Tansari and Sulysto and Minister for Immigration
[2008] AATA 400
•13 May 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 400
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2179-2180,
) 2007/2182 and ) 2007/2184
GENERAL ADMINISTRATIVE DIVISION ) Re RIANA TANSARI, RIO SULYSTO, TANIA SULYSTO AND TRYI SULYSTO Applicant
And
MINISTER FOR IMMIGRATION
Respondent
DECISION
Tribunal Mr A Sweidan, Senior Member Date13 May 2008
PlacePerth
Decision The Tribunal affirms the decisions under review.
...........(Sgd A Sweidan)..........
Senior Member
CATCHWORDS
Immigration – Business Skills Visa – cancellation – whether primary applicant obtained substantial ownership interest in an eligible business in Australia – whether she utilised her skills in actively participating at a senior level in the day to day management of such a business whether genuine efforts made to do these things – whether Tribunal should exercise residuary discretion
LEGISLATION
Migration Act 1958 s 134
CASES
Buljeta v Minister for Immigration and Multicultural Affairs [2003] AATA 10 at [58]
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634
Re Yam v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283 at [51]
Dainty and Minister for Immigration and Ethnic Affairs (1996) AAR 259
Leo v Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 309
Gunawan v Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 852 at [46] & [48]
Koosasi and Minister for Immigration and Multicultural Affairs [2006] AATA 179
Abbu v Minister for Immigration and Multicultural Affairs [2006] AATA 898 at [47]
Hook v Minister for Immigration & Citizenship [2007] AATA 1798 at [51]
Nagaria v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 579 at [17]
Burg v Minister for Immigration and Citizenship [2007] AAT 1630 at [63]
Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481 at [25] - [26];
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 at [44] - [47]
Sugianto v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 644 at [21]
Gilani and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1149 at [18]
Wong v Minister for Immigration and Citizenship [2007] AATA 2073
Cai v Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 212
REASONS FOR DECISION
13 May 2008 Mr A Sweidan, Senior Member background
1. This is an application to the Tribunal for review of decisions made by a delegate of the Minister for Immigration and Citizenship (the respondent) on 19 April 2007 cancelling the business skills visas of Riana Tansari (the primary applicant) and her three children, Rio, Tania and Try Sulysto (the secondary applicants).
2. The primary applicant has had a long standing involvement with an Indonesian Airline called PT Metro Batavia (PT Metro), which at times represents itself as “Batavia Air” and which is owned or controlled by her brother. On 28 August 2002, the applicant obtained an ownership interest in and became a director of an Australian company called Batavia Air Pty Ltd.
3. On 10 December 2003 the primary applicant was granted a sub-class 127 business skills visa. The secondary applicants were also granted visas as secondary holders.
4. The primary applicant entered Australia on 21 January 2004.
5. On 28 October 2005 the primary applicant was sent a 24 month survey (form 1010). The primary applicant responded through her representative on 16 December 2005.
6. On 20 November 2006 the Department of Immigration & Citizenship (the Department) wrote to the primary applicant and requested further information. The primary applicant responded through her representative on 15 and 22 December 2006.
7. On 9 January 2007 notices of intention to cancel (NOIC) the visas were sent via email to the applicants’ representative. The applicants responded through their representative on 6 February 2007.
8. On 19 April 2007 a delegate of the respondent decided to cancel the primary applicant’s business skills visa to take effect on 26 May 2007. As a consequence of this, the secondary applicants also had their visas cancelled.
9. On 16 May 2007 the primary and secondary applicants made applications to the Tribunal to review the delegate’s decisions.
Legislation and Policy
10. Section 134 of the Migration Act 1958 (the Act) provides that the Minister has a discretion to cancel a visa if satisfied that the visa holder has not obtained a substantial ownership interest in an eligible business in Australia, is not utilising his skills in actively participating at a senior level in the day-to-day management of the business, or does not intend to do these things. The Minister must not cancel the visa if satisfied that the visa holder has made genuine efforts and intends to continue to make such genuine efforts to do these things.
11. Eligible business and ownership interests are defined in section 134(1) of the Act and discussed at paragraph 4.3 of the Migration Series Instructions (MSI) 133.
12. Section 134(10) provides that 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 and 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; and
(f)an increase in commercial activity and competitiveness within sectors of the Australian economy.
13. Paragraph 4.3.2 of the MSI-133 notes that eligibility relates to achievement of stated objectives through the activities of the business, not directly to the size or scale of the business.
14. Section 134(3) provides a list of matters that the Minister may take into account when determining whether a person has made genuine efforts to obtain a substantial ownership interest in an eligible business in Australia and to utilise his skills in actively participating at a senior level in the day-to-day management of that business.
