Tjie and Minister for Immigration and Multicultural Affairs
[2002] AATA 1145
•18 October 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1145
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2001/23
GENERAL ADMINISTRATIVE DIVISION )
Re TJIN TJEN TJIE
Applicant
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Senior Member M D Allen
Date18 October 2002
PlacePerth
ADMINISTRATIVE APPEALS TRIBUNAL ) No W2001/23
)
GENERAL ADMINISTRATIVE DIVISION )
Re: TJIN TJEN TJIE
Applicant
And: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Senior Member M D Allen
Date 18 October 2002
Place Perth
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Cancellation of Business Skills Visa – Finding that company incorporated in Australia by Applicant a sham – No real business conducted by the Australian company – Applicant's real interest in factories in Indonesia – Applicant still a resident of Indonesia.
Migration Act 1958 – s134
Re Wong and Minister for Immigration [2002] AATA 54
Skoljarev v Australian Fisheries Management Authority 22 AAR 331
REASONS FOR DECISION
Senior Member M D Allen
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed:
..................................................................................……………………………….Associate
Date of Hearing 17 October 2002
Date of Decision 18 October 2002Representative for Applicant Mr J Chong
Solicitor for Respondent Ms J Andretich, Australian Government Solicitor
DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No W2001/23
By MR M.D. ALLEN, Senior Member
TJIN TJEN TJIE
and
MINISTER FOR IMMIGRATION,
MULTICULTURAL
AND INDIGENOUS AFFAIRS
PERTH
FRIDAY, 18 OCTOBER 2002
MR ALLEN: By application made the 30th day of January 2001, the applicant sought review of a decision by the respondent dated 20 December 2000 to cancel his business skills visa pursuant to section 134 of the Migration Act 1958 as amended. Section 134 reads, inter alia:
1. Subject to subsection (2) and section 135, 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 skills or her skills in actively participating at a senior level in the day to day management of that business.
2.The Minister must not cancel the 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.
I would only interpolate there to say that the word "and" is used so that the particular paragraphs of subsection (2) are cumulative. Subsection (3) of section 134 then goes on to read:
Without limiting the generality of the matters that the Minister may take into account in determining whether a person has made the genuine effort referred to 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 of 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 the notice under section 137.
Eligible business is defined in section 134 in the following terms:
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.
As was pointed out in re Wong and Minister for Immigration etcetera 2002, AATA 54, the Tribunal, upon this review, is to consider matters as they stood at the date of the impugned decision, namely as at 20 December 2000. I accept, however, the submissions of Mr Chong for the applicant that later events can be examined with the object of ascertaining what activities the applicant was undertaking at the relevant date.
The applicant arrived in Australia on September 7, 1997 after the grant of his visa. Accompanying him, and subject to his visa, were his wife and three children. Although their visas are dependent upon that of the applicant for their validity, no applications have been made to this Tribunal in respect of the subordinate visa holders. As stated, the applicant arrived in Australia on 7 September 1997. He caused a company, David Sae Pty Ltd, to be incorporated on 4 February 1999 and it is this company which has been the vehicle for his Australian activities.
Other shareholders in the company are the applicant's wife and children, together with a Mr Setiabudi Bambang, a resident of Indonesia. Mr Bambang is a friend of the applicant but, as yet, has not put any money into David Sae Pty Ltd although, as I understand the applicant's evidence, he may do so at some future date. Apparently the applicant and Mr Bambang have an ongoing joint business arrangement in Indonesia. Since the 7 September 1999 to 20 December 2000, the applicant spent a total of 129 days in Australia. His major activity is managing the two factories owned by companies of which he is the major shareholder in Indonesia. One factory in Central Java employs 1000 people and manufactures plastic products, including plastic bags.
Another factor on the island of Batam near Singapore recycles plastic products. Some of the recycled material from the Batam Island plant is forwarded to the Central Java factory for use there. The Indonesian factories use plastics or plastic resins imported from several countries. Scrap plastic is also imported from other countries, for example the Netherlands. The applicant estimated that he spent 40 hours a week managing his business interests and I understand from the evidence he is assisted by his daughter, Sandra, although she has her own company. I say that because in his evidence Mr Yussof said if the applicant was unable to make a decision, he would contact Sandra, to use her Anglicised name.
