Wijaya and Anor and Minister for Immigration and Multicultural an D Indigenous Affairs
[2003] AATA 1223
•4 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1223
ADMINISTRATIVE APPEALS TRIBUNAL )
)No W2002/156 & ) W2003/217
GENERAL ADMINISTRATIVE DIVISION ) Re EDY WIJAYA
VICTOR WIDJAJAApplicants
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr Murray Allen Date4 December 2003
PlacePerth
Decision The decisions made on 16 April 2002 to cancel the visas held by Edy Wijaya and Victor Widjaja are affirmed.
............(sgd M Allen)..........................
Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – cancellation of primary and secondary business skill visas – whether a business – whether an eligible business – whether participation at senior level in day-to-day management – whether genuine effort made to carry out obligations – primary visa holders – whether son would suffer extreme hardship as a result of cancellation
Migration Act 1958 – ss134, 135
Migration Regulations 1994 Reg.2.55
Re Prawiro and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1096
Tio v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA FC53
Re Wong and Minister for Immigration and Multicultural Affairs [2002] AATA 54
Hope v Bathurst City Council (1980) 144 CLR1
Re Ming Tang and Minister for Immigration and Multicultural Affairs [2002] AATA 997
Skoljarev v Australian Fisheries Management Authority (1995) 133 ALR 690
Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961
REASONS FOR DECISION
December 2003 Mr Murray Allen, Member 1. On 16 April 2002 a delegate of the Respondent made decisions to cancel the Business Skills Visa held by Mr Edy Wijaya and the secondary visas held by his wife and three children. The present proceedings involve an application by Mr Wijaya and one of his children, Victor, for review of the two decisions made on that day concerning their visas. Applications have not been made by the other visa holders for a review of the decisions affecting them.
2. At the hearing of the proceedings the applicants were assisted by Mr Wijaya’s daughter, Ms Sunny Wijaya, and by an interpreter in the Indonesian language. The respondent was represented by Ms Wallwork.
3. The Tribunal had before it the documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 as well as a number of exhibits tendered by the parties, being Exhibits A1-A23 tendered by Mr Wijaya, Exhibits V1-V3 tendered by Victor and Exhibits R1-R5 tendered by the respondent. A further bundle of documents tendered by Victor, being correspondence between the Department of Immigration and Multicultural and Indigenous Affairs and a migration agent representing Victor concerning Victor’s application for a student visa was tendered at the hearing, but not given an exhibit number at that time. In these Reasons I refer to that bundle as Exhibit V4.
4. The background to the matter is that Mr Wijaya first entered Australia pursuant to the visa on 3 January 1999. On 5 December 2001 a delegate sent to Mr Wijaya and the other visa holders a notice of intention to cancel their visas and invited representations to be made by 16 January 2002. Representations were made to the Department by Mr Wijaya during January 2002 but, as noted above, on 16 April 2002 a delegate made the decisions to cancel Mr Wijaya’s visa under s134(1) of the Migration Act 1958 (“the Act”) and the visas held by the other family members under s134(4) of the Act.
Were the Cancellation Decisions Made within the Statutory Timeframe?
5. Section 134(9) of the Act provides that the Minister must not cancel a visa under s134(1) or 134(4) unless a notice is given to the holder of the visa under s135 of the Act within the period of three years commencing on the day on which the visa holder first entered Australia after the visa was granted. In the present case, Mr Wijaya first entered Australia on 3 January 1999 and the three year period commencing on that day would have ended on 2 January 2002.
6. The notice under s135 that is referred to is a notice under s135(1) which is to state that the Minister proposes to cancel the visa and invites representations to be made concerning the proposed cancellation within (if the notice is given in Australia) 28 days after the notice is given.
7. The notice of intention to cancel the visas in this case was dated 5 December 2001 and by virtue of Reg.2.55 of the Migration Regulations 1994 a document that is given by pre-paid post is taken to have been given 7 working days after the date of the document. Accordingly, the notice given under s135(1) of the Act in the present case is taken to have been given on 14 December 2001 ie a date within the three year period specified by s134(9) of the Act.