15. Notes to guide the interpretation of these matters are provided at paragraph 4.5 of the MSI-133. The matters that may be taken into account, and the notes to their interpretation provide as follows:
(a)business proposals that the person has developed. The MSI refers to whether there is a business proposal which is considered genuine, realistic and achievable;
(b)the existence of partners or joint ventures. The MSI refers to whether there is a formal contract with partners or joint venturers;
(c)research that the person has undertaken into the conduct of an eligible business in Australia. The MSI refers to whether there is written evidence of detailed consultations with at least 3 business advisers;
(d)the period or periods during which the person has been present in Australia. The MSI refers to whether there has been physical presence for more than 6 months since the first arrival as a business skills migrant;
(e)the value of assets transferred for use in obtaining an interest in an eligible business. The MSI refers to whether there has been transferred to and retained in Australia at least 50% of the funds indicated as available for transfer within the 2 years;
(f)the value of ownership interest in the eligible business in Australia which is or has been held by the person. The MSI refers to whether there is or has been a minimum Australian $100,000.00 or 10% ownership held by the person and provides that if the person is no longer in the business the reasons for loss of ownership are relevant;
(g)the business activity that is or has been undertaken by the person. The MSI refers to whether there is a minimum of Australian $100,000.00 business activity as indicated by turnover and provides that this may include other business activity not considered as an eligible business but cannot include passive investment, for example the purchase of shares;
(h)whether the person has failed to comply with a notice under section 137. The MSI refers to whether there has been a failure to comply with a notice for information under section 137, i.e. mandatory monitoring of Australian address and return of survey forms; and
(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 on the day-to-day management of the business:
(i)the length of time the person held the ownership interest or participated in the management as the case requires; and
(ii)the reason why the person no longer holds the interest or participates in the management as the case requires.
16. Whilst the Tribunal is not bound by Departmental policy, the Tribunal should follow Ministerial or Departmental Guidelines unless there is some good reason not to: see Buljeta v Minister for Immigration and Multicultural Affairs [2003] AATA 10 at [58] citing Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634; and Re Yam v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 283 at [51] citing Davies J in Re Dainty and Minister for Immigration and Ethnic Affairs (1996) AAR 259.
evidence
17. The evidence establishes that the primary applicant has obtained and maintains a substantial and controlling interest in an Australian company and business being Batavia Air Pty Ltd (Batavia Air).
18. The business of Batavia Air is said to be the local agent for PT Metro Batavia (PT Metro) and to also operate a travel agency business in its own right. However it had, up to the date of cancellation, not commenced business, nor had it done so at the time of the hearing.
19. P T Metro is an Indonesian Company owned by Ms Tansari’s brother. It operates more than 20 aircraft within Indonesia, between Indonesia and China, and between Indonesia and Malaysia.
20. P T Metro made application on 5 February 2004 to the relevant Australian Government authority for a licence to operate in Australia. That application has not been granted.
21. Ms Tansari did not prepare that application but claims that she was consulted concerning aspects of its preparation.
22. Ms Tansari and her Husband, Henry Sulysto, arranged for the business name “Batavia Air” to be registered in WA.
23. In January 2004 Batavia Air took a lease over office premises in Murray Street, Perth (Exhibit A2), with a commencement date of 1 February 2004.
24. That document was signed for the company by a Ms Hadinoto, but it is claimed that the lease was arranged by Ms Tansari.
25. The rental was $24,000 per annum plus GST and outgoings.
26. Ms Tansari transferred from her own funds to the bank account of Batavia Air, in February 2004, the sum of $99,994 (T192).
27. The term of the lease was 2 years with options for 2 further terms of 1 year each, which were exercised.
28. The rent for that 4 year period, with the possible exception of a 3 month period, was paid from the Batavia Air account. Ms Tansari paid the other 3 months.
29. Batavia Air and Ms Tansari have therefore expended in excess of $100,000 on office rental in the 4 year period prior to 31 January 2008.
30. Ms Tansari said that she is currently negotiating for a further extension of the lease and that if it is not renewed she will lease other premises. In cross examination she admitted that the office is closed.
31. In addition, Batavia Air acquired office furniture and fittings.
32. In May 2004, Batavia Air was licensed as a Travel Agent in Western Australia and this was claimed to be be through the actions and knowledge of Ms Tansari.
33. In the period since PT Metro initiated its application to be licensed in Australia there have been several renewals of prescribed insurance certificate and other documentary requirements.
34. Some of those matters were handled by the applicant and some by Ms Hadinoto.
35. Batavia Air has not made any sales or derived any income other than from the injection of capital by Ms Tansari.
36. Other than assisting if consulted by PT Metro, Batavia Air and Ms Tansari are not party to the PT Metro licence application.
37. By letter dated 4 February 2002, notarised in Jakarta on 19 April 2003, PT Metro appointed Batavia Air as its General Sales Agent (GSA) for Australia with a GSA Agreement “to be prepared”.
38. The GSA Agreement has not yet been prepared, and the applicant said that there is “no purpose to doing so until PT Metro is licensed to operate in Australia”.
39. Ms Tansari and her husband, who is largely dependent upon her, operate an air charter business in Indonesia known as Indonesian Air Transport, running 3, 50-seater aircraft. She has been running that business since 2003 and it is her primary occupation and source of income.
40. The business proposal for PT Metro’s Australian operation was developed in PT Metro’s Jakarta office. Ms Tansari claims that she was consulted and contributed to that, providing information, but the plan is the property of PT Metro.
