Tan and Anor and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 808

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 808

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2003/31 & 32  

GENERAL ADMINISTRATIVE DIVISION		)
Re		ARDI TAN GITO WINARDI

Applicants

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr M J Allen

Date3 August 2004

PlacePerth

Decision The decisions made on 23 December 2002 by a delegate of the respondent to cancel the subclass 127 business skills visas held by the applicants are affirmed.

.............(sgd M J Allen)..........................

Member

CATCHWORDS

IMMIGRATION – cancellation of business skills visa – applicant has a substantial ownership interest in an Australian company – the company does not carry on an eligible business – applicant has made a genuine effort to obtain a substantial ownership interest in an eligible business – applicant has not made a genuine effort to be involved in the day to day senior management of an eligible business – applicant does not intend to continue to make genuine efforts – discretion not to cancel applicant’s visa not exercised in applicant’s favour – secondary visa holder would not suffer extreme hardship if visa cancelled – cancellation decisions affirmed

Migration Act 1958 ss 134, 135

Migration Series Instruction 133

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

Skoljarev v Australian Fisheries Management Authority (1995) 133 ALR 690

Re Yam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283

Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 31

REASONS FOR DECISION

3 August 2004 Mr M J Allen          

1.      On 23 December 2002 a delegate of the respondent made decisions to cancel the subclass 127 Business Skills visas held by Ms Tan, her husband Mr Winardi, and their son.  Ms Tan and Mr Winardi have applied for review of the decisions cancelling their visas but no application has been made on behalf of their son. 

2. At the hearing of the matter the applicants were represented by their solicitor, Mr Chong, and the respondent was represented by Mr Gerrard, a solicitor with the Australian Government Solicitor. The Tribunal received in evidence the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1 – T22) and documents tendered on behalf of the applicants (A1 – A3, and SB5 – SB24).  Included in Exhibit A3, which is a bundle of documents, are a number of folios containing handwritten notes made by Ms Tan and another person either wholly or substantially in the Indonesian language.  I was advised by Mr Chong that I should ignore those documents and I have done so.  Oral evidence was given at the hearing by both applicants with the assistance of an interpreter in the Indonesian language. 

Background

3.      In May 1999 Ms Tan as the primary applicant, Mr Winardi and their son were granted visas and the applicants first entered Australia under their visas in September 1999.

4.      In July 2001 Ms Tan was sent a 24-months survey form by the respondent’s department and in September 2001 Ms Tan returned the completed form with attached information.  In December 2001 the department sought further information regarding the business activities from Ms Tan, who responded in February 2002 with additional information. 

5. In August 2002 a notice of intention to cancel the visa was sent to both applicants and representations were made concerning that intention by the applicants in September 2002. However, in December 2002 a delegate made the decision to cancel Ms Tan’s visa under s 134(1) of the Migration Act 1958 (the Act) and that of Mr Winardi under s 134(4) of the Act.

Consideration

6.      A discretionary power to cancel Ms Tan’s visa would arise under s 134(1) of the Act if the delegate (or this Tribunal) is satisfied that she had not satisfied all of the requirements of that subsection. The first of such requirements is contained in s 134(1)(a), which requires the visa holder to have obtained “a substantial ownership interest in an eligible business in Australia”.

7. Apart from some activities that I was told by Mr Chong were not relied upon by the applicants, the business activities that Ms Tan relied upon to satisfy s 134(1)(a) were her involvement in two Australian companies, Smartline Enterprises Pty Ltd (“Smartline”) and Golden Trinity Group Pty Ltd (“Golden Trinity”). Smartline was a shelf company that Ms Tan and Mr Winardi became directors of on 5 June 2000, each holding 1 share in the company. Smartline became the trustee of a family trust established by the applicants and held their shareholding in Golden Trinity. It is the activities of Golden Trinity that are relied on by Ms Tan.

