Marlina and Ors and Minister for Immigration and Multicultural and Indigenous Affairs - [2004] AATA 606

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 606

ADMINISTRATIVE APPEALS TRIBUNAL N° V2003/1280, N° V2003/1281

N° V2003/1282, N° V2003/1283

GENERAL ADMINISTRATIVE DIVISION

Re:KAMARULAH MARLINA AND RICKY MARLINA AND RONNY MARLINA AND ROBY MARLINA

Applicants

And:MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal: Mr W.G. McLean, Member

Date: 15 June 2004

Place: Melbourne

Decision:The decisions under review are affirmed

(sgd) W.G. McLean
Member

MIGRATION AND CITIZENSHIP – cancellation of business skills visas – whether applicant (Kamarulah Marlina) has a substantial ownership in an eligible business in Australia – whether applicant has made a genuine effort pursuant to s 134(2) of the Migration Act 1958 – whether the secondary visas held by the applicant’s student sons should be cancelled – extreme hardship test – decisions affirmed

Migration Act 1958 ss134(1), ss134(2), ss134(4), ss134(5), ss134(10)

Re Griffiths and Migration Agents Registration Authority [2001] AATA 240

Re Haman and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1113

Re Suryaty v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 37 AAR 341

Hope v Bathurst City Council (1980) 144 CLR 1

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

REASONS FOR DECISION

15 June 2004 Mr W.G. McLean, Member

The Tribunal considered an application from Mr Kamarulah Marlina (V2003/1280) (the applicant) for the review of a decision made by an officer of the Department of Immigration and Multicultural and Indigenous Affairs (the department) on 15 October 2003 under s 134 of the Migration Act 1958 (the Act). The officer decided on behalf of the Minister for Immigration and Multicultural and Indigenous Affairs (the respondent) to cancel the applicant’s business skills visa. The respondent also decided on 15 October 2003 to cancel the visas held by the family unit members of the applicant, namely Mrs Lenggawaty Lou, the applicant’s spouse, and those of his three sons, Ricky Marlina, Ronny Marlina and Roby Marlina. The Tribunal also reviewed the visa cancellation decisions of the respondent which were made in respect of the applicant’s three sons, Ricky Marlina (V2003/1281), Ronny Marlina (V2003/1282) and Roby Marlina (V2003/1283). The visa cancellation decision of the respondent in respect of the applicant’s spouse, was not reviewed.
The Tribunal received into evidence the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and Exhibits marked A1 to A10, tendered by the applicant, and Exhibit R1, tendered by the respondent.
Mr J. Gibson of counsel appeared for the applicant. Mr R. Rigby, a solicitor from Blake Dawson Waldron, appeared for the respondent. Sworn oral evidence was given by the applicant and Ricky Marlina with the assistance of an interpreter of the Indonesian language. Sworn oral evidence was also given by Roby Marlina, Ronny Marlina and Mrs K. Selleck.
The applicant and his wife reside at JL. Pajang N° 8D‑E, Medan, North Sumatra, Indonesia. The applicant occasionally resides in Australia with his three sons during his visits from time to time, at 20/401 Toorak Road, South Yarra, Victoria. The applicant’s business skills visa was granted on 3 July 2000 and he arrived in Australia on 7 July 2000. The parties are in agreement that the applicant has spent 115 days in Australia since his initial arrival on 7 July 2000.
The applicant owns an Indonesian company named PT Bina Catur Marga (“Bina”), which is a pharmaceutical wholesaler and distributor that has been in existence for 16 years. The applicant has been involved as a wholesaler in the pharmaceutical industry in Indonesia for approximately 24 years.
An Australian company named K.L. and Sons Pty Ltd (“KL”) was registered in Victoria on 20 August 2001. KL is the Australian business which is relied upon by the applicant in this matter. KL has a paid capital of $4, and has issued four ordinary shares of $1 each. The applicant owns one of those shares and therefore has a 25 per cent equity interest in the company. The applicant’s spouse, Ronny Marlina and Roby Marlina each own one of the remaining three shares that were issued by the company.
The financial statements for KL were prepared by and signed by Ronny Marlina as a director of the company (Exhibit A6). The profit and loss statement of KL for the initial financial period from the date of the registration of KL on 20 August 2001 to 30 June 2002 indicates a net loss of $50.30 arising mainly from bank charges of $50. The profit and loss statement of KL for the year ended June 2003 indicates a loss of $4082.03 resulting from purchases of goods for resale of $3553.92 and administration costs totalling $528.11. The profit and loss statement of KL for the period 1 July 2003 to 22 March 2004 records a profit of $6,044.55 arising from sales of $6,256.08 less administration costs totalling $211.53.
KL has had only two purchase transactions and one sale transaction from the date of its registration on 20 August 2001 to 22 March 2004. These transactions involve the purchase of sample pharmaceutical products from Southrom Pty Ltd (“Southrom”) of Chatswood in New South Wales and Mayne Consumer Products in Queensland in May 2003 for export to Bina in Indonesia. No trade sales have occurred to date by KL, as the result of the company sending the sample pharmaceutical products to Indonesia.
