Sugianto and Minister for Immigration and Multicultural and Indig Enous Affairs
[2003] AATA 644
•7 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 644
ADMINISTRATIVE APPEALS TRIBUNAL N° V2002/822
N° V2003/43
GENERAL ADMINISTRATIVE DIVISION N° V2003/44
Re: SUTIKNO SUGIANTO AND
MICHAEL SUGIANTO ANDFELIX ARIA SUTIKNO
Applicants
And:MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Mr B.H. Pascoe, Senior Member
Date: 7 July 2003
Place: Melbourne
Decision:The Tribunal affirms the decisions under review
. . . (sgd) B.H. Pascoe . .
Senior Member
IMMIGRATION ‑ cancellation of business owners visa ‑ whether eligible business ‑ whether participated at senior level in day‑to‑day management ‑ whether genuine effort to obtain ownership interest in eligible business ‑ cancellation of family members visas ‑ whether would result in extreme hardship
Migration Act 1958 s134
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342
Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 217
Re Griffiths and Migration Agents Registration Authority [2001] AATA 240
Birdseye and Companies’ Auditors and Liquidators Disciplinary Board [2001] AATA 783
Lau and Minister for Immigration and Multicultural Affairs [2002] AATA 703
Re Siwei Wang and Minister for Immigration and Multicultural Affairs [2002] AATA 961
Re Salim and Minister for Immigration and Multicultural Affairs [2002] AATA 899
REASONS FOR DECISION
7 July 2003 Mr B.H. Pascoe, Senior Member
This is an application to review a decision of the respondent dated 25 June 2002, to cancel the applicants’ sub-class 127 “Business Owner” visa. The visa was cancelled on 25 June 2002 on the grounds that the applicant, Mr Sutikno Sugianto (“Mr Sugianto”) did not satisfy the requirements of ss134(1) and 134(2) of the Migration Act 1958 (“the Act”). As a result of the cancellation the visa held by the applicant’s wife, Indriana Sugiharso and his two sons, Felix Sutikno (“Felix”) and Michael Sugianto (“Michael”) were cancelled also. Applications for review of the decision to cancel the visas held by the two sons were dealt with at the hearing.
At the hearing the applicant’s were represented by Mr G. Gilbert of Counsel, and the respondent by Ms E. Arduca, a lawyer with the Australian Government Solicitor. Evidence was given by Mr Sugianto and his two sons. In addition to the documents provided by the respondent under s37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), the following documents were tendered for the applicants:
Statutory Declaration of Mr S. Sugianto dated 24 October 2002 Exhibit A1
Business plan of Aria Brothers Pty Ltd undated Exhibit A2
Two envelopes of telephone cards Exhibit A3
Statutory Declaration of Mr S. Sugianto dated 5 February 2003 Exhibit A4
Report of Ms J. James, psychologist, Re Felix undated Exhibit A5
Report of Ms J. James, psychologist, Re Michael undated Exhibit A6
Three bundles of letters from Australian Food Incorporation Pty Ltd Exhibit A7
Schedule of funds sent from Indonesia Exhibit A8
Three letters from Mr R. Segaan, Victoria Home Choice Exhibit A9
Mr Sugianto is an Indonesian citizen who was granted a sub-class 127 visa on 19 March 1999. On 2 February 2001, the respondent wrote to him forwarding a 24 month survey in accordance with the visa requesting that it be returned by 20 April 2001. As no response was received a further request for completion and return of the survey by 11 July 2001 was made on 23 May 2001. On 20 July 2001 Mr Sugianto’s then adviser, Mr McCormick, forwarded the completed survey by facsimile. On 15 August 2001 Mr McCormick forwarded the original completed survey together with documentation relating to the incorporation on 24 June 1999 of a company, Aria Brothers Pty Ltd and the export of one container of cheese, biscuits, etc. The letter from Mr McCormick stated that Aria Brothers Pty Ltd was planning to export flywire, zinc and laundry sinks and was investigating export of furniture, building materials, hardware, electric cable and plastic components for motor vehicles. On 6 September 2001 the respondent sought further information. No response was received to this letter and, on 19 February 2002, the respondent sent a notice of intention to cancel the visa under s134 of the Act. On 21 May 2002, Mr McCormick provided a written submission stating that the original business strategy of exporting Australian products to Indonesia had not proved viable and that the applicant had decided to change direction by becoming involved in property investment and development. Details of the purchase of an investment in a city rental apartment and two residential blocks of land were provided. Advice was given also that a family residence/place of business had been purchased in Altona.