41. Ms Tansari spends most of her time in Indonesia but she says that if the PT Metro licence is issued she will come to Australia as the day-to-day manager of Batavia Air.
42. Batavia Air has “given thought” to setting up an “on-line” office, selling flights between Jakarta and Australia but has done nothing concrete in this regard.
43. Ms Tansari and her husband have purchased a family house in Winthrop and they own a shop, land and a building which is commercially leased in Perth. Their three children live in the house.
44. Whilst Batavia Air is dependant upon PT Metro being granted a licence by the Australian Government (which would be the identical position with all non-Australian airlines), the implementation of the Australian side of the operation will, according to Ms Tansari, depend on her.
45. The remaining 3 applicants are the children of Ms Tansari and Henry Sulysto.
46. All 3 of the children came to Australia in 2002.
47. They all live together in the family’s house at Winthrop and describe themselves as being very close to each other.
48. All 3 children are students.
RIO SULYSTO
49. Rio is 22 years of age.
50. He attended school in Indonesia to the equivalent of Year 11 level.
51. He enrolled at Murdoch College and did a WA University Familiarisation Program in 2003.
52. He then enrolled at Murdoch University in 2004, where at the time of the hearing he had 1 semester left to complete his double degree being Bachelor of Science in Biotechnology and Bachelor of Commerce in Marketing Management.
53. He has completed the compulsory prescribed Units for each degree but needs a further 16 points in elective Units to complete both degrees.
54. He cannot graduate with only one of the degrees. Completing the elective units will give him the points for each. That is, he will graduate with both degrees or neither.
55. He has made enquiries of the Admissions Officer of the University of Atma Jaya in Indonesia.
56. He cannot transfer his incomplete undergraduate studies to that University.
57. He does not have an Indonesian High School Certificate to give him entrance to University in Indonesia.
58. Accordingly, if he cannot complete his degrees at Murdoch he will be 22 years of age with no Indonesian Secondary School qualification and no Indonesian University entrance entitlement.
59. He says that he considers Perth to now be his home and has felt that to be the case since he began University.
60. He says that the 3 children have always lived together.
61. He had already enrolled for his final semester of his degrees. He thinks he could apply to study as an International Student in Austalia but does not know if his parents could afford the additional cost. He does not know if such an application would be accepted.
62. He believes he could use the marketing part of his degrees in Indonesia but said that his passion is Biotechnology. The main methods of agriculture in Indonesia continue to be traditional, and few companies there would use his biotechnology knowledge.
63. He understands that if he was to be an International Student the additional cost of enrolment would be in the region of $3,500 to $4,500 more per semester.
64. He had not made enquiries of prospective employers as he had intended, and still wishes, to undertake post-graduate studies.
TANIA SULYSTO
65. Tania is 20 years of age.
66. She came to Australia with her siblings in 2002.
67. She had finished her Year 9 – Middle Certificate in Indonesia.
68. In Perth, she enrolled in Year 10 at Murdoch College and obtained TEE in 2004.
69. She completed a degree in Global Economics and Finance in late 2007.
70. Tania had applied for enrolment in a Master of Commerce at Curtin University but this application was not accepted. She was, however, offered and has accepted a postgraduate position to take a Master of Accounting at Curtin.
71. She works part-time in a grocery store and one week before the hearing had applied for an administrative job.
72. She had enrolled in her Masters course, very recently received her invoice for fees but it had not yet been paid.
73. This invoice was for approximately $6,975.00 and if she was required or accepted to be an International student the fees would increase by approximately $1,000.
74. After the possibility of cancellation of her visa arose, she made enquiries in mid-2007 and was advised that her degree would not be acceptable to do a Masters in Jakarta.
75. She does not have her High School Certificate in Indonesia, so could not gain University entrance without going back to High School.
76. She considers Perth to be her home, and her friends are here. She goes back to Jakarta for up to 2 months each year.
77. Only the 3 children live in the house when their parents are not there and the children are very close to each other.
78. She believes she could get a job with her Degree, but is not sure what sort of job, probably as some sort of assistant.
79. The Masters Degree would make her more certain of gaining employment and in a better type of work.
80. Her enquiries to Trisakti University in Indonesia were about doing Post-graduate study as she has a degree from Curtin.
81. She has some Junior High School friends who have attended Trisakti.
82. She has been told that she cannot do a “bridging” course in Indonesia to obtain university entrance there – it is not like Australia – and she would have to return to High School.
TRY SULYSTO
83. Try is 17 years of age.
84. He came to Australia in 2002, having completed Year 6 of school in Indonesia.
85. He began Year 7 at Winthrop Primary and then attended High School at All Saints College where he completed his TEE in late 2007.
86. He applied to do Engineering but fell short of the pre-requisite marks in a subject.
87. He has enrolled in a degree of Multi-Disciplinary Science.
88. If his marks are at an acceptable level in first semester, he can transfer to Engineering but would otherwise continue with the Multi-Disciplinary Science Degree.
89. He described himself as feeling a bit of both Indonesian and Australian, but he stated that Perth is now his home.
90. He has not made enquiries about University entrance in Jakarta but relied upon his mother.
91. His mother gave evidence that she had made enquiries, the results of which were that Try could not obtain University entry in Indonesia without his Indonesian High School Certificate.
