Tjahyana and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 1241

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1241

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/135

GENERAL ADMINISTRATIVE  DIVISION		)
Re		TITO TJAHYANA

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date16 December 2005

PlaceSydney

Decision  The decision under review is affirmed

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

Ms N Bell   Senior Member

CITIZENSHIP AND MIGRATION – Business (Skills) Visa – Indonesian Citizen – Applicant Conceded He Had Not Obtained Substantial Ownership Interest in An Eligible Business In Australia – Applicant Conceded He Does Not Utilise His Skills and Actively Participated At A Senior Level In Business - Tribunal Did Not Find Applicant Has Made Genuine Effort to Obtain Such an Interest – Decision of the Minister Affirmed

Migration Act 1958 (Cth)

REASONS FOR DECISION

16 December 2005 Ms N Bell, Senior Member

1.      Mr Tjahyana is a citizen of Indonesia and conducts business there. He was granted a subclass 127 business visa on 17 May 2001, and first entered Australia on 21 September 2001. His visa was cancelled on 5 January 2005 and by that date he had spent a total of 76 days in Australia since the initial grant of his visa.

2.      On 29 August 2003, a 24 month survey (Form 1010) was sent to Mr Tjahyana but not responded to by him. On 31 August 2004, a notice of intention to cancel the Applicant’s visa was sent to him and he responded to that notice on 1 October 2004.

3. Section 134 of the Migration Act 1958 (“the Act”) sets out the circumstances in which the Minister may cancel a business visa. The first of those circumstances is where the Minister is satisfied that the visa holder has not obtained a substantial ownership interest in an eligible business in Australia. Mr Tjahyana concedes he has not obtained such an interest. The second circumstance is where the visa holder is not utilising his or her skills and actively participating at a senior level in a day-to-day management of that business. Mr Tjahyana concedes he does not utilise his skills in this way.

4. However, under section 134(2) of the Act, the Minister must not cancel a business visa if he or she is satisfied that the visa holder has made a genuine effort to obtain such an interest and to utilise his or her skills in the way described, and intends to continue to do so. Section 134(3) sets out a number of matters the Minister may take into account when determining whether a visa holder has made such an effort.

5.      Mr Tjahyana contends he has made a genuine effort of this kind.  This is the sole issue in this application.

did mr tjahyana make the required genuine effort?

6.      Mr Tjahyana relied on the information contained in his response to the notice of intention to cancel and on the evidence he gave by telephone from Indonesia. 

7.      Mr Tjahyana said his current business in Indonesia involves mining and export of coal to China and running five restaurants in Indonesia. His coal business is run under the auspices of his Indonesian company PT Gajaharta Tata Perkasa which he established in 1990.  As to his business activities in 2004, Mr Tjahyana was involved in the business of roof tiling in Indonesia, conducted under the auspices of his Indonesian company, and in that year, learned of adhesive, manufactured in Australia, that can be used for securing roof tiles. In December 2004 he purchased some $108,000 worth of this adhesive from Bostik Australia and imported it to Indonesia where he sold it to the building industry. At the time of purchase Mr Tjahyana was in Indonesia, the purchase price was paid with funds from an Indonesian bank account and the purchase and consequent sales were through his Indonesian company. The purchase occurred after Mr Tjahyana received the notice of intention to cancel in August 2004, but Mr Tjahyana said he had been negotiating the transaction since 2003. There have been no other transactions with Bostik but Mr Tjahyana said he has buyers in Indonesia and he intends to import further adhesive. He said the cancellation of his business visa would be a barrier to further purchases from Bostik Australia.

8.      Mr Tjahyana said he also secured a contract to import raw cotton from Australia to Indonesia.  However, no goods have yet been bought or sold under that contract. No transactions other than the Bostik purchase have been negotiated and completed since the business visa was granted.

9.      Mr Tjahayana said that in 2003 he had considered opening an oriental supermarket in Australia but was unable to conclude the deal. Also, in 2003, he met with Malep Doors Pty Ltd, an Australia company, with a view to a joint venture but said that company wished to maintain all management control and so he did not pursue the venture.

