Susantyo and Ors and Minister for Immigration and Multicultural a Nd Indigenous Affairs

[2004] AATA 136

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 136

ADMINISTRATIVE APPEALS TRIBUNAL      )           No   N2003/1164

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Gunawan Susantyo

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

ADMINISTRATIVE APPEALS TRIBUNAL      )           No   N2003/1165

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Mariza Tjong

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

ADMINISTRATIVE APPEALS TRIBUNAL      )           No   N2003/1166

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Celine Putri Susantyo

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

ADMINISTRATIVE APPEALS TRIBUNAL      )           No   N2003/1167

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Chanel Susantyo

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

ADMINISTRATIVE APPEALS TRIBUNAL      )           No   N2003/1168

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Janice Susantyo

Applicant

And Minister for Immigration and Multicultural and Indigenous Affairs

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date12 February 2004

PlaceSydney

Decision The Tribunal affirms the decisions under review.

..............................................

RP Handley
  Deputy President 

CATCHWORDS

IMMIGRATION – Business Skills Visa – cancellation of business skills visa – cancellation of secondary business skills visas - whether principal visa holder has a genuine involvement in business – whether business is a “eligible business” in Australia – whether principal visa holder has “utilised his skills” in that business – examination of the principal visa holder’s business activities in Australia and Indonesia – examination of the length of time spent in Australia - whether there will be hardship to the Applicants and their three children if visas are cancelled – whether Australian born child will suffer hardship if parents’ visas are cancelled – held the Respondent has grounds to cancel the primary visa holder’s business visa – held that the secondary visa holder would not suffer extreme hardship by reason of the cancellation of her visa – decisions of the Respondent are affirmed.

Migration Act 1958 ss 134(1), 134(2), 134(3), 134(4), 134(5), 134(6), 134(10), 136
Freeman v The Secretary, Department of Social Security (1988) 19 FCR 342

Hope v Bathurst City Council (1980) 141 CLR 1

Re Griffiths and Migration Agents Registration Authority [2001] AATA 240

Re Huang and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 656

Re Ng and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 299

Re Ong and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 178

REASONS FOR DECISION

12 February 2004 Mr RP Handley, Deputy President           

Summary

1.      A delegate of the Minister cancelled Gunawan Susantyo’s business visa on the grounds that he does not have a substantial ownership interest in an eligible business in Australia; he does not utilise his skills in participating in that business;  and, that he does not intend to make a genuine effort to continue that business in the future.    The delegate also cancelled the secondary business skills visas held by Mr Susantyo’s spouse, Mariza Tjong, and their children, Chanel Putra Susantyo, Celine Putra Susantyo and Janice Putra Susantyo.  These are the decisions to be reviewed by the Tribunal.

Background

2.      Mr Susantyo, who was born in Indonesia on 28 August 1965, and is aged 38, and his wife, Mariza Tjong, who was born on 24 February 1962, and is aged 41, have four children:  Celine Susantyo who is aged 11, Janice Susantyo who is aged 10, Chanel Susantyo who is aged six, and Jason Susantyo, who was born on 11 October 2001 in Australia and is aged two and is not a family member under Mr Susantyo’s business visa (T p141).   Mr Susantyo is an architect who works in the building industry in Indonesia.

3.      On 26 January 2000, Mr Susantyo was granted a business skills (subclass 127) visa and a secondary business visa was granted to his wife covering their three older children.  The visas were valid for three years from the date of entry into Australia.  Mr Susantyo entered Australia on 1 April 2000 (T p21).  By letter dated 23 May 2002, Mr Susantyo was asked to complete a “Survey of Business Skills Migrant – 24 Months (Form 1010)” (T3 p30).     The form and supporting documents were forwarded to the Department by Mr Susantyo’s then migration consultant on 6 July 2002 (T p31).  By letter dated 25 October 2002, the Department asked Mr Susantyo for further documentary evidence to verify the nature of his business and his involvement in that business (T5 p70).   On 11 December 2002, Mr Susantyo’s then migration agent provided the Department with financial statements, bank statements, and invoices and receipts relating to the business (T6 p72).