92. A student cannot take the High School Certificate without the Middle Certificate, so to obtain University entry he would have to re-commence High School in Jakarta.
93. A letter from the school he would have attended in Indonesia was admitted into evidence.
94. He said that it would be tough for him to be separated from his family, and that the 3 children have always been together.
95. He said that he can “get by” in the Indonesian language but some of it is lost.
96. He has gone to Indonesia at the end of each school year, for one month or two at the most.
97. He still has some friends in Jakarta, but they are not close after so long.
98. He does not know whether his parents could pay the extra for him to study as an International Student.
Tribunal’s Findings
99. The Tribunal makes the following findings for the reasons which follow:-
Batavia Air was not a business for the purposes of s134(1)(A)
100. The Tribunal finds that both the documentary evidence and the evidence of the witnesses show that the activities of the Australian company Batavia Air Pty Ltd (Batavia Air) are insufficient for it to be characterised as a ‘business’.
The existence of a business
101. Member Barton in Leo v Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 309 at [55], stated the following: “Whether a particular activity or course of activities constitutes a business is a question of fact and degree that is to be determined by considering matters such as the scale of activity and whether it is conducted continuously and on a commercial basis to derive profit”.
102. The respondent concedes that Batavia Air is a company registered in Australia (T140-142, T144-145), that it has registered its business name ‘Batavia Air’ in Western Australia (T143), that Batavia Air is registered in Australia for tax purposes (T146-148), that Batavia Air holds a Travel Agent’s Licence in Western Australia (T149) and that Batavia Air has leased office premises at 508 Murray St Perth (Exhibit A8, p34). In cross-examination, the primary applicant (Ms Tansari) admitted that the Murray Street office has closed, but maintained that the electricity accounts for the office are still paid and the mail to 508 Murray Street was still checked.
103. Ms Tansari has not been able to provide any evidence that Batavia Air has engaged in business activities. There are no Business Activity Statements, profit and loss statements, balance sheets or invoices, nothing to show that the expenditure that was incurred was done in a business-like manner. In cross-examination, Ms Tansari admitted that Batavia Air has made no business income. In re-examination, Ms Tansari admitted that there was “no business yet” in the context of being asked when she would transfer additional funds to the business.
104. The Tribunal can not conclude on the basis of the evidence before it that Batavia Air’s business has been conducted on a sufficient scale or “continuously and on a commercial basis to derive profit”. Batavia Air is not a commercial enterprise in the nature of a going concern with activities engaged in for the purpose of profit on a continuous and repetitive basis.
Whether there is a business in Australia
105. Section 134(1)(a) requires there to be a business in Australia. The Tribunal accepts that PT Metro Batavia is a business. It is an airline operating services to the destinations described at page 16 of Exhibit 8 and it has satisfied all the regulatory requirements in Indonesia. However it is a business operating in Indonesia. The evidence shows that Batavia Air is nothing more than a passive extension of PT Metro Batavia, a branch office that does no work because there is as yet no air route to Perth.
106. Apart from activities that Batavia Air must perform in its own right to maintain its existence as a company in Australia (such as corresponding with ASIC, the ATO and state government departments), all the business-like activities relating to Batavia Air’s plans for Australia emanate from PT Metro Batavia. Batavia Air’s applications for regulatory approval, for example, were made by PT Metro Batavia, not Batavia Air (T152-155, T158-173, T245).
107. The letter from PT Metro Batavia to Batavia Air at T151 clearly shows that the nature of the relationship between the two entities is one of agency. In cross-examination, Ms Tansari gave evidence that the intention was to contract baggage handling and ground services to other companies, that the other companies would be contracted by PT Metro Batavia (not Batavia Air), and that it was anticipated that she would sign any documentation on PT Metro Batavia’s behalf. The exact nature of the agency relationship remains unclear because the GSA has yet to be prepared. The Tribunal is of the view that a truly separate business would have prepared such an agreement well in advance of the air route opening up.
108. Although Ms Tansari said in re-examination that Batavia Air was to be paid on the basis of a percentage of the ticket sales and a royalty on cargo and package tours (but not on fuel and/or ground handling), there is no evidence of this intention, other than her assertion.
109. The Tribunal finds that Batavia Air is not a business.
Batavia Air was not an eligible business for the purposes of s134(1)(a)
110. Even if, contrary to the above finding by the Tribunal, Batavia Air was an Australian business, the evidence shows that it was not an eligible business within the meaning of s134(10).
111. The applicants, at paragraph [39] of their closing submissions, submit that Batavia Air will, by its nature, satisfy limbs (a), (b), (c) and (f) of the definition of ‘eligible business’, namely:
(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 and services;
…
(f) an increase in commercial activity and competitiveness within sectors of the Australian economy.
112. However the Tribunal finds that the applicant has provided no evidence that these effects would actually result.
The development of business links with the international market
113. The Tribunal is of the view that a principal-agent relationship is not the sort of business link envisaged by the legislation.