Section134 of the Act, insofar as is relevant to these applications, provides:
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.
134(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(1) 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.
134(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).
…
134(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.
134(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.
…
134(9) The Minister must no cancel a business visa under subsection (1), (3A) or (4) unless a notice under section 135 was given to its holder within the period of 3 years commencing:
(a)if its holder was in Australia when he or she was first granted a business visa‑on the day on which that first visa was granted; or
(b)if its holder was not in Australia when he or she was first granted a business visa - on the day on which its holder first entered Australia after that first visa was granted.
134(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.
…
Section 135 of the Act requires the Minister to give written notice of a proposal to cancel a visa, to invite representations within 28 days and to give due consideration to such representations.
The evidence given by Mr Sugianto was provided by way of two statutory declarations (Exhibit A1 and Exhibit A4) supplemented by oral evidence at the hearing with the assistance of an interpreter. Between 1970 and 1978 he managed a cement supply business in Indonesia. Since 1978 he has owned and managed two building material supply companies. Currently his company supplies cement, steel, re-enforcing products, sinks and nails. On 24 June 1999 he established a company, Aria Brothers Pty Ltd, in which he and his wife are the sole shareholders and Directors. Mr Sugianto said that, initially, he had intended to establish a business exporting Australian products to Indonesia. In July 2001 he arranged the purchase and export of a container of cheese and biscuits at a cost of $35,235.06. He said that he made enquiries regarding the possible export of flywire for wire screens, zinc for galvanising, plaster/fibreglass, flyscreens, laundry sinks and hinges. These were not products presently sold in his existing business. However, as a result of the shipment of food and these further enquiries, he found that it was difficult to make a profit due to unfavourable exchange rates. Mr Sugianto said that he decided not to proceed with the idea of exports and decided on a change of direction to become involved with property development, given his experience in the building industry and the fact that his wife is an architect. He was advised to look at property in Narre Warren and Berwick. The following property transactions took place:
1.Lot 154 Peony Court, Narre Warren
Purchase of land 25 October 2001 $82,000
Erection of residence and other costs $143,876
Total cost $225,876
Sale 23 August 2002 $250,000
2.Lot 167 Bemersyde Drive, Berwick
Purchase of land 29 January 2002 $84,000
Erection of residence and other costs $159,546Total cost$243,546
Sale 14 October 2002 $274,900
3. Lot 516, 517 and 518 Eucumbene Drive, Berwick
Purchased under contracts dated 30 September 2002with settlement in January 2003.
Three blocks of land at $115,000 each
Building contracts for residences entered into between $151,900 and $172,400
Mr Sugianto said that Aria Brothers Pty Ltd had contracted with Share - Vic Real Estate Pty Ltd to pay a fixed commission of $6,000 on each property purchase, developed and sold through that company. Building contracts for each property were entered into with the one construction company, Astro Nova Pty Ltd. In addition, to the above development properties Mr Sugianto purchased in the name of himself and his wife, an apartment in the City of Melbourne for $539,500. In 1999 a house at Altona was purchased for $255,000. This house is used as a residence for Felix and his partner, Michael and a cousin.
