Tauriandy and Minister for Immigration and Multicultural Affairs
[2006] AATA 183
•2 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 183
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/496
GENERAL ADMINISTRTAIVE DIVISION ) Re WEMPI WUSIAN TAURIANDY Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly Date2 March 2006
PlaceSydney
Decision The decision under review is affirmed.
[sgd] Senior Member, Mrs Josephine Kelly
CATCHWORDS
MIGRATION – business visa – notice of intention to cancel visa – authorised recipient – pre-paid post and email delivery method – approved forms - service of notice of intention to cancel – notice of intention not delivered – sending of notice of intention satisfies receipt of document – service occurred within prescribed period – ownership interest and eligible business – does have substantial ownership interest but Company is not an eligible business – not actively participating at a senior level in the day-to-day management of the business – no genuine efforts – decision affirmed.
LEGISLATION
Migration Act 1958 ss 134, 135, 494A, 494B, 494C, 494D and 495
Migration Regulations 1994 r 1.03, 1,18 and 2.55
Acts Interpretation Act 1901 s 25CCASELAW
Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 31
Murphy v Minister for Immigration and Multicultural and Indigenous Affairs FCA 657
Vean of 2002v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311
Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172REASONS FOR DECISION
2 March 2006 Senior Member, Mrs Josephine Kelly Summary
1. Mr Tauriandy seeks the review of a decision made on 23 March 2005 cancelling his subclass 127 business visa pursuant to s 134(1) of the Migration Act 1958 (“the Act”). The first question that has to be answered is whether he was given a notice of intention to cancel the visa within a three year period expiring on 1 December 2004. If he was not, the Minister for Immigration and Multicultural Affairs (“the Minister”) must not cancel the visa (s 134(9)). For the reasons that follow I find that Mr Tauriandy was given the notice within the prescribed period, and therefore proceed to consider the matters set out in s 134 of the Act. Having considered those matters, I have concluded that Mr Tauriandy’s business visa be cancelled. Accordingly, I affirm the decision under review. Following are my reasons for the decision.
Background
2. After the hearing ended on 2 November 2005 the proceedings relating to the secondary visa holders, Stella Gomez, Mr Tauriandy’s wife and his two sons were discontinued because the cancellation of their visas had been revoked. The Minister accepted that none of them had been served with a notice of intention to cancel the visa and accordingly, pursuant to s 134(9) of the Act they could not be cancelled. I then gave the parties an opportunity to address that matter in relation to the residual discretion in s 134 and two other matters raised on behalf of Mr Tauriandy in written submissions that had not been directly addressed on behalf of the Minister.
3. Mr Tauriandy was granted a subclass 127 visa on 23 October 2001 (S15 pp 142 -144). He first entered Australia after it was granted on 1 December 2001 (T11, p 58). Although the visa was addressed “Dear Mr Ng” and other documents and the two forms that I will shortly refer to show his family name was “Ng”, that name seems to have been lost from his records. The application to this Tribunal has “Tauriandy” as the last name with no reference to “Ng” at all. There was no point taken and therefore I proceed on the basis that Mr Tauriandy is the appropriate name for the purpose of this decision.
4. Two forms were provided to the Department of Immigration and Multicultural Affairs (“the Department”) with a covering letter dated 28 April 2003 from Erik Tjahja Migration Agent (T8) which stated relevantly:
Please find attached forms 956 and 929 for our client:
Name: Mr Wempi Wuisan Taurandy Ng
DOB: 12 May 1957
5. At the bottom of the letter was typed:
Cc Business Skills Section, PO Box 25, Belconnen, ACT 2616
6. The letter did not set out any specific matter for which Mr Tauriandy had retained Mr Tjahja.
7. Form 929 was a Change of Address for Mr Tauriandy to a unit in George Street, Sydney (T9). Form 956 was an Authorisation of a person to act and receive communications (“the Authorisation to Act”). The Authorisation to Act included Mr Tauriandy’s name and address, presumably his signature, and the name and address of Mr Tjahja and his signature.
8. The left hand section of the form is central to the question I have to answer. It begins “I” and then provides for the name, date of birth and address to be filled out in boxes, (in which Mr Tauriandy’s details were handwritten) and continues:
“authorise the following person to act on my behalf in relation to
(tick one box only)
“my application [box] OR
my sponsorship [box] OR
any correspondence concerning my Business Skills visa [box]
(eg. monitoring and, where appropriate, cancellation)
Is this authorisation made in connection with an existing application?
