Oentoro and Ors and Minister for Immigration and Multicultural Affairs
[2006] AATA 939
•3 November 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 939
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2005/334, Nº V2005/335
Nº V2005/336, Nº V2005/337GENERAL ADMINISTRATIVE DIVISION Nº V2005/338
Re: ING WIBISONO OENTORO AND
LIH YOE LIE AND
LILY WIBISONO AND
LINDA SARI JATI WIBISONO ANDRIO MASHUDI WIBISONO
Applicants
And: MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal: Regina Perton, Member
Date: 3 November 2006
Place: Melbourne
Decision:The Tribunal sets aside the decisions under review and substitutes a decision that the applicants’ visas should not be cancelled.
Ms Regina Perton
Member
MIGRATION ‑ business skills visa ‑ cancellation ‑ whether eligible business ‑ whether utilising skills in actively participating at a senior level in the day‑to‑day management of business ‑ whether genuine effort – decision set aside
Migration Act 1958 s 134(1), (2), (3), (4), (5), (10)
Hope v Bathurst City Council (1980) 144 CLR 1
Puzey v Commissioner of Taxation [2003] FCAFC 51
Re Griffiths and Migration Agents Registration Authority [2001] AATA 240
Re Tang and Minister for Immigration and Multicultural Affairs [2000] AATA 997
Re Wong and Minister for Immigration and Multicultural Affairs [2006] AATA 277
REASONS FOR DECISION
3 November 2006 Regina Perton, Member
1. Ing Wibisono Oentoro is an Indonesian citizen who arrived in Australia on 17 December 2001 as the holder of a subclass 127 business skills visa (business visa). Mr Oentoro’s wife and three children were also granted business visas as his dependents. On 12 April 2005, the Minister’s delegate cancelled Mr Oentoro’s visa under s 134(1) of the Migration Act 1958 (the Act) because Mr Oentoro had not complied with the terms of the visa. Since his family members were granted visas because Mr Oentoro was granted a visa, the cancellation of his visa resulted in the cancellation of their visas.
2. Mr Oentoro applied for review of the decision to cancel his visa (application N° V2005/334). His wife, Lih Yoe Lie also sought review of the cancellation of her visa (application N° V2005/335). Mr Oentoro’s children, Lily Wibisono, born on 5 November 1978 (applicationN° V2005/336) Linda Sari Jati Wibisono, born on 28 January 1983 (applicationN° V2005/337) and Rio Mashudi Wibisono, born on 8 April 1988 (application N° V2005/338) also sought review of the cancellation of their visas.
3. The Tribunal must decide whether Mr Oentoro met visa requirements at the time of cancellation i.e. whether Mr Oentoro had an interest in an eligible business at that time; whether Mr Oentoro was actively participating at a senior level in the day‑to‑day management of the business; and whether he has made a genuine effort to obtain an interest in an eligible business and participate in day‑to‑day management of the business. If he does not meet the criteria, there is a residual discretion not to cancel the visa.
4. As the Tribunal has decided to set aside the decision to cancel Mr Oentoro’s visa, there is no need to consider the applications of his wife and children in detail
BACKGROUND
5. Mr Oentoro arrived in Australia on a business visa on 17 December 2001. He shared his time between Australia and Indonesia, spending the greater amount of time in Bali where he still has a business that supports him, his wife and children. His daughter, Lily Wibisono, a student, worked part-time at a restaurant in The Glen, a major suburban shopping centre in eastern Melbourne. Mr Oentoro befriended the owners of the restaurant, Mr and Mrs Lee. On 15 November 2003, Mr Oentoro bought into their business, Sheafvalley Holdings Pty Ltd (Sheafvalley), an Australian company that had already been in operation for several years. He paid $100,000 for a 20 per cent share and became a director. He worked in the business when he was in Australia and kept in contact with what was happening when overseas either through the Lees or via his daughter, who continued to work there.
6. In late 2004, Sheafvalley decided not to continue its business in The Glen due to steeply rising rents and increasing competition in the food hall and expanding surrounding shopping centre. Sheafvalley stopped trading. The partners looked around for a new location for their business. Sheafvalley’s accountant suggested that they should start a new company for the new business. Unfortunately for Mr Oentoro, he and the Lees did not find suitable premises to start up a new restaurant before the cancellation of Mr Oentoro’s visa. The Lees set up a new company, Kingvalley Australia Pty Ltd (Kingvalley) of which Mr Oentoro only became a shareholder after the cancellation of his visa. Their new business, located in the food hall of a major new office complex in the Melbourne CBD, is due to commence operation soon. Its commencement has been delayed due to the slower than expected completion of the building.