The following relevant legislation is provided by the Act:
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.
(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).
…
(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.
(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.
(6)      The Minister is taken not to have cancelled a person’s business visa under subsection (4) if the Administrative Appeals Tribunal has set aside the decision of the Minister to cancel the business visa of the relevant person to whom paragraph (4) (a) applied.
…
(10)     In this section:
…
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.
…
The respondent cancelled the business skills visas held by the applicant and the members of his family unit on 15 October 2003. The significance of the date of cancellation in a review of a cancellation decision was emphasised by Deputy President Forgie in Re Griffiths and Migration Agents Registration Authority [2001] AATA 240 when she said at para 39:
…Subject to any legislative variation, the general principles are, rather, those enunciated in Drake [Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577] and Freeman, to which I have referred. Where the decision under consideration is a cancellation decision, the Tribunal must consider whether or not that decision was correctly made at the time it was made. Where the decision under consideration relates to an entitlement (be it a pension or registration), the Tribunal may consider whether that entitlement exists at any time up to the date of the hearing.
In Re Haman and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1113, Deputy President Hotop said at paras 52 and 53:
52. This issue has been the subject of differing approaches adopted by Deputy Presidents of the Tribunal in recent decisions on review of decisions cancelling Business Skills visas. In Re Tang and Minister for Immigration and Multicultural Affairs (2000) 32 AAR 103 Deputy President McMahon said (at 105):
“The ordinary principles of administrative review apply. It is the function of this tribunal to deal with the question having regard to the evidence put before it at the time and having regard to all facts and circumstances that have occurred up until the date of the hearing.”
In Re Wong and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 54, however, Deputy President Handley, following the approach adopted by Deputy President Forgie in Re Griffiths and Migration Agents Registration Authority [2001] AATA 240 at para 39, and in Re Birdseye and Companies, Auditors and Liquidators Disciplinary Board (2001) 65 ALD 281 at 290 (which involved the cancellation of registration of professional qualifications), confined his consideration to relevant facts as at the date of the decision to cancel a Business Skills visa that was under review in that matter. The approach adopted by Deputy President Handley in Re Wong (above) is consistent with dicta of the Federal Court of Australia in recent cases relating to review by, respectively, the Immigration Review Tribunal, and (its successor) the Migration Review Tribunal, of decisions to cancel Student visas: see Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513 at 526; [W]ong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257 at 264.
53. Having regard to the nature of the relevant decision under review in the present case, and having regard to the nature of the criteria specified in s 134 of the Act on the basis of which that decision was made on that date, the Tribunal agrees with the approach adopted by Deputy President Handley in Re Wong (above). Accordingly, for the purpose of reviewing the relevant decision in this case, the Tribunal will, in accordance with the respondent’s submission, confine its consideration to material placed before it which relates to relevant “events, actions or intentions” which occurred or which were held (as the case may be) prior to, or at the time of, that decision – namely, 19 April 2001. [emphasis added]
The Tribunal has concluded that it should follow the approach adopted by the Federal Court in Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513 and Wong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257 at 264, and by Deputy President Forgie in Re Griffiths and Re Birdseye and Companies, Auditors and Liquidators Disciplinary Board (2001) 65 ALD 281 and by Deputy President Handley in Re Wong and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 54, and by Deputy President Hotop in Re Haman and Ors. The Tribunal will therefore confine its consideration to material in this matter that relates to relevant “events, actions and intentions” prior to or at the time of the cancellation of the decision, namely 15 October 2003.
The first issues before the Tribunal pursuant to s 134(1) of the Act are:
(a)whether, as at 15 October 2003, the applicant had obtained a substantial ownership interest in an eligible business in Australia.