8. A period of 28 days commencing after the date on which that notice was given would have ended on 11 January 2002 and, as noted above, the notices in the present case nominated 16 January 2002 as the date by which representations were to be made by the visa holders. In other words, the notice nominated a period of time that was greater than 28 days.
9. For the reasons that I gave in RePrawiro and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1096 at paras 13 to 24, I consider that a notice given under s135(1) that nominates a period of more than 28 days rather than exactly 28 days for the making of representations is not invalid for that reason. Accordingly, I consider that the notices given in the present case were given as required by s134(9).
10. Section 135(4) provides that if the time specified in the notice given under s135(1) ends after the three year period from the date of first entry into Australia, then a decision to cancel must be made within the period of 90 days commencing at the time specified in the Notice. The decision of the Full Federal Court in Tio v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA FC53 is authority for the proposition that the first day of the 90 day period is the day after the date nominated in the Notice. In the present case that means that the 90-day period commenced on 17 January 2002 and ended on 16 April 2002. In other words, 16 April 2002 was the last day available for the delegate to cancel the visas and, as noted above, the cancellation decisions were made on that day. Accordingly, I conclude that the cancellation decisions were made within the statutory timeframe.
The Cancellation Decisions
11. The power to cancel Mr Wijaya’s visa arises only if the decision maker is satisfied that Mr Wijaya had not satisfied one or more of the three factors set out in s134(1) of the Act, namely that the visa 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”.
12. I must, therefore, consider whether any one of those grounds is satisfied in Mr Wijaya’s case.
13. The evidence shows that the business with which Mr Wijaya was associated in Australia was a company, Transverse Trading Pty Ltd (“Transverse”), which was incorporated on 10 May 2001, the two directors being Mr Wijaya and his daughter Sunny and the shareholders being Mr Wijaya as to 51% and his wife as to 49%.
14. In s134(10) of the Act an “ownership interest” in relation to a business is defined to mean an interest in a business as a shareholder in a company that carries on the business. I am satisfied, therefore, that Mr Wijaya had an ownership interest in the business conducted by Transverse, if in fact Transverse conducted a business at all.
15. Section 134(10) of the Act also defines an “eligible business” as 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”.
16. Paragraph 4.3.2 of the Migration Series Instructions 133 (“MSI-133”): Cancellation of Business Visa notes that eligibility of a business relates to the achievement of stated objectives through the activities of the business, not directly to the size or scale of the business.
17. In cases of cancellation of a visa, the Tribunal must consider whether the decision to cancel is the correct or preferable decision at the time of the cancellation decision: see Re Wong and Minister for Immigration and Multicultural Affairs [2002] AATA 54. It is, however, open to the Tribunal to examine events that occurred after the date of cancellation to see whether they throw any light upon circumstances as at the time of the cancellation decision.
18. The evidence of Mr Wijaya was that he has owned and operated a business in Indonesia since 1980 that involves the manufacture of chassis for cars and springs of various kinds for use in the motor vehicle industry. He wanted, therefore, to be involved in a similar business in Australia if possible because that is the industry that he knows most about.
19. When he first came to Australia in 1999 he visited Sydney and Melbourne, spoke to a number of Australian acquaintances regarding business opportunities in Australia and visited a particular spring-making plant in Sydney. However, he considered that the economic and political situation in Indonesia at the time was such that it was impossible to find buyers for any products at that time and Australian products were increasingly uncompetitive in price compared to other Asian sources of goods because of the depreciation of the Indonesian currency against the Australian currency.
20. It was in early 2001, when the Indonesian economy started to pick up again, that he started to receive some approaches from possible customers regarding some specialised steel products and he began to make enquiries about sourcing products in Australia and Korea. He found that it was not easy to obtain a supply of the steel in question in Australia because one supplier did not wish to deal with him other than through an existing Indonesian representative. In the end he commissioned Mitsubishi Corporation to negotiate with an Australian supplier, Martin Bright Steel, for the purchase of steel products on a commission basis.
