Lim and Ors and Minister for Immigration and Multicultural and Indigenous Affairs
[2006] AATA 28
•16 January 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 28
ADMINISTRATIVE APPEALS TRIBUNAL )No W2004/396-399
GENERAL ADMINISTRATIVE DIVISION ) Re Ping Kiong Lim
Tjui Lee Lim
Sheila Nathania
Johan SuriadihalimApplicants
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms L Savage Davis, Member Date16 January 2006
PlacePerth
Decision The Tribunal affirms the decisions under review. [sgd Linda 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
Migration Act 1958 sections 134, 137
Migration Series Instructions Nos 133
Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481
Siewi Wang v Minister for Immigration and Multicultural Affairs [2000] AATA 961
Salim and Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899
Ng v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 299
Wong v Minister for Immigration and Multicultural Affairs [2002] AATA 54
Lau v Minister for Immigration and Multicultural Affairs [2002] AATA 703
Hope v Bathurst City Council (1980) 144 CLR 1
Tang v Minister for Immigration and Multicultural Affairs [2000] AATA 997
Huang v Minister for Immigration and Multicultural Affairs [2002] AATA 656
Jo v Minister for Immigration and Multicultural Affairs [2004] AATA 77
REASONS FOR DECISION
Ms L Savage Davis, Member 1.These are applications by;
(a) Mr Ping Kiong Lim (“the applicant”) for review of a decision dated 28 September 2004 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”),
(b) Mrs Tjui Lee Lim, the applicant’s wife and the applicant’s children Sheila Nathania and Johan Suriadihalim (the applicant’s family), for review of the decision of the respondent also dated 28 September 2004 to cancel their visas as a consequence of the cancellation of the applicant’s visa.
2. At the hearing the applicant and the applicant was represented by Mr Denning Chong of James Chong & Co, Barristers and Solicitors. The respondent was represented by Ms Laila McPherson of Australian Government Solicitor. The documents lodged pursuant to section 37 Administrative Appeals Tribunal Act 1975 were received into evidence (T1-T16/1-548: S1-S8/1-44) as well as Exhibits A1, A2 and A3).
3. Oral evidence was given to the Tribunal by the applicant with the assistance of a Bahasa Indonesian interpreter. The applicant’s son, Mr Johan Suriadihalim also gave oral evidence.
BACKGROUND
4. On 7 June 2001 the applicant was granted a subclass 127 business skills visa (the visa). The applicant’s family were also granted visas as a consequence of the issue the applicant’s visa (the secondary visas). The applicant first entered Australia on 14 June 2001.
5. On 22 May 2003 the applicant was sent a Survey of Business Skills Migrant – 24 Months form (T8). This was completed and returned to the respondent with additional supporting information on 1 July 2003 (T9). On 12 September 2003 the respondent sought further information from the applicant (T10). This was provided under cover of a letter dated 28 October 2003 (T11). By letter dated 2 June 2004 the respondent notified the applicant of its intention to cancel the applicant’s visa and the applicant’s family’s visas under section 134 of the Act (T14). The applicant then provided further information to the respondent by letter and attachments dated 30 June 2004 (T15) On 28 September 2004 a delegate of the respondent decided to cancel the applicant’s visa and those of the applicant’s family (T2). The applicant and the applicant’s family then lodged applications with the Administrative Appeals Tribunal (“the Tribunal”) for review of the decision to cancel his visa which brings the matter to this point.
LEGISLATION
6. Section 134 of the Migration Act 1958 (“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 sections 134(1), (2), (3), (4), (5) 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).
(3A)Subject to section 135, the Minister may cancel an investment-linked visa (other than a family member's visa), by written notice to its holder, if the Minister is satisfied that the person, or any of the persons, who held the relevant designated investment when the visa was granted has or have ceased, for any reason, to hold that investment within 3 years of that investment being made.
(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 the 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.
(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.
(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.
7. Section134(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 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 Ping Kiong Lim’s Evidence
8. The applicant confirmed that he was familiar with the contents of his witness statement dated 12 December 2005. He told the Tribunal he was a director and has a 45% share of JJB Co Pty Ltd (JJB). He said the remainder of the company is owned by his brothers. JJB exports goods from Australia to Indonesia, in particular cotton, household goods such as Breville juicers and chemicals. To get the JJB going he began to survey goods in Australia to see what he could export to Indonesia. He did this by visiting Australia about twice a year. When he was in Indonesia he looked for buyers mainly using contacts he had in Indonesia. The applicant said he makes the decisions for JJB but sometimes his brother provides some assistance. Generally however his brother is too busy with his own business. The applicant said he has a 12½% shareholding in two Indonesian companies, Pola Manunggal Sejati and Suritex. His brothers are also shareholders in these companies. He has no involvement in these two Indonesian companies on a day to day basis although his main source of income is from the profits of these companies as a shareholder. The applicant said that the goods JJB had exported to Indonesia had been bought by these two companies as well as individuals.