No [box]
Yes [box] Give details of your existing application
Client number or file number or application receipt number
[box]
At which office was that application made?
[box]
9. None of the boxes had been ticked or otherwise filled in.
10. On 26 November 2004 a “Notice of Intention to Cancel Visa” (“the Notice”) was sent to the migration agent (T3). The deadline for responding was 24 December 2004. The evidence of the reasons why grounds for cancellation exist stated that a letter dated 2 December 2003 was sent to Mr Tauriandy’s “last known address” in order to assess whether he has fulfilled the requirements for his business visa and that no response had been received (T3 p 9).
11. The Notice was apparently sent by pre-paid post and by e-mail. A Delivery Failure Report was triggered in relation to the e-mail (T14 p 71). There are three envelopes in evidence stamped “Return to Sender” with a box “Left Address/Unknown” ticked. Two are stamped with a December 2004 date which is unclear, but possibly “7” (T15 pp 72 and 73) and the other has a received stamp dated 8 December 2004 “Registry Immigration Dept Perth” (T15 p 74).
12. The cancellation notice dated 23 March 2005 (T2) was sent to the migration agent and to the residential address Mr Tauriandy had given in the form provided in April 2003.
Legislation
13. The following provisions of the Act are relevant to the question of whether Mr Tauriandy was given notice of intention to cancel his visa within the three year period expiring on 1 December 2004.
14. Section 134(9)(b) of the Act provides that the Minister must not cancel a business visa under subsection (1) unless a notice under section 135 was given to its holder within the period of 3 years commencing, if its holder was not in Australia when he or she was first granted a business visa, on the day on which its holder first entered Australia after that first visa was granted.
15. Section 135(1) provides that before cancelling a visa under subsection 134(1), the Minister must give its holder a written notice:
1 … (a) stating that the Minister proposes to cancel the visa; and
(b) inviting its holder to make representations to the Minister concerning the proposed cancellation within:
(i) if the notice is given in Australia—28 days after the notice is given; or
(ii) if the notice is given outside Australia—70 days after the notice is given.
16. It was not in dispute in Mr Tauriandy’s case that the 3 year period specified in s 134(9)(b) expired on 1 December 2004, three years after he first entered Australia after the visa was granted.
17. The following provisions of the Act relate to giving a person a document.
Section 494A
Giving documents by Minister where no requirement to do so by section 494B method
If:
(a) a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and
(b) the provision does not state that the document must be given:
(i) by one of the methods specified in section 494B; or
(ii) by a method prescribed for the purposes of giving documents to a person in immigration detention;
the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).
S 494B
Methods by which Minister gives documents to a person
Coverage of section
(1) For the purposes of provisions of this Act or the regulations that:
(a) require or permit the Minister to give a document to a person (the recipient); and
(b) state that the Minister must do so by one of the methods specified in this section;
the methods are as follows.
Giving by hand
(2) One method consists of the Minister (including by way of an authorised officer) handing the document to the recipient.
Handing to a person at last residential or business address
(3) Another method consists of the Minister (including by way of an authorised officer) handing the document to another person who:
(a) is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and
(b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(c) appears to be at least 16 years of age.
Dispatch by prepaid post or by other prepaid means
(4) Another method consists of the Minister dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to;
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents.
Transmission by fax, e-mail or other electronic means
(5) Another method consists of the Minister transmitting the document by:
(a) fax; or
(b) email; or
(c) other electronic means;
to the last fax number, e-mail address or other electronic address, as the case may be, provided to the Minister by the recipient for the purposes of receiving documents.
When the Minister hands a document by way of an authorised officer
(6) For the purposes of sections 494C and 494D, a reference in those sections to an act of the Minister includes, if the act is of a kind referred to in subsection (2) or (3) of this section, a reference to an act of the Minister by way of an authorised officer.
Section 494C
When a person is taken to have received a document from the Minister
(1) This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).
Giving by hand
(2) If the Minister gives a document to a person by the method in subsection 494B(2) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person.
