Suhalim and Ors and Minister for Immigration and Multicultural an D Indigenous Affairs
[2003] AATA 1171
•20 November 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1171
ADMINISTRATIVE APPEALS TRIBUNAL )
)No W2002/328,
)461,462,463,464
)
GENERAL ADMINISTRATIVE DIVISION ) Re JIMMY SUHALIM
HONG ING THE
ANDREW SUHALIM
ALBERT SUHALIM
ASHLEY SUHALIMApplicants
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms L Savage Davis, Member Date20 November 2003
PlacePerth
Decision The Tribunal affirms the decisions under review. .........(sgd L Savage Davis)............
Member
CATCHWORDS
MIGRATION – business skills visa subclass 127 – cancellation of visa – Applicant’s failure to obtain a substantial ownership interest in a business in an eligible business in Australia – active participation in day to day management at senior level of business – whether genuine effort made – discretion not to cancel visa –cancellation of secondary visas - whether cancellation would result in extreme hardship
Migration Act 1958 sections 134, 137
Migration Series Instructions Nos 133
Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481
Siewi Wang v Minister for Immigration and Multicultural Affairs [2000] AATA 961
Salim and Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899
Ng v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 299
Wong v Minister for Immigration and Multicultural Affairs [2002] AATA 54
Lau v Minister for Immigration and Multicultural Affairs [2002] AATA 703
Hope v Bathurst City Council (1980) 144 CLR 1
Tang v Minister for Immigration and Multicultural Affairs [2000] AATA 997
Huang v Minister for Immigration and Multicultural Affairs [2002] AATA 656
REASONS FOR DECISION
20 November 2003 Ms L Savage Davis, Member 1. These are applications by;
(a) Mr Jimmy Suhalim (“the applicant”) for review of a decision dated 19 August 2002 of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the respondent”) to cancel the business visa issued to the applicant pursuant to section 134 of the Migration Act 1958 (“the Act”),
(b) Mrs Hong Ing The, the applicant’s wife and Andrew, Albert and Ashley Suhalim, the applicant’s children (“the applicant’s family”), for review of a decision of the delegate of the respondent also dated 19 August 2002 to cancel their visas as a consequence of the cancellation of the applicant’s visa.
2. At the hearing the applicant and the applicant’s family were represented by Mr James Chong of James Chong & Co, Barristers and Solicitors and the respondent was represented by Ms Laila McPherson of Australian Government Solicitor.
3. The documents lodged pursuant to section 37 Administrative Appeals TribunalAct 1975 were received into evidence (T1-T17/1-323 and S1-S16/327-390) and further documents were tendered and marked as follows;
Exhibit
Description
Date
A1
Applicant’s Statement of Facts and Contentions
10 June 2003
A2
Applicant’s Statement and attachments
4 September 2003
A3
Witness Statement of Hong Ing The
14 February 2003
A4
Financial Statements for the Suhalim & The Family Trust for the years ended 30 June 2002 and 30 June 2003
A5
Historical Company Extract / Jimmy Corporation Pty Ltd
3 September 2003
A6
Order forms from Bradys, Building Products dated 30 April 2002 and 8 May 2002 and attachments
A7
A8
Citibank Statement for Jimmy Corporation Pty Ltd for the period 1/8/03 to 29/8/03
Suhalim and The Family Trust Tax Return 2003
R1
Respondent’s Statement of Facts and Contentions
23 July 2003
3. Oral evidence was given to the Tribunal by the applicant with the assistance of a Bahasa Indonesian interpreter. The applicant’s wife and Mr Freddie Low also gave oral evidence.
BACKGROUND
4. On 30 March 1999 the applicant was granted a subclass 127 business skills visa. The applicant’s family were also granted visas as a consequence of the issue of the primary visa (“the secondary visas”). The applicant first entered Australia on 14 May 1999.
5. On 30 April 2001 the applicant was sent a Survey of Business Skills Migrant – 24 Months form (T8). This was completed and returned to the respondent with an accompanying letter dated 30 June 2001(T9). On 10 July 2001 the respondent sought further information from the applicant (T10). This was provided on 31 October 2001 (T12). By letter dated 22 April 2002 the respondent notified the applicant of its intention to cancel the applicant’s visa under section 134 of the Act (T14). The applicant provided further information to the respondent (T15). On 19 August 2002 a delegate of the respondent decided to cancel the applicant’s visa and those of the applicant’s family. On 26 August 2002 the applicant lodged an application for review of the decision to cancel his visa. On 22 November 2002 the applicant’s family lodged applications for review of the decision to cancel their visas.
LEGISLATION
6. Section 134 of the Act empowers the respondent to cancel a business visa in certain circumstances. The relevant provisions of the Act as applies to the applicant and the applicant’s family in this case are sections 134(1), (2), (3), (5) and (10) that provide as follows;
Cancellation of business visas
(1) Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australia visa, an investment-linked visa or a family member's visa), by written notice given to its holder, if the Minister is satisfied that its holder:
(a)has not obtained a substantial ownership interest in an eligible business in Australia; or
(b) is not utilising his or her skills in actively participating at a senior level in the day-to-day management of that business; or
(c) does not intend to continue to:
(i) hold a substantial ownership interest in; and
(ii)utilise his or her skills in actively participating at a senior level in the day-to-day management of;
an eligible business in Australia.
(2) The Minister must not cancel a business visa under subsection (1) if the Minister is satisfied that its holder:
(a) has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and
(b) has made a genuine effort to utilise his or her skills in actively participating at a senior level in the day-to-day management of that business; and
(c) intends to continue to make such genuine efforts.
(3) Without limiting the generality of matters that the Minister may take into account in determining whether a person has made the genuine effort referred to in subsection (2), the Minister may take into account any or all of the following matters:
(a) business proposals that the person has developed;
(b) the existence of partners or joint venturers for the business proposals;
(c) research that the person has undertaken into the conduct of an eligible business in Australia;
(d) the period or periods during which the person has been present in Australia;
(e) the value of assets transferred to Australia by the person for use in obtaining an interest in an eligible business;
(f) the value of ownership interest in eligible businesses in Australia that are, or have been, held by the person;
(g) business activity that is, or has been, undertaken by the person;
(h) whether the person has failed to comply with a notice under section 137;
(i) if the person no longer holds a substantial ownership interest in a particular business or no longer utilises his or her skills in actively participating at a senior level of a day-to-day management of a business:
(i)the length of time that the person held the ownership interest or participated in the management (as the case requires); and
(ii)the reasons why the person no longer holds the interest or participates in the management (as the case requires).
