Re Angkadjaja and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 699
•30 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 699
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/448
GENERAL ADMINISTRATIVE DIVISION ) Re AGUSTINO ANGKADJAJA Applicant
And
MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENEOUS AFFAIRS
Respondent
DECISION
Tribunal Mr S P Estcourt QC., (Deputy President) Date30 June 2004
PlaceAdelaide
Decision The Tribunal’s decision is that the decision made on 30 October 2002 to cancel the applicant’s business skills visa is set aside. The visa remains effective.
[Sgd S P Estcourt QC]
Deputy President
CATCHWORDS
CATCHWORDS –Immigration – Cancellation of business skills visa – Whether applicant has or has made genuine efforts to obtain a substantial ownership interest in an eligible business in Australia – Whether applicant is or has made genuine efforts towards utilising his skills in actively participating at a senior level in the day to day management of the business – decision to cancel set aside
Migration Act 1958 – s134(1), (10)
Re Basuki and Minister for Immigration Multicultural and Indigenous Affairs [2004] AATA 630
Re Lala and Minister for Immigration Multicultural and Indigenous Affairs [2003] AATA 209
Re Jo and Minister for Immigration Multicultural and Indigenous Affairs [2002] AATA 77
REASONS FOR DECISION
30 June 2004 Mr S P Estcourt QC., (Deputy President) 1. In this case the Tribunal finds in favour of Mr Angkadjaja’s application to set aside a decision of the Minister to cancel his business skills visa.
2. The reasons for the Tribunal’s decision is that Mr Angkadjaja has since 25 July 2002 utilised his skills in participating at a senior level in the day to day management of an eligible business in Australia owned by him, namely Agustino Trading Pty Ltd and intends to continue to do so. Moreover, before that date he had made genuine efforts to so utilise his skills while making genuine efforts to obtain substantial ownership of an eligible business and intended to continue to do so
3. Mr Angkadjaja (“the applicant”), an Indonesian citizen, was granted a business skills visa on 14 July 1999. That visa was cancelled by the Minister, (“the respondent”), on 30 October 2002, under s134(1) of the Migration Act 1958 (“the Act”), on the basis that the applicant had not obtained a substantial ownership interest in an eligible business in Australia or had not utilised his skills in actively participating at a senior level in the day to day management of such a business.
4. Section134 of the Act provides, relevantly, as follows:
“134 Cancellation of Business Visa
(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.”
5. Subsection 134(10) of the Act provides the following relevant definitions:
“business visa means:
(a) a visa included in a class of visas, being a class that:
has the words ‘Business Skills’ in its title; and
is prescribed for the purposes of this paragraph; or
…
eligible business means a business that the Minister reasonably believes is resulting or will result in one or more of the following:
the development of business links with the international market;
the creation or maintenance of employment in Australia;
the export of Australian goods or services;
the production of goods or the provision of services that would otherwise be imported into Australia;
the introduction of new or improved technology to Australia;
an increase in commercial activity and competitiveness within sectors of the Australian economy.
ownership interest, in relation to a business, means an interest in the business as:
a shareholder in a company that carries on the business; or
a partner in a partnership that carries on the business; or
the sole proprietor of the business;
including such an interest held indirectly through one or more interposed companies, partnerships or trusts.”
6. Pursuant to subsection 134(2) the respondent must not cancel a business visa under subsection 134(1) if he 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 hers 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.
7. Subsection 134(3) of the Act provides that without limiting the generality of matters which may take into account in determining whether a person has made a genuine effort referred to in subsection 134(2), the respondent may take into account any or all of the following matters:
(d)business proposals that the person has developed;
(e)the existence of partners or joint venturers for the business proposals;
(f)research that the person has undertaken into the conduct of an eligible business in Australia;
(g)the period or periods during which the person has been present in Australia;
(h)the value of assets transferred to Australia by the person for use in obtaining an interest in an eligible business;
(i)the value of ownership interest in eligible businesses in Australia that are, or have been, held by the person;
(j)business activity that is, or has been, undertaken by the person;
(k)whether the person has failed to comply with a notice under section 137;
(l)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).