Handing to a person at last residential or business address
(3) If the Minister gives a document to a person by the method in subsection 494B(3) (which involves handing the document to another person at a residential or business address), the person is taken to have received the document when it is handed to the other person.
Dispatch by prepaid post or by other prepaid means
(4) If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or
(b) in any other case—21 days after the date of the document.
Transmission by fax, e-mail or other electronic means
(5) If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, e-mail or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.
(6) Subsection (5) applies despite section 14 of the ElectronicTransactions Act 1999.
Section 494D
Authorised recipient
(1) If a person (the first person ) gives the Minister written notice of the name and address of another person (the authorised recipient ) authorised by the first person to do things on behalf of the first person that consist of, or include, receiving documents in connection with matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents that the Minister would otherwise have given to the first person.
Note: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.
(2) If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.
(3) The first person may vary or withdraw the notice under subsection (1) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the first person's authorised recipient.
(4) The Minister may communicate with the first person by means other than giving a document to the first person, provided the Minister gives the authorised recipient notice of the communication.
18. In the Migration Regulations 1994, regulation 2.55 provides:
Giving of documents relating to proposed cancellation, cancellation or revocation of cancellation
(1) This regulation applies to:
(a) the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act; and
(b) the giving of a document under subsection 501G (3) of the Act relating to a decision to cancel a visa under subsection 501 (1) or (2) or 501A (2) or section 501B or 501F of the Act; and
(c) the giving of a document to a holder or former holder of a visa relating to the revocation of the cancellation of a visa under the Act.
(2) However, this regulation does not apply in relation to:
(a) a notice to which section 137J of the Act relates; or
(b) a person who is in immigration detention.
(3) For a document mentioned in paragraph (1) (a) or (c), the Minister must give the document in one of the following ways:
(a) by handing it to the person personally;
(b) by handing it to another person who:
(i) is at the person’s last residential or business address known to the Minister; and
(ii) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(iii) appears to be at least 16 years of age;
(c) by dating it, and then dispatching it:
(i) within 3 working days (in the place of dispatch) of the date of the document; and
(ii) by prepaid post or by other prepaid means;
to the person’s last residential address, business address or post box address known to the Minister;
(d) by transmitting the document by:
(i) fax; or
(ii) e-mail; or
(iii) other electronic means;
to the last fax number, e-mail address or other electronic address known to the Minister.
(4) For a document mentioned in paragraph (1) (b):
(a) if the person has held the visa for less than 1 year when the document is to be given, the Minister must give the document in one of the ways mentioned in subregulation (3); and
(b) if the person has held the visa for at least 1 year when the document is to be given:
(i) Immigration must try to find the person; and
(ii) the Minister must give the document in one of the ways mentioned in subregulation (3).
(5) If the Minister gives a document to a person by handing it to the person, the person is taken to have received the document when it is handed to the person.
(6) If the Minister gives a document to a person by handing it to another person at a residential or business address, the person is taken to have received the document when it is handed to the other person.
(7) If the Minister gives a document to a person by dispatching it by prepaid post or by other prepaid means, the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia — 7 working days (in the place of that address) after the date of the document; or
(b) in any other case — 21 days after the date of the document.
(8) If the Minister gives a document to a person by transmitting it by fax, e-mail or other electronic means, the person is taken to have received the document at the end of the day on which the document is transmitted.
The parties’ arguments about service
19. Mr Kok who appeared for Mr Tauriandy relied on three matters to establish that notice of intention to cancel the visa had not been given pursuant s 135 within the 3 year period required by s 134(9).
20. The first was that because a box was not ticked on the Authorisation to Act , Mr Tauriandy had not authorised Mr Tjahja to receive correspondence concerning his business skills visa, including about its cancellation. Mr Tjahja was responsible for completing the form and Mr Tauriandy had only signed it. That is, Mr Tauriandy relied on Mr Tjahja’s skill as a migration agent for that purpose. He argued that the correspondence should have been given to the notified residential address pursuant to s 494B(3). He also argued that notice should have been given to both Mr Tjahja and the notified residential address, as permitted by s 494D.
21. Secondly, he argued that notice had not been given as it had not been received. Section 494C(4) relating to prepaid post does not provide for what happens when a letter is returned to sender, as happened in this case. The return of the letter meant that the Department knew it had not been received. Similarly, the email was not received and the Department knew because it received the delivery failure report.