The creation or maintenance of employment in Australia
114. The primary applicant has not shown that, even if the Denpasar-Perth-Denpasar route was opened by PT Metro, it would lead to the creation or maintenance of employment in Australia.
115. Ms Tansari gave evidence that PT Metro was proposing to run four flights per week between Denpasar and Perth. In cross-examination, she admitted that all the pilots and air stewards would be Indonesian, so the only employment indirectly created or maintained in Australia would be that of ground staff and baggage handlers.
The export of Australian goods and services
116. Ms Tansari gave evidence that Australian hotel and catering services would be exported as a result of the PT Metro route being opened up. While the Tribunal accepts that PT Metro might utilise Australian hotel and catering services, the applicant has been unable to show the level at which the services would be utilised.
An increase in commercial activity and competitiveness within sectors of the Australian economy
117. The applicant has been unable to show to what extent PT Metro’s opening up of an air route to Perth would increase commercial activity or competitiveness in the airline industry, or specifically increase the level of competition on a route that is already operated by a number of airlines.
118. The evidence is that PT Metro has not performed a market analysis to determine whether the Perth-Denpasar route could support another airline, although Ms Tansari gave evidence to the effect that she has been researching how Garuda Airlines conducts its flights between Perth and Denpasar.
The primary applicant held a substantial ownership interest in Batavia Air
119. The Tribunal accepts that the primary applicant held a substantial ownership interest in Batavia Air.
120. The Tribunal notes however, that the evidence on this point is somewhat contradictory. Batavia Air’s bank statement at T192 shows an overseas inward transfer of $99,994 on 26 February 2004. In cross-examination, Ms Tansari asserted that these were her funds that were transferred into Australia.
121. Batavia Air’s records lodged with ASIC (T144) show that only 35,000 ordinary shares in Batavia, valued at $1 each, have been issued. This is consistent with the share certificate at page 3 of Exhibit 8, which shows that Ms Tansari owns shares 17,501 to 35,000. The Tribunal notes that the ASIC statement at T144 also shows that Ms Tansari held 55,000 shares. When the inconsistency was pointed out to Ms Tansari in cross-examination, she admitted that she only held 17,499 shares, valued at $17,499.
122. However the Tribunal finds that Ms Tansari has a 50% stake in Batavia, which is sufficient to constitute a substantial ownership interest.
The primary applicant did not actively participate in the senior level day-to-day management of Batavia Air
123. The Tribunal finds that Ms Tansari has not actively participated at a senior level in the day-to-day management of Batavia Air.
124. It appears that Ms Tansari was a director of Batavia only in name only.
125. Ms Tansari has provided no evidence of her involvement in Batavia Air’s management – for example, minutes of meetings or correspondence. Ms Tansari was asked in cross-examination whether she had any meetings with the other directors of Batavia Air. She responded that she did, but did not make any record of the meetings.
126. The Tribunal finds that either these meetings did not in fact occur, or if they did, that the lack of minutes points to the lack of serious purpose in the management of the company. The lack of evidence of management of Batavia Air is consistent with the Tribunal’s finding that Batavia Air should be characterised as a mere passive extension of PT Metro.
127. The evidence shows that all the correspondence with Australian regulatory authorities was to and from PT Metro in Indonesia, between:
(a)Yudiawan Tansari and DOTARS (T245, T167, T154, T170);
(b)Yudiawan Tansari and CASA (T172);
(c)Sjamsi Junus and DOTARS (T163, T161); and
(d)Hendra Mahendra and CASA (T225)
128. Only one piece of correspondence from Australian regulatory authorities is directed to the Perth office of Batavia – from CASA to Lina Hadinoto, Batavia’s public officer (T158). The balance of the email correspondence was sent to Ms Hadinoto as a courtesy copy (see eg. T163-171).
129. The Tribunal finds that at no stage was Ms Tansari ever involved in the management of Batavia Air. To the extent that Batavia Air did anything independently, Ms Hadinoto was responsible for managing it.
130. The evidence shows that Ms Hadinoto arranged the lease for the Murray Street offices, and she negotiated the extension to the lease. Ms Tansari gave evidence that Ms Hadinoto had conversations with the relevant departments in Canberra, but that she (Ms Tansari) did not.
131. Ms Tansari gave evidence that she was not across the technical aspects of applying for a licence, and so left this to the management in Jakarta. Given this admission, the Tribunal does not accept Ms Tansari's evidence, and the applicants' submission at paragraph [13] of their closing submissions, that she was consulted concerning aspects of the licence application.
132. There is no evidence that Ms Tansari wrote any emails or letters on behalf of Batavia Air, kept any file notes of conversations with PT Metro management, or attended any meetings.
133. The Tribunal concludes that Ms Tansari has not actively participated at a senior level in the day-to-day management of Batavia Air.
The primary applicant has not made the requisite genuine efforts for the purposes of s134(2)
134. The Tribunal finds that Ms Tansari has not made a genuine effort either to obtain a substantial ownership interest in an eligible business in Australia or to utilise her skills in actively participating at a senior level in the day-to-day management of such an eligible business
135. Paragraph 4.5.1 of the MSI provides a list of factors that decision-makers may look at when determining whether a genuine effort has been made.