EVIDENCE
7. In a written statement Mr Oentoro, who is now 57 years old, stated that he was the youngest of 12 children. Due to his family’s difficult financial situation, he started working early and established his own business when he was 17 years old. His first business was a retail shop specialising in household items. He then supplied aircraft equipment for the army for a decade. He relocated his family to Denpasar in Bali and saw a business opportunity in supplying helmets for motorcyclists in Bali, where he is a sole distributor. Mr Oentoro said that he met Raymond and Amy Lee through his daughters who were working in their restaurant, Udon Express and Oriental Carnival. After investing in Sheafvalley, the Lees’ company, Mr Oentoro worked in a management role as well as taking charge of the day-to-day budgeting and strategic planning and advice. He stated that the Lees were experienced restaurateurs and he an experienced businessman. His daughter, Lily Wibisono, was given the task of letting him know on a weekly basis what was occurring in terms of turnover, daily costs and profits etc when he was in Indonesia.
8. Mr Oentoro stated that after his investment in Sheafvalley, he and the Lees started looking for opportunities to expand or relocate their business. It became apparent during 2004 that there was increasing competition in the shopping centre and the surrounding area and that costs were escalating and profits shrinking. Their rent and outgoings were set to triple at the end of their lease. They tried a loyalty program in an effort to expand their business but this did not have the desired effect. So they started to look at other locations at other major Melbourne shopping areas including Eastland, Knox and South Yarra. However, at the first two they could not get undertakings of exclusivity or a limited number of Asian restaurants; and at the last they found a place but the building to be leased did not meet regulatory requirements.
9. Mr Oentoro stated that he and the Lees met regularly to discuss the future direction of the business. Mr Oentoro thought that it was in his best interests, and that of the Lees, to sell the business if they could and look elsewhere to start a new one. In October 2004, they signed a conditional contract for their existing restaurant in The Glen. The sale was finalized on 13 December 2004. Mr and Mrs Lee and Mr Oentoro continued to look for further business opportunities. In the meantime, Mr Oentoro looked in other directions as well. In 2002 he had set up a family trust, Sinar Jaya Family Trust. However, he made little use of that vehicle for business ventures. At paragraph 22 of his written statement he said that:
....Unfortunately I trusted some referrals to go into business relating to shipments for exports but I realized that they were not bona fide business dealings and have ceased all interest in this direction and instead explored other avenues for business.
10. Mr Oentoro provided a list of dates when he had been in Australia since the grant of the business visa. Those dates were verified by a printout from the Department of Immigration and Multicultural Affairs (DIMA). They were:
17 December 2001 to 6 January 2002 22 days
30 June 2002 to 11 August 2002 42 days
9 December 2002 to 30 December 2002 21 days
17 October 2003 to 21 October 2003 4 days
23 November 2003 to 6 January 2004 44 days
30 April 2004 to 13 June 2004 44 days
12 September 2004 to 29 October 2004 47 days
14 November 2004 to 24 December 2004 40 days
27 February 2005 to 10 May 2005 72 days
21 June 2005 to 29 July 2005 38 days
30 August 2005 to 7 October 2005 39 days
29 November 2005 to 10 March 2006 101 days
21 March 2006 to present
11. Ms Miller cross-examined Mr Oentoro through an Indonesian interpreter. Mr Oentoro confirmed that the Sinar Jaya Family Trust did not continue with exports of flour as he was not satisfied that such exports were bona fide business dealings. He said that he had not investigated any other export opportunities. He confirmed that he had bought shares in Kingvalley and in another Australian company, CNT Corporation (CNT), after his visa was cancelled.
12. Mr Oentoro stated that he first met Mr and Mrs Lee in 1999. Initially, he used to chat to them about their business when he picked up his daughter from work. Mr Oentoro decided to buy a share in the business in November 2003. Mr Oentoro stated that he had not investigated any other food businesses prior to investing in Sheafvalley. He did not invest any money in Sheafvalley beyond $100,000. The restaurants operated by the Sheafvalley, namely Oriental Carnival and Udon Express, were sold on 13 December 2004. After the sale of the restaurants, Sheafvalley's remaining asset was an approximately $500,000 term deposit.