9. The applicant said that he lives in Indonesia but rents a house also in Melbourne. From his Indonesian home he spent 5 hours per day 5 days a week on JJB business. He comes to Australia about twice a year. Whenever he is in Australia he visits people who sell goods, Austrade in Sydney and shipping companies. To gauge what to export to Indonesia he speaks to his friends and contacts in Indonesia. He also visited shopping centres and looked around to see products that he thought might be of interest.
Breville Appliances
10. The applicant said he first purchased and exported Breville products in October 2003 because they were not then and currently still are not available in Indonesia. He overcame that the fact that the power point is not compatible by selling them with a converter. He found out about the Breville Juicer by picking a couple up in a shop. He then emailed the company where he bought them. He asked his daughter in Australia to check the price out at Retravision store and then he spoke to Retravision and with a Mr Victor Loo to organise the shipment. He said he persuaded Mr Iman Adi a door-to-door salesman in Indonesia to see a demonstration of the Breville Juicer and subsequently purchased 50 on his behalf. He could not remember when he demonstrated the juicer to Mr Iman Adi although he was clear in his recollection that it occurred at his home. The applicant was referred to correspondence at T11/359-363. This correspondence indicated that someone other than the applicant did the demonstration for Mr Iman Adi, or his manager at Mr Iman Adi’s office while he was on holidays in Europe in October 2003. This demonstration organised by Mr Lim’s brother, Lim Ping Chung was to occur on 15 October 2003 (T11/36). The applicant said that he had no knowledge of that correspondence but was certain that he did the demonstration. He could not recall if this was before or after he went to Europe. He maintained that on part behalf of JJB he always did the demonstrations. The applicant was also referred to letters and emails on the file to various companies in Indonesia from his brother Lim Ping Chung in regard to the Breville Juicer (T11/340-360). He said that his brother sent them out under his name and responded to them but he said he gave the instructions and followed up on them.
11. The applicant said JJB made one further purchase and export of juicers. This occurred after his visa was cancelled in September 2004 and before June 2005, but he was unable to be more specific. He said that Mr Iman Adi wanted the new product and although he was reluctant to undertake any business activity because of the uncertainty of his visa position he did so because it did not involve a large amount of money. For this purchase he asked his son to go to a Retravision store in Melbourne and enquire about the price. He could not recall which Retravision store his son had visited. After his son spoke to him about the price he ordered 20 boxes at $140 and organised the shipping. The applicant told the Tribunal that on the back of the Breville Juicer it says “Made in China”. He said he didn’t think there was a Breville in China but did not know where they are made.
Headprinters
12. The applicant said he met a Mr Anwar in a restaurant in Indonesia. Mr Anwar needed headprinters and he organised, via JJB, to export 10 for him from Australia. To obtain them he asked his daughter to go to a specific store in Perth which he knew about and once she had ascertained the price and he deemed it acceptable, asked her to buy 10 off the shelf. She then brought them back to Indonesia in her luggage. No further orders have been made by Mr Anwar and JJB has not been involved in any further exports of headprinters. This may have been because Mr Anwar said that they were only wanted initially for demonstration.
13. The applicant told the Tribunal initially that he believed Mr Anwar was an architect and later said he believed he was a contractor for building. He said initially that Mr Anwar required the headprinters for graphic design but later said he was not sure what he wanted to use them for.
14. The applicant was referred to T11/ p335 and confirmed that he understood the contents of the letter which were in English and that he had spoken to Mr Anwar by phone as indicated in the letter. He couldn’t recall however the reference in that letter to the headprinters being bought for use by Mr Anwar for textile screen making. He was then referred to emails to Gladietex and Bratatex, both textile companies which had also had correspondence with JJB in regard to headprinters for use in textile screen making (T11/326-370). The applicant said that he knew of Gladietex and Bratatex from his previous experience with his Indonesian companies. He was not sure where the Epsom headprinter was made and whether in fact it was made in Australia.