8.      Golden Trinity was incorporated on 17 May 2001.  On that day Mr Winardi was appointed a director and secretary of Golden Trinity and a Mr Rudy Jandto (Mr Rudy) was also appointed as a director.  On 30 May 2001 four other persons were appointed as directors of Golden Trinity, namely Mr Djohan, Mr Eddy, Mr Salim and Mr Permana.  On 5 October 2001 Ms Tan was appointed as a director.  According to T-documents page 155 and 157, on 30 July 2001 Golden Trinity had the following shareholders, each holding fully paid $1.00 shares:

·Mr Eddy – 41,000 shares

·Indo Pacific Pty Ltd – 123,000 shares

·Inter Arch Pty Ltd – 20,500 shares

·Rich King Investments Pty Ltd – 41,000 shares

·Mr Salim – 41,000 shares

·Smartline – 123,000 shares

·Mr Soetresno – 20,500 shares

Indo Pacific was a company associated with Mr Rudy, Rich King is associated with Mr Djohan and Inter Arch is associated with a Mr Irwan Lee.

9.      During May 2001 Mr Winardi and Mr Rudy entered into an agreement to purchase (in their own names or via their nominee) vacant land in Cannington and settlement on the transaction was concluded in June 2001 in the name of Golden Trinity.  The purchase price of the vacant land was $335,000.00.  By December 2001 development and building approval had been obtained from the local authority for the construction of ten home units and construction work commenced.  Although construction was not completed until about September 2002 the marketing of the home units commenced at the end of 2001 and by the time of cancellation nine of the ten home units had been sold.  According to the T-documents at page 218 the total cost of the development (land plus building costs plus various other expenses including borrowing costs) totalled approximately $1.3 million and the home units, when sold, realised approximately $1.9 million.

10. The respondent concedes that the 30% ownership interest of Ms Tan (together with that of Mr Winardi) in Golden Trinity via Smartline constituted a substantial ownership interest. The respondent contended, however, that Golden Trinity did not carry on an eligible business for the purposes of s 134(1)(a).

11.     Section 134(10) of the Act provides that an “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.”

12.     The respondent’s department has issued policy instructions concerning business visas known as “Migration Series Instruction 133” (“MSI 133”).  Paragraph 4.3.2 of MSI 133 refers to eligibility being related to “the achievement of stated objectives through the activities of the business, not directly to the size or scale of the business.”  Paragraph 4.3.3 states that the eligible business definition “… may be met by a business whose activities come within the definition although the business may be small.  There is no requirement in law for the activities to be on any particular scale; it is sufficient for the business to demonstrate that its activities have achieved one of the stated objectives.”  Such statements of opinion are not binding on me, but in my opinion they represent fairly the correct interpretation of s 134(10) in this context.

13.     Mr Chong for the applicant said that factors (b) and (f) from s 134(10) were relied on by Ms Tan in that the Cannington development would have created and maintained employment in Australia and would have increased commercial activity and competitiveness in the property development and associated sectors.  Because there was an intention for Golden Trinity to undertake future property developments such benefits would also accrue in the future. 

14.     In relation to the issue of intentions for Golden Trinity to undertake further property developments, Ms Tan gave evidence that some of the shareholders had taken their share of the profits of the Cannington development – but not all, including the applicants, had done so and it was her intention that Golden Trinity would undertake further developments.  I do not doubt her intentions in that regard, but in the absence of evidence from the other shareholders of Golden Trinity I am not satisfied that they all shared her intentions.  In that sense there must be considerable uncertainty about how Golden Trinity would operate in future (if at all) and whether or not it can still be said to be carrying on a business – although I am satisfied that it was at the time of the cancellation decision.