22. His third argument was that Regulation 2.55 applies in this case because it concerns the giving of a notice of intention to cancel a visa and service should have been given in accordance with that regulation. Ms Quinn argued that Regulation 2.55 did not apply as s 494D of the Act dealt with authorisation and the regulation did not affect the operation of that provision. I accept that that argument is correct. The regulation cannot limit the operation of a provision of the Act. Further, the regulation does not refer in its terms to a situation where authorisation has been given to s 494D. I therefore proceed to consider Mr Kok’s first and second arguments.
23. Ms Quinn argued that the “Authorisation of a person to act and receive communication” was provided for a reason. It was intended to authorise the migration agent. Its title indicated that. If the Department had not taken it as such, Mr Tauriandy would have had a genuine cause for complaint. The fact that a box had not been ticked did not affect the authorisation. Section 494D only requires that written notice of the name and address of the person who was authorised be given to the Minister and that was satisfied in this case.
24. She also argued that “give” in s 494D means only to issue, that is, receipt is not necessary to satisfy the provision. I do not accept that argument. First of all in my opinion it does not accord with the ordinary English meaning of “give”: 1 to deliver freely; bestow; hand over: to give someone a present 2. to deliver to another in exchange for something; pay” (Macquarie Concise Dictionary, Third Edition). Secondly, the provisions dealing with giving documents on their terms incorporate the notion of receipt, including deemed receipt. Section 494B provides for various means of giving documents: by hand to the person (“the recipient”); to another person at the person’s last residential or business address; by dispatching by prepaid post; and transmission by fax, e-mail or other electronic means. Section 494C provides for “When a person is taken to have received a document from the Minister”. Further, the effect of s 494A, 494B and 494C are that in this case where the documents were given by methods set out in s 494B, the provisions of s 494C apply.
25. The documents dispatched by prepaid post are deemed to have been received 7 working days after the date of the document (s 494C(4)(a)), and in the case of the e-mail, at the end of the day on which the document is transmitted, 26 November 2004 (s 494C(5)), although they were returned. This conclusion is supported by Murphy v MIMIA [2004] FCA 657, Vean of 2002 v MIMIA [2003] FCAFC 311 and Xie v MIMIA [2005] FCAFC 172 The consequence is that that the prepaid posted documents could not have been received within the 3 year period specified by s 134(9) of the Act, given that the document was dated 26 November 2004 and the three year period ended on 1 December 2004. Applying s 494C(4)(a), they would have been deemed to have been received on 7 December 2004. During the hearing Ms Quinn accepted that was so. That leaves the question whether the e-mail was relevantly given to Mr Tauriandy.
26. Although not addressed by the parties, there are other provisions of the Act and Regulations which are relevant to this question because a form has been issued by the Department which on its face appears to be an “approved form” within the meaning of the Act or Regulation.
27. Section 495 of the Act provides:
The Minister may, in writing, approve a form for the purposes of a provision of this Act in which the expression "approved form" is used.
28. Section 494D does not use the expression “approved form”. It provides only that “written notice” of certain information is to be provided. I conclude that the form was not approved pursuant to s 495.
29. Regulation 1.03 includes the following definition:
In these Regulations, unless the contrary intention appears:…
"approved form" means a form approved by the Minister under section 495 of the Act or regulation 1.18, and a reference to an approved form by number is a reference to the form so approved and numbered.
30. Regulation 1.18 provides:
Approved forms
(1) The Minister may, in writing, approve forms for:
(a) use in making an application for a visa; or
(b) any other purpose authorised or required by these Regulations.
(2) Each of the following is an approved form for use in making an application for a visa:
(a) a paper form;
(b) a set of questions in an interactive computer program that is:
(i) approved by the Minister for use in making an application for the visa; and
(ii) made available at an Internet site operated under the authority of the Minister.
31. Having perused the regulations, it is not clear to me that the Authorisation form was approved pursuant to the Regulations either, although it has apparently been issued by the Department and has a number which accords with the regulation. However, for present purposes I will first assume that the form was an “approved” form.