Chemicals
15. The applicant said JJB’s main exports had been in chemicals, in particular resin which was needed in Indonesia. He said he knew a Mr Hiranto, through a sports association in Indonesia and he had a daughter who lived in Australia. The daughter gave him addresses of chemical suppliers. JJB bought chemicals from Bayer because he was told they were of good quality. These chemicals were sold to Pola Manunggal Sejati (PMS). The applicant said that even though he was a shareholder in PMS he still had to provide competitive prices. Having been a director of PMS he knew what had previously been paid so he came in lower although that resulted in only 10% profit. He believed that if he keeps his profit low they will keep buying from him. If the chemical exporting by JJB takes off he will be able to increase the profit margin when he sells to PMS.
16. The applicant said he has always done business with Bayer by email. He has telephoned them on a few occasions. All transactions have been done when he has been in Indonesia and he hasn’t met with shippers or suppliers. Although two shipments of chemicals have gone to PMS there are still two remaining shipments which are on hold due to the currency situation. The contracts in regard to resin had been completed. He said that Imelda, who is his niece and is in Indonesia, contacted Bayer on his behalf by phone at times. After these two sales of resin to PMS there had been no further exports of resin although PMS had used the product and were happy with it. They have now asked for repeat orders. He said he was too scared to fill the orders in case his visa was cancelled.
Silicon
17. The applicant said that silicon like resin was used in textile manufacture. Suritext and PMS had previously purchased silicon from Indonesia and Korea and resin from America and Japan. He believed that Australian silicon was of a more special quality. The silicon bought by Suritex and PMS had been for testing purposes only but now they had indicated that they could use it in their processes. When he sold silicon to Suritext he dealt with Lucy who he knew from when he also worked at Suritext. One day he would like to have a chemical engineering company in Australia and possibly bring his son, who is studying chemical engineering, into the business when he completes his course. In other evidence the applicant said he dealt with Netty the purchasing officer at Suritex. He said it is only lately since his visa was cancelled that Netty has asked for more silicon. He had spoken to Netty about exporting more chemicals to Suritext prior to the cancellation of his visa but it did not occur.
Colly Cotton
18. The applicant was referred Exhibit A2 p71-74 & S.84. He confirmed that he had signed the document at p72 and had done so in Indonesia. He agreed that it had also been signed by his brother. He said that he dealt with Colly Cotton on behalf of JJB, his brother just signed the document. The cotton was exported to PMS. His interactions with Mr Yenner the marketing officer for Colly Cotton were done by mobile phone primarily from Indonesia. He dealt with Mrs Lucy in PMS in regard to the price. JJB was subject to the same scrutiny as other suppliers as reflected in the letter at S83 (Exhibit A2) where PMS had contacted the applicant because the weight of the cotton when it arrived and was weighed at PMS was less than for the contract.
Genuine Efforts
19. The applicant said that he had made other attempts, although they had failed, to find business activities for JJB. They included investigating the export of water pumps, ball bearings, olive oil, and aromatherapy. He had completed an application form for Boost Juice (T 15/500). He said that in preparation for this he did a survey and feasibility study to see if it was profitable. He did this by spending several hours in front of a fruit juice store and then considering costs and salaries. He said he organised the data and his daughter put it together (T15/491-492). This was because his English was not good and he was not an accountant. Despite this he said he had checked it. The writing in the Boost Juice Application (T15/570) was his assistant’s but he told her what he wanted to be written down. He said to proceed a cheque was required which was passed on to Boost Juice but has since been returned as the franchise did not proceed. Boost Juice told him that he would have to live in Australia to get the franchise so that he could be in the shop every day.
20. In regard to the water pumps, the applicant said that he made contact with the company by email although he had trouble recalling who he had dealt with or the name of the firm until prompted. He said that had tried to negotiate a price but it was too high so the matter went no further. He also emailed Grundforce and got information about their pumps from the internet. Grundforce also had a presence in Indonesia and he had contacted them to compare prices. The price had been too high so he had then contacted Jeremy Bell at Pumpmaster. This also had not proceeded. He told the Tribunal that although he had no written records of the search or meetings he had known that pumps were needed in Indonesia because he had asked around friends and people he knew.