Mr Sugianto said that he attended a Seminar of Victoria Prime Investments Pty Ltd (“VPI”) in Indonesia in early 2002. On 10 May 2002, Aria Brothers Pty Ltd entered into an agreement to acquire 3.5% of the issued capital of VPI for $250,000. Settlement occurred on 20 September 2002. VPI owns 51% of Australian Food Incorporation Pty Ltd, a manufacturer of potato chips, and 30% of Malep Doors Pty Ltd, a timber door manufacturer. Australian Food Incorporation employs approximately twenty employees and has plans to export its products to Indonesia, Singapore, Hong Kong and the Philippines. Malep Doors Pty Ltd imports raw timber doors from Indonesia, polishes and instals leadlights in Australia and sells the finished doors through major hardware retailers in Australia. Mr Sugianto said that VPI has appointed him Overseas Marketing Executive from September 2002 and provided evidence of assisting in the procurement of timber doors in Indonesia in late 2002 and arranging exports of potato chips to Indonesia between October 2002 and February 2003. Mr Sugianto said that there is no remuneration payable to him for his position as overseas marketing executive but commission will be payable to Aria Brothers Pty Ltd. No commission has been paid to date.
Mr Sugianto accepted that he had spent a total of 102 days in Australia between the date of the grant of his visa, 19 March 1999, and its cancellation on 25 June 2002. He estimated that this had involved approximately ten visits of between ten days and one month each. Records provided by the respondent (T20) show that Mr Sugianto visited Australia on 6 occasions between 30 December 1999 and 21 April 2002, with the shortest visit being six days and the longest twenty days. Mr Sugianto maintained that through regular telephone calls and letters he managed the day-to-day activities of Aria Brothers Pty Ltd and made all strategic policy decisions. He said that he was required to spend much of his time out of Australia to oversee his business in Indonesia and explore opportunities to export Australian products. On 17 October 2001, he executed a general power of attorney in favour of his son Felix. Mr. Sugianto said that, nevertheless, all contracts entered into by Felix under the power of attorney and his son's activities in relation to Aria Brothers Pty Ltd had been closely supervised by and with prior approval of Mr Sugianto. He said that he had signed all financial and security documents personally. Mr Sugianto said that he made the decision as to which blocks of land to purchase and the purchase and sale price of the land. He accepted that his son and, at times, his wife, performed the detailed negotiations in relation to the land and building contracts; but maintained that he was the one who made the ultimate decisions. Mr Sugianto said that Felix could not manage the business alone and required the input of his father.
Mr Sugianto said that he continues to seek opportunities for Australian exports. He maintained that his visits to Australia have been solely for business purposes. When in Australia he has had regular meetings with the estate agent handling the companies land transactions, visits the Building Display Centre in Melbourne, visits hardware retailers such as Bunnings and supermarkets. Mr Sugianto said that he had investigated the possible export of silica from Australia to Indonesia, however the type of sand required was not available. Correspondence of January and February 2003 was provided relating to such enquiries.
The schedule of funds provided from Indonesia and produced at the hearing by Mr Sugianto showed the following for the period March 1999 to June 2002.
Purchase of House, Altona $255,000
Purchase of motor vehicle $30,000
Purchase of shares in VPI $250,000
Purchase of food exporte $32,000
20% of funds for land and building
2 blocks $92,118
TOTAL $659,118
The schedule shows further funds after June 2002 for the purchase of the three further blocks of land and the investment apartment. It is not clear whether these funds include the proceeds of sale of the food exported and the first two blocks of land or whether they constitute wholly additional funds remitted to Australia. However, it is clear that the net investment should take into account the proceeds of sale and exclude the non‑business investment in a house, car and investment apartment.