(b)whether, as at 15 October 2003, the applicant was utilising his skills in actively participating at a senior level in the day‑to‑day management of that business.
The primary question is whether KL is a business at all. An eligible business must be a business that the Minister reasonably believes results or will result in one of the benefits to Australia specified in factors (a) to (f) of the definition of eligible business in s 134(10) of the Act.
In order to decide whether KL was a business at 15 October 2003, it is necessary to identify the characteristics of a business. Deputy President Wright considered that in issue in Re Suryaty and Minister for Immigration and Multicultural and Indigenous Affairs (2003) 37 AAR 341 and he said at p346:
The question whether or not an individual is participating in the day‑to‑day management of a business in Australia involves two principal issues:
(1) To be carrying on a “business” it must be shown that the relevant undertaking is a commercial enterprise in the nature of a going concern involving activities being pursued for the purpose of profit on a continuous and repetitive basis: Hope v Bathurst City Council (1980) 144 CLR 1 at [8‑9]. see also Re Tang and Minister for Immigration and Multicultural Affairs [2000] AATA 997 at [20]; Re Huang and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 656 at [11]; Re Ong and Minister for Immigration and Multicultural and Indigenous Affairs (at [34](a)).
(2) The relevant business must be carried on “in Australia”…
In Hope v Bathurst City Council (1980) 144 CLR 1 Mason J said at pp 8-9:
Although it has been common ground that “business” is used in its ordinary meaning in s 118(1), the courts below have refrained from saying what that meaning is. This is perhaps understandable because, as a glance at the Shorter Oxford Dictionary will show, the word has many meanings. Ironically it is the last meaning given by the Shorter Oxford Dictionary: “19. A commercial enterprise as a going concern”, that comes closest to the popular meaning which the courts appear to have acted on in the present case. In truth it is the popular meaning of the word as used in the expression “carrying on a business”, rather than the popular meaning of the word itself, that is enshrined in the statutory definition. It is the words “carrying on” which imply the repetition of acts (Smith v Anderson (1880) 15 Ch D 247 at 277, 278) and activities which possess something of a permanent character. This conclusion serves to emphasize that it is necessary to engage in a process of construction in order to arrive at the meaning of the word in s 118(1).
I accept, then, that “business” in the sub-section has the ordinary or popular meaning which it would be given in the expression “carrying on the business of grazing”. It denotes grazing activities undertaken as 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. Putting aside the question whether the activities have a “grazing” character, the critical issue for decision is whether the material before the court reasonably admits of different conclusions on the question whether the appellant’s activities constitute a “business”.
On the facts as found, I conclude that the appellant’s activities amounted to a business and that no other conclusion was reasonably open. In this respect I agree with what Reynolds JA said in his dissenting judgment. Transactions were entered into on a continuous and repetitive basis for the purpose of making a profit. The activity had a permanent character in that it had been carried on without interruption since 1965. The appellant sought customers by advertising and kept appropriate financial records. The land, though small in area, was put to its best potential use and the pastures were improved and facilities including fences were provided for that use. There is nothing in the findings to suggest that the activities were other than genuine and real. [emphasis added]
…
From the reasons of Mason J, in Hope, the Tribunal understands that, in deciding whether activities constitute the carrying on of a business, it is relevant to consider whether transactions of KL were entered into on a continuous and repetitive basis for the purpose of making a profit. In this case KL purchased samples of pharmaceutical products in May 2003 for sale after 1 July 2003, during the period from the date of registration of KL on 20 August 2001 to the date of cancellation of the applicant’s business skills visa by the respondent on 15 October 2003. It could not be said that KL was entering into transactions on a continuous and repetitive basis for the purpose of making a profit during that period.
The Tribunal finds that, as at 15 October 2003, it would not be said that KL was carrying on business or even was a business. It was a corporation but not a business. The Tribunal’s finding that KL was not a business as at 15 October 2003 means that it must also be found that at that date KL was not an eligible business, as the definition in s 134(10) of the Act provides that an eligible business means a business.
The Tribunal finds that the applicant, as at 15 October 2003, had not obtained a substantial interest in a business in Australia during the relevant period and therefore could not satisfy the requirements of s 134(1)(a) of the Act.