15.     In relation to whether or not that was an “eligible” business, there was no evidence adduced before me about the extent of any employment that may have been created or maintained, or any impact of the development of the Cannington property on the levels of commercial activity and competitiveness on any sector of the Australian economy.  There was evidence that the designer and builder of the units, Inter Arch, was a shareholder in Golden Trinity and that another shareholder, Mr Soetresno, was retained by Golden Trinity as the project manager and as the real estate agent for the sale of the dwellings.  In the absence of evidence about the economic consequences of this particular property development, I have considerable difficulty in accepting that an isolated property development transaction involving construction costs of approximately $1 million would have the kind of economic consequences that are contemplated by the requirements for an eligible business in s 134.  Although the position may be different for projects involving tens of millions of dollars, for a project of this size I agree with the comments of Deputy President Wright QC made in Re Ng and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 299 at [26] that:

“… the provision of ‘employment’ in the sense of providing limited fee earning opportunities to architects and real estate agents and the provision of a one off building contract … is not the ‘creation or maintenance of employment in Australia’ contemplated by the s 134(10) definition of eligible business …”.

16. In my opinion any impact on employment, commercial activity or competitiveness of such a development in Australia would have been extremely marginal at best and I am not prepared to conclude that outcomes (b) and (f) of the definition of an eligible business have been achieved. Accordingly, I consider that Ms Tan has failed to satisfy the requirements of s 134(1)(a) and that the power to cancel her visa arises for that reason. It is therefore not necessary for me to consider whether Ms Tan has satisfied the requirements of s 134(1)(b), which requires the visa holder to be using his or her skills in actively participating at a senior level in the day-to-day management of that eligible business – because, in the absence of an eligible business, it would not be possible for Ms Tan to satisfy that requirement. The power to cancel Ms Tan’s visa would also arise under that paragraph. I will, however, refer below to the efforts of Ms Tan to be involved in the management of the business conducted by Golden Trinity for the purposes of s 134(2).

17.     Section 134(2) relevantly provides that a business visa must not be cancelled if the respondent (or the Tribunal) is satisfied that the holder of the visa has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and to utilise his or her skills in actively participating at a senior level in the day to day management of that business; and intends to continue to make such genuine efforts.

18.     Section 134(3) relevantly provides that for the purpose of deciding whether a person has made genuine efforts, any or all of the following matters may be taken into account:

“(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 the 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:

(j)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).”

19.     Paragraph 4.5.1 of MSI 133 contains notes to guide decision makers in the interpretation of the factors set out in s 134(3).  They should be applied in the interest of consistency of decision making: see Skoljarev v Australian Fisheries Management Authority (1995) 133 ALR 690 at 695 and 696 per Davies J. No weight should be given to the notes set out in paragraph 4.5.1 where the note is clearly more restrictive than the terms of the Act itself: see Re Yam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283 at [48] to [51] per Senior Member Dwyer and Member McLean. An “effort” will be “genuine” in the context of s 134 if there is a level of effort beyond that which is purely superficial or token and an effort will not be considered not genuine merely because it falls short of the examples given in s 134(3): see Yam (supra) at [53]. I refer below to the various factors identified by s 134(3).

20.     Ms Tan relied upon her efforts in relation to Golden Trinity to satisfy the requirements of s 134(2).  I have concluded above that she had, via Smartline and the Family Trust acquired a substantial ownership interest in Golden Trinity even though Golden Trinity did not conduct any eligible business.  I am satisfied that Ms Tan has made genuine efforts to acquire a substantial interest in an eligible business for the purposes of s 134(2)(a).  I must therefore consider whether she has made genuine efforts to utilise her skills in actively participating at a senior level in the day to day management of such a business.

21.     In a witness statement tendered as Exhibit A1, Ms Tan described herself as the Managing Director of Golden Trinity and said that she had been involved in the business by way of “sourcing potential development sites, engaging and liaising with financiers, investors, architects and builders, making feasibility studies as to development potential, market research into potential different developments, compliance with council regulations, sourcing potential purchasers and end users of the property predominantly from overseas, liaising with real estate agents and other business associates, ascertaining level of investments and financing options”.  She said that she travelled from Australia to overseas, predominantly Indonesia, to search for overseas buyers of the dwellings built whilst maintaining contact with the business activities in Western Australia.  Her witness statement said that she was responsible for the overall direction and day-to-day management of the business and its activities and the decision making for the business.  It said that she was responsible particularly for “negotiations with overseas buyers and feasibility and initial investment potentials”  and, more specifically, that she made employment decisions, which builders and architects to use,  negotiated personally with builders, perused and negotiated building contracts and decided what “margins to use, terms of construction, etc”.