(3A)Subject to section 135, the Minister may cancel an investment-linked visa (other than a family member's visa), by written notice to its holder, if the Minister is satisfied that the person, or any of the persons, who held the relevant designated investment when the visa was granted has or have ceased, for any reason, to hold that investment within 3 years of that investment being made.
(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;
(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.
(10) In this section:
business visa means:
(a) a visa included in a class of visas, being a class that:
(i)has the words "Business Skills" in its title; and
(ii)is prescribed for the purposes of this paragraph; or
(b) a visa:
(i)to which a prescribed provision of the Migration Reform (Transitional Provisions) Regulations applies; and
(ii)
that is of a kind prescribed for the purposes of this paragraph; or
(c) a return visa that is granted to a person who is or was the holder of a business permit or business visa;
that is or was granted on or after 17 February 1992.
designated investment has the meaning given by the regulations.
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.
established business in Australia visa means a business visa a criterion for whose grant:
(a) relates to the applicant having an established business in Australia; or
(b) is that the applicant is a member of the family unit of the holder of a visa a criterion for whose grant is as mentioned in paragraph (a).
family member's visa means a business visa held by a person:
(a) who is or was a member of the family unit of another person who held a business visa; and
(b) who would not have held the business visa if he or she had never been a member of the family unit of the other person.
investment-linked visa means a business visa a criterion for whose grant:
(a) relates to the holding of a designated investment; or
(b) is that the applicant is a member of the family unit of the holder of a visa a criterion for whose grant is as mentioned in paragraph (a).
member of the family unit has the meaning given by the regulations.
ownership interest, in relation to a business, means an interest in the business as:
(a) a shareholder in a company that carries on the business; or
(b) a partner in a partnership that carries on the business; or
(c) the sole proprietor of the business;
including such an interest held indirectly through one or more interposed companies, partnerships or trusts.
relevant designated investment, in relation to an investment-linked visa (other than a family member's visa), means the designated investment that was, in deciding to grant the visa, regarded as satisfying the criterion referred to in paragraph (a) of the definition of investment-linked visa.
return visa has the same meaning as in the regulations.
7. Section134(3) of the Act sets out the matters the respondent may take into account in determining whether a person has made the “ genuine effort “ referred to in section 134(2). In addition the Migration Series Instructions Nos 133 (MSI), at paragraph 4.5 lists factors to be taken into account by decision-makers in considering whether a genuine effort has been made. They are as follows;
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.
MR JIMMY SUHALIM’SEVIDENCE
8. The applicant confirmed the contents of his witness statement dated 4 September 2003 with one qualification (Exhibit A2). He requested that the words, “More specifically, I make employment decisions, decide whether to employ employees” be deleted from paragraph 16.
9. The applicant was referred to Exhibit R1 at paragraphs 30, 31 and 32. He told the Tribunal that the respondent had incorrectly concluded that the export of palms to China had resulted in a loss. Although his first outlay was $22,572 and he only received approximately $21,000 in payment, once he reclaimed GST he made about $400 profit. In regard to the second order the substantial shortfall of some $7,000 between what he was paid and the cost could be explained by the fact that only two palms were supplied instead of three. This was offset in the third export of palms because only one palm had to be ordered and this, along with the palm that had meant to come from the second order, were sent to the purchasers. The profit from the second and third exports in December 2001 and January 2002 totalled about $800.
10. The applicant said that the very nature of the export of date palms meant that it was not possible to export them often. He said although he had not exported any since January 2002 it may be a business that he would attempt to build up again in the future.
11. In cross-examination the applicant said that his main source of income from the time he arrived in Australia in 1999 until now was money held in an account in Singapore from the sale of his large family home in Indonesia. The house had been sold to ensure the family had access to funds and was able to live comfortably whilst he established businesses in Australia. He knew that invariably he would have fluctuating income to begin with. He said now when he returns to Indonesia he stays with his father.
12. The applicant agreed that in his application to come to Australia he had stated that he owned Robicomp, a computer company in Indonesia (S8/358). He confirmed he was the sole owner of the business but said he is not involved in the management of it having put people in place to manage it on a day-to-day basis. He now receives a salary. The applicant denied that this was somewhat risky asserting that the company was now some 20 years old and well established, and he had long standing staff who were committed to the business because it had a profit sharing structure.
13. The applicant said that he has in the last month bought a property in Applecross for $580,000. He and his family currently live in a property owned by his brother. He confirmed that he and his family has been living in Australia for approximately 3 years. He has three children, two boys in years 10 and 12 respectively at Aquinas School and a daughter in year 5 at St Pious. Both Indonesian and English are spoken at home.
14. The applicant agreed that he had incorporated a company called West River in the year 2000 and subsequently changed its name to Jimmy Corporation Pty Ltd. (“the company”). He confirmed that there were no financial statements for the company and that all statements were in the name of the family trust, Suhalim & The Family Trust (“the family trust”). He and his wife are the sole owners of the business and have chosen to conduct all business through the family trust structure. No business activities were conducted by West River. At the time he set up that company he was just looking around at businesses, looking in the Yellow Pages and contacting friends to ascertain what business he could establish.
15. The applicant said as he is in the export business he must remain overseas for significant periods to make business contacts and secure orders. His mode of business practice was to secure orders from people overseas and then place the order in Australia.
16. The applicant explained that he had exported three Honda cars to Indonesia because in recent times the law had changed allowing the import of foreign cars. A number of his friends were interested in them. He did not export these Japanese cars directly from Japan because by buying them in Australia, it gave business to Australians. He had chosen not to export Australian cars to Indonesia because follow up service was not readily available. He has sold the three Honda cars to friends and received a profit of around $2,000 per car. There was no documentation because that was not necessary in Indonesia. He was not sure what bank account the profit went into but he expected his wife would know. The applicant said he checked out the prices of the cars and was there when the transactions occurred. He said it was necessary to check everything before the car went into the container. When it was put to him that the movement details as recorded at T17/322-327 indicated that he was not in Australia on the actual dates of the invoices for the purchase of the cars or the bill of ladings, that is he was not in Australia on the 15th March 2001, the 14th May 2001 and the 27th September 2001 he said this did not mean that he hadn’t checked the cars out before he left the country. Anyway it was his practice to leave final details for his wife to take care of. He confirmed he had not exported any more Hondas and commented now it was less profitable as so many people were doing it.