21. In February 2001 he had approached Mitsubishi Corporation about the supply of particular quantities of steel and after various rounds of negotiations he placed an order with Mitsubishi on 23 May 2001 for the purchase of 20 metric tonnes of spring steel to be shipped to Indonesia. Transverse entered into a purchase contract with Mitsubishi on 7 June 2001 for the purchase of the steel at a price of US$15,800, having previously entered into a contract to sell the steel to another Indonesian company at a price of US$16,273.40. In fact, Mr Wijaya’s evidence was that the other company, which was owned by a friend of his, was only involved because it had a suitable import licence in Indonesia. The intention of Mr Wijaya was that his Indonesian business would use some of the steel and that he would try to find buyers for the balance. In the event, he said that his business had been able to use about 9 metric tonnes and that he had been able to arrange sale of about 12 metric tonnes to other customers in Indonesia.
22. In the year ended 30 June 2001 the financial statements for Transverse show trading income of A$33,833 and purchases of A$32,849 showing a gross profit from trading of A$984. After other expenses a net operating profit of A$370 was recorded for the year.
23. In the second half of 2001 efforts were made to obtain further information about other possible suppliers in Australia. This was mainly done by his daughter, Sunny, who was based in Australia or his son, William, who at the time was living in Indonesia and working with his father in the family’s Indonesian business. Various general enquiries were made to possible suppliers regarding availability and price of products, but no business resulted. Contact was made with a Mr Fleming, a consultant in the steel industry, who is based in Melbourne. In about October 2001 he advised Mr Wijaya of the availability for purchase of the spring manufacturing plant in New South Wales that Mr Wijaya had previously visited. Mr Wijaya had intended to visit the plant in October 2001 but the terrorist events of September 2001 and the repercussions of that in Indonesia meant that investment plans were put on hold.
24. In February 2002 Mr Wijaya visited Melbourne and Sydney to look at the plant, but by then it had already been sold. At the same time as that visit he had opened negotiations with Martin Bright Steel for the purchase of a further 50 metric tonnes of round bar steel for shipment to Indonesia and in early April 2002 Mitsubishi Corporation quoted for the supply of that steel. However, there was a subsequent price rise and eventually, in June 2002, Transverse entered into an agreement with Mitsubishi to purchase 37 metric tonnes of steel at a price of US$18,073. At the same time Transverse entered into an agreement with Mr Wijaya’s Indonesian company to sell that steel at a price of US$18,443.
25. In March and April 2002 Mr Fleming made some enquiries with possible Australian purchasers of spring assemblies that were made in Indonesia by Mr Wijaya’s Indonesian company, but no transactions were able to be negotiated because of costs.
26. In June 2002 Mr Fleming visited Indonesia and at that time he was asked to obtain quotes in Australia for the possible supply of a large quantity of steel fasteners for use in a major project in China that Mr Wijaya was aware of. That quote was sent to Mr Wijaya in Indonesia in July 2002 but no business eventuated.
27. Mr Wijaya’s evidence was that he chose to purchase steel from Australia in the two transactions described above notwithstanding that he could have bought the steel in the first transaction in Korea at approximately US$150 per tonne cheaper, and in the second transaction at approximately US$69 per tonne cheaper. Consequently, there was a high opportunity cost to him in buying the steel from Australia and, despite wanting to make a profit, he had purchased the steel in Australia in order to attempt to satisfy the requirements of his business visa. This evidence is confirmed by the contents of an e-mail sent by Mr Wijaya’s son William to Mr Fleming in August 2001 in which the statement was made that “as [Mr Wijaya] has received permanent residency (business purpose) in Australia, we import some of our coil spring materials from Australia to maintain this PR status.” The same e-mail sought Mr Fleming’s assistance regarding “purchasing of raw materials, technical know-how, distribution system of the products, etc etc.”.
28. For an activity to constitute a business, there must be an element of continuity and repetition. In Hope v Bathurst City Council (1980) 144 CLR1 at 8 Mason, J (as his Honour then was) said that a business is denoted by a commercial enterprise in the nature of a going concern and that its activities are indulged in for profit on a continuous and repetitive basis: see also ReMing Tang and Minister for Immigration and Multicultural Affairs [2000] AATA 997 at [20].