13. The company tax returns for Sheafvalley for the financial year ending 30 June 2005 showed that it was the company’s final tax return due to its ceasing business. Mr Oentoro confirmed that Sheafvalley undertook no business activity which generated income after the sale of the restaurant. He stated that although they employed five full-time employees and 16 part-time employees at the time he invested in the business, Sheafvalley had no employees at the time of the cancellation of the visa, namely 12 April 2005.
14. Mr Oentoro described the role he took in Sheafvalley as one of strategic planning, monitoring stock, quality control and similar tasks. His daughter worked in the business three or four days a week. Either Mr or Mrs Lee or both were at the restaurant during business hours. Their discussions about business issues often took place after closing time. Mr Oentoro stated he was in Australia for around five months of the 13 months that the restaurants operated after his investment in them. Mr Oentoro said that when he was in Indonesia, Mr or Mrs Lee would contact him directly if there was anything urgent to deal with. Mr and Mrs Lee are originally from Hong Kong and they usually converse in Chinese. He spoke to his daughter by telephone about routine matters. There were no formal directors’ meetings. No minutes were kept. Mr Oentoro was questioned about the costs, takings and financial affairs of the restaurant and recited what the costs, weekly takings etc were; which reflected those in the documents supplied to DIMA. He pointed out that the profits and costs would vary from week to week. He said that the hiring of staff and training was normally done by Mrs Lee. Mrs Lee’s English was fluent whereas that of Mr Lee and himself was not very strong. Mr Oentoro and the Lees communicated in Chinese, a language in which he is fluent.
15. When asked about the nature of the planning he did for Sheafvalley, Mr Oentoro said that the best decision he took as a director was to sell the restaurants. Mr Oentoro stated that as he lived close to The Glen, he had a good knowledge of the competition that they faced in that area. His plan was to find the right location and environment to open a new restaurant. He said that it was also his idea to bring in a discount card for repeat customers; something they tried but subsequently rejected.
16. Ms Miller questioned Mr Oentoro about the responses given in the DIMA survey form, which he signed on 15 December 2003. He said that his then migration agent had filled out the form based on his responses. Mr Oentoro indicated that the questions were read out to him by a member of staff who spoke Chinese. The written response to a question in the form concerning the number of hours worked by Mr Oentoro in the business was given as 40 hours per week. Mr Oentoro stated that he worked such hours in the business when in Australia but not when in Indonesia. He could not give an estimate of how much time he spent on Sheafvalley business when outside Australia as it varied from time to time. Mr Oentoro said that he had nominated 40 hours as he was in Australia when being asked that question and thought it referred to his then current situation.
17. Asked about his time in Indonesia while a director of Sheafvalley, Mr Oentoro said that he worked in his business there, which both retails and distributes motorcycle helmets. Helmets have become compulsory in Bali so there is a strong market. He said that he also kept in touch with developments in Melbourne while he was overseas. He reiterated that he could not give a precise estimate of the number of hours he spent on Sheafvalley business while in Bali. Mr Oentoro said that his then migration agent must have ticked the wrong box in the survey form when indicating that Mr Oentoro was not involved in a business outside Australia. Mr Oentoro said that the agent had not asked him about his overseas business involvement. The business in Bali employs five people. He said that when he was in Australia, his wife managed the business in Bali.
18. In relation to Kingvalley, Mr Oentoro agreed that the company was only incorporated after cancellation of the visa and that he had only bought into it in November 2005. Mr Oentoro said that although he was not a shareholder of Kingvalley until four or five months after its incorporation, he was consulted by the Lees, the original directors, about its future throughout its existence.
19. Mr Oentoro stated that he has two houses in Australia and he and his children think of themselves as Australians and see their future here. He indicated his intention of continuing to source business opportunities and utilize his skills in Australia. This included the restaurant to be operated by Kingvalley.
20. Under re-examination Mr Oentoro stated that after the sale of the restaurant at The Glen, he left his share of the sale proceeds in Sheafvalley. Asked why he had done so, Mr Oentoro said that he was very close to the Lees, considered them very honest and has every intention of staying in business with them. Mr Oentoro said that they had only decided to cease trading as Sheafvalley because of the advice of their accountant. Mr Oentoro said that he had not immediately invested in Kingvalley because the business it was to conduct was not yet a going concern.