17. The applicant said that he now disagreed with a letter his previous migration agent had prepared and that he had signed (T12/188-191). He said he had made a genuine effort to establish an export business. His interest was not in any particular product – just what would make profit on export.
18. The applicant agreed that on three occasions he had exported date palms. This opportunity arose because in China they are building many new hotels and need palms. To establish this business he had had to find prospective buyers, research how to care for palms in transit and ascertain what size and conditions were most appropriate. The applicant said he looked at web sites and in the telephone book. Express Hiab was recommended. He said that by buying date palms from Express Hiab he was giving work to Australians. He and his wife went together to Express Hiab. In response to the suggestion that yet again the records showed he was not present in Australia when invoices for the purchase and export of the palms was completed, he said his wife would prepare this documentation on his instructions by phone. He had done the groundwork and it was only necessary for him to communicate his instructions. He confirmed that the last export of a date palm was in January 2002. The last palm that had been exported had died and the purchaser had not placed further orders. The applicant said he is in contact with new buyers and may try to find a new supplier and resurrect this business. He confirmed that he had received $400-$500 profit from the first transaction and approximately $800 profit from the second and third. He asserted that when a business is being established you cannot expect much in the way of profit until you have regular customers.
19. The applicant said that he had exported cornice adhesive twice in May 2002. He was referred to a letter dated 30 April 2002 to Jimmy Corporation Pty Ltd from Belinda Rakers, Marketing Manager, Brady’s Building Products (T15/199). The applicant said it was not a contract. He had not been asked to sign anything.
20. The applicant said he had been unable to distribute one container per month as per the Distribution Agreement in the letter as there was no profit in it. After the first two exports in May 2002 he found himself competing against a supplier from China who was prepared to sell at a loss to get into the market, and so there was no point in pursuing the export of this adhesive.
21. The applicant was referred to paragraphs 6 and 7 of his Statement (Exhibit A2). It was put to him that this implied that he had had an ongoing Distribution Agreement with Bradys from April 2002 to April 2003. The applicant said there was no contract and he had ceased exporting cornice adhesive because it was not profitable. The applicant denied that this contradicted his Statement that said the Distribution Agreement had commenced (A2/ p2 paragraphs 6 & 7). The applicant maintained that it did not go ahead after the first two exports in May 2002 due to lack of profitability. He said his wife had prepared the documentation for the purchase and export of cornice adhesive (T15/201-202).
22. The applicant said he decided to move into the computer area because that was a business he knew well. He agreed he had many contacts having been in the computer business for some 20 years. He bought parts in Singapore from Beam Computers and imported them to Perth in May 2002. He then sold them on to Omnivision. The applicant was referred to paragraph 24 of his Statement (Exhibit A2) which the respondent said implied that the reason he had imported computer products was to gain a foot hold in the computer industry in Asia. The respondent put it to the applicant that he already had those contacts on the basis of his 20-year business in Indonesia. The applicant conceded that he did already have those contacts in Asia.
23. The applicant agreed that all export of computer products had been post the cancellation of his visa. One each had occurred in October 2002, November 2002 and January 2003. He said that they have been continual in the recent period, and it is now his focus. He had found a good Mitsubishi product which had to be purchased in Sydney for distribution in the Asian Pacific area. This meant that although the accessories, which were the main products he bought, were manufactured in China they could not be directly exported from China to Indonesia. He bought them from TodayTech and Westan, and has done so for approximately the last six months.
24. The applicant said it was his original intention to go into the computer industry but at the time prices of components and accessories that he looked at were not competitive. He was also at that time looking at other possible businesses. He agreed he had no evidence of that early research but said that he looked in the Yellow Pages, met people and tried to find items with a good price.
25. The applicant explained that in regard to the actual export transactions the orders would have already been in place in Indonesia prior to orders being made in Perth. The applicant said he still spends a great deal of time overseas – approximately 50% of his time last year. His wife does much of the paperwork and the making of arrangements. The last export of computer accessories was January 2003 although he said he had documentation now that shows that it was every month.
26. The applicant conceded that there has been at least one internal transaction between TodayTech and Omnivision .
27. The applicant said that the computer export business was now making a profit but not enough to live on. He hopes to be able to support his family perhaps in the next 6 months to a year. If a profit is made he will spend at least 75% of his time in Australia.
28. The applicant said it was usual practice to ship goods to Singapore and then fly them to Jakarta. He has sold the computer parts to a range of buyers. He said he may go back into palm export and is planning a trip to China and Taiwan.
29. In regard to paragraph 33 of his Statement (Exhibit A2), he confirmed that he still spends approximately 33 hours per week on business. Even though his wife does a lot of the paperwork and placing of orders, he said that he was very occupied with travelling, meeting people and setting up contacts and attempting to secure orders. He asserted again that he did not spend time on his business in Indonesia which ran itself having been established for 20 years.
30. The applicant was unable to say what the significant investments referred to in Exhibit A2 were, but said he had purchased a block in Applecross and a car.
31. In re-examination the applicant said that prior to the cancellation of his visa he had tried to get into the export of computer accessories but at that time he couldn’t find a good price. Since finding TodayTech he has a good supplier at a good price. He said the computer export business is beginning to grow. He estimated that roughly he has sold over $100,000 of computer accessories since January 2003.
Mr Freddie Low
32. Mr Low told the Tribunal that he was a registered tax agent and qualified accountant, formerly employed by Richard Yeap & Associates. He provides a range of services including advice about setting up businesses as well as preparing financial statements and tax returns. He is currently the accountant for Jimmy Corporation Pty Ltd (“the company”) and also a business adviser to them. When he worked at Richard Yeap & Associates he also was involved in handling the Applicant’s affairs.
33. Mr Freddie Low said he was familiar with Exhibit A4. He said although a junior accountant would have prepared it, they would have been finalised by a senior member of his accountancy practice. Mr Low explained that the company is the corporate trustee for Suhalim and The Family Trust (“the family trust”). All trading is done by the family trust.
34. Mr Low said in reference to the sale of date palms outlined in R1 at paragraphs 30, 31 and 32 that this was not a true reflection of the figures. The GST component had been claimed back resulting in a marginal profit. Mr Low said while he cannot comment on particular transactions it is his belief that the company and the family trust made a small profit each year. He said he communicated often with the applicant who asks him questions in regard to company and tax requirements.