Because of the Tribunal’s finding as to s 134(1)(a) of the Act, it is not necessary for the Tribunal to decide under s 134(1)(b) of the Act whether the applicant as at 15 October 2003, was utilising his skills in actively participating at a senior level in the day‑to‑day management of the business of KL. The reference to that business in s 134(1)(b) of the Act makes it clear that paragraph (b) only becomes relevant where a visa holder has obtained a substantial ownership interest in an eligible business in Australia, but may not be participating at a senior level in the day‑to‑day management of that business.
Similarly, the reference in s 134(1)(c) of the Act to the visa holder continuing to hold a substantial interest and utilise skills in the management of an eligible business in Australia, means that, as it has been found that the applicant has not been involved with an eligible business in Australia that paragraph has no application in this matter.
As the applicant has not obtained a substantial ownership interest in an eligible business in Australia on 15 October 2003, the Tribunal finds that the Minister had a discretionary power to cancel the applicant’s business visa under s 134(1) of the Act. Section 134(1) of the Act also provides the Minister with the residual discretion not to cancel the applicant’s business visa. The Tribunal finds that there are no circumstances in this case that would warrant the residual discretion being exercised.
Section 134(2) of the Act is an ameliorative provision. It provides that, even though the respondent is satisfied that a visa holder has not satisfied the visa requirements, as indicated in s 134(1) of the Act, the Minister must not cancel the visa if the person has been making genuine efforts to satisfy those requirements. Section 134(2) reads:
(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.
The applicant owns one share of $1 in KL giving him a 25per cent equity ownership interest in the company pursuant to s 134(10) (ownership interest) of the Act. The Tribunal is of the view that a $1 investment is not a substantial amount of money and also that 25 per cent equity interest in KL does not provide that applicant with control over the company or its business. There is no evidence before the Tribunal that the applicant has obtained a substantial ownership interest in KL or that he has made a genuine effort to do so.
The Tribunal has already found that the applicant, as at 15 October 2003, has not obtained a substantial ownership interest in a business in Australia. At 15 October 2003, it could not be said that KL was carrying on a business or even was a business. There is no evidence that KL has purchased or sold goods for resale at a profit (including pharmaceutical products) since 15 October 2003.
The applicant contends that KL was established in August 2001 to look for pharmaceutical product in Australia for sale in Indonesia. His Indonesian company, Bina, is a wholesaler and distributor of pharmaceutical products in Indonesia. The applicant gave evidence that the trading results of Bina were adversely affected during 2001 to March 2003 due to the political instability in Indonesia at that time. He also gave evidence that the “medicine recall” by the Australian Department of Health, of various pharmaceutical products manufactured and supplied by Pan Pharmaceuticals Limited in 2003 (Exhibit A4 an A5), had a detrimental marketing impact throughout Indonesia upon all pharmaceutical products supplied from Australia. The Tribunal accepts that both the political instability in Indonesia and the Pan Pharmaceutical Limited product recall may have imposed difficulties for Bina to market in Indonesia pharmaceutical goods supplied from Australia, however, it does not explain why the applicant did not make a genuine effort at that time to assist KL to enter into negotiations with Australian pharmaceutical manufacturers and distributors, regarding the future sale of their products to KL for export to Indonesia. For example, KL could have entered into distribution agreements and negotiated product costs with Australian manufacturers/distributors at any time from the date of its registration on 20 August 2001, notwithstanding the Indonesian political situation or the Pan Pharmaceutical Limited recall, but did not do so.
The applicant made the following comments (Exhibit A1) regarding certain Indonesian government approval requirements and associated delays affecting the importation by Bina of all Australian pharmaceutical products into Indonesia:
The delay in the importation of Australian product is also caused by the complex product registration in Indonesia. I have been advised by the Indonesian Department of Health that the registration process takes time approximately 6 to 18 months. The registration process requires three documents. The first document is the certificate of listing. This document describes whether the products from the country of origin are listed in the country. The second document is the certificate of analysis. This document describes the overall functions of the products and should indicate whether the products are safe for consumption purpose. The third document describes the ingredients of the products and their functions. Additionally, the Indonesian Department of Health also requires for the entity registering the product in Indonesia to be the sole distributor of that product.
The applicant indicated that he made the initial contact with Southrom. However, the evidence shows that his initial discussions with Southrom concerned the sale of a number of sample pharmaceutical products to Bina in July 2001 (Exhibit A2), which was prior to the registration of KL on 20 August 2001.
The evidence is that the applicant may observe an Australian pharmaceutical product being sold in Australia or elsewhere which he believes can be marketed by Bina in Indonesia, and he notifies his son Ronny of the name of that product. Ronny, who is a director of KL and is resident in Australia, ascertains the name of the manufacturer/distributor of the product observed by his father via the internet or telephone listings etc. Ronny then contacts the identified manufacturer/distributor, either by letter or by email, indicating an interest by KL in exporting their pharmaceutical product(s) to Indonesia (refer to sample letters ‑ Exhibit A7). Ronny subsequently personally follows up his letter by either telephone or email contact, if a reply is not received from the manufacturer/distributor to his letter.
Exhibit A7 attachments indicate that the first of such letters written by Ronny to a manufacturer/distributor was a letter dated 11 March 2003 addressed to Orchard Manufacturing Co Pty Ltd (Orchard) Bayswater, Victoria. The following extract is taken from the follow up letter dated 24 July 2003, written by Ronny as a director of KL, to Orchard:
In Indonesia, we have a company trading under the name of P.T. Bina Catur Marga.
The company was established on 6th June 1991. The main field of the company is a pharmaceutical wholesaler in chemicals and pharmaceuticals for household use. The main business is being carried in Medan, North Sumatra. For references, I have provided copies of the translated business permit, certificate of registration, and operating licence from Indonesian Department of Health in the attachment at the back of this letter.
Being a pharmaceutical wholesaler, the company has become a sub-distributor of over-the-counter internationally branded medicines, namely Pfizer, Roche, and Glaxo Smith Kline which is known for its Panadol products. In addition, we also distribute all products by Boehringer Ingelheim and Schering A. G. (Germany), and some Equal products. The company is also a distributor of some local pharmaceutical products.
These medicines does not distributes only in the capital area of North Sumatra. We also have networking distribution to other Sumatra and some parts of Java. In such cases, the company has a monthly turnover of AUD 400,000 to 500,000.
Therefore, in regard to your Nulax products, the products will be distributed in Indonesia by above P.T. Bina Catur Marga. In Indonesia, the largest market of laxative product is Dulcolax tablet, manufactured by Boehringer Ingelheim. So, we would like to take this opportunity to introduce this good product to Indonesia as we see that your products contain fruits and some other natural ingredients.
The networking distribution of our Indonesian company will enable your products being distributed well all over Indonesia, mainly some major cities. We will market it to other major cities in Sumatra, such as Padang and Pekan Baru; and other major cities in Java, namely Jakarta, Surabaya, and Bandung.
On 10 May 2004 Ronny prepared a “Business Plan” (Exhibit A3) at the request of Orchard setting out proposed future marketing strategies and expectations by Bina in Indonesia and estimated KL export volume attainments. There had been no response from Orchard to Ronny’s business plan submission at the date of the hearing of this matter on 26 May 2004, nor is it clear whether Orchard will eventually decide to enter into a distribution agreement with Bina or with KL, should Orchard finally decide to proceed. If Orchard do consent to enter into a distribution agreement, the above‑mentioned Indonesian regulatory import approvals must be acquired by Bina from the Indonesian Department of Health, prior to KL commencing any export sales of pharmaceutical products to Indonesia, which is estimated by the applicant to take approximately 6 to 18 months. Following receipt of the notice of intention to cancel the visas on 25 June 2003, Ronny wrote letters to the following Australian manufacturers/distributors of pharmaceutical products (Exhibit A7):
Date of Letter  Manufacturer/Distributor
17 July 2003  SSL Australia Pty Ltd
17 July 2003  Tinsonax Pty Ltd
17 July 2003  Continental Brand Foods
21 July 2003  Natural Green Pty Ltd