21. Mr Oentoro stated that since November 2003 he had spent about half the time in Australia and half in Indonesia. He clarified that of the five employees in his Indonesian business, he and his wife constituted two. He said that when he was in Australia, his wife managed the business. His niece and nephew are also employees. He hopes that when he moves to Australia permanently that his nephew and niece will manage the business there. He said that he had invested $100,000 into CNT Corporation, an Australian company run by his future son-in-law and $115,000 in Kingvalley.
22. Mrs Lee corroborated the evidence given by Mr Oentoro. She expanded on the details of the premises they had considered for a restaurant after leaving The Glen. She indicated that the reason Sheafvalley ceased trading was due to her accountant’s suggestion that there might be tax and superannuation advantages in commencing a new business as a new entity. Mrs Lee stated that Mr Oentoro was fully involved in the decision to sell the business in The Glen. Mrs Lee indicated that she and her husband had been running the restaurant for about seven and a half years when Mr Oentoro bought his shares. She said that Mr Oentoro undertook a range of duties including balancing the till in the morning and at night. She also indicated that they often discussed matters for about an hour after closing down. They did not have formal meetings. They believed it was too expensive to have their accountant record formal meetings and they had no reason not to trust each other. She stated that she communicated with Mr Oentoro when he was in Indonesia either directly or via his two daughters who worked for the business part-time.
23. Mr Lee corroborated the evidence from his wife and Mr Oentoro.
24. Lily Wibisono told the Tribunal that she had worked for Sheafvalley from 1999 to 2004. While at university, she usually worked in the business full time for three days a week and part time for three days. She confirmed that she kept her father informed as to what was happening with the business when he was in Indonesia. She described her marriage to an Australian permanent resident of Indonesian heritage and the birth of her child this year. She described the impact of the visa cancellation on her. Her two siblings also gave evidence as to how they would be affected if they are not allowed to stay in Australia. Reports from a clinical psychologist were also tendered in relation to the impact on them if forced to leave Australia.
LEGISLATION
25. Section 134(1) of the Act sets out the circumstances in which a business visa may be cancelled:
(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.
26. There was considerable discussion and an extensive array of precedent decisions cited in relation to the extent to which the Tribunal can take into account evidence that has arisen after the date of cancellation of the visa (e.g. Re Griffiths and Migration Agents Registration Authority [2001] AATA 240; Re Tang and Minister for Immigration and Multicultural Affairs [2000] AATA 997).
27. The Tribunal accepts that s 134 of the Act contemplates that consideration should be given to a person’s intention. Therefore, while the exercise of the discretion at the time of cancellation of the visa is the primary focus, what happens after that date may well be relevant.
Was Sheafvalley An Eligible Business At The Relevant Date?
28. Section 134(10) of the Act defines eligible business as one that the Minister reasonably believes is resulting in 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.
29. In Hope v Bathurst City Council (1980) 144 CLR 1 the High Court held that carrying on a business denotes pursuing activities for the purpose of profit, undertaken on a continuous and repetitive basis. In Puzey v Commissioner of Taxation [2003] FCAFC 51, the Full Court of the Federal Court stated that a business requires some repetition of acts and something of a permanent character.
30. Mr Oentoro invested $100,000 in an existing Australian company, Sheafvalley, in November 2003. This gave him a 20 per cent share of the business and a directorship. In November 2003 and until December 2004, Sheafvalley employed five full time staff and up to 16 part time staff. The Tribunal is satisfied that between November 2003 and December 2004, Sheafvalley was involved in the creation or maintenance of employment in Australia. After the sale of the restaurant in The Glen, however, things changed. The Lees and Mr Oentoro were looking for new ventures for the company. At the date of cancellation, namely 12 April 2005, none of these had yet come to fruition. Mr Oentoro did not withdraw his funds from Sheafvalley after the sale. Sheafvalley was still operating as at 12 April 2005 but it did not have any employees. Nor can it be considered that it was meeting any of the other alternative criteria to be considered an eligible business. As was pointed out by Ms Miller, Sheafvalley’s Company tax return 2005 indicated it had ceased business. The Tribunal is satisfied that Sheafvalley was an eligible business until December 2004. However, on the date of cancellation of the visa, Sheafvalley was not an eligible business for the purposes of s 134(10) of the Act.