22.     In her oral evidence Ms Tan confirmed that she was the Managing Director of Golden Trinity and referred to her role in engaging a project manager, organising the financing arrangements for the property development and finding buyers for the units built overseas.  She said that she had found buyers overseas for three of the ten units.

23.     Ms Tan said that she had also been involved in looking for construction materials to be used in the construction of the units and for overall planning of the project.  She had kept in regular contact with the project manager.  Overall, she said that prior to the cancellation decision she had spent on average 5 or 6 hours every day working on the Australian activities, the vast majority of the time being whilst she was in Indonesia.

24.     Ms Tan said that she was a 25% shareholder and a Commissioner of the Indonesian company that owned and operated her family’s business in Indonesia, which is involved in the distribution of cement.  She said that she played very little role in that company, being involved for about 15 hours a week or less and that the main management of it was left to Mr Winardi and the staff.  She subsequently said that her husband worked only part time in that business, about 10 – 15 hours a week, and apart from that he spent a considerable amount of time in Australia “helping” her in relation to Australian matters.

25.     In cross examination and in answer to questions that I put to her, Ms Tan eventually acknowledged that of the three units sold to “overseas” buyers, she and her husband had purchased one of them, a second had been sold to an Indonesian man who had been referred to her by Mr Soetresno and the third was sold to another Indonesian man who had been referred to her by a friend.

26.     Ms Tan said that the marketing effort in Indonesia by her involved the handing out of brochures (which she said had been prepared by her, Mr Winardi and Mr Soetresno) and sometimes involved travel to other parts of Indonesia to see possible purchasers.  She said that no advertising had been undertaken in Indonesia and many of the brochures had been handed out at social occasions.

27.     Ms Tan said that although she had spent only a short period of time in Australia prior to cancellation (27 days), she had kept in touch with the project manager by telephone and that when she had visited Australia she had been able to give instructions to the project manager about types of materials to be used, colour schemes to be used, etc.

28.     In relation to the extent of her involvement in her family’s business activities in Indonesia, Ms Tan said that it had not been possible for her to spend more time in Australia because she was still arranging business affairs in Indonesia so that it was possible to hand over the business to reliable employees.  She was asked why she became a director of Golden Trinity some five months after her husband, and she said that she had been concentrating on the Indonesian business.

29.     Ms Tan was referred to 2 documents, the first of which (page 200 of the T documents) was a letter dated 19 January 2002 to the respondent’s department, and signed by Mr Permana and Mr Rudy in their capacity as directors of Golden Trinity.  That letter stated that Ms Tan was actively involved in the company and that she was “in charge in sales and the overseas marketing to sell our company’s properties in Perth”.  The second (part of Exhibit A3) was a letter dated 27 March 2003 signed by Mr Soetresno in his capacity as “Project Manager/Chief Executive Officer”.  I note that both letters show the address of Golden Trinity as an address in Willetton that is Mr Soetresno’s address (see T documents page 157).Ms Tan disputed that Mr Soetresno was the Chief Executive Officer of Golden Trinity and said that she held that position.  She said that Mr Soetresno got all his instructions from her and that he had to get her approval before buying anything or making any decisions.

30.     Mr Winardi said in a witness statement (Exhibit A2) that he had assisted his wife in her property development business known as Golden Trinity.  In his oral evidence he said that he had helped his wife find the land and make decisions about the feasibility of the property development undertaken by Golden Trinity, finding the land and looking for a builder and how to market the units.  He had assisted by handing out brochures to business people in Indonesia that he came into contact with in the course of his duties with the Indonesian company.  He said that he had handed out about 100 brochures.  He said that he had helped his wife research other land (apart from the Cannington property) that they might become involved in the development of, and that they were interested in land at Ardross.  He said neither he nor his wife had any particular experience in property development, either in Australia or Indonesia, other than that he had some experience in building products because cement was the main product of the Indonesian business and he had some experience in dealing with contractors in Indonesia.