4. On 19 February 2003, the Department notified Mr Susantyo of its intention to cancel his business visa under s 134 of the Migration Act 1958 (“the Act”) for failure to meet the requirements of the visa.  Mr Susantyo was invited to respond by 27 March 2003 (T p113).    By letter dated 19 February 2003, the Department also notified Mrs Tjong of its intention to cancel her business visa and those of her three children.  She too was invited to comment by 27 March 2003 (T p118).   Mr Susantyo’s then migration agent responded by letter of 12 March 2003 (T10 p124). This response stated that the family would suffer extreme hardship if the visas were cancelled and may also psychologically effect their son, Jason, who is an Australian citizen (T p126).

5.      On 20 June 2003, a delegate of the Respondent decided to cancel Mr Susantyo’s business visa on the grounds that Mr Susantyo had not demonstrated that his involvement in the company, C & J Susantyo Trading Pty Ltd, was for profit;  the company was not an eligible business as it was not registered for GST; he did not demonstrate that he was utilising his skills in actively participating at a senior level in the day to day running of the business, nor did he hold a substantial ownership interest in the business; and that as at 20 June 2003, Mr Susantyo had only resided in Australia for 79 days since the issue of the visa (T pp176-186).  On the same day, the business visa of Ms Tjong and her children was also cancelled.   On 21 July 2003, Mr Susantyo and Ms Tjong lodged applications for a review of these decisions by the Tribunal.  This decision also relates to the applications of the three children:  Celine – file No N2003/1166; Chanel – file No N2003/1167 and Janice – file No N2003/1168.

6. At the hearing, the Applicants were represented by Alim Lim, Migration Agent, of AA Business Talks Pty Ltd, and the Respondent was represented by Greg Peek, Solicitor, of the Australian Government Solicitor’s office. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”) together with the evidence tendered by the parties at the hearing. Mr Susantyo and Ms Tjong gave evidence in person.

Applicable Legislation

7. Section 134 of the Act empowers the Minister to cancel a business visa in certain circumstances. The relevant provisions in Mr Susantyo’s case are as follows:

134.     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).

8. Section 134(10) of the Act includes the following definitions:

"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.

"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.

9. In the case of Ms Tjong and the children, ss 134(4), (5) and (6) are relevant:

(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.

(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.

(6) The Minister is taken not to have cancelled a person's business visa under subsection (4) if the Administrative Appeals Tribunal has set aside the decision of the Minister to cancel the business visa of the relevant person to whom paragraph (4)(a) applied.

Evidence

10.     Mr Susantyo and Ms Tjong are architects who own and operate a design and residential building company in Jakarta under the name “Studio Design”..  They work from an office in their home, employing approximately 17 people in design and administration and up to 50 people on site on a casual basis in construction work.  They established the business in 1987.  Mr Susantyo described it as a successful business affording him and his wife and family a good standard of living.

11.     In 1997/1998, riots occurred in Indonesia and Mr Susantyo and Ms Tjong became concerned for their future and that of their family.  Ms Tjong’s sister had been living in Australia for approximately five years and her parents had recently migrated there, settling in the Sydney suburb of Hurstville.  Mr Susantyo and Ms Tjong decided to try and migrate to Australia to join them.  Mr Susantyo found that he was unable to work as an architect in Australia because his qualifications are not recognised for admission to the profession in Australia without further study.  He and Ms Tjong therefore decided to establish a business in Australia drawing on their business experience in Indonesia, as a “bridge” to coming to Australia, bearing in mind that eventually they would have to leave their business in Indonesia.