8. Migration Series Instructions No 133: Visa Cancellation Under Subdivision G- Cancellation of Business Visas (MSI 133) (T5) has been issued to provide guidance to decision makers on the interpretation and application of section 134. In particular section 4 of MSI 133 deals with grounds for cancellation (T5, page 29). Those statements of opinion are not binding on the Tribunal but they will be followed where the Tribunal believes they represent fairly the correct interpretation of the provisions of the Act (see for example Re Basuki and Minister for Immigration Multicultural and Indigenous Affairs [2004] AATA 630 per Member Allen at [37]). The following sections are relevant:
“4. Grounds for cancellation
4.1.2The basis for considering visa cancellation in circumstances is the information provided by a migrant in the Survey of Business Skills Migration- 24 months (form 1010. The 24 month survey is the most appropriate for visa cancellation purposes since at this point will have sufficient time to engage in business. It also allows time to follow up with migrants prior to the expiry of cancellation powers at three years…
4.3 What is an eligible business
4.3.2Eligibility relates, therefore, to the achievement of the stated objectives [see section s134(10)] through the activities of the business, not directly to the size or scale of the business. Decision makers should ensure that the business meets one of the stated objectives of s134(10) regardless of the scale of the enterprise
4.3.4At the same time, business skills visa holders must demonstrate that they hold a “substantial ownership interest” in the business and are “actively participating at a senior level in the day-to day management of that business”. Legally, the business visa of a person meeting these requirements could only be cancelled if it could be established that he or she did not intend to continue to own substantial interest in, or to participate in day-to-day management of, the business.
4.4 If the visa holder is not in business
4.4.1If is intended that the Business Skills Class (BSC) will attract to Australian highly skilled business people who will use their skills to establish a business in Australia within three years of arrival. If, from the information provide in the 24 month survey it is clear that the visa holder has not obtained a “substantial ownership interest” in an eligible business and has not yet engaged in the day-to-day management of an eligible business, the Department will seek substantiation of the applicant’s genuine efforts to engage in business since arrival in Australia.
4.5 What is genuine effort
4.5.1 If, after 24 months, a migrant is not in business, he/she must establish that a “genuine effort” has been made to engage in business since arrival. The Minister must assess “genuine effort”. S134(3) of the Act lists any or all of the factors which the Minister may take into account.
Decision makers may take account of these notes to guide them in interpretation of 4.5.1business proposals which is considered genuine, realistic and achievable;
formal contract with partners or joint venturers;
written evidence of detailed consultation with at least three business advisers (accountant, lawyers, bank/financial institution, State/Territory government business development office, Austrade, business/trade association);
physical presence in Australian for more than six months since first arrival as a Business Skills class migrant;
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);
minimum of A$100,000 or 10% ownership previously held by the person. Of the person is no longer in business, the reasons for loss of ownership are also relevant;
minimum of A$100,000 business activity as indicated by turnover. this may include other business activity not considered “eligible business” but cannot include passive , eg. purchase of chares;
failure to comply with a notice for information under s137, ie mandatory monitoring of Australian address and return of survey forms.
4.5.2While failure to meet one or more of these indicators may normally lead to a visa being cancelled, it will not necessarily mean that a visa will be cancelled. The decision maker must give weight to all relevant factors in a case of which those set out in subsection 134(3) above may only be some and reach a decision on that basis.”
9. Thus it can be seen, that the Minister:
(m)has a discretion to cancel the applicant’s visa if he has not obtained a substantial ownership interest in an eligible business in Australia, or is not actively participating at a senior level in the day to day management of the business; and
(n)must not cancel the visa if the applicant has made genuine efforts to obtain a substantial ownership interest in an eligible business and participate appropriately in its management and intends to continue to make such genuine efforts.
10. The role of the Tribunal is to stand in the shoes of the original decision-maker and to arrive at the correct or preferable decision according to the materials before it. (Re Lala and Minister for Immigration Multicultural and Indigenous Affairs [2003] AATA 209 at [32]).
