Orlando and Ors and Minister for Immigration and Citizenship

[2008] AATA 180

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 180

ADMINISTRATIVE APPEALS TRIBUNAL        )	No	2007/2790
)	2007/2792
GENERAL ADMINISTRATIVE DIVISION          )	2007/2800
2007/2807

Re RONNY ORLANDO & ORS

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal  Ms N Bell, Senior Member

Date 3 March 2008

Place Sydney

Decision  The decisions under review are set aside.

[sgd] Ms N Bell

Senior Member

IMMIGRATION AND CITIZENSHIP – Business Skills Visa – Cancellation of visas and secondary visas – Substantial ownership interest – Utilises skills at a senior level – Genuine efforts to obtain a substantial ownership interest in an eligible business – Decisions under Review Set Aside

Migration Act 1958

Hope v Bathurst City Council (1980) 144 CLR 1

REASONS FOR DECISION

Ms N Bell, Senior Member

1.      Mr Ronny Orlando was granted a Business Owner sub-class 127 visa in January 2004. His wife, Christien Liauw, son, Tery Fujiori and daughter, Yesica Liauw were granted secondary visas. These applications concern the cancellation of all of the visas on 18 June 2007. Mr Orlando and his family came to Australia from Indonesia.

2.      Mr Orlando first arrived in Australia, on his business visa, on 16 January 2004.  In Indonesia, he had owned a store which sold watches and he continued to run that business until he sold it in late 2005. He attempted a number of business activities in Australia, including the sole distributorship of a brand of Swiss watch and the export of Australian zirconium silicate to Indonesia, and looked for other business opportunities, until he finally purchased a convenience store in August 2007.

3.      For the reasons that follow, I have decided that Mr Orlando’s visa should not be cancelled.  On the basis of that decision, I have also decided that the secondary visas should not be cancelled and it is therefore unnecessary for me to consider whether Mr Orlando’s family members would suffer extreme hardship in the event of cancellation.

issues

4. Section 134 of the Migration Act 1958 provides the Minister may cancel a business visa if the holder:

a) has not obtained a substantial ownership interest in an eligible business in Australia; or

b) is not utilising his 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 hold the interest mentioned in a) above or to continue to utilise his skills in the way described in b) (s134(1)).

5.      But the Minister must not cancel the visa if the holder has made a genuine effort to obtain the ownership interest described above and to utilise his skills as described in b) above (s134(2)).

6.      Mr Orlando submitted that he had obtained the relevant interest in an eligible business and utilised his relevant skills or, in the alternative, that he made genuine efforts to do so. I note that Mr Orlando tended to rely more on his efforts to obtain an interest in a business than he did on his having actually obtained one in the relevant period. The Minister submitted he had done none of these things in the relevant period.

7.      It follows that the questions I must answer, in respect of the period prior to the cancellation of the visa, are:

i)         whether Mr Orlando obtained a substantial ownership interest in an eligible business in Australia and, if so, did Mr Orlando utilise his skills in actively participating at a senior level in the day to day management of that business?

ii)        whether, if Mr Orlando did not obtain a relevant ownership interest and exercise the relevant skills, he made a genuine effort to do so?

8. Answering these questions also involves consideration of whether any of the businesses in which Mr Orlando became involved or pursued meet the definition of “eligible business” in s134(10) of the Act. On the question of “genuine effort”, I may have regard to the matters set out in s134(3) and to the “PAM3” policy guidelines that set out a number of factors for consideration in determining whether a genuine effort was made.

did mr orlando obtain a substantial ownership interest in an eligible business in australia?

9.      The Minister raised the question of whether any of the activities undertaken by Mr Orlando in Australia amounted to a “business” within the meaning of that word as it was defined in Hope v Bathurst City Council (1980) 144 CLR 1; that is, “activities for the purpose of profit, undertaken on a continuous and repetitive basis”.

10.     Mr Orlando‘s evidence was that he pursued a number of business activities when he arrived in Australia.  These included:

·     Sole distributor, via VMS Plus Trading, a company he registered in Australia, of Alexander Christie Swiss watches and, later, distributor with Eagle Star International. Mr Orlando said he lost approximately $10,000 on these attempts which failed because the Alexander Christie Head Office did not promote the product as promised and then the market declined in the face of competitive products from China. He persevered with the watches for approximately two years.  He made a loss of about $10,000.

·     The export of Australian zirconium silicate to Indonesia through VMS Plus Trading. Mr Orlando said he sent three shipments which cost him $120,000 in total and suffered losses. It became apparent that the minerals could be obtained more cheaply from China and, after the buyer refused to pay the full amount on the last shipment, he abandoned the activity.

·     Trading in computer spare parts in a joint venture with Indolink International Pty Ltd. Mr Orlando said he bought shares in the company but a few months later sold them at a loss.

11.     On the basis of Mr Orlando’s evidence, I am not satisfied that any of these attempts resulted in a business in the Bathurst City Council sense. They did not result in any real return, were short lived and sporadic – even though Mr Orlando persevered with the distribution of watches for some time. I note, however, that had they succeeded, they may well have qualified as businesses of the kind described in Bathurst City Council and possibly eligible businesses within the meaning of the Act.  Having found they did not amount to anything of substance, it is not necessary to consider that question now.

12.     I note that Mr Orlando has now purchased and operates a convenience store.  There is no question that it is a business that is undertaken, for the purpose of profit, on a continuous and repetitive basis. However, Mr Orlando purchased the convenience store some two months after his visa was cancelled. While the purchase may be probative of efforts made by Mr Orlando prior to the cancellation, it falls outside the period I must consider.