12.     Mr Susantyo and Ms Tjong obtained advice from a migration agent and Mr Susantyo applied for a business visa which was granted on 26 January 2000.  Mr Susantyo and Ms Tjong and their then three children visited Australia for the first time, arriving on 1 April 2000.  They stayed for nine days and liked Australia, the climate and the way of life.   During that time, they asked a friend about Australian made building materials suitable for the Indonesian market and visited the Sydney Building Information Centre and checked the Yellow Pages.  On returning home to Indonesia, Mr Susantyo sent faxes or emails to a number of Australian building products manufacturers seeking further information to ascertain whether those products would be competitive on the Indonesian market if exported from Australia.  However, he did not keep copies of the documents which would have been disposed of at the end of the financial year.  Mr Susantyo agreed that the earliest date on the copies of the letters of inquiry he had provided to the Department were from January 2002.

13.     During their nine days in Australia, Mr Susantyo and Ms Tjong also looked at property and decided to purchase a two bedroom apartment at Haymarket in the city of Sydney for approximately $600,000.  This comprised approximately $300,000 of Mr Susantyo’s and Ms Tjong’s money together with a loan of approximately $300,000 from the HSBC Bank.  Settlement of the purchase took place in October 2000.  Mr Susantyo described the apartment as an “investment property” – it is let, although Ms Tjong said they had plans to live there in the longer term.

14.     Mr Susantyo and Ms Tjong and their family did not visit Australia again until June 2001, when they spent two weeks here (17 June 2001 to 2 July 2001).  On such visits, they stay either with Ms Tjong’s sister and her family, or with her sister-in-law who also lives in Australia, or in a hotel.  Mr Susantyo and Ms Tjong were introduced by her parents to a solicitor who registered a company on their behalf, C & J Susantyo Trading Pty Ltd, the date of registration being 3 July 2001.  The solicitor also advised them on the taxation and regulatory regime in Australia.  

15.     Mr Susantyo said the Indonesian economy was chaotic in the period immediately following his first visit to Australia in April 2000.  He was not able to find buyers for any of the Australian building products identified during his first visit.  He sought to use the network of customers and suppliers established through their business in Indonesia over a number of years.  A lot of cheaper products are imported from China; other products from Italy and Germany.  What he needed to identify was a unique Australian product which could not be obtained elsewhere and to become the sole agent for the supply of that product in Indonesia.

16.     Mr Susantyo said during this visit to Australia in June 2001, he continued to search for suitable building products for export to Indonesia.  He went to visit a paint factory, a particle board factory and warehouses.  He and Ms Tjong also looked for land suitable for them to build a house, but without success.

17.     Also at this time, Ms Tjong was pregnant.  After their first visit to Australia in April 2000, she continued to work full-time in their Indonesian business with the assistance of a nurse and Mr Susantyo’s mother in the house helping to care for their three children.  In June 2001, Ms Tjong was nearly 40 and she said her pregnancy was considered “high risk” because she had previously had problems with the delivery of her third child.  She decided to have her baby in Australia because of what she said are better medical facilities.

18.     Ms Tjong therefore came to Australia on 21 August 2001 to stay with her sister in Hurstville for the period prior to the baby’s birth.  Mr Susantyo appears to have also come to Australia to be with her, arriving on 29 September 2001 and staying until 21 October 2001.  Ms Tjong gave birth to their son, Jason, on 11 October 2001 at the Royal Hospital for Women, Randwick, and returned to Indonesia on 12 November 2001.  Ms Tjong applied for an Australian passport for Jason rather than an Indonesian passport because she and Mr Susantyo considered this was better for Jason’s future – in particular, in terms of his education, and they hoped to live in Australia in the longer term.  Ms Tjong said this decision was not based on advice from any particular person and she made the application for the passport herself.

19.     Both Mr Susantyo and Ms Tjong said that to date they have experienced no problems with Jason living in Indonesia arising from his holding an Australian passport.  However, his temporary residence visa has to be renewed and, because he does not hold Indonesian citizenship, he will probably not be able to attend an Indonesian school but will have to attend an international school, which will be expensive.  They did not fully consider the implications of Jason applying for an Australian passport at the time and, even now, Ms Tjong said they have not made specific inquiries of the Indonesian authorities.