The primary issue in this matter is whether Mr Sugianto satisfied the requirements of s134(1) of the Act as modified by s134(2). In considering this issue, the question arises as to whether it is appropriate for the Tribunal to consider events subsequent to the date of cancellation of the visa or whether it is limited to events and evidence at the date of the cancellation decision. In Freeman v Secretary, Department of Social Security (1988) 19 FCR 342, Davies J drew a distinction between the review of a decision to cancel a pension or benefit and a decision not to grant entitlement to a person or benefit. In the former, His Honour said that it is a review of whether the decision was the correct or preferable decision on the basis of the material available at the time of the decision. In the latter event, the Tribunal is entitled to take into account all material available at the date of the Tribunal’s decision whether or not such material was available to the decision maker at the time of that decision. This principal has been followed by Katz J in Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257 and by Deputy President Forgie in Re Griffiths and Migration Agents Registration Authority [2001] AATA 240and Birdseye and Companies Auditors and Liquidators Disciplinary Board [2001] AATA 783, adopting the proposition that the Tribunal is limited to events at the date of the primary decision in cancellation decision but is not so limited in relation to entitlement decisions. In matters of visa cancellation, however, there is a further factor. As noted by Member Carstairs in Lau and Minister for Immigration and Multicultural Affairs [2002] AATA 703, the respondent is required to make a judgement of a persons intentions under s134(1)(c) and s134(2) so that “it may be relevant to address matters that go to occurrences after the date of cancellation, to confirm or deny the correctness of views relevantly to be formed under these sections”.
The first question to be addressed was whether Aria Brothers Pty Ltd was an eligible business as at 25 June 2002 or whether, at the time Mr Sugianto had made a genuine effort to have the company carry on an eligible business. It was submitted for Mr Sugianto that the export of one container of cheese and biscuits and the entry into a business of property development when coupled with a genuine attempt to obtain suitable products for export satisfied the requirements of s134. It was argued further that the acquisition of a shareholding in VPI, while itself not a substantial ownership interest, and the appointment of Mr Sugianto as Overseas Marketing Executive demonstrated his genuine attempt to have Aria Brothers Pty Ltd involved in export business.
In considering the attempts at export, it is accepted that a business may take time to become established and that all business must commence with a first transaction. However, a one only export of a relatively small quantity of food products in July 2001 with a clear decision to not continue with such exports is not adequate to establish the carrying on of a business. While I accept Mr Sugianto’s evidence of making enquiries regarding the possible export of hardware products, I am, satisfied that these were very limited, were conducted in a somewhat desultory manner, on his very limited number of visits to Australia and with a knowledge that exchange rates made the likelihood of export improbable. In any event, those enquiries for which there was some evidence and, in particular, those relating to Australian Food Incorporation Pty Ltd took place well after the date of cancellation of the visa and I am not satisfied that they could be said to have occurred as a result of a genuine attempt made prior to the date of cancellation. Any attempts at seeking products for export appeared to be more related to the growth of Mr Sugianto’s business in Indonesia. Attempts at sourcing products in Indonesia for Malep Doors Pty Ltd relate to imports into Australia, and are therefore not relevant to an "eligible business".
It was argued that the property development undertaken by Aria Brothers Pty Ltd constituted an eligible business. Prior to 25 June 2002, the company had acquired two blocks of residential land and entered into contracts for the building of a residence on each. These two blocks were sold in August and October 2002. On 30 September 2002, three further blocks of land were purchased and contracts for the building of residences were entered into subsequently. It was submitted that these transactions constituted a business of property development, created employment and, the completed houses being priced competitively, increased competitiveness in the housing market. While accepting that a business can comprise property development and that any business may start with one transaction and be in a small way, I do not accept that the purchase of two blocks of land, three months apart, with the erection of a residence on each and subsequent sale can be said to constitute a business. They have more the earmarks of an investment in real estate than the carrying on of a business. The subsequent purchase, some seven months after the cancellation of the visa, does not satisfy me of a genuine attempt to carry on a business of property development.
Even if it could be said that the purchase and subsequent sale of two blocks of land constituted a business, it is then a question of whether it is an "eligible" business. Clearly the erection of two residences involves employment of the appropriate trades persons. However, I do not accept that contracts for two houses can be said to constitute the creation or maintenance of employment in Australia. Each contract was a one-off, limited time contract and, at best, created a small amount of short-term employment. There was no supporting evidence of the applicant’s contention that the sale price of the houses was competitive in the market. Even if this was so, the market price of two new houses in Narre Warren and Berwick is most unlikely to have generated any degree of competitiveness in the Australian Housing Market. There was no suggestion that the real estate activity of Aria Brothers satisfied any of the other criteria for an eligible business.