31.     In my opinion Ms Tan has significantly overstated her involvement in the management of Golden Trinity and significantly understated her involvement in the family’s Indonesian business.  She has spent very little time in Australia, although her husband has spent considerably more (124 days prior to cancellation).  In my opinion the involvement of other shareholders, Mr Soetresno (as project manager and real estate agent responsible for selling the units) and Mr Lee (as designer and builder via Inter Arch) meant that the day-to-day decision making would be made by them, particularly Mr Soetresno.  I note for example a report dated 14 December 2001 from Mr Soetresno to the other shareholders of Golden Trinity about progress in obtaining finance and approvals to start the building process.  Significantly, in my opinion, the letter informs the other shareholders that selling prices for the units to be built have been increased by another $5,000.  In my opinion Mr Soetresno was a principal decision maker in relation to the development undertaken by Golden Trinity.  I have no doubt that Ms Tan was interested in the development but her absence from Australia and, in my opinion, the limited role that she played in the marketing of units overseas, meant that she was not actively involved on a day-to-day basis in the senior management of Golden Trinity.  In making that observation I am not overlooking that it is possible for a person to participate in the management of an Australian business whilst outside this country and that it is not necessary for there to be involvement on a daily basis. 

32.     In the present case it was open to Ms Tan to adduce evidence from Mr Soetresno and the other shareholders and directors of Golden Trinity to support her claims to be extensively involved in the day-to-day management of that company.  The absence of that evidence, plus the presence of other evidence that indicates Ms Tan was more involved in the family’s Indonesian business than she acknowledges and less involved in the activities of Golden Trinity than she claims, means that I am not satisfied that her involvement in Golden Trinity was as great as she claims. 

33.     Turning to the specific factors set out in s 134(3) in relation to whether a person has made genuine efforts, I note that the evidence shows that the research that was done into the feasibility of the Cannington development was done by Mr Soetresno and that although Ms Tan and Mr Winardi say that they have undertaken considerable research into another possible property development in Ardross, no evidence to that effect was adduced.  Likewise, there is no documentary evidence relating to the efforts said to have been made by way of marketing the Cannington development in Indonesia by Ms Tan.  There is evidence that partners or joint venturers (in the form of other shareholders in Golden Trinity) were located.

34.     I have noted above that Ms Tan spent a period of only 27 days in Australia prior to cancellation of her visa, which falls well short of the 6 months referred to in the MSI 133.  As also noted above, I am satisfied that the main reason why Ms Tan spent little time in Australia was because of her involvement in the family business in Indonesia.

35.     Ms Tan and her husband have transferred approximately $300,000 to Australia, but only $123,000 of that amount was used to acquire the shareholding in Golden Trinity.  Apart from some passive investments made, the balance was used to purchase a house in Perth that was sold in 2002 at the time that Ms Tan and Mr Winardi purchased one of the units in the Cannington development.  Both dwellings were used as a residence by Ms Tan and Mr Winardi when they were in Perth but were otherwise unoccupied.

36.     Having regard to the evidence concerning the involvement of Ms Tan and her husband in Golden Trinity, I am not satisfied that Ms Tan has made genuine efforts to be involved on a day-to-day basis in the senior management of Golden Trinity.  She has not, therefore, satisfied the requirements of s 134(2)(b).