20.     Mr Susantyo said, by 2002, the Indonesian economy had improved and, in October 2002, he exported some titanium oxide – a type of paint – to Indonesia.  The whole consignment was delivered directly to a single purchaser in Indonesia.  The purchaser paid C & J Susantyo Trading on the agreement being signed (on 2 October 2002 (T p73)), although shipment did not take place until 25 October 2002.  Mr Susantyo did not receive any repeat orders.  He speculated that the Indonesian purchaser may have placed later orders directly with the Australian supplier.  Mr Susantyo said this was his first export transaction and he had very little understanding of the process.  He had the assistance of Asia Pacific Spec. Chemicals Limited in making the necessary arrangements (T p81).

21.     In cross-examination, Mr Susantyo agreed that while the registered office for C & J Susantyo Trading is in Australia, it has a trading address in Jakarta which is the same as that of his and his wife’s Indonesian company.  However, he denied that C & J Susantyo Trading’s transactions involved importing into Indonesia from Australia rather than exporting from Australia to Indonesia.  Mr Susantyo said the financing of the purchase of the consignments of sandstone slabs from Gosford Quarries has been through his private back account, financed from his and his wife’s private funds, and not from the funds of their Indonesian company.

22.     Mr Susantyo said C & J Susantyo Trading has now exported four consignments of sandstone slabs purchased from Gosford Quarries (invoices: G28266 – 6 March 2003; G28458 – 31 March 2003; G28459 – 7 April 2003; G28906 – 18 July 2003), at a cost of between $15,000 and $25,000 per consignment.   There has been no consignment since July 2003 because Gosford Quarries have been unable to meet the demand for large sandstone slabs.  Mr Susantyo said he has been able to use his network of contacts in the building industry in Indonesia to sell the consignments.  Such good quality materials are in demand in Indonesia at the high end of the residential building market for use in what he described as “elite” houses.

23.     This sandstone product is not available from other countries and, in the longer run, Mr Susantyo hopes that C & J Susantyo Trading will become the sole agent for the supply of Australian sandstone in Indonesia.  He is, at this stage, concentrating on establishing trustworthy relationships with customers. This has meant sacrificing some profit to establish a pricing structure and ensure good service.  Mr Susantyo was able to sell the consignments of sandstone as soon as they arrived in Indonesia.  The problem, to date, has been lack of supply of larger slabs. Other Australian suppliers are not able to produce large enough sandstone slabs of a high enough quality.  In the future, it may be possible to purchase smaller sandstone slabs of appropriate quality from a wider range of Australian suppliers with a view to C & J Susantyo Trading marketing these under its own brand name.  Mr Susantyo is currently exploring the supply of smaller sandstone slabs with his Indonesian customers. 

24.     Mr Susantyo said that, to date, the same Indonesian company (CV Primajasa Bahari – A3 fax p12) has purchased all the sandstone.  Usually, the consignments are delivered to Mr Susantyo’s and Ms Tjong’s company in Indonesia, who collect the consignment from the port and take it to their warehouse before the consignment is sold.  However, on one occasion, a consignment was delivered directly to the purchaser when Mr Susantyo was away overseas.  

25.     Mr Susantyo said that in 2002/2003, C & J Susantyo Trading exported goods from Australia worth over $100,000.  The company is now registered for the payment of GST.   Although Ms Tjong is also a shareholder and director of the company, Mr Susantyo has been entirely responsible for its day to day management.  Mr Susantyo said that in the morning in Indonesia, he spends a lot of time, for example, faxing suppliers in Australia.  In the afternoon, he visits retailers.

Consideration of the Law and Findings

26.     The Tribunal notes by way of preliminary observation that it should have regard to all relevant evidence to enable the making of findings of fact in relation to the cancellation of Mr Susantyo’s and Ms Tjong’s and their three children’s visas as at the date of the decision, that is 20 June 2003: Freeman v The Secretary, Department of Social Security (1988) 19 FCR 342; Re Griffiths and MigrationAgents RegistrationAuthority [2001] AATA 240.