I find from the material before me that the applicant is an experienced business man and, although not literate in English, would have been able to make informed decisions on matters referred to him, albeit by way of translation. By letter dated 31 July 1999, the respondent requested the applicant to complete a survey form entitled: Survey of Business Migrants Migrant Class, being a form 1010, detailing his business activities during the previous 24 months. This initial letter was not replied to by the applicant. A follow-up letter was sent to the applicant dated 4 February 2000. That letter pointed out to the applicant that his visa could be cancelled if the survey was not completed.
A survey form was completed and received by the respondent in early April 2000 although the respondent had requested it be completed and received by 3 March 2000. The applicant has, by his agents, stated that the form was completed by his eldest daughter and did not contain correct information. I reject this statement. At the time she completed the form, the applicant's daughter, Sandra, had completed an economics degree at a West Australian University, majoring in marketing and finance. She was a director and secretary of David Sae Pty Ltd and, as such, should have had an intimate knowledge of the affairs of the company.
Although he later resiled from the absoluteness of his statement, I believe the applicant's evidence to be correct when he stated in cross-examination that the document was completed correctly but he did not then realise what the consequences would be. As a result of the business survey being received by the respondent, further information was requested from the applicant, see document T8 page 35 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Requested were:
Statement by statutory adviser (CPA lawyer) detailing your business's performance.
Audited statements of the business accounts.
A copy of your most business recent taxation returns.
Bank account statements in the business name. Certificates of Business Registration and/or licensing.
Business insurance policy or policies.
Evidence of attendance at English language courses, if appropriate.
Invoices, receipts, goods orders, etcetera.
Contracts signed for the delivery of goods and/or services.
No response was received to that request.
By letter dated 29 August 2000 the applicant was informed of the intention to cancel his business skills visa. This was responded to by a letter from the applicant's accountants and migration agent, Fan & Associates dated 12 October 2000. Various documents accompanied that letter, not all of which were relevant. For example, the real property details or the third party insurance for a motor vehicle. The letter from the agents, which the applicant stated was sent on instructions, stated inter alia and see document T12:
Given the fact that Mr Chee has only spent a total of 115 days in Australia, which supports the conclusion that he has been based overseas, is not refuted but Mr Chee refutes the assumption that he is not involved at a senior level of management of an eligible business in Australia.
Under the said definition of "eligible business", Mr Chee is clearly able to claim that he is promoting the development of business links with the international market as exported Australian goods and consequently created employment in Australia as an indirect result of those exports. He is required to be overseas to promote Australian interests and source prospective buyers.
No specifics were provided however.
The profit and loss statement for David Sae Pty Ltd for the year ended 30 June 1999 shows that in that year the company made an operating profit after tax of $268. No profit and loss account for the years ended 30 June 2000 or 30 June 2001 have been provided by the applicant despite request. But the profit and loss statement for the year ended 30 June 2002 is contained within exhibit A2 and shows that in that year the company made a total loss of $50,419. It was agreed in cross-examination by the applicant that, in fact, the company has never made any money. As to the goods exported by the company in 1999, these were purchased on behalf of the applicant's company in Java. Because of agency arrangements, they were, in fact, purchased from a Singapore company but the goods themselves came from Australia but, as stated, they were purchased for the applicant's own company in Java.
Evidence was given of the export by David Sae Pty Ltd of scrap plastic to Indonesia. These exports were, however, to the applicant's own companies. I reject the applicant's evidence that without an Australian registered company, waste management companies will not sell to him. I accept Mr Drake-Brockman's evidence that he feels more comfortable dealing with an Australian company but the final position is he would not refuse to deal if, after meeting the other party, he felt he could trust him. There is no direct evidence from the other waste management companies as to this point.