21. In regard to aromatherapy, the applicant said that he thought that aromatherapy was growing in popularity in Indonesia. Although he had never been to a factory he nearly went to one on a visit organised by Mr Simon. He knows Mr Simon from his two Indonesian companies and he had bought goods from him, in particular chemicals for textiles. He could not remember the name of Mr Simon’s company. He said that Mr Simon lives in Indonesia. He also sought advice from Austrade in regard to aromatherapy and was told that Mother Earth was the best. He visited a shop and bought a few samples but could not remember in what city in Australia this occurred.
22. The applicant told the Tribunal that he was not very good at reading or speaking English. For this reason he required the assistance of Imelda, his niece, for example, on the Boost Juice application. Imelda lives in Indonesia, is aged 30 years old, is not employed by Suritext and is not paid for assisting him on JJB’s behalf. He said JJB does not pay Lily who also assists him at times with secretarial services in Indonesia. Mr Lim said Lily is not a relative of his or of Mr Iman Adi. Imelda or Lily helped with the preparation of the invoice and order confirmations (for example the transactions at T11/337-338). They come to his home to do this although they are not paid. No one from PMS or Suritext assists him.
23. All of JJB’s mail goes to the address in New South Wales. Benjamin Lim is secretary of JJB. He also has a Business Skills Visa and lives in Australia. The mail that goes to New South Wales is opened by Benjamin and Benjamin then sends on mail in relation to financial matters to the applicant in Indonesia. Benjamin decides what is necessary for him to see and files the remainder.
24. The applicant said that both his son and daughter had helped with the Breville shipment His daughter had initially priced juicers. His son had helped with the last Breville shipment because his daughter had been in Singapore throughout 2005. His daughter had also as he had previously said bought the 10 Epsom headprinters to Indonesia in her luggage.
25. The applicant recalled completing the 24 month survey and confirmed it was his signature. Subsequently he told the Tribunal he could not remember who completed the form but could remember signing it although he was not sure if he was in Australia. Although he had ticked ‘yes’ to question 67 indicating that as at June 2003 he was still actively working for Suritex in Indonesia he said that this was not correct and he must not have noticed it. He maintained that he ceased working for both Suritext and PMS in late 2001 although he said he did not have any evidence that he had resigned at that time. The applicant said that his former Migration Agent, Philip Au, had given him the form to sign and he had read and signed it although he clarified this subsequently by saying he had dealt with Philip Au’s agent in Indonesia. He said that the agent spoke to him about the form just in a general way.
26. The applicant said that he considered Australia his home but business needs, in particular the marketing of JJB took a lot of time and required him to spend nearly all his time in Indonesia. He said there were only a limited number of exports so far because he was developing the business. He believed the juicer, resin and silicon would now be more in demand. He said after his visa was cancelled in September 2004 he had ceased business activities on behalf of JJB because of the uncertainty of the situation. He only made one small export of Breville products because the amount involved was small. He said the currency exchange also had affected JJB.
27. The applicant said that since the cancellation of his visa in September 2004 he had been too scared to undertake further transactions because of the uncertainty of his visa situation. He said that he had sought clarification by way of a fax to the Administrative Appeals Tribunal (AAT) as to whether he could continue in business. He also said he called the AAT but could not get through. When questioned the applicant said that he had not made any enquiries about his visa situation or his ability to continue exporting goods to his solicitor, Mr Chong, his former Migration Agent, Mr Philip Au, or the Department for Immigration and Multicultural and Indigenous Affairs. He maintained that he was concerned about his position even though he had not experienced any difficulties with the exports that JJB had previously made and had primarily run the business from Indonesia.
28. The applicant said that he had invested $250,000 in JJB which consisted of a cash deposit in ANZ. He could not remember the name of the street where JJB’s office was. He said this was where his brother lived. He did not know if JJB had a number listed in the telephone book. He left those things to his accountant. He confirmed that he also received no income from JJB.
29. The applicant said that if his visa was cancelled he would be unable to work for PMS or Suritext. He said he couldn’t currently live in Australia because he is too busy with JJB business in Indonesia.
30. The applicant said that his son Johan had just finished 2 years of a Chemical Engineering and Commerce degree at Melbourne University. This is a 5 year degree. He said that he did not think his son had enquired about a student visa. His daughter who finished Honours in Accounting at a West Australian University last year has spent 2005 in Singapore working for KPMG. She also would like to return to Australia in 2006 to study a Masters at Melbourne University. He understands she has not investigated obtaining a student visa. He thought that her Honours in Accounting degree would not be recognised in Indonesia or if it was recognised, less appreciated.