29. In the present case it is clear that the only transaction entered into by Transverse up to the date of the cancellation decision was a single purchase of steel for export to Indonesia on the basis that about half of it would be used in the Indonesian business of Mr Wijaya and the other half would be, if possible, sold to buyers that Mr Wijaya would try to obtain. That transaction generated a very small profit and it is apparent that it was primarily entered into for the purpose of meeting the business obligations of Mr Wijaya under his visa. Although there is evidence of intermittent attempts by Sunny Wijaya to contact other possible suppliers in Australia, and by William Wijaya to obtain the assistance of Mr Fleming, in my opinion all those activities were primarily designed to find products that would be of use to Mr Wijaya in his Indonesian business and that the principal motivation was to satisfy the visa requirements. In that sense the transaction could be seen as an import of goods into Indonesia by Mr Wijaya for the purposes of his Indonesian business rather than the establishment of an Australian exporting business.
30. Having regard to the factors set out in s134(10) of the Act regarding an eligible business, I consider that the only factor that is possibly applicable is item (c), ie the export of Australian goods or services. However, I consider that there was insufficient continuity and repetition, and insufficient regard to profitability to conclude that there was a business at all being conducted in Australia. Accordingly, I conclude that Mr Wijaya had not obtained a substantial ownership interest in an eligible business in Australia at the time of the cancellation decision.
31. As noted above, it is only necessary for one of the three factors set out in s134(1) of the Act to be present for the power to cancel visas to arise. Nevertheless, because I have concluded that Mr Wijaya did not have an involvement in an eligible business in Australia, it necessarily follows that he had not been utilising his skills in actively participating at a senior level in the day-to-day management of “that business” (as referred to in s134(1)(b)).
32. Accordingly, I conclude that the power to cancel Mr Wijaya’s visa did arise. I must then consider whether the provisions of s134(2) are applicable. That sub-section provides that the Minister must not cancel a visa if the decision maker is satisfied that the holder of the visa has made genuine efforts to obtain a substantial ownership interest in an eligible business in Australia, and to utilise skills in actively participating at a senior level in the day-to-day management of that business, and intends to continue to do so.
33. Sub-section 134(3) of the Act sets out 9 matters that the decision maker may take into account when determining whether a person has made genuine efforts. Other factors may be taken into account if considered relevant. Further guidance regarding the assessment of genuineness of effort is found in paragraph 4.5.1 of MSI-133. These guidelines are not binding upon the Tribunal but they may be taken into account and, in the interests of consistency of decision making, it is desirable to do so: see Skoljarev v Australian Fisheries Management Authority (1995) 133 ALR 690 at 695. The factors set out in MSI-133 and their applicability in the present case are considered below.
(a) Business proposals
34. MSI-133 refers to business proposals which are considered genuine, realistic and achievable. In the present case Mr Wijaya produced a business plan for Transverse that was dated 10 October 2001: Exhibit A14. This document runs to 24 pages and refers to Transverse as an exporter and importer of Australian and Asian products. It states an aim to expand transaction values from $40,000 in the year to June 2001 to $100,000 in the next financial year distributed more evenly over the year. Although the specialisation of the business is stated to be in steel related products, a prediction is made that there will be growth from sales of products other than steel in 2002. The start up capital that is said to be required was $3,975 and there is an expectation that the company will continue to operate from the family home in Perth. No employees would be engaged “until the company begins to succeed”.. It was expected that the employees for the time being would be Mr Wijaya, Sunny and William, none of whom would receive a salary, but there was an expectation that “other” unspecified employees would receive $40,000 in 2002.
35. The company is described as having its finance and administration division located in Perth where Sunny would be located and sales and marketing would be located in Jakarta and run by Mr Wijaya and William.
36. In my assessment the business plan is too general to be of any assistance in assessing whether they are genuine, realistic and achievable proposals. In my opinion they are statements of aspiration rather than specific plans for the development of the business.
(b) Contracts with partners or joint venturers
37. In the present case Transverse has not entered into any arrangements with partners or joint venturers.
(c) Written evidence of consultations with at least 3 business advisers
38. There is evidence that the assistance of Mr Fleming was sought regarding aspects of doing business in Australia and finding potential suppliers of the products to be exported. In addition, the company engaged an accountant to prepare financial statements and other accounting and taxation documents.