31. After the date of cancellation of the visa, Mr Oentoro invested in CNT and in Kingvalley. He also had an interest in the Sinar Jaya Family Trust but indicated that it was not involved in any business ventures at the date of cancellation.
32. As the Tribunal has determined that Sheafvalley was not an eligible business on the date of cancellation, the Tribunal finds that Mr Oentoro did not have a substantial ownership interest in an eligible business in Australia (s 134(1)(a) of the Act).
Was Mr Oentoro Actively Participating At A Senior Level In The Day‑To‑Day Management Of The Business?
33. The Tribunal is satisfied, based on the evidence of Mr Oentoro, his daughter and the Lees that Mr Oentoro was participating at a senior level in the day-to-day management of Sheafvalley. When he was in Australia, which was for about half of the time that the restaurant was operating after he had invested in Sheafvalley, he took part in the financial, stock control and quality control aspects of the business. He was involved in strategic planning for the business. He encouraged the sale of the restaurant, notwithstanding that his personal interest would have been better served by keeping the business going at The Glen. The Tribunal is also satisfied that he remained involved in strategic planning and overseeing of the business via his daughter, Lily, and in direct discussions with the Lees when he was in Indonesia. The Tribunal accepts that management of a company can be undertaken without the person being in Australia. However, given Sheafvalley did not meet the criteria for an eligible business at the date of cancellation, the Tribunal finds that Mr Oentoro was not utilising his skills in actively participating at a senior level in the day-to-day management of the business (s 134(1)(b) of the Act).
34. Section 134(1)(c) of the Act refers to the circumstances where the visa holder does not intend to continue to hold a substantial ownership interest in or participate at a senior level… an eligible business in Australia. Mr Oentoro’s subsequent investment in Kingvalley and his ongoing involvement in the planning for its new venture indicate that he has an intention to continue to be involved in the management and ownership of an eligible business. However, unfortunately, Kingvalley’s qualification as an eligible business was yet to commence in April 2005. Kingvalley had not yet been incorporated. Mr Oentoro’s investment in it was still some seven months away; and Kingvalley has yet to commence the creation of employment in Australia except for that of its directors and the shopfitters. The Tribunal finds that Mr Oentoro did not meet the requirements of s 134(1)(c) of the Act at the relevant date.
Was Mr Oentoro Making a Genuine Effort to Obtain Substantial Ownership of an Eligible Business and to Participate in Day‑to‑Day Management?
35. Section 134(2) and 134(3) of the Act provide:
(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).
36. Paragraph 4.5 of the Ministerial Guidelines of the Migration Series Instruction (MSI) N° 133 Visa Cancellation Under Subdivision G ‑ Cancellation of Business Visas (the Guidelines), entitled What is a “genuine effort”?, contains the following factors to assist decision‑makers in determining whether a genuine effort has been made under s 134(3) of the Act:
…
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.
37. As indicated above, Mr Oentoro did not have an interest in an eligible business at the date of cancellation of his visa. However, as Deputy President Jarvis explained in Re Wong and Minister for immigration and Multicultural Affairs [2006] AATA 277, s 134(2) does not require an eligible business to exist in Australia. The Tribunal has considered the factors listed in s 134(3) of the Act and the Guidelines in MSI-133, as well as several cases cited by the parties. In assessing Mr Oentoro’s claims against these factors and the Guidelines, the Tribunal takes into account Mr Oentoro’s evidence concerning the plans for Kingvalley. Sheafvalley is no longer operating but this was not due to any whim on the part of the directors but rather due to their accountant’s advice that it was desirable that the next business to be operated by the Lees and Mr Oentoro be operated by a new entity. The Tribunal is satisfied that Mr Oentoro has been and is involved in the strategic planning for the new business. He left his funds in Sheafvalley rather than take his contribution and the profit when the restaurants were sold. The Tribunal has received extensive documentation about the planned business in Lonsdale Street including copies of drawings, details of fittings to be installed and a signed lease.
38. On the material before it, the Tribunal is satisfied that Mr Oentoro’s proposals for the new business are realistic and achievable. The new business is due to open shortly (s 134(3)(a)).
39. At the date of cancellation Mr Oentoro had not invested in Kingvalley nor did he have a formal agreement with the Lees. They had an oral understanding and trust in each other. However, the Tribunal is unable to accept that this arrangement fits the description of a formal contract with partners or joint venturers (s 134(3)(b)).