Johan Suriadihalim’s evidence
31. Mr Suriadihalim, the applicant’s son, confirmed that he was familiar with the contents of the witness statement signed by him and dated 12 December 2005 (Exhibit A3). He told the Tribunal that if his visa was cancelled he would have to return to Indonesia which had a different educational system. He believed he would have to start again and go backwards 2 or 3 years. Although he can read, write and speak in Indonesian he did not think it would be at the sophisticated level required for university. Mr Suriadihalim said he hadn’t looked into a student visa or specific courses at universities in Indonesia.
32. Mr Suriadihalim said that he doesn’t want to leave Australia. He has been for four and a half years that is from half way through Year 10 in 2001. He completed his TEE in Australia and has now finished second year university. He said that although he has his cousins and parents in Indonesia and returns twice a year from between 2 weeks to 2 months most of his friends are now in Australia. He said that if his visa was cancelled it would give a bad impression.
33.Mr Suriadihalim said that he will apply for a student visa if he needs to.
FINAL SUBMISSIONS
34. Mr Chong provided the following submissions on behalf of the applicant which can be summarised briefly as follows::
· The activity of JJB was sourcing export products and since the applicant was granted his visa JJB had exported on 8 occasions. This, it was submitted, could be described as the export of Australian goods and increasing Australian employment.
· The Tribunal was referred to Jo v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 77 case in support of the contentions that the size of the business was adequate if it was sufficient; the size and scale was not important and that a business could be an eligible business even if the exports were small and limited. In addition, Jo’s case was authority for the fact that there is no minimum time limit that needed to be spent in Australia.
· It was submitted that the applicant makes decisions, does surveys, ascertains prices, organises shipping, maintains contact with suppliers and instructs his assistants 5 hours a day, 5 days per week on behalf of JJB.
· It was submitted that as evidenced by the cotton transaction, JJB is subject to the same scrutiny by PMS and Suritext as other suppliers.
· It was submitted that it was only when the applicant was in Europe that his brother Lim Ting Chung was responsible for JJB.
· It was submitted that although they had not come to fruition the applicant had made a genuine effort to obtain a Boost Juice Franchise, import water pumps and build an aromatherapy business.
· It was submitted on behalf of Johan that he would suffer extreme hardship if his visa was cancelled because he could not return to the same university and there may not be an equivalent course.
· No submissions were made on behalf of the applicant’s wife or daughter.
RESPONDENT’S SUBMISSIONS
35. The respondent referred the Tribunal to their Statement of Facts and Contentions and made the following oral submissions which can be summarised briefly as follows:
· It was conceded that the applicant had obtained a substantial ownership in JJB. However, it was submitted that JJB was not an eligible business because it had only undertaken token activity. The activity was, it was submitted, neither continuous nor repetitive but rather intermittent with little profit having been made, as acknowledged by the applicant.
· It was submitted that there had been 3 exports of Breville products, 2 from Perth, 1 from Melbourne which had been bought off the shelves at Retravision; 10 Epsom headprinters which had been carried in the luggage of the applicant’s daughter; 1 export of silicon, 1 export of cotton, and 2 of resin, all of which had been exported to Suritext or PMS, companies in which the applicant has a significant shareholding.
· It was submitted in addition that Breville and Epsom were not Australian products.
· It was submitted that links had not been developed with international markets as the applicant already had strong links with PMS and Suritext, companies owned by his family which he had previously worked for and retained significant shareholding in and therefore some influence.
· It was submitted that the claim that the applicant had actively participated at a senior level in the day-to-day operations of JJB was inconsistent with his evidence which showed that he had had little recall of transactions or phone contacts. This suggested little involvement.
· It was submitted that the applicant had only spent 73 days in Australia prior to the cancellation of his visa. Whilst travel outside Australia and communication from overseas by email etc was acceptable, the authorities did not support the position that all activity could be conducted from outside the company and that the decision of Ng v Minister for Immigration and Multicultural Affairs [2003] AATA 299 should be followed rather than the decision of Jo v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 77.
· It was submitted that it was implausible based on the lack of evidence before the Tribunal that the applicant could be spending 5 hours per day 5 days per week on JJB business.
· The contention that the cessation of any activity by JJB after the date of cancellation of the visa except for one small transaction of Breville products, on the grounds of the uncertainty of the applicant’s situation because of his visa cancellation, was not sustainable as the applicant had not sought to clarify the situation by speaking to his lawyer or the Department for Immigration and Multicultural and Indigenous Affairs.