Whilst, given the foregoing findings, it is not necessary to consider whether Mr Sugianto satisfied s34(1)(b) or s134(2)(b), it is appropriate to make a finding on the requirements of those provisions. To the extent that any business was carried on by Aria Brothers Pty Ltd, I am not satisfied that Mr Sugianto could be said to have actively participated at a senior level in the day-to-day management of that business. I accept that he was responsible for the overall policy decisions in relation to Aria Brothers Pty Ltd but do not accept that this role could be described as participation in day-to-day management. It is relevant that he spent a total of 102 days in over three years in Australia. While I do not consider that with modern communication, participation in day-to-day management can not be accomplished outside Australia, it could normally be accepted that a significant time would be spent here. If the property transactions constituted a business then the detailed planning, contract negotiations, specification for the building of a residence, supervision of the building, negotiations and regular contact with agents and dealing with lenders would appear to be involved in a description of senior management. I am satisfied that, while Mr Sugianto may have been involved or consulted in the significant decisions required, the day-to-day management was by his son, Felix. Consequently, I find that Mr Sugianto did not satisfy either s134(1)(b) or 2(b) of the Act.
Having reached a finding that the decision to cancel the visa of Mr Sugianto should be affirmed, it is then necessary to consider the cancellation of the visas of Felix and Michael and whether s134(5) of the Act applies to these two sons.
Felix has completed a Bachelor of Business Accounting (in July 2002) after coming to Australia in 1997 under a student visa. He is now a member of the Society of Certified Practising Accountants (SCPA). He has formed a defacto relationship with an Indonesian National, Maria, of some six years. Maria completed her studies in December 2002 and has applied for permanent residence. Felix said that he may have been eligible for a skills visa but application for such a visa had to be made within six months of obtaining his degree and he is now too late. If his present visa is cancelled he will have to return to Indonesia and apply after 12 months employment there. He said that he has adapted to the Australian lifestyle and, having been here for six years, he is not aware of employment opportunities in Indonesia as an accountant. He maintained that it would be difficult for Maria to return to Indonesia, and an enforced separation from her would cause him extreme hardship. Felix acknowledged that he had completed his schooling in Indonesia and remains in contact with some school friends and had spent some summer holidays in Indonesia. In her report, Ms James stated that Felix believed that the qualifications he had worked so hard to achieve would be meaningless, as he did not see an opportunity in Indonesia to earn a decent livelihood. Ms James was of the opinion that Felix was totally committed to Maria and, if he was forced to leave her, it would result in extreme emotional hardship for him. She concluded that the extreme hardship Felix would suffer would be his unrealised ambitions both personal and professional.
Michael arrived in Australia in January 1999. He completed years 10 to 12 of Secondary School here, initially at Taylor’s College then at St. Paul’s College in Altona. He is now half way through a three-year course in computer technology at Victoria University. He lives with his brother, Felix, Maria and a cousin at the house in Altona purchased by his father. He believed that he would not obtain any credit for the subjects passed to date at an Indonesian University and that only a completed degree here would be recognised in Indonesia. He acknowledged that he had little knowledge of courses available in Indonesia, but said that, because of differing start dates of the academic year, he would likely have to wait until August next year before he could commence studies in Indonesia, even if a suitable course was available to him. Michael said that, having been in Australia for four years, he has lost touch with former Indonesian friends. He had formed many friendships in Australia, was very comfortable here and believed that there were better opportunities available in Australia to “become a better person” than likely available in Indonesia. Ms James concluded that, if Michael was unable to remain in Australia, “it would result in extreme hardships to him as it would cause a serious disruption to all aspects of his life. It would impact on his studies, professional prospects, emotional well-being and his social life”.