35. In cross examination Mr Low confirmed that he provided a range of services to clients including the incorporation of companies, filing of tax returns and preparation of financial statement and business advice. A client may ask for advice as to what sort of business to set up and Mr Low said that they would look at what skills the client already has. This was the case with his advice to the applicant who had a background in computer manufacturing and wholesaling and he understood that he had some 4 – 5 outlets in Indonesia. He recalled the applicant saying he was having problems getting computer goods at the right price and Mr Low queried whether he had got the retail or the wholesale prices. Mr Low passed on some contacts which he understands did not materialise but subsequently learnt that the applicant found goods of a competitive price in dealings with TodayTech and Omnivision. Mr Low described his advice as general rather than specific.
36. Mr Low said that he first met the applicant in 2000 when he was appointed by his principal at Richard Yeap and Co. This was because he was Malay speaking and this was somewhat similar to the applicant’s Indonesian language. Mr Low said that he had prepared the family trust statements for 2000/2001 (T9/160 – 170). He agreed that they were only interim to the 31st of May 2001 and also that there was an unaccounted for increase in profit between those statements and the statements in 2002 ( T15/305 – 315).He said that this was probably accounted for by the fact that the interim statements were not accurate.
37. Mr Low said that he did not do monthly reconciliations of clients bank accounts but he would have done the year end reconciliations. He said that all accounting was based on Australasian accounting standards.
cross-examination of Mr Suhalim by Ms McPherson Continued
38. This was necessary as further documents were tendered by the applicant’s representative at the beginning of the hearing and the respondent requested and was granted additional time to examine them. The applicant confirmed the computer exports for May and June 2003 as evidenced in the additional documents. He also confirmed the computer export activities for January and February 2003 and October and November 2002. The applicant was asked who had purchased these computer accessories in Indonesia. The applicant could not recall who had purchased them but after locating and examining two documents in the T- documents referred to a handwritten note on one invoice to Data 2000 and reference on the Powerhouse Invoice of 19 November 2002 to Erastore. He said that these were the computer stores in Jakarta that purchased the accessories.
39. The applicant asserted that this did not contradict earlier evidence he had given that he sold computer accessories to many different computer companies. He believed two qualified. The applicant said that payments went to Citibank into the Jimmy Corp Corporation Pty Ltd. Account in Citibank in Perth. He did not know when and for how much and referred to his wife. He denied that any computer accessories go to his own business in Jakarta. He said it only sold complete computers and not accessories. The applicant maintained that it definitely required 33 hours per week for him to run the business activities of Jimmy Corp Pty Ltd. As a trading business he had to travel frequently, find overseas clients, and build contacts. The applicant said this was not excessive, not withstanding there were only two buyers and less than one transaction per month. He said that whilst the turnover was relatively small and the profit minimal, it takes a great deal of time to find potential buyers given the competition. The applicant said that there were around 1,000 suppliers of computer accessories in Jakarta. He would very much like to have more clients and despite the difficulties he will continue in the computer export business and hope to get more customers. The applicant said however, if the people he contacted wanted kangaroo meat, he would try to export that. He would supply whatever was required.
40. In re-examination the applicant said that as a trader and exporter, his interest is in finding anything he can sell and what his customers want. He is always looking for new customers and goods that would be profitable. He estimated that the profit in the last year trading in exporting computer accessories was around 3 – 5%, perhaps a total profit of $5,000.00 in a turnover of a $130,000.00
The Hong Ing’s Evidence
41. The applicant’s wife confirmed the accuracy of her witness statement of the 14th February 2003 (Exhibit A3). She has three children, Andrew who is in Year 12 at Aquinas College, Albert who is in Year 10 at Aquinas College and Ashley who is in Year 5 at St Pious. She said the family were settled here and her oldest son was preparing for the TEE. All the children had adapted well to life in Australia and have well established friendships here. She didn’t believe they would settle easily back into Jakarta. They wanted to stay and study in Australia and go to University.
42. In cross-examination the applicant’s wife said that they had been granted visas in 1999. She had brought her son Andrew to Australia in 1999. He did an English course for three months and then commenced Year 8 at Applecross Senior High School. She then returned to Jakarta with him because she felt he was too young to remain here but came back some months later when he did a further English course and some year 8 subjects. In 2000 he commenced at Applecross Senior High School in Year 9. He had done Years 10, 11 and is now in Year 12 at Aquinas College. She said he still speaks Indonesian and can read and write quite well having finished primary school. She said she speaks Indonesian with him as well as English.
43. The second child Albert is now in Year 10 at Aquinas. He came to Australia on a permanent basis in 2001 and commenced Year 8 at Como High. He has since then been at Aquinas College. He attended school in Jakarta until 2001 and is also able to read and write in Indonesian. Her daughter Ashley, who is now in Year 5 arrived in Australia also permanently in 2001 and started school then in Year 3. Because she only completed Years 1 and 2 in Jakarta she does not write Indonesian well, although she speaks it quite well. She said the children speak a mixture of English and Indonesian with each other.
44. Prior to the family’s permanent move down for the school year 2001 the applicant’s wife said she left Andrew at times with family and friends and returned to Jakarta where the younger two children were at school. Although the majority of the her family are still in Jakarta and she has contact with them, she has a brother in law and sister in law, her husband’s brother and wife, who are permanent residents who also live in Perth. She feels very settled in Australia as do her children who have made new friends in Australia. Although they go back to Jakarta perhaps twice a year, they are all happy here and do not want to leave.
45. In regard to schooling she said that the curriculum would be different. She had not made any enquiries as to whether on the completion of Andrew’s TEE if he gained entrance to university in Western Australia he would also gain entrance to university in Jakarta. She had not made any enquiries about a student visa for Andrew. She said if they did return it would look as if the family had failed in their attempt to move to Australia. She believed that the children would go back a year or two in their education. Albert in particular is very happy here and has been happier since leaving Indonesia. She believes Ashley would face real difficulties as she has learned English and adjusted to school here.
46. In response to questions about what specific extreme hardship she would face she said that they no longer have a home there, and she would feel ashamed to have to return. After two and a half years here she feels safe and wants to stay. Although she has spent nearly all her life in Indonesia she has made lots of friends in Australia. She recalled two or three occasions in recent years in Indonesia where she has been assaulted, robbed and there have been attempts to stop the car she has been travelling in. She said all of these things have been occurring in Jakarta since before they moved here but it only adds to her reluctance to return because she feels it is an unsafe country. Recent events have made it seem even less safe.