(a)Ms Tansari has not provided evidence of any business proposals she has prepared. The submission at paragraph [42(a)] of the applicants' closing submissions that "[t]here is a genuine, realistic and achievable business proposal" has no foundation, and the applicants have been unable to point to any documents in the nature of business proposals prepared before the establishment of Batavia Air.
(b)While evidence has been provided of an agency arrangement between Ms Tansari and PT Metro, the subordinate nature of this relationship does not bring it within the ambit of a partnership or joint venture.
(c)Ms Tansari has not provided evidence that she has undertaken any research into eligible businesses in Australia.
(d)The Tribunal accepts that the 289 days Ms Tansari spent within Australia during the lifetime of her visa meets the MSI standard of six months' presence in Australia.
(e)When completing her Form 1136 Business skills profile on 12 January 2003 (T91-98), Ms Tansari declared her net assets to be AUD $2,115,824.00 and that $500,000 would be available for transfer within two years. Ms Tansari has not provided any evidence that 50% of these funds or $500,000 were transferred within two years. Although there is evidence of $195,000 being transferred into Australia, only a small proportion ($17,499, see paragraph [24] of these submissions) was for the purpose of obtaining an interest in Batavia Air.
(f)As noted previously, there is no evidence that Batavia Air has engaged in business activities.
136. While the Tribunal accepts that there is a long lead-time in establishing an airline in a new country, the efforts that have gone into establishing PT Metro as an airline in Australia were made by Yudiawan Tansari, Sjamsi Junus, Hendra Mahendra and Lina Hadinoto, not by Ms Tansari.
137. The primary applicant contended, in her statement of facts and contentions, that she had made genuine efforts by obtaining business premises. The Tribunal finds that it was Ms Hadinoto, on behalf of Batavia Air, who made the efforts to obtain business premises, but that in any case, obtaining premises, without making genuine efforts to actually undertake any business activity, is merely token effort.
138. The Tribunal is of the view on the evidence before it that once PT Metro began having difficulties obtaining a licence from the Department of Transport and Regional Services, Batavia Air ceased making any further attempts to undertake business activity. The Act on the other hand requires ‘vigorous and determined’ attempts, and ‘sustained and continuous’ efforts, in contrast to mere ‘sporadic and desultory activity’: see Gunawan v Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 852 at [46] & [48]; Koosasi and Minister for Immigration and Multicultural Affairs [2006] AATA 179.
139. The respondent notes that Batavia Air obtained a licence on 21 May 2004 to operate as a travel agent. There is no evidence which indicates that the business attempted to sell tickets of any other airlines or develop any inroads into this industry.
Residual discretion
140. The Tribunal is of the view that this is not a case in which the Tribunal should exercise its residual discretion not to cancel Ms Tansari’s visa.
141. The Tribunal notes the comments in Abbu v Minister for Immigration and Multicultural Affairs [2006] AATA 898 at [47] to the effect that a failure by a visa holder to permanently move to Australia is a primary reason as to why the Tribunal should not use its discretion to set aside a cancellation.
142. As Deputy President Hotop in Hook v Minister for Immigration & Citizenship [2007] AATA 1798 at [51] noted, neither the Act nor specific Department policy guidelines provide specific guidance as to what considerations may, or may not, be taken into account in exercising the discretionary power.
143. The Tribunal notes however that “Attachment 2 - NOICC - section 134” states that Departmental officers will consider the following factors in deciding whether to cancel an applicant’s visa, including in effect:
142.1The applicant’s engagement in the day-to-day management at a senior level in an eligible business. In this respect the Tribunal repeats its findings as set out above.
142.2Any evidence of genuine effort that the applicant made to engage in the day-to-day management at a senior level in an eligible business. In this respect the Tribunal repeats its findings above.
142.3The length of time spent in Australia since the applicant’s initial arrival. Ms Tansari has spent 289 days in Australia and 872 days outside Australia since her initial arrival. Ms Tansari also gave evidence that she lives in her residence at Winthrop for about 2-3 months every year.
142.4The degree of hardship which may be caused to Australian citizens or permanent residents if an applicant’s visa is cancelled. The Tribunal makes no findings on this matter.
142.5 Any unreasonable hardship the applicant might suffer if his or her visa was cancelled. The Tribunal is of the view that ‘mere’ hardship to the primary applicant is sufficient to enliven the Tribunal’s residual discretion, as it would render superfluous the extreme hardship provision of s134(5). The Tribunal finds that Ms Tansari has not been able to show that any hardship suffered by her would be unreasonable.
142.6 Any ties (including family, social and business) to other countries. The Tribunal noters that Ms Tansari has strong family and business ties in Indonesia.
142.7 The circumstances in which the ground/s of cancellation arose. The Tribunal finds that in circumstances where Ms Tansari's business did not obtain proper regulatory approvals, and failed to pursue alternative business opportunities, for example travel agent services, it would be inappropriate for the Tribunal to exercise its residual discretion.
142.8 The applicant’s behaviour to the Department, including efforts made to comply with requests for information. The Tribunal accepts that the applicants have complied with the Department's requests.