11. In arriving at the correct or preferable decision the Tribunal must have regard to evidence of circumstances that existed as at the date of cancellation of the visa, although evidence of activities and transactions occurring after the date of cancellation may be considered to the extent they are relevant to establish intentions or the likelihood of certain outcomes as at the date of cancellation. (Re Griffith and Migration Agents Registration Authority [2001] AATA 240 at [39], Re Taslim and Minister for Immigration and Multicultural Affairs (unreported, DP Handley, 3 December 2001); Re Haman and Minister for Immigration Multicultural and Indigenous Affairs [2002] AATA 1113 at [53], Re Wong v Minister for Immigration Multicultural and Indigenous Affairs [2002] AATA 54 at [37], Re Andiwidjaja and Minister for Immigration Multicultural and Indigenous Affairs [2003] AATA 397 at [37], Re Lala and Minister for Immigration Multicultural and Indigenous Affairs [2003] AATA 209 at [34] and Re Basuki and Minister for Immigration Multicultural and Indigenous Affairs (supra).)
12. The following facts are taken from the particularly helpful statement of facts and contentions filed on behalf of the respondent. They are not in dispute:
“13. a. The applicant is from Indonesia.
b.On 14 July 1999, the applicant was granted a visa sub-class 127 Business Skills Visa. He arrived in Australia on 25 July 1999.
c.On 23 May 2001, the respondent wrote to the applicant requesting that he complete a survey of Business Skills Migrant - 24 months (Form 1010) (24 month survey). The survey was required to be returned to the respondent by 21 August 2001 (T8). It appears that the visa applicant did not receive this letter (T8 and T11).
d.On 21 December 2001, the respondent again wrote to the applicant requesting that he complete a survey of Business Skills Migrant - 24 months (Form 1010) which was required to be returned to the respondent by 5 February 2002 (T11).
e.On 28 March 2002 the respondent received the 24 month survey from the applicant (T12). Relevantly the applicant made the following declarations in the survey:
1)At question 22, the applicant was asked to select from a number of alternatives the best description of his business situation in Australia, to which he chose “I have not yet engaged in a business in Australia” (T12, p.120);
2)At question 70, the applicant was asked to provide a brief description of all efforts to engage in business in Australia. He indicated that he had made “a request for business advice from Government small business agencies” and professional assistance eg banks, lawyers, accountants. He also stated that an ABN application was being processed, and that he consulted with the Department of Industry and Trade, Mr Ouwens (solicitors), business consultants and Mr C Papavasiliou (business advisor) (T12, p.125); and
3)At question 71, the applicant stated that it was likely that he would become involved in business within the next 12 months. The details provided mentioned exports of South Australian goods, plant, equipment, perishables, granite and brown onions (T12, p.126).
f.Accompanying the survey were various documents from the applicant showing evidence of his attempts to engage in business in Australia, namely;
1)A letter of intent from Abssel Pty Ltd referring to a possible joint venture company to be formed with the applicant to engage in market research into exports of various commodities into Indonesia particularly wine, vegetables and other horticultural products (T12, p.128); and
2) A copy of an application to register for the new tax system (T12, p.132).
g.On 1 May 2002, the respondent wrote to the applicant requesting further information regarding his business activities whilst in Australia to assist the respondent in assessing whether the applicant had made genuine efforts to engage in business in Australia (T13).