· It was submitted that the applicant spoke broadly of surveys but his only evidence was that he walked around cities, got a brochure and bought a few samples.
· In regard to the applicant’s son it was submitted that the interruption to education and loss of contact with friends was not sufficient to warrant the visa not being cancelled on the grounds of extreme hardship.
CONSIDERATION AND DECISIONS
36. In reaching its decision the Tribunal took into account the documentary and oral evidence as well as the submissions made at the hearing. 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, or is not actively participating in the day-to-day management of the business. The Tribunal however must not cancel the visa if the applicant has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia and intends to continue to make such genuine efforts.
37. It is conceded by the respondent and accepted by the Tribunal that the applicant has a substantial ownership interest in JJB. The respondent submits that it is not however an “eligible business” within the meaning of s134 of the Act and nor has the applicant satisfied section 134(1)(b) and (c) of the Act. There are a number of cases that provide guidance. 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 however after the date of cancellation 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.
Breville appliances
38. Three purchases of Breville appliances at retail outlets have occurred. The applicant’s son and daughter visited Retravision stores to price the appliances and then from Indonesia the applicant organised the shipping of the goods all of which were sold to Mr Iman Adi. The Tribunal does not accept that 3 transactions such as this result in the development of business links with the international market in any meaningful way (S134 (10)(a)); the creation or maintenance of employment in Australia as the purchase of goods was undertaken without payment by his children or himself (s134 (10)(b)), nor does it satisfy s 134 10(c) and (d) as it appears the goods are not Australian made. Three isolated exports of Breville appliances cannot be said in a meaningful way to have resulted in or will result in increased commercial activity and competitiveness within sectors of the Australian economy (s 134 (o) (f)). The impact of these exports has been negligible.
Head printers
38. On one occasion the applicant’s daughter, on instruction from the applicant, priced and purchased 10 Epson Head Printers which she then carried in her private luggage back to Indonesia. The applicant obtained them on behalf of a Mr Anwar, a person whose business he appeared to have little knowledge of. The applicant was unsure of what Mr Anwar intended to use the head printers for although correspondence stated Mr Anwar was interested in them for use in textile screen making (T11/335). The applicant did not know where the Head Printers were manufactured. This one off transaction undertaken largely by the applicant’s daughter does not, in the Tribunal’s opinion satisfy any of the criteria in s 134 (10). The Tribunal does not accept that one export, on such a small scale for minimal profit was ever contemplated as being sufficient to satisfy s 134 (10) of the Act. The Tribunal similarly finds the one off export of cotton directly to one of his Indonesian companies done from Indonesia could not possibly satisfy s 134 (10) of the Act.
Chemicals
39. The applicant’s evidence in regard to JJB’s export of chemicals was that purchases of Resin and Silicon had been exported to PMS and Suritex, that is the companies he obtains his major source of income from. All these transactions from Indonesia, with the assistance at times from the applicant’s niece, Imelda, who is also resident in Indonesia. Not all the chemicals had been exported due to currency concerns. Although Suritex and PMS had now asked for further orders, they have not proceeded because of the applicant’s concern about his visa situation. S 134(10)(a) of the Act is not satisfied in the Tribunal’s view as the transactions are between entities that already have overlapping shareholders and interests. There is no documented evidence to support the applicant’s evidence that PMS and Suritex have placed further orders, in fact, the existing orders have not been completed. The Tribunal does not accept that the applicant’s visa situation is the primary cause of this. He did not seek advice on his situation from his lawyer, Mr Chong or the respondent. The AAT has no record of him seeking advice from it on this matter.
40. The criteria in sections s 134 (10) (d) and (e) are not relevant. The export of silicon (on one occasion) and resin (on two occasions) occurred only three times and the Tribunal does not believe they can reasonably be said to have satisfied sections 134 (10) (b) (c) and (f) of the Act, their impact being so minimal.
actively participating at a senior level
41. Even if the Tribunal was satisfied that the applicant had obtained a substantial ownership in an eligible business, the applicant must demonstrate, in order to avoid the prospect of visa cancellation, that he utilises his skills “in actively participating at a senior level in the day- to -day management of the business” (section 134(1)(b)) In considering this subsection the Tribunal noted the cases it had been referred to including Tang v Minister for immigration and Multicultural Affairs [2000] AATA 997; Huang v Minister for Immigration and Multicultural Affairs [2002] AATA 656 and Ng (supra).