10.     Mr Levingston, for Mr Tjahyana, submitted that Mr Tjahyana is an experienced enterpreneur and it was necessary for him to dedicate significant periods of time watching for opportunities to export and to “test the waters” before entering into  a transaction. He submitted that Mr Tjahyana attempted to link his business experience in the roofing industry in Indonesia with a new business of exporting tile adhesive in Australia. He noted that, in the wake of the visa cancellation, Mr Tjahyana was unprepared to commit further funds to the enterprise.

11.     Mr Levingston submitted that any adverse inference that could be drawn from the timing of the Bostik transaction, that is, shortly after receipt of the Notice of intention to cancel, is displaced by the substantial amount of the purchase ($108,000).

12.     Even if I were to accept Mr Levingston’s submission that Mr Tjahyana was simply biding his time before acting on an appropriate business opportunity, there is scant evidence of him actively “testing the waters” during the three years between the grant of the visa and its cancellation. There is evidence of only two business opportunities that were investigated by Mr Tjahyana prior to the single transaction undertaken in December 2004.

13. I had regard to the matters set out in section 134(3) of the Act. I note that the matters listed there are not exhaustive but I consider them to constitute a valuable starting point for consideration.

14.     Paragraph “a” of section 134(3) refers to a business proposal that the visa holder has developed. The only business proposals of which there is any evidence, are the proposals in relation to Malep Doors and the Oriental supermarket. Neither of these proposals were far advanced.

15.     Paragraph “b” of section 134(3) concerns partners to joint ventures and there is no evidence of this in Mr Tjahyana’s case.

16.     Paragraph “c” of section 134(3) concerns research undertaken into the conduct of an eligible business in Australia and again there is no evidence of any such research.

17.     Paragraphs “d, e and f” of section 134(3) concern, respectively, the periods present in Australia, the value of assets transferred to Australia and the value of an ownership interest in an eligible business and there is no dispute that Mr Tjahyana has been present in Australia throughout the relevant period for only 76 days and there is no evidence of either transfer of assets or business ownership in Australia.

18.     Paragraph “g” of section 134(3) concerns business activity undertaken by the visa holder and the only such business activity is the Bostik transaction in December 2004, an isolated transaction that was neither continuous nor repetitive.

19.     Finally paragraph “h” of section 134(3) concerns failure to comply with the notice under section 137. In his response to the notice of intention to cancel Mr Tjahyana said that he did not receive the letter concerning the 24 month survey and he had informed the authorities of his address in Australia. I note however, that T25 is a Notification of change of address completed on 21 September 2001 advising an address in North Parramatta as the contact address for Mr Tjahyana. I also note that the 24 month survey was forwarded to Mr Tjahyana at that address in August 2003.

20.     I also note that, while it is not necessary that business conducted by a visa holder be conducted in Australia, the only business transaction conducted by this visa holder was conducted entirely in Indonesia, with Indonesian funds and by an Indonesian company. The presence of Mr Tjahyana in Australia for only 76 days throughout the visa period does not assist his claim of ‘genuine effort’ in the required way.

21. There are no other matters or circumstances before me, in addition to the matters set out in section 134(3), that indicate a genuine effort of the required kind.

22.     For these reasons I cannot be satisfied that Mr Tjahyana has made a genuine effort to obtain 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 such a business.

23. Notwithstanding the above conclusions, I am required to consider whether I should exercise the discretion inherent in s134(1) (“the Minister may cancel a business visa”).  There is no evidence before me of any other matter which overrides the conclusions I have reached above or which gives me cause to exercise the discretion available.

decision

24.     The decision under review is affirmed

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.

Signed:         ...........[Linda Blue].......................
  Associate

Date of Hearing  17 November 2005
Date of Decision  16 December 2005

Solicitor for the Applicant         Christopher Levingstone & Associates

Solicitor for the Respondent     Phillips Fox