h.In or around June 2002, the applicant submitted to the respondent (T14) a business plan enclosing various supporting documentation of his efforts to engage in business in Australia. These included:
1)A letter from the Australia-Indonesia Business Council Limited dated 11 May 2002, stating that it had undertaken discussions with the applicant regarding business and investment opportunities in Australia (T14, p.140);
2)A letter from Mr Papavasiliou dated 11 March 2001, stating he had undertaken discussions with the applicant about exporting onions to Indonesia (T14, p.141);
3)A letter from Artscape Teak and Marble (Mr Nick Papavasiliou) dated 11 May 2001 detailing the review applicant’s attempts to help the company establish supplies in Indonesia for their import business (T14, p.142);
4)A letter from Abssel Pty Ltd dated 3 May 2002 regarding further investigations into the possibility of creating export markets in Indonesia for South Australian products (T14, p.143);
5)A fax from Mr Hatzizisis dated 11 June 2002 regarding negotiations to export brown onions to Indonesia (T14, p. 145);
6)A fax from Mypopak (Z & T Hatzizisis Pty Ltd) dated 4 June 2002, stating that the company was unable to trade in onions (T14, p.147);
7)An invoice from Oil Tech with handwritten notations regarding the possible supply of oil for sewing machines issued to P T Kama Sakti Utama (T14, p. 148-9);
8)A Certificate of a Title to a property situated at 1 Pridmore Road, Glen Osmond, South Australia, 5064 in the name of Agustino Angkadjaja (T14, p.151). This is also reported to be the visa applicant’s residential address while in Australia (T12, p. 119);
9)Bank statements from the ANZ in the name of Nani Angkadjaja (review applicant’s daughter) with hand written annotation from the applicant that he would use the funds to conduct his business (T14, p.154);
10)Confirmation from the Australian Taxation Office dated 16 May 2002 that the applicant had been issued with an Australian Business Number (T14, p.155) and that he had been registered for the purposes of GST (T14, p.156);
11)An undated letter from the applicant to Autron Electronics Pty enquiring about opportunities to export car accessories to Indonesia (T14, p.158);
12)A letter from the applicant to ARB Corporation Limited enquiring about the possibility of exporting their car accessory products to Indonesia (undated) (T14, p.166); and
13)A response email from ARB Exports dated 23 April 2002 rejecting the offer to export its products (T14, p.167).
i.On 27 June 2002, the respondent wrote to the applicant enclosing a notice of intention to cancel his visa on the basis that the applicant had provided insufficient evidence that he had made genuine efforts to engage in business in Australia. (T16, p.170).
j.On 5 August 2002, the respondent received written submissions from Ouwens Lawyers on behalf of the applicant stating that whilst his client “has made considerable efforts to obtain a substantial ownership in an eligible business in Australia, he concedes that he has not to date, been able to secure such an ownership”. Further evidence of the applicant’s efforts to engage in an eligible business was provided, including (T18, p.176):
1)A letter from Rapid Building of Systems dated 31 July 2002 offering to supply the applicant with rapid wall products to be exported to the Indonesian market on a ‘strictly commission basis’ (T18, p.179);
2)A letter from Artscape Teak and Marble dated 22 July 2002 setting out marble prices at which the company was willing to purchase (T18, p.180); and
3)A certificate of registration of an Australian company, namely Agustino Trading Pty Ltd commencing on 25 July 2002 (T18, p.181).
k.On 30 October 2002, the respondent issued a Notice of Cancellation of Visa to the review applicant. (T21, p.187)
l.On 5 December 2003, the applicant filed in the Tribunal a bundle of additional documents (“AD”) in support of his case[1], including the following:
1)A certificate of registration of an Australian company, namely Agustino Trading Pty Ltd, dated 25 July 2002, p.1);
2)An undated document from Mr Freddie B. Tjahjana of Glendale Forest Pty Ltd stating that Glendale are willing to accommodate the applicant as a future partner (AD, p.25);
3)A bundle of documents from PT Bandung Marmer, Panther Express Line, Apollo Forwarding Adelaide and Australian Customs regarding the importation of marble tiles by Agustino Trading (AD, pp. 26-33). The respondent notes that the receipt for the shipment issued by Australian Customs is headed “Entry for Home Consumption” (AD, p. 28);
4)An email from Mr Jay Meeks of Balco International Pty Ltd to the applicant dated 16 August 2002 regarding mung beans suppliers(AD, pp.34-38);
5)A bundle of documents from Penrice Soda Products Pty Ltd to PT Kama Sakti Utama regarding soda ash and sodium bicarbonate prices (AD, p. 39-42);
6)Undated letters from Absell Pty Ltd to the applicant regarding enquiries made regarding possible trading in milk calves, corner adhesive and coal mining equipment/gypsum (AD, p.43-44);
7)A letter from the Department of Industry and Trade to DIMIA dated 10 May 2002 regarding business activities engaged in by the applicant (AD, p.48);
8)A letter from Laucke Mills to the applicant dated 28 August 2002 enclosing samples, brochures and a price list for animal feed produced by the company (AD, p.49);
9)A letter from Oiltech to the applicant, as director of PT Kama Sakti Utama, enclosing product brochures for textile lubricants produced by the company (AD, pp. 52-62);
10)Letters from ARB exports to the applicant regarding automotive products produced by the company (AD, p.63-64); and
11) A bundle of untranslated letters written in Indonesian (AD, pp.42, 73-85).”