42. The applicant has spent 73 days in Australia up to the date of cancellation of his visa. On hebalf of the applicant it was submitted that there was no minimum time that needed to be spent in Australia. The Tribunal was referred to Jo v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 77 at [36] in support.
43. The Tribunal does not accept that the presence of the visa holder in Australia is largely irrelevant and that having established that there is an eligible business in Australia, the management activities in relation to that business can take place either in Australia or overseas. The Second Reading Speech introducing the Migration Amendment Bill (No.2) 1992 that introduced the new section 134 into the Act supports the view that migrants who arrive in Australia on business skills visas would be resident in primarily Australia. The Tribunal concurs with the view expressed by the Deputy President Wright QC in Ng v Minister for Immigration and Multicultural and Indigenous Affairs (2003) AATA 299 at 12.
“… However the Act does not contemplate an absentee entrepreneur directing operations from afar. Direct “hands-on” involvement within the Commonwealth of Australia is essential”.
44. The Tribunal does accept however that activities outside Australia can account towards “actively participating at a senior level in the day-to-day management of business” (S. 134 (1)(b)). The evidence before the Tribunal does not support the conclusion that the applicant spends 5 hours a day, 5 days per week on behalf of JJB. Of the eight transactions that have occurred in all cases others have actively participated. His daughter sourced, bought and transported the Epson Headpriinters to Indonesia. His son and daughter visited Retravision stores to source and price Breville products. The evidence does not support Mr Lim’s contention that he did all the demonstrations. The applicant’s evidence was that he demonstrated these appliances on JJB’s part and was largely responsible for the products with his brother Ping Chung only signing correspondence on his instructions. In particular he was definite that he demonstrated the Breville Juicer to Mr Iman Adi at his home. This evidence is contradicted in correspondence between Mr Iman Adi and Mr Lim Ping Chung on 16 October 2003. In this letter Mr Iman thanks Mr Ping Chung for the demonstration at their offices, referring to Dwi who “… has been very helpful and provides us with necessary information” (T11/363). Most of the correspondence in regard to Breville Juicers in October 2003 went out in the applicant’s brother’s name (T11/340-352 & 354, 356, 358, 360).
45. All activity in regard to the purchase and export of chemicals was done from Indonesia with the assistance of Imelda or Lily. In the case of correspondence for the Breville appliances and Colly Cotton correspondence usually was signed by both the applicant and his brother. The exports that occurred could not account for 25 hours per week work on behalf of JJB and there was no documented evidence of surveys and business meetings. The applicant’s knowledge of the activities of those he supplied such as Mr Anwar was uncertain as was his recall of his interactions with Mr Iman. His knowledge of products such as Breville Juicers, for example where they were made, was evidence of his superficial understanding of goods he was planning to build his business on. In addition, Mr Lim did not know JJB’s registered address in Australia except to say that it was where his brother lived.
genuine effort
46. There is one further matter the Tribunal needs to consider in regard to the applicant and that is that his 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.
47. It was submitted on behalf of the applicant that not only had he made a genuine effort as reflected in the 8 exports that had occurred, but in addition there was evidence of this in the applicant’s effort to obtain a Boost Juice Franchise, import water pumps and build an aromatherapy business. The applicant’s efforts in regard to the export of water pumps and aromatherapy goods does not, in the Tribunal’s view, amount to genuine effort. There was no evidence of business plans or proposals; formal ongoing contact with suppliers apart from initial enquiries about the price of water pumps in both Australia and Indonesia and research other than visiting a Mother Earth Aromatherapy shop in Australia and buying a few products. In regard to Mother Earth the applicant could not recall what city this was in. The applicant has spent considerably less than 6 months in Australia (MSI para 4.5(d)). Whilst $250,000 has been transferred to Australia and constitutes a cash deposit, there is no evidence that it had been applied to any specific activity by JJB.
48. The Tribunal was also not convinced that the Boost Juice Application could realistically be described as evidence of genuine effort. This research primarily involved standing ‘in front of a store’ and on the basis he provided data which his daughter collated. The application was completed with assistance. The Tribunal notes sections were not completed (T11/201, 502, 504, &509). The applicant failed to ascertain that a fundamental requirement was that the franchisee had to live in Australia.
49. 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 in accordance with s.134 of the Act. This does not however, result in the automatic cancellation of the applicant’s business skills visa. There remains a discretion under s. 134 of the Act as to whether to cancel. The Tribunal finds no basis however which warrants the discretion to cancel not being exercised.