Section 134(5) provides that the visas held by Felix and Michael must not be cancelled if such cancellation would result in extreme hardship to them. The hardship must be a necessary consequence of the cancellation and a mere possibility or probability would not be sufficient (see ReSiwei Wang and Minister for Immigration and Multicultural Affairs [2002] AATA 961). The use of the word “extreme” conveys that there must be a result of hardship to a very high degree. Clearly the words do not encompass inconvenience, reduction in economic opportunities, a less comfortable life or a degree of hardship below the level of extreme. In ReSalim and Minister for Immigration and Multicultural Affairs [2002] AATA 899, Deputy President Purvis said (at 45-47):
45.Each of the Applicants will experience emotional hardship if required to leave Australia, they having spent a part of their formative years in this country, having received a part or whole of their secondary education and tertiary education at Australian schools and universities and having consequently formed a bonding with those with whom they came in contact whilst holding their visas. There is evidence as to each of them being held in high regard by their peers, social friends and academic acquaintances.
46.However, it would be strange or unusual and unexpected if three relatively young, intelligent and capable persons had not in the years developed such relationships. It will be hard to leave these people. It will be hard to readjust to a life outside Australia and the university environment. But this hardship is one within the contemplation of the legislature when it chose to insert the word ‘extreme’ as to qualify the hardship. And it must be ‘extreme’ to the particular individual.
47.The Tribunal does not consider that the hardship that will undoubtedly be experienced by each one of the Applicants is exceptional, unexpected or of such a nature as to qualify for the description of exceedingly great in degree. Unfortunate yet, emotional yes, financial yes to a degree. But not extreme.
In the case of Felix there appear to be hardships alleged of reduced opportunity for work utilising his qualification, loss of a preferred way of life in Australia, loss of established friendships in Australia and separation from Maria. On the other hand it is clear that he has parents and a home in Indonesia. Mr Sugianto is a successful and well-established businessman in Indonesia. Felix may well be successful in obtaining a skills visa to return to Australia. Notwithstanding that the visa was cancelled over twelve months ago, no evidence of any enquiries or research into job opportunities in Indonesia was provided, leaving this aspect in the realm of speculation. It is accepted that separation from Maria could constitute severe hardship. However, such separation, if the visa of Felix is cancelled, is dependent on Maria being successful in her application for permanent residence. Failing such success, it is reasonable to assume that she will be required to return to Indonesia. If successful, her permanent residence may well assist Felix in obtaining a skills visa and the possibility exists that any separation may be of some eighteen months duration. All of this is, again, speculation and the separation is not an inevitable consequence of the cancellation of Felix’ visa. As a consequence, I cannot be satisfied that such cancellation will result in extreme hardship to Felix.
In the case of Michael, the hardship alleged is the possible loss of value of his part-completed course, the inability to complete the course and loss of opportunities available in Australia. Again, he has parents and a home available in Indonesia. Again, over the year since the decision to cancel was made, no enquiries or research into availability of suitable courses or criteria for admission appear to have been considered. It is possible that Michael could loose a year of study if he is required to complete an equivalent course in Indonesia. It is possible that Michael, after returning to Indonesia, could successfully apply for a student visa to return to Australia to complete his current course, resulting in the loss of time of a semester. Again, his forced return will result in emotional hardship and, possibly, some future reduction in economic opportunities. However, I am not satisfied that the necessary consequence of cancellation will be extreme hardship within the meaning of s134(5) of the Act.
It follows from the foregoing that the decision under review to cancel the business visa of Mr Sugianto and his two sons, Felix and Michael, should be affirmed.
I certify that the twenty‑two [22] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B.H. Pascoe, Senior Member
(sgd) Carolyn Irons
Secretary
Date of Hearing: 13 June 2003
Date of Decision: 7 July 2003
Counsel for applicant: Mr G. Gilbert
Solicitor for the applicant: Erskine Rodan and AssociatesCounsel for the respondent: Ms E. Arduca
Solicitor for the Respondent: Australian Government Solicitor
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