that the application of the word “extreme” must also be approached with caution. Obviously there are varying degrees of hardship which may be suffered by any particular individual. “Trivial”, “minor”, “moderate” are adjectives which spring to mind as conveying such varying degrees. Clearly enough, “extreme” hardship must find itself at the very high end of the scale. This does not mean, however, that in any given case, “extreme hardship” means, in effect, a particular point on a continuum of hardship. It obviously connotes an area within which an ascertainable burden of hardship may fall and properly merit the description “extreme”. Within that area there may be varying degrees of burden, one less than another, but each meriting the description…
62. In Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961, Deputy President McMahon also considered the term extreme hardship and stated at para 30:
…the deliberate choice of the word “extreme” by Parliament, requires one to understand what was meant by the use of that particular degree of hardship. There are many meanings of the word “extreme” offered in the Macquarie Dictionary. Some of the more helpful suggestions are “of a character or kind farthest removed from the ordinary or average”, “utmost or exceedingly great in degree”, “farthest, utmost or very far in any direction”, “going to the utmost lengths, or exceeding the bounds of moderation”, “the utmost or highest degree, or a very high degree”. The use of the word “extreme” can be contrasted with the use of the word “undue” found in Ministerial Guidelines relating to hardship associated with deportation. In order to enliven the prohibition against a Minister cancelling another person’s business visa under subsection (4), there must be shown to be not only hardship and not only undue hardship, but extreme hardship. Furthermore, that hardship must result from the cancellation.
63. In Re Wang, the Tribunal also stated at para 31 that …the hardship must be a necessary concomitant of the cancellation. A mere possibility or even a probability would not be sufficient.
64. In ReChen and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1023, the Tribunal found that while visa cancellation would cause disappointment and some distress, it did not amount to extreme hardship.
65. There have been number of cases considered by the Tribunal where the Tribunal has found that applicants in similar circumstances to Mr Mulya would not suffer extreme hardship if their visas were cancelled: see ReChen and Ors and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 628; Re Salim and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899; ReChen and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1023 and Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961.
66. In Re Salim at para 46, the Tribunal observed that the hardship of relocation by an educated person to a life outside Australia would undoubtedly cause difficulties for the individual but this hardship is one within the contemplation of the legislature when it chose to insert the word 'extreme' as to qualify the hardship. Similarly, in Re Then and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 18 at paras 12 and 13, the Tribunal considered that some short term problems for the applicant's career, although upsetting and disturbing, did not in the circumstances of that case amount to extreme hardship. In ReAziz and Minister for Immigration and Multicultural Affairs [2006] AATA 301 at para 18, the Tribunal observed that:
the fact that the applicant has a full‑time job in Australia, has all his assets in Australia and does not own anything in Malaysia is incapable, without more, of constituting "extreme hardship" for the purpose of s 134(5) of the Act.
67. While each case must be judged on its own merits, the above decisions are consistent with the Tribunal's conclusion in this instance; that Mr Mulya does not have a compelling case that cancellation of his secondary business skills visa would cause extreme hardship pursuant to s 134(5) of the Act. It is conceivable that Mr Mulya will suffer a degree of social dislocation if his visa is cancelled, and his immediate career advancement might be temporarily disrupted, but this is not extreme hardship. Mr Mulya has family in Indonesia and he will have the ability to pursue his chosen career in Indonesia in the short term, even if job opportunities are more plentiful in Australia. It should have been possible for him to complete his studies at Swinburne University before the cancellation of his visa takes effect. On any analysis, Mr Mulya is not confronting extreme hardship within the meaning of s 134(5) of the Act.
68. For the above reasons, the Tribunal affirms the decisions under review.
I certify that the sixty‑eight [68] preceding paragraphs are a true copy of the reasons for the decision herein of
Dr Gordon Hughes, Member
(sgd): Olympia Sarrinikolaou
Clerk
Date of Hearing: 11 September 2006
Date of Decision: 31 January 2007
Solicitor for applicant: Mr K. Kabo, Kabo LawyersSolicitor for respondent: Mr T. Eteuati, Clayton Utz Lawyers
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