47. If forced to leave she said that they would perhaps pursue student visas although she would want her children to be with her. In the last year she said that they spent one and a half months in Indonesia over the Christmas holidays of 2002-2003 and also returned in May 2003 for a family wedding.
FINAL SUBMISSIONS
Applicants’ submissions
49. Mr Chong referred to Return Residence Visas (RR visa). He submitted that even if a holder of this visa has not satisfied the requirement to be resident in Australia for 2 years , they will, if actually in Australia still be able to stay . He said this was a qualification or exception even if they hadn’t met the 2-year requirement. The significance of this for section 134 is that the Parliament he believes only had a general expectation about holders of business skills visas staying in Australia most of the time. In particular given the nature of the applicant’s business he needed to be overseas a great deal. He submitted the Tribunal should take a liberal view of the need to be physically in the country.
50. Mr Chong told the Tribunal that Exhibit A1 would be the basis of his submission. He noted that respondent had accepted that the applicant had substantial ownership of a business. He referred to the MSI and submitted that the size of the business does not matter. Notwithstanding that the size and scale of the business was small the applicant had complied with MSI.4.3.2. Mr Chong submitted that as long as it meets the objectives of the business, it qualified.
51. In regard to the export of palm trees, they meet the criteria as they have been exported as had the other products. In regard to the Hondas, they may not meet the criteria of exported Australian goods. He submitted that he believed that the applicant had a role in re-painting the Hondas. Even if that was not the case, it created commercial activity in competitiveness. The cars were already in Australia so to buy them and export them stimulated commercial activity and created and maintained employment in the car sales industry.
52. In regard to the computer parts, notwithstanding that they are of the Mitsubishi brand he submitted that Mitsubishi assembled the goods in Australia.
53. Mr Chong submitted that all these exports had been continuous and repetitive, not only had they occurred on more than one occasion but that the actual business of trading as an exporter by the applicant had been continuous. By that, he meant that it was continuous even though he had moved from Hondas to date palms, to computer parts. As an exporter of products, it was not the particular product but the business of exporting products which had to be continuous and repetitive. He said that although it only occurred every 2 – 3 months at times, that was regular and no-one could expect a container to be sent every day. Therefore, he submitted that the applicant had a substantial ownership in an eligible business in Australia.
54. In regard to the day-to-day management, he said that although the profit was small, the Tribunal should be mindful that the business was in its initial stages. Therefore, small-scale profit was to be expected.
55. In regard to the fact that the applicant had only been here for 255 days and not for a 6 month period at any time, he urged the Tribunal to take liberal and more robust interpretation of s134 of the Act. In particular, with a business activity of export it was necessary for the applicant firstly to break into overseas markets and obtain customers and orders. He submitted that if this was not allowed, then the majority of business visas would have to be cancelled. He submitted that there was nothing in the legislation that said the holder of the business visa had to be physically present. He said that the applicant managed his business largely from outside Australia because his business activities centre on breaking into markets and obtaining customers. With the use of email and mobile phones it was now an accepted way to conduct business. He said that the case law was applicable if someone was setting up a business such as a grocery store in Australia but not in the case of export of goods.
56. Mr Chong submitted that the business visa also implied that someone could come and go. It was not like some other visas that required period of residences. He did not believe that the recipient of a business visa was expected to give up business overseas. In fact, they are expected to foster business links. He submitted to the Tribunal it was not necessary for the applicant to be physically present in Australia most of the time. The applicant’s business necessitated travel and he believed that it should be seen as qualifying recent cases. He urged the Tribunal to look at the particular facts of the case. He said that in any event, the applicant spent about 50% of his time in Australia and comes regularly. He said that the 33 hours per week the applicant spent on the business activities of Jimmy Corp Pty Ltd was necessitated by the need to find potential clients and viable profitable exports.
57. In any event, if the Tribunal found that it was not a eligible business, he submitted that the applicant had made a genuine effort. In reference to the contention that having 20 years experience in the computer industry, the applicant should have started in that business immediately, he submitted that the evidence showed that he had contacted people soon after arriving. Evidence by Mr Low backed that up. The applicant had had to look for a good price and today has a business exporting computer accessories. He said the present evidence of the exporting computers prior to the cancellation of his visas, is the result of genuine effort prior to the cancellation
58.In regard to the secondary visas Mr Chong submitted that the applicant’s family would suffer extreme hardship if their visas were cancelled. The oldest son is currently studying for TEE and whilst he may qualify for a student visa he would have to leave the country to apply for one. This is a lengthy process. In addition all the children would have to repeat 2 or 3 years of schooling to adapt to the Indonesian system. The applicant’s wife has given evidence that she is settled here. If she is forced to return and children get student visas she will be separated from her children. Despite the absence of medical evidence she would he said undoubtedly suffer psychological stress.
Respondent’s submissions
59. Ms McPherson on behalf of the respondent stated that they would rely on the facts and contentions as outlined in Exhibit R1. She noted that the Tribunal could look at, but was not bound by the MSI guidelines. Ms McPherson submitted:
· The respondent concedes that the applicant has a substantial ownership in a business being a 50% shareholding in Jimmy Corporation Pty Ltd. However, it is submitted that the business is not an eligible business.
· In regard to the export of Honda motor vehicles the tax invoices indicated that the cars were new ( T9 / 141). They are imported into Australia and the purchase of them by the applicant in Australia does not create international links. In addition, the evidence has been that they were sold to acquaintances or friends. The purchase of three Honda vehicles from a dealership in Perth would not have any impact at all on the employment market in Australia and any flow-ons, that is the shipping of the cars, is only of minimal effect. Therefore it cannot be said that it has created and maintained employment. The increase in commercial activity is negligible when only three cars have been purchased.
· In relation to the cornice adhesives it is accepted that these appear to have been Australian manufactured products, however they must be in the nature of a competitive business. Two exports of cornice adhesives cannot be described as a commercial enterprise in the nature of an ongoing concern with activities engaged in for the purpose of profit on continuous and repetitive basis. Each export of cornice adhesive occurred within days of each other in May 2002 and no further exports have occurred. The applicant’s evidence was that the agreement between himself and Bradys was not by way of any ongoing or enforceable contract. This is in contradiction to the applicant’s own statement (Exhibit A2).
·It was submitted that the export of date palms was also an activity that occurred over a short period of time namely from October 2001 to January 2002. No date palms have been exported since those three orders were completed. Whilst the respondent accepts that to be an eligible business there does not necessarily have to be hundreds of thousands of dollars worth of profit the export of the date palms , cornice adhesives and Hondas has ceased entirely.