27. The decision to cancel Mr Susantyo’s business skills visa was made pursuant to s 134(1) of the Act on the grounds that (T p179):

(a)Mr Susantyo had not obtained a substantial ownership interest in an eligible business in Australia; or

(b)that he had not utilised his skills in actively participating at a senior level in the day-to-day management of that business; or

(c)that he did not continue to:

(i)hold a substantial interest in; and

(ii)utilise his skills in actively participating in the day-to-day management of; an eligible business in Australia.

The terms “ownership interest” and “eligible business” are defined in s 134(10), set out above.

28. Section 134(2) provides that the Minister must not cancel a business visa under s 134(1) if the Minister is satisfied that the person:

(a)has made a genuine effort to obtain a substantial ownership 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.

When considering whether a person has made the genuine effort referred to in subsection (2), the Minister may take into account the matters set out in subsection (3), set out above.

29. The first issue for the Tribunal to determine is whether or not Mr Susantyo made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia. Based on the documentary evidence in the T documents, the Tribunal finds that on 3 July 2001, Mr Susantyo registered a proprietary limited company in Australia – C & J Susantyo Trading Pty Ltd (T p82). Mr Susantyo’s evidence is, essentially, that this was a corporate structure to facilitate his aim of exporting Australian goods to Indonesia. Mr Susantyo owns 90 of the 100 issued shares and Ms Tjong owns the other 10 shares. Mr Susantyo and Ms Tjong are listed as the two directors of the company.

30.     C & J Susantyo Trading has submitted financial statements for the financial years ending 30 June 2002 and 30 June 2003 and is now registered for GST.  Mr Susantyo supplied a copy of the company’s Business Activity Statement for the period July to September 2003 (A3).

31.     C & J Susantyo Trading has now engaged in five transactions involving the shipment of goods from Australia to Indonesia: a shipment of titanium tronox – according to Mr Susantyo a type of paint – purchased for $10,140 plus freight (T p77) and sold on for $11,400 (A3); and four shipments of sandstone slabs (invoice numbers G28266 – 6 March 2003; G28458 – 31 March 2003; G28459 – 7 April 2003; and G28906 – 18 July 2003) costing Mr Susantyo $26,354.94 (including GST), $23,467.39 (not including GST), US$14,274.50 and US$16,481.40 respectively.  The Tribunal notes that the last transaction, on 18 July 2003, took place after the decision was made to cancel the visas on 20 June 2003.  Thus, by the date of the decision, C & J Susantyo Trading had shipped goods from Australia to Indonesia purchased for approximately $90,500, with further goods purchased for approximately $23,500 shipped a few weeks later. There have been no further shipments since then because, according to Mr Susantyo, of a lack of capacity on the part of the sandstone supplier, Gosford Quarries. 

32.     Mr Susantyo made five visits to Australia prior to the cancellation of his visa, totalling 79 days.   The longest visit – from 14 December 2002 to 5 January 2003 – was over the Christmas/New Year period in 2002/2003.  Two of the other visits, from 29 September 2001 to 21 October 2001 and from 5 November 2001 to 12 November 2001 were around the time that Ms Tjong gave birth in Australia to their son Jason on 11 October 2001. Ms Tjong returned to Indonesia with Mr Susantyo on 12 November 2001.

33.     Mr Susantyo’s evidence is that during these visits, he visited the Sydney Building Information Service, paint suppliers and other suppliers of building materials, examined the Yellow Pages and otherwise sought to identify suitable Australian building products for possible export to Indonesia and their suppliers.  He and Ms Tjong also identified an apartment which they purchased and looked unsuccessfully for suitable residential land on which to build a house.  Settlement of the purchase of the apartment – a two bedroom apartment at Haymarket – took place in October 2000 (T p75).  The purchase price was, according to Mr Susantyo, approximately $600,000, of which approximately $300,000 was borrowed from the HSBC Bank, with the balance being provided by Mr Susantyo and Ms Tjong.  Mr Susantyo described the property as an “investment property” although Ms Tjong said they had plans to live there in the longer term.