14.On 16 January 2004 the Applicant provided to the respondent a further bundle of supplementary documents (“ASD”) in support of his case, including English translations to various documents previously provided on 5 December 2003, the documents included the following:
1)Facsimile from PT Angung Kimia Jaya Mandipi to PT Kama Akti Utama dated 28 July 2000 regarding trade in soda ash light and sodium bicarbonate;
2)Letter from Poerasi Peternak Sapi Perah to the applicant dated 16 July 2002 regarding demand for milk cows;
3)Letter from CV Berkah Ibu to the applicant dated 10 July 2002 regarding demand for 1 container each of green beans and onions;
4)Letters from PT Tirta Mulia Agung, PT Alam Kuria Yoga and CV Marini and to Agustino Trading dated 14 January 2003, 4 March 2003 and 1 April 2003 respectively, regarding trade in onions;
5)Letters from CV Partiwa Arnanwa to Agustino Trading dated 19 March 2003 regarding trade in strawberries and lamb meat;
6)Letter from PT Bintung Emas Asia to Agustino Trading date 22 September 2002 regarding trade in Lauke Mill Animal Food;
7)Letters from Trinity Architecture Construction and PT Intisixta dated 12 September 2002 and 16 August 2002 respectively regarding trade in gypsum powder;
8)Letters from Linton Contractor Architect and Engineering, PT Juki Piranti and PT Bumi Sentosa DWI Aggung to Agustino Trading of 6 June 2002, 15 April 2002 and undated respectively, regarding trade in Rapid Building Products; and
9)Letter from PT Bandung Marmer to Agustino Trading dated 17 June 2002 regarding trade in Australian marble and granite.
15.A review of the applicant’s immigration movement details show he has spent significant periods of time outside of Australia since the issue of the business skills visa, as described:
Dates
Number of days in Australia
(full days)[3]Arrival - 25 July 1999
-
25 July 1999 (A)[4] to 15 August 1999 (D)[5]
20
07 November 1999 (A) to 18 November 1999 (D)
10
16 June 2000 (A) to 14 July 2000 (D)
27
25 August 2000 (A) to 23 September 2000 (D)
28
08 December 2000 (A) to 12 January 2001 (D)
34
19 May 2001 (A) to 28 May 2001 (D)
8
24 months since date of arrival- 25 July 2001 - sub-total
127
08 October 2001 (A) to 25 October 2001 (D)
16
17 March 2002 (A) to 14 May 2002 (D)
57
23 July 2002 (A) to 30 August 2002 (D)
37
20 October 2002 (A) to 04 December 2002 (D)
44
Date of visa cancellation- 30 October 2002- total
247
[3]Excludes days of arrival and departure as they were not full days spent in Australia.
[4]A- Arrival date in Australia.
[5]D- Departure date in Australia.
16. The respondent notes that for the first 24 months of since the applicant’s arrival in Australia as a business skills migrant, namely the period between 25 July 1999 and 25 July 2001, the applicant was in Australia for 127 full days, amounting to less than 6 calendar months. In this regard we note the requirements of paragraph 4.5.1 (f) of MSI 133.”