So far as Mr Drake-Brockman is concerned, I find that the real efforts to arrange for an export of salvage plastic was only made after the possibility of a visa cancellation was raised in late 2000. There is nothing in Mr Drake-Brockman's evidence which enables me to find the activities of Dave Sae Pty Ltd were in any respect different from what the applicant could have done for himself, operating from Indonesia. Questioned as to why David Sae Pty Ltd was created, the applicant stated: "The main thing is for my company in Batam and my company in Java". He also stated that were it not for his plastic recycling plant in Batam, then there would be no need for Australian goods.
The evidence of Mr Yussof did not assist the applicant's case. He is described in his witness statement as the marketing manager of David Sae Pty Ltd. His evidence revealed that, in reality, he is an agent for the applicant's business interests and, if anything, is paid a retainer. He is not employed by David Sae Pty Ltd. His salary is paid by the Indonesian company and he obtains none of the normal benefits associated with employment by an Australian company. For example, sick leave, superannuation contribution or workers compensation.
Taking all of the material before me, I am satisfied that at the relevant date and even now the applicant uses David Sae Pty Ltd as a vehicle but, in truth, the only business he is engaged in is the purchase of plastics for his Indonesian companies. Looking more specifically at subsection (3) of section 134, let me say at the outset that, whereas the guidelines for the cancellation of business visas which became exhibit R2 are worthy of cognisance as guidelines, they cannot bind this Tribunal, nor can they detract from the plain words of the statute.
The manner in which the Tribunal should treat such a document was clearly set out by Davies J, in Skoljarev and Australian Fisheries Authority, 22 Australian Administrative Reports 331 at 336 et seq. Subsection (3) of section 134 gives criteria for assessing whether an effort to obtain a substantial interest in an eligible business has been made. In dealing with some of these criteria, I find, for example, as to criteria (a) and (b), the business proposals were created after the cancellation of the visa, see exhibit A2 at page 1 which is a letter to Cleanaway and the letters of 8 June 2001 and 24 October 2001 contained in that bundle of documents.
As to paragraph (c) research, any inquiries or research has been directed towards providing goods for the Indonesian factories, not creating a business in Australia. Subparagraph (d) refers to periods during which the person has been present in Australia, the applicant visits Australia but he resides in Indonesia. In other words, he is a resident of Indonesia where he manages his two companies and other undefined business interests. In passing, I note that his eldest daughter having completed her degree in Australia has returned to Indonesia. Paragraph (f) refers to value of ownership and when one deals with the company it is a private company for which 100 $1 shares have been issued, see document T12 page 59 but looking at the profit and loss statements in 1999 the company had no assets.
The company returns and profit and loss statements for the year ended 30 June 2002 states that there were cash assets of $497, tax assets of $36,593 and liabilities of $87,510. End T02As said earlier, the company made an operating loss for that year. I do not overlook the fact that the applicant's wife has purchased a house but that is no real part of the business activity except that there is, within the dwelling house, a room set aside as the company office. Presently the applicant's school age son resides there and I understand he also uses the computer which is used for the business.
Paragraph (i) refers to - or rather paragraph (h) refers to the failure to comply with a notice under section 137. Originally the applicant failed to comply with the notice to complete the survey form but when the consequences of non-completion came, he then completed a form but when the subsequent results of the information contained in the form became apparent to him, sought to deny its accuracy. I thought this did little credit to the applicant. I am satisfied on all of the material before me that what in reality was the state of affairs at the date of cancellation and indeed is still the case today, is that the applicant has two factories in Indonesia of which he is the day to day manager.
He has undertaken export activities from Australia as he sees Australia as a source of raw materials. He sources raw materials from countries worldwide, however. The activities undertaken in Australia are no more than a facade to enable the applicant and his family to obtain visas. The Australian company is not necessary for his business activities and its creation has not led to real employment or business creation in Australia. As the applicant himself said in cross-examination, "I need material for my business in Indonesia. I have got a loss here but I have a profit over there". Later he said, "My main thing is for my company in Batam and my company in Java".
I am satisfied no eligible business, as that term is defined in section 134, was created, nor was there any genuine effort to do so. The decision under review is affirmed.
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