32. Given the requirement of “written notice” in s 494D, in my view the “form” as filled out satisfied the requirements of that provision. Mr Tauriandy has given the Minister written notice of the name and address of the authorised recipient for the purposes of dealings with the Department including authorising the Department to send that person “any communications, documents or notifications relating to my application, my sponsorship or business Skills visas that would otherwise have been sent to me”. It was signed by him and Mr Tjahaja.
33. If it is an “approved” form, it is not prescribed by the Act or the regulations. Rather, it is a form which the minister may approve in writing. If the form were prescribed by the Act, strict compliance would not be required “unless the contrary intention appears” (the Acts Interpretation Act 1901, Cwth, s 25C). This reinforces my conclusion that what is required is substantial compliance with the requirements of the form, assuming it is an approved form, and in this case, that has been satisfied.
34. If it were not an “approved” form, I would come to the same conclusion. The requirement for notice in writing pursuant to s 494D has been satisfied.
35. There having been notice given pursuant to s 494D, it was mandatory for the Minister to given the notice of intention to cancel the visa to the authorised recipient (s494D(1) and s 494D(4)) , and he had a discretion to give it to Mr Tauriandy as well (s 494D(2)).
36. As I have found above, s 494C(5) applies when there was notification that the e-mail had not been delivered. The legislative scheme does not require that the person or the authorised person actually receives the documents. If notice is given in the prescribed way, it is deemed to have been given as provided in s 494C. It is apparent from the provision that it is up to the recipient to keep the contact information current. That was not done in this case.
37. For the above reasons I find that the notice of intention to cancel Mr Tauriandy’s visa pursuant to s 135 was given within the 3 years prescribed by s 134(9). It is therefore necessary to consider whether the provisions of s 134 have been satisfied.
Has Mr Tauriandy satisfied the requirements of s 134 of the Act?
38. No oral evidence or written witness statement was given by Mr Tauriandy, nor by any of the secondary visa holders. In the material supporting his visa application, he stated that he intended to engage in “poultry equipment in Western Australia” and that because conditions would be different he would have to make careful enquiries and conduct further research after “our arrival”. He had visited Perth to study the possibility of setting up such a business and stated that “I have the knowledge as to how poultry equipment and egg store should be undertaken” (S1 p 21).
39. The material tendered in these proceedings in support of Mr Tauridandy’s compliance with the requirements of the business visa was contained in a large bundle of material (Exhibit A1), the statement of a witness Mr Oesep whose address was given as Maroubra (Exhibit A2) and a bank statement (Exhibit A3). All the documents in Exhibit A1 and Exhibit A3 are photocopies.
40. A company search shows that on 28 November 2001 East Star Development Pty Ltd was registered (“the Company”). Mr Tauriandy is the sole director, secretary and shareholder.
41. The Company’s 2004 income tax return shows a total income of $33,791 and a taxable income of $6,986. The Balance sheet apparently attached to that tax return has figures for 2003 and 2004. In 2003 the Total Assets were $151,125 and current liabilities of $151,025, comprised solely of shareholders’ unsecured loans. In 2004 the Total assets were $17,892.51 and Total liabilities were $12,902.74.
42. In a statement for the period “to 11 March 2004” a deposit of $180,000 was made by Harry G Oesep on 18 February 2004. On 20 February 2004, $175,000 was paid out to Mr Tauriandy and his wife, Stella Gomez. The balance at the beginning of the period was $12,345.79 and at the end $18,196.80. A handwritten annotation on the document states that the $180,000 deposit was “Payment for Hurstville project”.
43. HSBC Bank financial statements for Mr Tauriandy and his wife were also in evidence. They show a six month fixed deposit of $23,548.41 starting on 11 August 2004 and being rolled over in February 2005. As 10 May 2005 their net position was $70,122.75 DR.
44. The documents include evidence of two transactions where the Company received an order for fruit and vegetables seeds from “Sinar Harapan Poultry Shop”, purchased the seeds from an Australian supplier and rendered an invoice to the Indonesian poultry shop for them. Those invoices were dated 8 October 2003 and 1 March 2004 in the sums of $2,235.10 and $1,350, a total of $3,585.10. There was a small profit margin of approximately $60 in each case. Mr Tauriandy stated in his application for the visa (S1) that he owned 100% of “Sinar Harapan Poultry Shop”. Financial statements reflect payments to the Company’s account from Sinar Harapan Poultri for seed in 2004 on 9 March (AUD2161.26), 18 March ($1,261.30) and on 26 March ($162.54), a total of $3,585.10.