13. It is clear that as at the date of the completion by the applicant of the 24 month survey and up until the incorporation of Agustino Trading Pty Ltd on 25 July 2002, the applicant had not obtained a substantial ownership interest in an eligible business in Australia. The Tribunal is satisfied however, in the circumstances adumbrated below in paragraph 15 of these reasons, that Agustino Trading Pty Ltd, (in which the respondent concedes the applicant has a relevant “ownership interest” as defined by s134(10) of the Act), is an “eligible business” in Australia, as defined by s134(10) in the sense that it is reasonable to assume that it will result in the development of business links with the international market. This is so, given the efforts made by the applicant to the date of cancellation of the visa and given the evidence of the business advice and assistance being sought prior to that date by the applicant from solicitors, business consultants and business advisers, the Department of Industry and Trade and the Australia-Indonesia Business Council.
14. Moreover, and again in view of the circumstances outlined below the Tribunal is of the opinion that the applicant, even if he had not obtained a relevant ownership interest in an eligible business on and after 25 July 2002, had made genuine attempts to do so prior to that date.
15. The following précis of the attempts made by the applicant both before and after the incorporation of Agustino Trading Pty Ltd are reproduced in an edited form from the respondent’s statement of facts and contentions. They are the “circumstances” referred to in paragraphs 13 and 14 above. They are sourced from the documents enumerated at paragraph 12 above:
“a. Soda Ash and Sodium Bicarbonate
In July 2000 PT Kama Sakti Utama, being an Indonesian company which the applicant appeared to be associated with, made enquiries of prices for importing Australian soda ash and sodium bicarbonate to Indonesia (AD, p. 39-41). PT Kama Sakti Utama approached PT Angung Kimia Jaya Mandipi to purchase the Australian product but was advised on 28 July 2000 that the company would not purchase the Australian products (ASD, P1).
b. Sewing machine oil
In March 2000 PT Kama Sakti Utama attempted to import Australian machinery oil, sourced from Oiltech Australia. The applicant, by his own admission, did not successfully export this product. (AD, p. 148).
c. Educational services
On 19 September 2000 the applicant approached the Department of Education, Training and Employment (DETE) about promoting educational services available in Australia to Indonesian students. DETE’s International Services Section wrote to the applicant on 21 September 2000 stating it looked forward to establishing a process for the applicant to become a ‘spotter’ for the SA government school system (T14, p. 144).
d. Marble and granite
In May 2001 the applicant engaged in discussions with Artscape Teak and Marble to import marble products (T, p.142). On 22 July 2002 Artscape Teak and Marble wrote to the applicant setting out the prices at which it would purchase any marble from him (T, p. 180). In September 2002 Agustino Trading imported 24 pallets of marble tiles from Indonesia (AD, pp. 26-33). The respondent notes that an Australian Customs invoice relating to the 24 pallets of imported marble is headed “Entry For Home Consumption” (AD, p. 28).
e. Car products
Agustino Trading attempted to export Australian motor vehicle products produced by ABR. On 23 April 2002 Agustino Trading was advised by ABR that it already exported its products to Indonesia (AD, p. 63).
f. Building products
Agustino Trading attempted to export Australian building products produced by Rapid Building Systems. On 31 July 2002 Rapid Builing Systems advised Agustino Trading that it would be happy for the company to represent the company in Indonesia on a strict commission basis. Agustino Trading approached PT Prioitas Winayakara Mandiri (ASD, p. 4), PT Bumi Sentosa DWI Agung (ASD, p. 5), Linton Contractor Architect and Engineering (ASD, p. 15), and PT Juki Pirant (ASD, p. 16) about purchasing the products. All these companies refused to purchase the Australian product.
g. Gypsum
Agustino Trading attempted to export Australian gypsum powder, a material used in plasterboard and cornice adhesive. Agustino Trading approached PT Intisixta (ASD, p.12) and Trinity Architecture Construction (ASD, p.11) about purchasing the Australian product but was advised on 16 August 2002 and 12 September 2002 respectively, that these companies were not interested in purchasing the Australian products.
h. Animal feed
Agustino Trading attempted to export Australian animal feed sourced from Laucke Mill. Agustino Trading approached PT Bintang Emas Asia regarding importing the Australian product but was advised on 22 August 2002 that the company was not interested in the purchasing the product (ASD, p.10).