40. Mr Oentoro and the Lees had been investigating new locations for a restaurant. However, the timing of the investigations and the degree to which the research was undertaken by Mr Oentoro personally is not clear. The respondent submitted that Mr Oentoro had not undertaken any research in the two years before he invested in Sheafvalley, with which Mr Oentoro concurred (s 134(3)(c)).
41. Mr Oentoro spent almost six months in Australia from the grant of the visa in late 2001 to the date of its cancellation (s 134(3)(d)), which is near the amount of time suggested in the Guidelines.
42. Mr Oentoro has transferred at least $200,000 into Australia which is now invested in Kingvalley and CNT. He has also purchased two residential properties that could be used as security for subsequent business activities (s 134(3)(e)).
43. Mr Oentoro had an investment of $100,000 in Sheafvalley when it was an eligible business (s 134(3)(f)).
44. Mr Oentoro is an experienced businessman who has demonstrated that he can adapt to new businesses and locations. He started his first business, a retail shop specialising in household items, when he was 17 years old. He supplied aircraft equipment for the army for a decade. He relocated his family to Denpasar in Bali and saw a business opportunity in supplying helmets for motorcyclists in Bali where he is a sole distributor. He has now moved into the food business whilst still maintaining an interest in his overseas business (s 134(1)(g).
45. In respect of s 134(3)(h) there has been no suggestion that Mr Oentoro has failed to comply with a notice under s 137 of the Act to provide specified information to DIMA.
46. While Mr Oentoro may not have held an interest in an eligible business at the date of cancellation, he did hold such an ownership interest and participated in its management for some 13 months. Mr Oentoro believed that it was in the best interest of Sheafvalley for it to sell its outlet in December 2004. He and his partners were seeking a fresh business at the date of cancellation. Evidence was given by the Lees that the reason why Sheafvalley ceased business, and they are now planning to use a fresh entity, was for taxation and superannuation liability reasons (s 134(1)(i)).
47. After considering all the relevant factors in s 134(3) of the Act, the Tribunal finds that Mr Oentoro meets the requirements set out in s 134(2) of the Act. Therefore, the Tribunal finds that the exercise of the discretion not to cancel his visa is appropriate in this case.
48. The Tribunal notes that even if it had formed the view that Mr Oentoro had not made a genuine effort as required by s 134(2), the Tribunal retains a discretion as to whether or not his business visa ought to be cancelled. The Tribunal is satisfied that Mr Oentoro is genuine in his wish to establish himself and his family in Australia. His three children wish to live in Australia where they have completed their later education. He has purchased properties in Melbourne. He made further investments in Australian companies even after his visa cancellation. He has arrangements in place for a relative to take over the running of his business in Indonesia. Mr Oentoro has been going to English language classes to be better able to conduct business here. His relationship with the Lees appears sound and ongoing. He is an experienced and versatile business person.
49. The Tribunal notes that it took almost a year from the date of lodgement of the DIMA survey in December 2003 for the delegate to issue a notice of intention to cancel the visa. That notice of intention was dated 7 December 2004 which was a few days before final settlement of the restaurant business in The Glen. Had DIMA sent that notice a little earlier, Mr Oentoro would still have had an interest in, and day‑to‑day management of, an eligible business at the time of issue of the notice.
50. Even if the Tribunal had found that the requirements of s 134(2) were not met, or if its analysis of its provisions were shown to be in error, the Tribunal would have exercised its residual discretion to determine that Mr Oentoro’s visa should not have been cancelled.
51. Having determined that Mr Oentoro’s visa should not be cancelled, the Tribunal does not need to consider the individual circumstances of his wife and children as the cancellation of their visas was purely as a consequence of the cancellation of Mr Oentoro’s business visa.
DECISION
52. The Tribunal sets aside the decisions under review and substitutes a decision that the applicants’ visas should not be cancelled.
I certify that the fifty-two [52] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Dianne Eva
Clerk
Dates of hearing: 2 February 2006, 22 May 2006, 23 May 2006
Final submissions: 5 September 2006
Date of decision: 3 November 2006
Counsel for applicant: Mr V. Morfuni
Solicitor for applicant: Lily Ong
Advocate for respondent: Ms K. Millar
Solicitor for respondent: Australian Government Solicitor
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