144. The Tribunal is of the view that the residual discretion should only be exercised in exceptional circumstances, and that the present circumstances do not provide a compelling case for the Tribunal to exercise its residual discretion.
145. The granting of further time to Ms Tansari to satisfy her visa obligations is likely to be of little practical benefit, given the minimal evidence that she is pursuing alternative investment opportunities (cf. Nagaria v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 579 at [17]).
146. The Tribunal is of the view that the primary applicant has not shown a genuine and realistic intention to begin playing a more substantial role in Batavia Air in the near future (Burg v Minister for Immigration and Citizenship [2007] AAT 1630 at [63]).
The secondary applicants will not suffer extreme hardship if their visas are cancelled
147. The Tribunal is of the view that the cancellation of the visas of the secondary applicants would not result in extreme hardship for the purposes of s134(5).
148. It is clear from the authorities that extreme hardship is a very difficult test for applicants to satisfy: see Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481 at [25] - [26]; Wang v Minister for Immigration and Multicultural Affairs [2000] AATA 961, and Salim and Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899 at [44] - [47].
149. Try, Rio and Tania Sulysto have all contended that their secondary and tertiary studies would be adversely affected by the cancellation of their visas.
Try Sulysto
150. Try Sulysto gave evidence that he completed his TEE at All Saints College at the end of 2007. He has been offered a place at Curtin University to study Multidisciplinary Science, which he described in evidence as a bridging course that would allow him to enter Engineering if he gained adequate marks.
151. Both Try Sulysto and Ms Tansari gave evidence that if returned to Indonesia, he would not be able to enter university as he has not completed the Middle School or High School Certificate in Indonesia.
152. The Tribunal notes that the only documentary evidence that the applicants were able to produce to substantiate their claim was a letter from St Lucas Evangelist Education Foundation (Exhibit A3) refusing permission for Try Sulysto to undertake the High School examinations at that school. The Tribunal notes that the reason for the refusal of permission to sit the High School examinations on the face of the letter is that Try had not attended the school. In the Tribunal’s view the letter is insufficient evidence to ground a finding that Try Sulysto would be unable to pursue educational opportunities in Indonesia beyond the Middle School level.
153. Even if the Tribunal were to find that Try Sulysto would be forced, if returned to Indonesia, to recommence his studies at the Middle School level, the option of commencing tertiary studies in Australia as an International Student is available to him. When asked in cross-examination, Try Sulysto was unable to say whether his parents could afford to fund his engineering degree at Curtin at the international student rate. However, given that Ms Tansari was able to pay his school fees at All Saints College, some $9000-$10,000 per annum, the Tribunal finds that Ms Tansari would be able to afford to pay for Try Sulysto's further education as an International Student.
Rio Sulysto
154. Rio Sulysto gave evidence that he is currently enrolled at Murdoch University in the double degree Bachelor of Science (Biotechnology) and Bachelor of Commerce (Marketing Management). He has completed the compulsory units for both degrees, but needs 16 further points, constituting four elective units, to complete the double degree. In cross-examination, Rio Sulysto stated that none of the units were transferable across the degrees, so that if he did not complete the four additional units, he would be unable to complete either degree.
155. Generally, the Tribunal has held that lost educational opportunities do not amount to extreme hardship: Sugianto v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 644 at [21]; Salim (supra) at [44] - [47]; Gilani and Minister for Immigration, Multicultural and Indigenous Affairs [2005] AATA 1149 at [18]. The Tribunal has however, on rare occasions, found extreme hardship where an applicant was in his or her last year of study, where studying back in his or her overseas country was not possible, and where it was unlikely he or she would be able to return to Australia on a student visa: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 973 at [25].
156. The Tribunal accepts that, like the factual background in Lee (supra), Rio Sulysto is in the final semester of his degree. However the Tribunal is of the view that Lee should be distinguished on the following grounds:
156.1Rio Sulysto has been unable to show that he would be unable to complete his studies in Indonesia. Evidence was given that he made enquiries of the admissions officer at the University of Atma Jaya in Jakarta, who advised him that he was unable to transfer his Murdoch units to that university. However, without documentary evidence from at least one Indonesian university certifying his ineligibility to transfer his Murdoch units, the Tribunal cannot satisfy itself to the requisite degree that Rio Sulysto would be unable to complete his degree in Indonesia.
156.2Rio Sulysto has also been unable to show that he would be unable to complete his final semester at Murdoch University as an International Student. He gave evidence that he was aware that the option of enrolling as an International Student was available to him, but did not know whether his parents could afford the elevated fees, which he said were some $3,500 extra per semester. Given that Rio Sulysto's parents are of some means, it is realistic to expect that they would be able to afford the additional fees.
Tania Sulysto
157. Tania Sulysto gave evidence that she has just completed her Bachelor of Commerce (Global Economics and Finance) degree at Curtin University. She has subsequently enrolled in a Master of Accounting degree at Curtin. As at the date of the hearing, Tania had received a fee invoice for approximately $6,975, but had not yet paid the invoice.