34.     Mr Susantyo’s evidence is that having sought to identify suitable Australian building products for possible export to Indonesia and their suppliers, he then followed this up with further inquiries of the suppliers from his Indonesian company’s premises in Jakarta. He also used his network of customers and suppliers in Indonesia to try and identify buyers for such goods in Indonesia.  He said that the whole of the consignment of paint was sold to a single Indonesian purchaser.  No repeat orders were received.  The four consignments of sandstone slabs appear to have been sold with ease, demand outstripping supply. Mr Susantyo said he is investigating the possibility of purchasing consignments of smaller sandstone slabs from a range of Australian suppliers and marketing these under a brand name.

35.     Mr Susantyo provided the Department with a Business Plan dated 15 January 2003 (T p103), projecting a turnover for 2002/2003 of $100,000, for 2003/204 of $200,000, for 2004/2005 of $300,000 etc. The Plan speaks of sourcing quality building products from Australia and of Mr Susantyo promoting and marketing these products in Indonesia utilising the experience and network of contacts he has established in his business there.  The Tribunal notes that the financial statements for C & J Susantyo Trading for 2002/2003 show a gross trading profit of $15,318.88 on sales of $122,458.19 (A2).  After deduction of expenses from ordinary activities, the company made a loss of $1,066.22.

36. There is no doubt that Mr Susantyo has a “substantial ownership interest”, as defined, in C & J Susantyo Trading. The question is whether that company is an “eligible business” as defined in s 134(10). The Respondent submits that five shipments to Indonesia are not sufficient to have resulted in “the export of Australian goods” as contemplated by paragraph (c) of the definition. Rather, the Respondent submits that these were in fact importations organised from Indonesia, where Mr Susantyo transacted his business, and that Mr Susantyo was not carrying on business in Australia in the sense that there be a commercial enterprise in the nature of a going concern:  Hope v Bathurst City Council (1980) 141 CLR 1.

37.     The Respondent referred the Tribunal to a number of recent Tribunal decisions concerning business visas that have considered the location of the relevant business activities.  For example, in ReNg and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 299, Deputy President Wright, at paragraph 31, following the decision in Re Huang and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 656, cited ReOng and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 178, at paragraph 32, where Senior Member Allen said:

it is the business activities of the applicant in Australia that must be examined, not his business activities whilst he is residing overseas.

In Re Ng (supra), Deputy President Wright said, at paragraph 12:

This does not mean that the visa holder is confined to working within the geographical limits of Australia.  Obviously overseas trips may be a vitally important part of fostering and expanding the business.  However the Act does not contemplate an absentee entrepreneur directing operations from afar. Direct “hands on” involvement within the Commonwealth of Australia is essential.

38.     The Tribunal finds that Mr Susantyo’s business activities are located principally in Jakarta.  Arrangements for C & J Susantyo Trading’s purchase of five consignments of building products were made from Jakarta.  While Mr Susantyo’s evidence is that he plans to purchase specialist building products in Australia with a view to establishing a sole agency for the sale of those products in Indonesia, the Tribunal finds that the principal focus of his business activity will continue to be in Jakarta.  There is no evidence to indicate that he intends to move his principal place of business to Australia.  He and his wife have a successful residential building company in Jakarta which they intend to continue to operate.  The family continues to be based in Jakarta where the three older children go to school.