13.     It follows that Mr Orlando did not obtain a substantial ownership interest in an eligible business and the discretion of the Minister to cancel his visa was enlivened.

14.     It remains for me to consider whether Mr Orlando made the genuine attempts required to preclude the Minister from cancellation of his visa.

did mr orlando make a genuine effort to obtain an eligible business and utilise his skills?

15.     Mr Orlando’s efforts in respect of his watch distributorship were by far the most sustained. I accept his evidence that he spent many days methodically visiting stores that sold watches approximately every second day for roughly 30 minutes each shop.  He would visit each shop two or three times. He did this with shops in the city and in Chinatown and in suburbs such as Campsie, Bankstown, Hurstville and Randwick. He was limited to shops where Mandarin was spoken. He said he spent six to seven hours on those days when he visited shops for his watch distributorship. Had his attempts been successful, I consider the business would have satisfied the Act’s definition of an eligible business in that it would have resulted in the development of business links with the international market (s134(10(b)) and an increase in commercial activity and competitiveness (s134(10)(f)). Of course, there is no direct evidence of this because Mr Orlando’s attempts were not successful.

16.     It is clear that Mr Orlando utilised his skills at a senior level in the pursuit of this business activity and would have done so had the business been established. He has a long history of involvement in and management of watch selling, having been employed in such a business from 1978 until he began his own business in that sector in 1990. Mr Orlando undertook the activities described above, alone.

17.     Mr Orlando’s attempts in relation to the export of Australian minerals were of a shorter duration and equally unsuccessful. Had he achieved success, it is clear that, by facilitating the export of Australian goods (s134(10)(c)), the business would have met the definition of an eligible business.

18.     Mr Orlando said he also spent many days, for about two or three hours per day, looking for other businesses. He said he looked at businesses such as juice bars, restaurants and mini markets. He said he was out looking at shops and businesses for three to four days per week.

19.     I accept Mr Orlando’s evidence that he sold his Indonesian business in December 2005. From then on, he only had his Australian activities to occupy him.  He still has the business premises which he rents to the distant relatives who bought the business. Since then, he has devoted all of his time to establishing a business in Australia. Prior to selling the business, he spent about seven months each year in Indonesia, but since the sale, he has only spent two to three months there each year.

20.     Mr Orlando still owns a house in Indonesia as well.  It is currently vacant and he wishes to sell both it and his old business premises. However, the market is not good at the moment and it is difficult to find buyers. Mr Orlando bought a house in Wolli Creek in April 2006.

21.     Perhaps the most persuasive evidence of genuine effort is of his offer, in February 2007, to purchase the convenience store that is now his business. Mr Orlando said he approached the owner of the store with an offer to buy, even though it was not on the market.  He had looked at the store quite a while before he made an offer on it. His offer was finally accepted in about April 2007 and he purchased the business in August 2007. I note the decision to cancel his visa was not made until June 2007.

22.     Mr Orlando said the convenience store is located in a large building across the road from the Registry of Births, Deaths and Marriages in Regent Street, Chippendale. It is close to a hotel and a polyclinic and in the same building there are eight floors of apartments. He said he is hoping to expand the business and considers he will have to employ staff. He said there is a supermarket nearby but this does not concern him because he thrives on competition. Mr Orlando also said his parents had owned a similar kind of business when he was a child.

23. I am satisfied the convenience store is an eligible business within the meaning of s134(10) in that it will result in an increase in commercial activity and competitiveness within sectors of the Australian economy. There is also scope, if Mr Orlando expands the store as he says he plans to, for the creation of employment.

24. I note the matters set out in s134(3) of the Act which may be taken into account “without limiting the generality” of such matters. I also note the relevant part of the policy guide, which refines and expands on the matters set out in section 134(3). They include business proposals that have been developed, the existence of partners or joint venturers, research undertaken, periods of presence in Australia, the value of assets transferred for use in an eligible business and the business activity undertaken, among other matters that are not relevant to or contested in Mr Orlando’s circumstances.

25.     Mr Orlando provided no evidence of any formal business proposals or formal research undertaken by him. However, he gave evidence of extensive enquiries and observations made by him which involved visiting many shops and businesses for consideration. Nor did Mr Orlando have a joint venturer, except for his brief involvement with Indolink Pty Ltd. His periods of presence in Australia increased significantly once he had sold his Indonesian business and his evidence was that he has not returned to Indonesia since October 2007. As to the value of assets transferred, his evidence was, and there is no dispute, that he transferred in excess of $100,000 to Australia. The details of his business activity are discussed above. I consider much of this evidence supports the conclusion that Mr Orlando made the relevant genuine efforts and none of it is fatal to that conclusion.

26.     It is self-evident that, since Mr Orlando now holds a substantial interest in an eligible business, he made efforts to obtain such an interest. In this case, those efforts, particularly in relation to this business, began as early as February 2007 and probably earlier. There is no question that Mr Orlando utilises his skills at a senior level in the day to day management of the business.

27. For these reasons, I consider that Mr Orlando made genuine efforts to obtain a substantial ownership interest in an eligible business in Australia. It follows, pursuant to s134(2) of the Act, that his visa must not be cancelled under s134(1).

28.     It also follows that the secondary visas of Christien Liauw, Tery Fujiori and Yesica Liauw should not be cancelled.

decision

29.     The decisions under review are set aside.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.

Signed:   
  ………………………………………..
  Mark Dowsett
  Associate

Date/s of Hearing  21 January 2008, 22 January 2008

Date of Decision  3 March 2008

Solicitor for the Applicant          Ray Turner, Parish Patience Immigration Lawyers

Solicitor for the Respondent     Bronwyn McNeil, Clayton Utz Lawyers