APPLICANT’S FAMILY
50. The next issue the Tribunal must determine is whether the cancellation of the secondary visas, which is the consequence of the affirming of the decision to cancel the applicant’s visa, would result in ‘extreme hardship’. Section 134(5) of the Act provides that a business visa must not be cancelled if it would result in extreme hardship for the secondary visa holders.
51. The meaning of the words ‘extreme hardship’ was considered by the Federal Court in Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481 at 487:
“… 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 prefect situation. Similarly, the word “extreme” must be evaluated against the facts of the particular case. Such an evaluation cannot consistently with the duties imposed on the decision-make by the Act, be approached in 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 bring to mine 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 in 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 on e less than another, but each meriting the description…”
52. In Siewei Wang v Minister for Immigration and Multicultural Affairs [2000] AATA 961 it was noted that ‘hardship’ must be judged subjectively (paragraph 28). Hardship however it was stated “…involves more than inconvenience or detriment. Affectation must be to a considerable degree before it can properly be called hardship” (paragraph 29). The Tribunal also considered the meaning of the word ‘extreme’ for the purposes of the Act and said;
“…The meaning of words will always be taken from the context in which they appear. However, 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 meanings of the word “extreme”… 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 nor only undue hardship, but extreme hardship…”
53. The hardship must be a consequence of the cancellation of the visa beyond the mere fact of leaving Australia which in all cases could be expected to result in some period of upheaval and readjustment. The hardship must be of an extreme kind and hardship that is the result of the cancellation. The circumstances of the applicant’s family are, the Tribunal understands as follows. The applicant’s wife has continued to live in Indonesia visiting Australia occasionally. No evidence was submitted on her behalf and the Tribunal finds there is no evidence she would suffer extreme hardship, as a consequence of the cancellation of the applicant’s visa. The applicant’s daughter obtained a degree at a West Australian University. She has spent the last year living and working in Singapore. Apparently she wishes to undertake postgraduate studies in Australia. The applicant said he believed her Australian degree would be less recognised or appreciated in Indonesia but there was no evidence before the Tribunal to support this. The Tribunal concludes that there is no evidence that the applicant’s daughter would suffer extreme hardship having in particular already successfully spent the past year absent for Australia.
54. The applicant’s son’s evidence was that he believed having completed 2 years at an Australian University he would have to start again if he returned to Indonesia. Although Mr Suriadihalim had made no enquiries the Tribunal accepts there may be some difficulties in obtaining credits in all subjects as well as the challenge of studying again in Indonesian. He also referred to leaving behind friends in Australia although he continues to spend holiday periods in Indonesia. Mr Suriadihalim also referred to his visa cancellation giving a bad impression but did not elaborate. He has not investigated a student visa but will do so if necessary.
55. Returning to Indonesia would based on the evidence of Mr Suriadihalim require him to investigate what credits he would gain for study already undertaken in Australia and would possibly result in the loss of 2 or 3 years. Leaving friends and making new ones is something he has shown himself to be clearly capable of doing having successfully integrated in to a school in Perth and then chosen to move to Melbourne and start again. The Tribunal believes that hardship Mr Suriadihalim would experience in leaving Australia is contemplated by the legislation and is in fact an unavoidable result of the cancellation of the secondary visas. There will be difficulties in readjusting and leaving friends and an education system that he is now familiar with. It will be challenging but it cannot be characterised as “extreme hardship” There is no evidence that Mr Suriadihalim faces any unusual educational or social difficulties. He has shown his ability to settle into Australia and the educational system here. The evidence is that he has continued to maintain ties with Indonesia and his family there and it could be expected that they would rekindle old friendships and make new ones. He may if he wishes explore the possibility of returning to Australia on a student visa. The Tribunal concludes that the cancellation of Mr Suriadihalim’s visa would not constitute “extreme hardship” as envisaged by the Act.
DECISION
56. The Tribunal therefore affirms the decisions to cancel the applicant and the applicant’s family’s visas.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Ms L Savage Davis
Signed: .............[sgd D Brodie]…….
AssociateDate/s of Hearing 12 and 13 December 2005
Date of Decision 16 January 2006
Counsel for the Applicant Mr Denning Chong
Solicitor for the Applicant James Chong & Co
Counsel for the Respondent Ms Laila McPherson
Solicitor for the Respondent Australian Government Solicitor
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