·In relation to the import of computer parts it was submitted that importing something that does not meet the criteria of an eligible business. In regard to export, it should be noted that this has occurred after the cancellation of the visa. The first export occurred on the 16 October 2002 and the applicant’s visa was cancelled on the 19 August 2002. In this case there is no connecting factors between the import of the computer products prior to the cancellation of the visa and the export of the computer products some months following which would enable the pre-cancellation import to be considered as a connecting factor. The import of computer products and their sale in Australia and the export of computer products and their sale in Jakarta involved different companies.
·It was further submitted that the export of computer products has primarily been to companies in Indonesia. The applicant in evidence had said that the earlier import had been for the purpose of getting a foot in the door in the Asian computer market. It is submitted that the applicant in cross-examination has conceded that he has contacts in the Asian computer industry in particular given that he has over 20 years experience in computer retailing and wholesaling in Jakarta. It is implausible that the applicant would need to actually import computer products to gain a foot in the door when his own evidence is to the contrary. In any event the export of computer products occurred after the cancellation of the applicant’s visa and is not relevant in this matter. In addition, it was submitted that the computer products are actually Mitsubishi products which are distributed from a company in Sydney. There is no evidence to indicate that they are manufactured or made in Australia. This is confirmed by the applicant’s evidence that the products were actually imported into Australia possibly having been made in China. Therefore the products are not Australian goods and therefore fit into the same criteria as the Honda cars. As such they cannot be said to develop business activity in Australia nor do they develop business links with the international market or meet any other of the defining criteria for eligible business.
·The applicant has not actively participated at a senior level in the day-to-day management of an eligible business, in this case Jimmy Corporation Pty Ltd. In particular the applicant has spent a limited amount of time in Australia and quite extensive periods of time in Indonesia. The respondent submitted that the applicant has not physically been present in Australia at the time of purchase or shipping of the Honda cars or cornice adhesives.. The applicant’s evidence is that he relied on his wife having given instructions by telephone. He had little real knowledge of the activities of his business. In particular he had to check documents to recall who the name of the two companies to which the computer parts have been exported and to record banking details. The respondent referred the Tribunal to the decision of Deputy President Wright QC in Ngv Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 299 who said at !2;
“…However the Act does not contemplate an absentee entrepreneur directing operations from afar. Direct “hands – on” involvement within the Commonwealth of Australia is essential.”
It is submitted that the applicant’s representative’s contention that the cases should be ignored is incorrect. In addition, it is submitted that the intention of the granting of business skills visas, as indicated in the Second Reading Speech of the Minister introducing the Migration Amendment Bill (No 2) 1992 that introduced the new section 134 into the Act, supports the view that migrants who arrived in Australia on such visas would remain resident in Australia. Therefore the limited time that the applicant has spent in Australia is relevant and evidence that he has not participated on a senior level in a day-to-day management of the business.
·It was also implausible that the applicant spends an average of 33 hours per week on his business activities or to believe the applicant does not have any connection with his established business, RobiComp, in Indonesia. The respondent submitted that given the amount of time the applicant spends in Jakarta it was hard to believe that he has nothing to do with the business or that the limited number of exports and his limited hands-on involvement in the purchase and documentation of the exports since his arrival into Australia could take 33 hours per week. When the applicant arrived in 1999 there was no business activity for nearly two years. All business activity occurred between 2001 and up until the date of cancellation.
·In regard to genuine effort it was submitted that:
(a)at no time has the applicant been continually in Australia for a period of six months;
(b)the applicant has not provided a business plan, formal contracts, or written evidence of consultation with business advisers
(c)there is no evidence to suggest he has conducted research and little evidence of turnover
Whilst acknowledging there has been some effort, it is genuine effort that is required, that is genuine business activities and not just business activities to satisfy the criteria of the visa.
·In relation to the secondary visa holders the Tribunal was referred to Man Ki Kimv Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481 that discusses the meaning of extreme hardship. On the basis of that case it was submitted that whilst it will be difficult for the children to re-establish their lives in Indonesia, the difficulties and the suffering they may experience does not equate to extreme hardship in accordance with the way the legislation has been interpreted. There is no evidence about the stress that the applicant’s wife would face. In any event even if there was evidence of such stress that does not necessarily equate to extreme hardship. In conclusion it is submitted that it has not been established that there will be extreme hardship, it has just been asserted.
60. In response Mr Chong submitted that whilst the applicant was not physically present in the country at the material time of actually exporting the goods he had done all the groundwork.
CONSIDERATION AND DECISIONS
61. In reaching its decision the Tribunal took into account the documentary and oral evidence as well as the submissions made at the hearing. The first issue for the Tribunal to consider is whether it should exercise the discretion to cancel the applicant’s visa because he has not obtained a substantial ownership in an eligible business in Australia, or is not actively participating in the day-to-day management of the business. The Tribunal however must not cancel the visa if the applicant has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia and intends to continue to make such genuine efforts.
62. The applicant and his wife are the sole owners of Jimmy Corporation Pty Ltd, and it is conceded by the respondent that the applicant has a substantial ownership in that business being a 50% shareholding. The respondent submits that it is not however an “eligible business” within the meaning of s134 of the Act and nor has the applicant satisfied section 134(1)(b) and (c) of the Act. There are a number of cases that provide guidance. The Tribunal notes that in conducting its review and reaching its decision, the primary focus is whether the applicant satisfied the requirements of the Act at the time of cancellation. What occurred however after the date of cancellation may be relevant to adequately addressing that matter ( Wong v Minister for Immigration and Multicultural Affairs [2002] AATA 54; Lau v Minister for Immigration and Multicultural Affairs [200] AATA 703 ). Cases such as Hope v Bathurst City Council (1980) 144 CLR 1 provide guidance as to the interpretation of the term ‘business”. Hope (supra) is authority that carrying on a business should be understood as activity undertaken on a continuous and repetitive basis for the purpose of profit. The Tribunal notes also that the business does not have to reach a threshold of size or turnover to qualify. The meaning of an “eligible business” is outlined in s134 (10) of the Act and to qualify it must meet at least one of the criteria.