45. There is also evidence of the Company’s correspondence between April and July 2003 with two Indonesian entities about the possible supply to them of meat and bone meal from Australia.
46. An undated document which does not have its first page, appears to be an agreement for the sale of shares from Global Home Development Pty Limited (“Global”) to the Company. Although signed by the secretary of each company, Harry G. Oesep and Mr Wempi T. Wuisan respectively, the common seals are not affixed.
47. Another agreement dated 1 July 2003 between the Company and Raine & Horne Lifestyle (“RHLS”) in Jakarta is also signed by Mr Oesep, as Chairman of that entity. The agreement authorizes the Company to refer customers to RHLS for purchasing properties for a fee specified in a schedule which is not in evidence. In the same part of the exhibit, are photocopies of advertisements for properties including student accommodation on the Gold Coast, and apartments in Sydney, Melbourne.
48. Further documents relate to an “Australian property Exhibition” held on 23 to 24 August 2003 at the Makassar Golden Hotel by East Star “in cooperate with Raine & Horne”. One document sets out the purpose of the exhibition, to introduce “one of the well-known properties in Australia” and to show “the easy ways to get or buy of the necessities (accommodation) especially for overseas students”. Other headings are “Promoting Activities” which refers to banner, advertisement in newspaper for three days and invitation to overseas students’ parents. The final heading “Others” lists documentation, sample of invitation, and sample of advertisement. An undated document signed by Mr Tauriandy and Mr Oesep expresses the Company’s thanks for Raine & Horne’s co-operation in the exhibition, reasons why it was held in Makassar, that the number of visitors at the exhibition “were not really big but we expect that for the next exhibition will be higher”. There also copies of photographs of a function room with a banner which appears to include the Company’s name, people present, a display of posters which are illegible in the photocopies, a list of exhibition expenses totalling Rp 4,804.100 and a overtime costs for staff. There are also photocopies of extracts from newspapers in the Indonesian language which include what I understand to be advertisements for the function.
49. A property search dated 19 July 2005 shows that Mr Tauriandy and his wife have owned a strata plan unit in Sydney since 14 February 2002. Other documents relating to a unit in George Street Sydney were also in evidence. There is no dispute that Mr Tauriandy and his wife own the property. It was purchased for $650,000.
50. The most recent statement provided for the Company showed that as at 19 October 2005 the account balance of AUD105,805.54 (ExhibitA3).
51. In his witness statement, Mr Oesep states that Global has a subsidiary which purchased and then developed a bock of land in Hurstville. The 28 commercial office units constructed have been sold. On 3 December 2001 Global sold 30 shares to the value of $150,000 to the Company. Mr Tauriandy’s role was to market and sell the commercial units in Indonesia. He also refers to the agreement between Raine & Horne and the Company “to market and sell Australian property in the Indonesian market” and to the two-day property exhibition held in Makassar.
52. Mr Tauriandy has visited Australia from 1 to 5 December 2001, 25 April to 4 May 2002, 18 April to 1 May 2003, 11 July to 21 July 2003, 13 September to 3 October 2003, and 18 February to 2 March 2004.
53. It was agreed that only Mr Tauriandy’s son Jonathon has lived in Australia. He has been here for seven years, has completed his secondary education and is in the final year of tertiary degree course. The other members of the family live in Indonesia.
Consideration
54. In summary, the activities relied upon to support Mr Tauriandy’s application are the sale on two occasions of vegetable and fruit seeds to his own shop, correspondence about possible meal and bone export which came to nothing, his marketing of commercial units at Hurstville in Indonesia for which he received $150,000, the agreement with RHLS and the property exhibition in Makassar, the purchase of a unit in Sydney for $650,000, and the Company’s bank balance which exceeds $100,000.
55. I give no weight to the seed transactions. The seed transactions are only between the Company and Mr Tauriandy’s business in Indonesia, they are for a very small profit and have only occurred on a few occasions.