i. Exporting Australia fresh produce
In May 2001 the applicant attempted to export Australian onions produced by Mypopak (H&T Hatzizsis) to Indonesia. Mypokpak advised Agustino Trading that it was unable to provide the produce in 2002 (T14, p. 147). Agustino Trading attempted to source Indonesian purchasers for the product. On 10 July 2002 the applicant received an order/demand for a container of onions and green beans from CV Berkah Ibu (ASD, p.3). The applicant has provided no evidence that Agustino Trading fulfilled the order/demand. Agustino Trading also received advice from TP Tirta Mulia Agunga (ASD p.9), PT Alam Kurnia Yoga (ASD p.8) and CV Marin (ASD p.5) on 14 January 2004, 4 March 2003 and 1 April 2003 respectively, that they would not purchase the Australian products.
On 16 August 2002 the Balco Group of Companies responded to the applicant’s request for a list of Australian producers of mung beans, with a view to exporting the mung beans to Indonesia. There is no evidence that the applicant pursued this business opportunity.
Agustino Trading also attempted to export Australian strawberries to Indonesia. On 19 March 2003 Agustino Trading received advice from CV Partiwa Arnawa that it would not purchase the products. (ASD p. 6)
j. Livestock
Agustino Trading sought to export Australian livestock, particularly milk calves. On 16 July 2002 Agustino Trading received an order/demand from Koperasi Peternak Sapi Perah for 500 milk calves.”
16. The primary decision-maker noted that the applicant had “made some attempts” to engage in an eligible business but noted they were “minimal and limited” and that the applicant had not made “continuous effort”. The respondent contends that these attempts by the applicant and by Agustino Pty Ltd demonstrate, at most, that the applicant has sought expressions of interest rather than engaged in any actual trade.
17. In the Tribunal’s view, it is not necessary that there be “actual trade” or that the attempts to engage in an eligible business be made in a “continuous effort”. The Tribunal is of the view that the applicant’s attempts are sufficient to evidence, given the assistance and advice enlisted by the applicant, a reasonable likelihood of the development of business links with the international market resulting and thus, sufficient to constitute Agustino Trading Pty Ltd an “eligible business” in the future sense anticipated by the definition in s134(1). They also evidence, prior to the incorporation of Agustino Trading Pty Ltd, both genuine efforts on the applicant’s part to obtain a relevant ownership interest in an “eligible business” and inferentially, the applicant’s intention to continue such efforts.
18. Turning to the question of whether the applicant has utilised his skills in actively participating at a senior level in the day to day management of an eligible business or has made genuine efforts to do so the respondent’s contentions are as follows:
“The respondent submits that the Tribunal should not be satisfied that the applicant has made a genuine efforts to engage in the conduct required pursuant to sub-section 134(3) and MSI 133 outlined above. The following factors are relevant:
a. Business proposals that he has developed (see paragraph 134(3)(a))
The respondent notes that the applicant has only provided a one page business plan (T14, p.139). The applicant has attempted to engage in business in many areas in which he has no experience or knowledge without providing evidence of having formulated a business proposal that is genuine, realistic and/or achievable;
b. The existence of partners or joint venturers (see paragraph 134(3)(b))
The respondent notes that the applicant has submitted letters of offer but no firm evidence that there is an existing contractual arrangement to engage a partner or joint venturer in his business activities;
c.Research he has undertaken into the conduct of an eligible business in Australia (see paragraph (134)(3)(c))
The respondent notes that the applicant has failed to provide evidence of any market research into the vast array of export areas which he has attempted to undertake;
d.The period in which the applicant has been present in Australia (see paragraph 134(3)(d))
The respondent notes that for the first 24 months following his arrival in Australia, the applicant only spent 126 days in Australia, which equates to less than 6 months. The respondent submits that the applicant has failed to demonstrate genuine efforts to engage in business either in Australia or in Indonesia;
e.Value of assets transferred to Australia for use in obtaining an interest (see paragraph 134(3)(e))
Assets transferred by the applicant appears to have used to purchase a property at Glen Osmond, South Australia (p151). This property appears to be used as the applicant’s residential address (T12, p.119). The only evidence of assets held in Australia is provided in the form of:
1)a bank statement from the Commonwealth Bank Time deposit confirmation of $100,025.83, as at 2 July 2002, by the applicant and his wife. The respondent notes that the applicant’s wife does not have any business connection to Agustino Trading and it is not clear if this is a personal investment or money to be used for the purposes of the business;
2)A bank statement from ANZ confirming $30,000 being held in an account by the applicant’s daughter, Nani Angkadjaja; and
f.Business activities that is, or has been, undertaken by the applicant (see paragraph 134(3)(g))
For the first 24 months following his arrival in Australia, the applicant did not, by his own admission, engage in business in Australia (T12, p 128). Most of the applicant’s attempts to engage in business in Australia postdates receipt of the 24 month survey from DIMIA, taking place mostly in 2002 and 2003.”