39. The Tribunal is therefore not satisfied that C & J Susantyo Trading is an “eligible business” as defined in s 134(10). Thus, the Tribunal is not satisfied that Mr Susantyo has obtained a substantial ownership interest in an eligible business in Australia (s 134(1)(a)). Moreover, the Tribunal is also not satisfied that Mr Susantyo has made “a genuine effort to obtain a substantial ownership interest” in such a business. The Tribunal had regard to the matters which the Minister may take into account pursuant to s 134(3), in particular the limited time Mr Susantyo has spent in Australia (s 134(3)(d)), the almost negligible assets transferred for use in the business (s 134(3)(c)), and the very limited business activity undertaken (s 134(3)(g)). With regard to assets, the Tribunal notes that the purchase of consignments of sandstone from Gosford Quarries has involved the use of Mr Susantyo’s and Ms Tjong’s personal funds. However, that money has been repaid on the sale of the sandstone. Apart from the use of such funds on a short term basis and what has been spent in registering a company and on the attendant costs of complying with regulatory requirements, there is no evidence of other financial outlays in the business. The apartment purchased by Mr Susantyo and Ms Tjong and now leased, is unrelated to the activities of the business.

40. The Tribunal concludes that the Respondent had grounds to cancel Mr Susantyo’s business visa pursuant to s 134(1) of the Act. Having so determined, the Tribunal must consider the second issue – whether, pursuant to s 134(4), the consequent cancellation of the visas held by members of Mr Susantyo’s family “would result in extreme hardship” to those persons (s 134(5)).

41. Mr Susantyo, Ms Tjong and their four children live in the family home in Jakarta. Mr Susantyo and Ms Tjong are co-owners of their Jakarta based residential building company. Their three older children go to school in Jakarta, have only spent short periods of time in Australia (T pp27-29), and there is no evidence of their having established significant ties here. Their youngest child, Jason, who is aged two, was born in Australia and is an Australian citizen. Mr Susantyo’s representative, Mr Lim, submitted that Jason would suffer hardship and his mother, Ms Tjong would suffer extreme hardship if her visa is cancelled. Jason holds an Australian passport and does not himself seem to be covered by s 134(4) and (5) since he is not a secondary business visa holder.

42.     Both Mr Susantyo and Ms Tjong gave evidence that they have not encountered any problems to date with Jason being an Australian citizen and living in Indonesia.  However, his temporary residence visa has to be renewed at intervals and, because he is not an Indonesian citizen, he may not be able to attend an Indonesian school but will, instead, have to attend an international school which will be expensive.  They have not yet made specific inquiries of the Indonesian authorities concerning his schooling.  The Respondent tendered country information concerning Indonesia’s nationality/citizenship laws (R1).  That information indicates that:

an Indonesian child who has foreign citizenship can live in Indonesia with his parents and have a document of permission of his temporary/permanent staying in Indonesia … the child… can regain his Indonesian citizenship after he turns 21 years of age by a naturalisation process.

No mention is made of schooling.

43.     The Tribunal is not satisfied that Jason will suffer any significant hardship as a result of the cancellation of the visas of his other family members. If he is not permitted to attend a Government school, it seems likely that his parents will, in any event, be able to afford to send him to an international school, and that he will not have to undertake his schooling in Australia.  In the longer term, he can apply for Indonesian citizenship.

44.     The Tribunal is also not satisfied that Ms Tjong would suffer extreme hardship by reason of the cancellation of her visa, either as a result of Jason’s Australian citizenship (which appears to have been a matter of choice for Mr Susantyo and Ms Tjong), or otherwise.  The Tribunal notes that Ms Tjong’s parents and her sister now live in Australia.  There is no evidence of there being anything to prevent them visiting each other.  Indeed, Ms Tjong’s visits to Australia over the past few years seem in many respects to have been family visits.

45.     Thus, the Tribunal concludes that cancellation of the visas of the secondary visa holders would not result in extreme hardship to those persons.  The decisions under review must therefore be affirmed.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President.

Signed:         .......................................................................................
  Associate

Date/s of Hearing  23 January 2004
Date of Decision                   12 February 2004
Representative for the Applicant               Mr A Lim, Migration Agent
Representative for the Respondent          Mr G Peek, Solicitor