37.     In relation to s 134(2)(c), which requires that the visa holder intends to continue to make genuine efforts, Ms Tan was unable to satisfy this requirement because of the absence of genuine efforts by her.  However, on the evidence I am not satisfied that Ms Tan had an intention to continue to make genuine efforts after the date of cancellation.  Her evidence was that there was a plan to eventually live in Australia but she could put no particular time on that possibility because of the difficulty of selling assets in Indonesia and finding appropriate staff that could manage the Indonesian business.  Between the date of cancellation of her visa and the hearing of this matter Ms Tan agreed that she had spent only 30 or 35 days in Australia.  Mr Winardi’s evidence was that the marketing of the Cannington property had been completed by about the middle of 2002 and so Ms Tan could not have been involved in marketing on Golden Trinity’s behalf since that time – at least for the Cannington property.  As noted above, there was evidence of an interest in pursuing a further property development in another suburb and Mr Winardi suggested that he and Ms Tan had spent some time marketing in Indonesia the units that they hoped to develop on that property.  However, the evidence was that the land had not yet been purchased and no evidence was produced of any specific proposal regarding the possible development.  In those circumstances I am not prepared to conclude that there has been any significant marketing effort by Ms Tan since the middle of 2002.  Overall, I am not satisfied that as at the date of cancellation of her visa Ms Tan had an intention to continue to make genuine efforts to be involved in the management of an Australian business.

38.     It follows from the above that s 134(2) of the Act would not prevent the cancellation of Ms Tan’s visa.  However, although the power to cancel her visa arises, that power is discretionary and it remains open to me in the circumstances of the case to decide not to cancel her visa: Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 31 at [24] per Kiefel J.

39.     It was submitted on behalf of Ms Tan that the discretion should be exercised in her favour because she would suffer mental stress and social stigma and a loss of opportunity to pursue her business plans in Australia if the visa were cancelled.  Ms Tan said that she would be embarrassed because her friends and relatives are aware that she had a permanent residence visa in Australia and the loss of it would result in her being seriously stressed.  No medical evidence to that effect or evidence from other persons was provided to corroborate it.

40.     The only evidence available to me about Ms Tan’s overall circumstances is that she is part of a family that is involved in a substantial business in Indonesia and has lived there all her life apart from short periods in this country.  She and Mr Winardi have a 6 year old son who, at the time of the hearing, had not yet started school, but the evidence of Ms Tan and Mr Winardi was that they wished their son to be educated in Australia.

41.     There was no evidence before me to indicate that the loss of the business visa would endanger the ability of Ms Tan to continue to be involved in Golden Trinity, should that company undertake further property development in future.  Likewise, there was no evidence to indicate that Ms Tan would be prevented from being involved in other property development activities in this country if her visa were cancelled, subject to normal foreign investment regulations of the Australian government.

42.     In all the circumstances I am not satisfied that any of the above matters constitute sufficient reason to exercise the discretion to not cancel Ms Tan’s visa and I decline to do so.  Accordingly, my decision is that the decision made on 23 December 2002 to cancel Ms Tan’s visa is affirmed.

43. Ms Tan’s visa having been cancelled under s 134(1) of the Act, ss 134(4) and (5) require that Mr Winardi’s visa must also be cancelled unless the cancellation of his visa would result in extreme hardship to him. In Exhibit A2 Mr Winardi asserted that cancellation of his visa would cause extreme hardship to him “as the investment and continuation of business in Australia will be lost.”  In his oral evidence Mr Winardi said that he had prepared for the business activity in Australia since 2000 and had spent money in this country that would be lost.  The only explanation he offered as to why the investment in Golden Trinity would be lost was that his wife was the Managing Director of the company and if her visa was cancelled, there would be problems.

44.     No other evidence was adduced concerning any hardship that Mr Winardi would suffer if his visa was cancelled.  His situation is much the same as that of Ms Tan outlined above and I am not satisfied that he would suffer the kind of hardship that s 134(5) contemplates if his visa were cancelled.  Accordingly, I affirm the decision made on 23 December 2002 to cancel his visa.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Allen

Signed:         ..............(sgd V Wong).................................
  Associate

Date/s of Hearing  13 January 2004 
Date of Decision  3 August 2004
Counsel for the Applicant         Mr J Chong
Solicitor for the Applicant          James Chong & Co
Counsel for the Respondent     Mr A Gerrard
Solicitor for the Respondent     Australian Government Solicitor