There has been no positive outcome for KL, to this date, as the result of Ronny mailing these four letters.

The evidence shows that Ronny is the director/manager/administrator who solely represents KL to Australian manufacturers/distributors of pharmaceutical products and that the applicant is not. Ronny also completes all of the administrative functions and requirements of KL including the preparation of the company’s financial statements. The Tribunal finds that the applicant has not made a genuine effort to utilise his skills in actively participating at a senior level in the day‑to‑day management of the business.
Based on the evidence, the Tribunal finds that it was reasonable and appropriate for the Minister to be satisfied, as at 15 October 2003, that the applicant had not made and did not intend continue to make a genuine effort to satisfy the requirements of s 134(2)(a), (b) and (c) of the Act.
On 15 October 2003 the respondent cancelled the secondary visas held by Ricky Marlina, Ronny Marlina and Roby Marlina pursuant to s 134(4) of the Act. Section 134(5) of the Act prescribes that the Minister must not cancel the other persons’ business visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person.
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 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…
In Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961 the Tribunal considered the meaning of the word extreme for the purposes of the Act and Deputy President McMahon observed at para 30:
…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 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…
Ronny Marlina gave evidence that he came to Australia in January 2000 to study, after completing his year 12 studies in Indonesia. In 2003 Ronny completed his honours degree in Business (Banking and Finance) at Monash University. After receiving his notice of visa cancellation dated 15 October 2003 from the respondent, Ronny commenced a one year course at Monash University in 2004 for a Master of Practising Accounting degree. Ronny was advised by Universitas Medan in Indonesia, by a letter dated 28 February 2004, (Exhibit A7) that the university did not have a standard for Master of Practising Accounting. Ronny did not explain why he commenced his current studies in 2004 with the clear knowledge of the possibility that his visa may ultimately be cancelled if his appeal to the Tribunal was unsuccessful.
Roby Marlina gave evidence that he came to Australia in January 2000 after completing only half of my year 11 studies in Indonesia. Since his arrival in Australia, he has studied English for about three months.He then enrolled at Taylors College where he completed year 11 of the Victorian Certificate of Education (VCE). He is currently in the middle of his final year, completing an undergraduate degree in Bachelor of Arts at Monash University. Roby was advised by Universitas Medan in Indonesia, by a letter dated 28 February 2004, (Exhibit A8) that the university does not have a standard for Bachelor of Arts (Behavioural Studies). There is no evidence from Universitas Medan, or any other Indonesian university, that a similar replacement subject to “Behavioural Studies” is not offered as an alternative major, in a Bachelor of Arts degree.
Ricky Marlina gave evidence with the assistance of an interpreter. He came to Australia in January 2002 after completing only half of my year 10 studies in Indonesia. Ricky enrolled in Australia at Taylors College and is presently completing VCE year 12.
Every year since their arrival in Australia, Ronny, Roby and Ricky have returned to Indonesia at the end of each academic year, to spend their study break with their parents, relatives and friends. There is no evidence that they have made enquiries to the Australian immigration authorities about the possibility of obtaining a replacement alternative visa, if their current visas are cancelled, and it is now over seven months since the respondent cancelled their visas on 15 October 2003. Also, there is no documentary evidence regarding alternative courses available to Ronny and Ricky in Indonesia, other than the information contained in their letters from Universitas Medan which were obtained on their behalf in Indonesia by a family friend of their father.
The Tribunal is of the view that Ronny, Roby and Ricky may suffer from inconvenience and minor hardship as the result of being required to interrupt their studies at this time and return to Indonesia. The Tribunal is mindful that Ronny commenced his present course at Monash University in 2004 after the date of the cancellation of his visa by the respondent on 15 October 2003, in the full knowledge that his studies may be interrupted if his appeal against the respondent’s decision was unsuccessful. Also Roby and Ricky both decided to interrupt their studies in Indonesia to come to Australia in 2000 and 2002 respectively.
The Tribunal is satisfied that there is no evidence that cancellation of the visas held by Ronny, Roby and Ricky would result in extreme hardship to any of them. Based upon the evidence, the Tribunal finds that it was reasonable and appropriate for the respondent to decide to cancel their visas on 15 October 2003.
The decisions under review are affirmed.

I certify that the fourty‑three [43] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr W.G. McLean, Member

(sgd) Olympia Sarrinikolaou

Clerk

Date of Hearing:  26 May 2004
Date of Decision:  15 June 2004
Counsel for the applicant:            Mr J.Gibson
Solicitor for the applicant:            Konfir Kabo
Solicitor for the respondent:         Mr R. Rigby, Blake Dawson Waldron