56. I am not persuaded on the available evidence that the Company did purchase shares in Global. There is no share certificate in evidence. The deed is incomplete, undated and does not specify how many shares were purchased or a purchase price. I am also not persuaded that Mr Tauriandy was involved in selling the Hurstville units and earned commission of $150,000. Mr Oesep’s evidence was only that the Company and Mr Tauriandy had the role of marketing and selling the units in Indonesia. He said nothing about payment. There is no evidence of any marketing activity of those properties. The only evidence of payment for such services is the handwritten annotation on a financial statement that $180,000 received from Mr Oesep on 18 February 2004 was “payment for Hurstville project”. A sum of $175,000 was paid out on 20 February to Mr Tauriandy and his wife. No evidence was tendered of sale to a person in Indonesia or anywhere else.
57. The final matter relied upon is the agreement between the Company and RHLS and the material purporting to show that the Company was involved in holding an Australian Property Exhibition in Makassar. I accept that this event was held but there was no evidence of negotiations or sales resulting from it.
58. Section 134(1) of the Act provides relevantly that the Minister may cancel a business 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.
59. Section 134(2) provides that 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).
60. Section 134(10) provides 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.
61. I find that Mr Tauriandy has a substantial ownership interest in the Company which is in Australia, however I am not satisfied that the Company is an eligible business within the definition in s 134(10). I am not satisfied on the evidence that the Company is resulting or will result in any of the consequences specified in the definition. There has been very little activity carried out by the Company. Accordingly, I am satisfied that Mr Tauriandy has not obtained a substantial ownership in an eligible business in Australia. Further, I am satisfied that Mr Tauriandy is not utilising his skills in actively participating at a senior level in the day-to-day management of the Company within the meaning of s 134(1)(b) of the Act.
62. I am not satisfied that Mr Tauriandy has met the requirements of s 134(2) of the Act. I have taken into account all the evidence that was before me which is summarised earlier in this decision, and the provisions of s 134(3) of the Act. Mr Tauriandy has not made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia, or to utilise his skills in actively participating at a senior level in the day-to-day management of that business. It follows that I cannot be and am not satisfied that he will continue to make any such efforts.
63. Finally, I must consider the residual discretion in s 134(1) identified by Kiefel J in Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 31. Her Honour said:
Whilst the discretion given in s 134(1) is not as broad as that considered in Samad, in the sense that it does not involve more choices, it cannot be said that a decision not to cancel a visa could serve no purpose. The Minister might be satisfied of the matters referred to in subs (1) and not be satisfied as to the efforts made as referred to in subs (2) but nevertheless consider in a particular case that further time should be given to the visa holder to undertake what was required of them. [paragraph 21]
64. Mr Kok who represented Mr Tauriandy put forward the following matters in support of his argument that I should exercise the discretion in favour of his client. Mr Tauriandy has attempted to continue the business. There is a possibility of failure. A visa does not require him to stay in Australia for it to be valid. It is up to him and his family if they move to Australia. He would have to uproot himself, his wife and younger child. He is the sole breadwinner and would need to ensure that they are provided for and have a living standard to which they are accustomed. As a result of currency values and the economic situation, it took him longer to establish his business. The other members of the family have retained their visas, as explained above, and it is their intention that whole family come together. He would have to move to Australia to operate business.
65. Even if the discretion permitted consideration of those matters, the difficulty is that there is simply no evidence of Mr Tauriandy future intention as outlined by Mr Kok or of currency or economic conditions affecting efforts to establish or carry out business.
66. The fact that secondary visa holders’ visas have not been cancelled does not persuade me that the discretion ought to be exercised. Mr Tauriandy has spent little time in Australia, as have his wife and younger child. His older son has spent a considerable time here away from his father and family and that situation may continue as he has retained a visa.
67. Mr Kok’s final argument was that Mr Tauriandy had had no opportunity to respond to the notification of intention to cancel, which as I understand the submission went to fairness. I do not accept that argument. Mr Tauriandy has had the opportunity to put all the evidence he had before this Tribunal.
68. In the circumstances, I am not persuaded that I should exercise the discretion conferred by s 134(1).
Decision
69. For the above reasons, I affirm the decision under review to cancel Mr Tauriandy’s business visa.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly
Signed: Miss Sacha Keady
AssociateDate/s of Hearing 2 November 2005 and 31 January 2006
Date of Decision 2 March 2006
Solicitor for the Applicant Denro Pty Limited
Solicitor for the Respondent Phillips Fox
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