19. In the Tribunal’s view, given the contents of documents listed in paragraph 12 hereof and the circumstances set out in paragraph 15 and according due weight to Migration Series Instruction 133 as a guide, the applicant now utilises his skills to the extent required by the Act and prior to 25 July 2002 had made genuine efforts to do so and intended to continue to do so. He has provided a business plan, he has explored business partners and joint ventures, he has researched into the conduct of an eligible business both by his own attempts and by enlisting the assistance and advice of others before the cancellation of his visa, (albeit after the completion of the 24 month survey). He has transferred substantial assets to Australia and he has, at least since the 24 month survey alerted him to the need to increase his efforts, engaged in significant business activity.
20. The one area that causes the Tribunal some concern in relation to this issue is the amount of time spent by the applicant in Australia. It is noted however that since the time of the 24 month survey, at which point he had only spent some 4 months in Australia, he has almost doubled his attendance, spending some 5 months here between 25 July 2001 and 30 October 2002, (that is 5 months out of 15 months in Australia).
21. Moreover on this issue it must be borne in mind that a business can be managed and strategically directed from almost anywhere in the world and that management input at a senior level by an experienced business person will often be intangible (see Re Jo and Minister for Immigration Multicultural and Indigenous Affairs [2002] AATA 77 at [35] and Re Basuki and Ors and Minister for Immigration Multicultural and Indigenous Affairs [2004] AATA 630 at [49]).
22. The Tribunal also adopts the comment of Senior Member Dwyer and Member McLean in Re Jo and Minister for Immigration Multicultural and Indigenous Affairs [2002] AATA 77 283 at [95] that a business may be successfully run without necessarily requiring daily management.
23. What is required is that there be sufficient management for the needs of the specific business. What the Tribunal is concerned with in this case are only such management requirements as are necessary for, first, the support of genuine efforts to obtain an ownership interest in an eligible business and second, the fledgling needs of Agustino Trading Pty Ltd as an eligible business in a future sense. In that context the Tribunal is satisfied that the applicant has both made genuine efforts to, and has in fact utilised, his skills to the extent necessary to satisfy s134(1)(b) and s134(2)(b).
24. It follows from all that the Tribunal has said that it is satisfied that the applicant has obtained a substantial ownership interest in an eligible business in Australia, namely Agustino Trading Pty Ltd, and has utilised his skills in actively participating at a senior level in the day to day management of that company and intends to continue to do so. Accordingly the pre‑conditions necessary for the power to cancel the applicant’s visa under s134(1) of the Act do not arise.
25. In any event the Tribunal is satisfied that the applicant has made the genuine efforts required by s134(2) of the Act and intends to continue to do so and accordingly the Tribunal must not cancel the visa.
26. The Tribunal’s decision is that the decision made on 30 October 2002 to cancel the applicant’s business skills visa is set aside. The visa remains effective.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 22 April 2004
Date of Decision 30 June 2004
Counsel for the Applicant Applicant appeared on his own behalf
Solicitor for the Applicant Mr Rodger Prince
Counsel for the Respondent Australian Government Solicitor
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