HONDA CARS
63. In regard to the export of Honda cars the Tribunal notes that all were sold to friends and there is no documentation as to what, if any profit was made. It is in any event no longer profitable and the applicant has ceased this activity. The export did not satisfy section 134(10)(a) of the Act because these were transactions between friends. It is not in dispute that the Hondas were fully imported and so their export does not result in the export of Australian goods (section 134(10)(c)). Section 134(10)(d) and (e) are not satisfied because the applicant was not involved in the production of goods or the provision of services that would otherwise be imported into Australia or the introduction of new or improved technology to Australia. As to section 134(10) (b) and (f) the Tribunal does not accept that the export of Hondas can reasonably be said to have satisfied those criteria in any meaningful way being three isolated incidents. The impact on activity in Australia could only be described as minimal.
DATE PALMS AND CORNICE ADHESIVE
64. The export of cornice adhesive and date palms occurred on two and three occasions respectively. The criteria in section 134(10)(d) and (e) are not relevant. As these activities occurred on so few occasions the Tribunal does not believe they can reasonably be said to have satisfied sections 134(10) (a) (b) and (f) of the Act their impact being so minimal. The Tribunal accepts that they were the export of Australian goods. However these exports have ceased and there is no evidence, other than the applicant’s assertion he may reconsider exporting palms again, of activities to recommence export. The Tribunal does not accept that the Act contemplated that export on such a small scale, for such minimal profit and on so few occasions can satisfy the criteria.
Computer Parts
65. All export of computer accessories have occurred since the decision to cancel the applicant’s visa on 19 August 2002. Whilst activity after the date of cancellation may, in effect, be the coming to fruition of pre-cancellation activity this is not so in this case. The pre-cancellation transaction May 2002 was an import and sale within Australia. None of the parties to that transaction were the same as those involved in the subsequent exports. The import cannot be said to have assisted the subsequent exports as the applicant’s own evidence is that he has extensive experience and contacts in the Asian computer market.
66. On the applicant’s behalf it has been asserted that the exports of the Honda cars, palm trees, cornice adhesive and computer accessories should not be viewed in isolation, but as on a continuum. It was submitted that the applicant was an exporter responding to market demand and prepared to export any goods to any market that could be found. The Tribunal has already determined that the export of computer accessories is not relevant to its considerations. The Tribunal also does not accept that the eight transactions involving palm trees, cornice adhesive and Honda cars forms such a continuum. Notwithstanding that they have made a small profit, even taken together they can not be described as continuous and repetitive (see Hope supra) . None have proved to be viable and at best they could be described as ad hoc. Accordingly the Tribunal is not satisfied that Jimmy Corporation Pty Ltd is an eligible business and so the basis for cancellation of the applicant’s visa under section 134(1)(a) of the Act is met.
67. Even if the Tribunal was satisfied that the applicant had obtained a substantial ownership in an eligible business, the applicant must demonstrate in order to avoid the prospect of visa cancellation, that he utilises his skills “in actively participating at a senior level in the day- to -day management of the business” (section 134(1)(b)) In considering this subsection the Tribunal noted the cases it had been referred to including Tang v Minister for immigration and Multicultural Affairs [2000] AATA 997; Huang v Minister for Immigration and Multicultural Affairs [2002] AATA 656 and Ng (supra).
68. The applicant has spent 255 days in Australia up to the date of cancellation of his visa. The evidence is that the applicant spends much of his time overseas looking for buyers. Having secured orders he returns to Australia to source the products required and oversee their export. This has resulted in the export of three Honda cars that had have been sold to his friends, three exports of palm trees and two exports of cornice adhesive. There is little documented evidence of any activity other than the purchase and the subsequent shipping of these goods and the applicant himself has agreed that much of this was undertaken by his wife while he was overseas as well as the final dispatch of the goods. Whilst the applicant claims that the bulk of his time is spent travelling and attempting to make business contacts, no evidence was provided to the Tribunal of meetings or ongoing negotiations outlining his movements or activities.
69. In evidence the applicant indicated that he did not even know, without prompting, the name of the purchasers of the two computer accessory shipments made post the visa cancellations, which he now describes as the main focus of his business. The applicant was uncertain of details in regard to profits and at times referred to his wife. The Tribunal does not accept the applicant’s submission that the applicant’s position is entirely distinguishable from the decided cases. Whilst the Act does not prescribe any specific period that the visa holder is required to be in Australia, participation at a senior level in the day- to- day management would by necessity require his presence in Australia for significant periods to have a hands on involvement and understanding of the affairs of the business. The applicant did not demonstrate a detailed knowledge of even the limited transactions that had occurred. Even with the use of e-mails and mobile phones the applicant has failed to demonstrate detailed knowledge of the few transactions that have occurred. Accordingly the Tribunal concludes that the applicant has not been actively participating at a senior level in the day to day management of the business.
70. There is one further matter the Tribunal needs to consider in regard to the applicant and that is that his visa must not be cancelled if he has made genuine efforts to obtain a substantial ownership interest and eligible business in Australia and intends to continue to make such genuine efforts (s134(2) of the Act). Matters that may be taken into account are set out in section 134(10) (3). Guidance may also be sought from the MSI.
71. It was submitted on behalf of the applicant that the export of computer accessories was the result of the applicant’s efforts prior to the cancellation of the visa to get a good price and so indicative of genuine effort. The Tribunal found the applicant’s evidence difficult to reconcile. On the one hand in his statement he says that the import of computer products was “…for the purposes of gaining a “foot in” and an entry into the Asian computer and technology industry” (Exhibit A2 para 24). In oral evidence he conceded that he already has such contacts. Mr Low’s evidence was only that he offered some possible leads re competitive computer parts, which he understood did not eventuate. As with the export of the other goods there was no evidence put to the Tribunal of business plans or proposals; ongoing and formal contracts with suppliers; research or written evidence of detailed consultations with business advisers, other than looking in the telephone book, contacting friends and brief discussion with Mr Low and at no time had the applicant spent a 6 month period in Australia. The applicant’s assertion as to how he has spent his time whilst overseas is not supported by any documented evidence. All transactions were through the family trust not the company. The evidence and the documentation before the Tribunal supports the conclusion that turnover was, until the computer accessories were exported, small, as were profits and they continue to be minimal.
72. The Tribunal is therefore not satisfied on the basis of the evidence before it that the applicant has acquired an interest in an “eligible business in Australia”.. Nor is it satisfied that the applicant has utilised his skills in actively participating at a senior level in the day- to- day management of an eligible business or that he has made genuine attempts to do those things and intends to continue to make such genuine efforts.