158. The applicants submit at paragraph [97] of their closing submissions that the cancellation of Tania Sulysto's visa would "considerably hamper or destroy the applicant's prospects of obtaining the qualification needed to pursue her career as planned". The Tribunal finds that the evidence at the hearing does not support this conclusion.
159. The evidence given by Tania Sulysto is consistent with her future career plans being at present at a very preliminary stage. When pressed in cross-examination, she gave evidence that she was interested in a career in financial planning. She gave evidence that there were jobs in the financial planning industry in Jakarta, that with her degree she could enter a graduate program in the financial planning industry, and that she did not need a postgraduate degree (for example, a Master of Accounting) to enter the industry. In any case, at a broader level, the Tribunal is of the opinion that the Bachelor of Commerce is an internationally recognised degree that provides Tania Sulysto with numerous employment opportunities, including in Indonesia.
160. To the extent that the applicants' position at paragraph [97] of their closing submissions is that the cancellation of Tania Sulysto's visa would result in the denial of educational opportunities, the Tribunal notes that, unlike in Lee(supra), Tania Sulysto has only just commenced her postgraduate studies at Curtin. While she gave evidence that she made enquiries of Trisakti University in Jakarta regarding whether she could enrol in a postgraduate course, there is no documentary evidence of her ineligibility to enrol at Trisakti, or any other Indonesian university. As with Rio Sulysto's claims about Atma Jaya, the Tribunal’s view is that there is insufficient evidence for the Tribunal to base a conclusion that Tania Sulysto would be denied educational opportunities if she returned to Indonesia.
161. Finally, Tania Sulysto gave evidence that she has enquired into continuing her postgraduate studies at Curtin as an International Student. She admitted that the offer to study a Master of Accounting would be available to her as an International Student, that the fees would be $300 extra per unit, and that her parents would be able to cover the additional fees.
Elements common to Try, Rio and Tania Sulysto's extreme hardship applications
162. The Tribunal finds that in relation to each of the three secondary applicants that the option of enrolling at an Australian university as an International Student is available to them.
163. It is clear that the secondary applicants would be entitled to apply for a subclass 573 higher education sector visa.
164. In the recent decision of Wong v Minister for Immigration and Citizenship [2007] AATA 2073, the applicant made submissions to the effect that the cancellation of the applicant’s secondary business skills visa may well be taken into account by the delegate when exercising his discretion to grant the 573 visa, citing Lee (supra) as well as Cai v Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 212. In Wong (supra), Senior Member Penglis did not accept the applicant’s submissions, preferring the respondent’s submissions as accurately representing the position as it exists under the Act. The respondent submitted as follows:
Where a person has a visa cancelled under subsection 134(4), until that cancellation has effect, the person continues to hold that visa. During the time between cancellation and the cancellation taking effect the person does not have a section 48 bar and consequently there are no restrictions on the visa classes for which they can apply. Accordingly, it would be open to the secondary applicants to apply for substantive visas while still on shore provided such applications were made prior to the expiration of the 28 day period following the decision of the Tribunal to affirm the decisions under review.
165. The Tribunal is of the view that the position accepted by Senior Member Penglis in Wong (supra) is the correct one. There is no reason why the cancellation of the applicants' business skills visas should count against them in applying for 573 visas.
166. It should be noted that the secondary applicants' visas were not granted so that they could attend university in Australia and that the entitlement to participate in HECS is a privilege. The business skills visa regime clearly envisages that these privileges are to be given up if the primary visa is cancelled.
167. While the Tribunal accepts that the additional financial burden of enrolling as an international student might constitute ‘hardship’, it cannot be characterised as ‘extreme’. Under similar circumstances, Deputy President Purvis in Salim (supra) at [44] - [47] acknowledged that emotional and financial hardship might occur upon the disruption of university studies, but concluded that it was not extreme. At [47], Deputy President Purvis concluded that:
The Tribunal does not consider that the hardship that will undoubtedly be experienced by each one of the Applicants is exceptional, unexpected or of such a nature as to qualify for the description of exceedingly great in degree.
The Tribunal is of the same view in this matter.
168. Finally, the applicants have made submissions to the effect that Try, Rio and Tania are very close siblings, living together in their house in Winthrop and that their separation would cause extreme hardship. The Tribunal’s view is that any family separation is not a result of the cancellation, which cancelled all the applicants’ visas, but family separation might result if the Tribunal were to, for example, affirm Tania and Rio Sulysto’s decisions but accept Try Sulysto’s extreme hardship claim. In any case, there would be nothing to stop Try Sulysto from being reunited with Tania and Rio Sulysto in Indonesia. The only circumstance that differential decisions would prevent would be reunification in Australia.
Decision
169. The Tribunal affirms the decision under review.
I certify that the 169 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member
Signed: ..............(Sgd E Jordan).....................................
AssociateDate/s of Hearing 13 & 14 February 2008
Date of Decision 13 May 2008
Counsel for the Applicant Mr S V Phillips
Solicitor for the Applicant S V Phillips & Co
Counsel for the Respondent Mr S Thackrah
Solicitor for the Respondent Australian Government Solicitor
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