APPLICANT’S FAMILY
73. The next issue the Tribunal must determine is whether the cancellation of the secondary visas, which is the consequence of the affirming of the decision to cancel the applicant’s visa, would result in ‘extreme hardship’.. Section 134(5) of the Act provides that a business visa must not be cancelled if it would result in extreme hardship for the secondary visa holders. Both the applicant and the respondent’s representatives have referred the Tribunal to a number of important cases that provide guidance.
74. The meaning of the words ‘extreme hardship’ was considered by the Federal Court in Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481 at 487:
“… it is in my opinion, important to approach the phrase “extreme hardship” in a broad way. Clearly it imports a high degree, perhaps a very high degree of hardship, but it must be applied in the context of “the facts” of the particular case. “Hardship” is in itself a relative term. What may be a “hardship” to a sensitive person or one in a particularly vulnerable situation, may be no great burden at all to a person of more stoical disposition or in a more prefect situation. Similarly, the word “extreme” must be evaluated against the facts of the particular case. Such an evaluation cannot consistently with the duties imposed on the decision-make by the Act, be approached in dismissive or perfunctory fashion. A full and proper consideration of the person allegedly suffering the hardship or prejudice must be undertaken…
In addition to what I have already said I consider that the application of the word “extreme” must also be approached with caution. Obviously there are varying degrees of hardship which may be suffered by any particular individual. “trivial”, “minor”, “moderate” are adjectives which bring to mine as conveying such varying degrees. Clearly enough “extreme” hardship must find itself at the very high end of the scale. This does not mean, however, that in any given case, “extreme hardship” means, in effect, a particular point in a continuum of hardship. It obviously connotes an area within which an ascertainable burden of hardship may fall and properly merit the description “extreme”.. Within that area there may be varying degrees of burden on e less than another, but each meriting the description…”
75. In Siewei Wang v Minister for Immigration and Multicultural Affairs [2000] AATA 961 it was noted that ‘hardship’ must be judged subjectively (paragraph 28). Hardship however it was stated “…involves more than inconvenience or detriment. Affectation must be to a considerable degree before it can properly be called hardship” (paragraph 29). The Tribunal also considered the meaning of the word ‘extreme’ for the purposes of the Act and said;
“…The meaning of words will always be taken from the context in which they appear. However, the deliberate choice of the word “extreme” by Parliament, requires one to understand what was meant by the use of that particular degree of hardship. There are meanings of the word “extreme”… Some of the more helpful suggestions are “of a character or kind farthest removed from the ordinary or average”, “utmost or exceedingly great in degree”, “farthest, utmost or very far in any direction”, “going to the utmost lengths or exceeding the bounds of moderation:, “the utmost or highest degree or a very high degree. The use of the word “extreme” can be contrasted with the use of the word “undue” found in Ministerial Guidelines relating to hardship associated with deportation. In order to enliven the prohibition against a Minister cancelling another person’s business visa under subsection (4) there must be shown to be not only hardship and nor only undue hardship, but extreme hardship…”
76. The hardship must be a consequence of the cancellation of the visa beyond the mere fact of leaving Australia which in all cases could be expected to result in some period of upheaval and readjustment The hardship must be of an extreme kind and hardship that is the result of the cancellation. The circumstances of the Applicant’s family are as follows;
77. Following the grant of the secondary visas in 1999 the applicant’s wife and older son, Andrew spent some varying periods in Australia whilst Andrew learnt English and undertook studies to enable him to enter Year 9 full time from the commencement of the school year in 2000. Until the end of 2000 the two other children, Albert and Ashley continued to attend school in Indonesia. The applicant’s wife and Albert and Ashley moved to Australia permanently to commence the 2001 school year. Albert and Ashley will both complete their third year of schooling in Australia at the end of 2003. All three children have settled well into Australia and are happy and the Applicant’s wife say wish to remain in Australia. The applicant’s family have returned to Indonesia on a regular basis, on average twice per year. They spent one and a half months in Indonesia over the 2002/2003 Christmas holidays. The oldest children speak and write Indonesian. The youngest child speaks Indonesian but has limited ability to write the language having completed only two years of schooling in Indonesia.
78. The applicant’s wife described the hardship the children would face. They included the difficulty of readjusting to a different education system, leaving friends and having to make new ones, and leaving a safe and happy lifestyle that they enjoy. For herself she identified the shame of returning when all her family and friends knew that they had moved to Australia and wished to remain there, loss of good friends, fear of the more violent and unsafe aspects of life in Indonesia and the fact that they had sold their home in Indonesia.
79. The consequence of the cancellation of the secondary visas does not constitute “extreme hardship” as envisaged by the Act and supported by the cases referred to. There is no doubt that the relocation by the applicant’s family to their former home will be difficult and the applicant’s wife in her evidence has made it clear that she does not wish to return. The understandable hardship in leaving Australia under these circumstances is contemplated by the legislation and is in fact an unavoidable result of the cancellation of the secondary visas. There will be difficulties in readjusting and leaving friends and an education system that they are now familiar with. This will be particularly so for Ashley who has spent her first three years of schooling in Australia. It will be challenging but it cannot be characterised as “extreme hardship” There is no evidence that the children face any unusual educational or social difficulties. They have shown already their ability to settle into Australia and the educational system here. The evidence is that they have continued to maintain ties with Indonesia and their family there and it could be expected that they would rekindle old friendships and make new ones.
80. The applicant’s wife has raised the issue that their home has been sold. The applicant’s evidence to the Tribunal has been that he has been supplementing the family’s income to a very significant extent each month from funds held in Singapore. A property has just recently been purchased in Applecross. There is no reason why the home recently purchased here or funds still in Singapore could not be used to buy a home in Jakarta. Whilst the applicant’s wife has friends here, family ties have been maintained given the recent attendance at a family wedding in May 2002 and an extended stay of one and a half months with her husband’s family at Christmas time. The Tribunal accepts the concerns that Australia is a safer environment. This is no doubt a concern to all Indonesians however there is no evidence that this is particular to the applicant and his family.
81. The Tribunal therefore affirms the decisions to cancel the applicant and the applicant’s family’s visas.
I certify that the 81 preceding paragraphs are a true copy of the reasons for the decision herein of Ms L Savage Davis, Member
Signed: ............(sgd V Wong)............................................
AssociateDate/s of Hearing 4-5 September 2003
Date of Decision 20 November 2003
Counsel for the Applicant Mr J Chong
Counsel for the Respondent Ms L McPherson
Solicitor for the Respondent Australian Government Solicitor
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