(d) Physical presence in Australia
39. The MSI refers to the need for a visa holder to be present in Australia for more than six months after his first arrival under a business visa. In the present case Mr Wijaya was present in Australia for 134 days before the cancellation of his visa. It is apparent from his evidence and the documentary material that the vast majority of his time is spent in the management of his business in Indonesia. He also gave evidence that he spends about 10 days each month travelling to places such as China and Taiwan looking for raw materials for use in his Indonesian business and, he said, looking for possible business opportunities for goods that could be exported from Australia. Clearly he has been unsuccessful in that latter regard.
(e) Transfer of funds to Australia
40. The MSI refers to the need to transfer at least 50% of the funds indicated as available for transfer within 2 years. In the present case the material before me does not disclose what amount of money Mr Wijaya said that he would bring to Australia. However, the evidence was that he had brought to Australia at least $850,000, as well as the money used to purchase the two shipments of steel. In fact, the amount of money transferred for the acquisition of an interest in an eligible business in Australia has been nominal as Transverse has nominal capital only.
(f) Value of ownership interest in business in Australia
41. The MSI refers to a minimum of $100,000 or 10% ownership. In the present case the scale of Transverse’s activities is such that, although there is a 51% shareholding owned by Mr Wijaya, the amount involved is less than $4,000.
(g) Business activity undertaken
42. The MSI refers to a minimum $100,000 business activity as indicated by turnover. The total business turnover of Transverse in the period up to cancellation was well under $100,000.
(h) Compliance with notices
43. Whether or not a visa holder has complied with an obligation to keep the Department advised of a current Australian address and to return survey forms that monitor business activities in Australia is a relevant factor. In the present case a 24-month survey form was sent to the applicant although the document (T24) does not disclose the address to which it was sent. In the event, the applicant did not receive it and his evidence was that he had made contact with the Department during early 2001 and was eventually sent a further survey form, which he completed and returned in May 2001 – and in which he indicated that as at the time of completing that form he had not yet engaged in any business in Australia.
44. On the above information, and all other evidence and material before me, I consider that Mr Wijaya 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 a business in Australia. The reality is, in my opinion, that a business was never established in Australia. I have no doubt that Mr Wijaya had an intention at some stage to establish a business and it may well be that had that business been successful, he would have moved to Australia to live. However, the evidence is that he and his wife spent the vast majority of their time in Indonesia and he is fully engaged in the ownership and management of his substantial Indonesian operation. Anything that was done by way of business transactions in Australia was, in my opinion, more of an aspect of the Indonesian business than a genuine attempt to establish a new business in Australia.
45. Although the family has purchased a residence in Australia, that residence is occupied until now by Sunny and the third child, Victor. William did live in Australia until mid 2000, when he returned to Indonesia to become fully involved in the management of his father’s Indonesian business. Sunny has completed an undergraduate and post graduate degree at an Australian university and is presently working full time for an employer. She now has been granted a different category of visa and is no longer dependent upon her father’s visa for her continued residence in Australia.
46. In all the circumstances I consider that Mr Wijaya has not made genuine efforts as required and accordingly, it is open to the decision maker to cancel his visa. Having regard to all of the factors set out above I do not consider that there are any factors that would suggest that the residual discretion that is available should be exercised in his favour. Accordingly, I conclude that the correct and preferable decision as at 16 April 2002 was to cancel the visa held by Mr Wijaya.
47. Accordingly, I affirm the decision made on that day in relation to Mr Wijaya’s visa.
Victor’s position
48. Section 134(4) of the Act provides that where a business visa has been cancelled under s134(1), then a visa held by a member of the family unit of the holder of that visa, must also be cancelled. However, s134(5) requires that the other person’s visa must not be cancelled if the cancellation would result in extreme hardship to the person.
49. Victor has contended that cancellation of his visa would result in extreme hardship to him. Victor gave evidence that he has lived in Australia since 1999, having finished his last year of high school here and in 2003 was in the final year of a Bachelor of Information Systems and Marketing degree at Curtin University. He lives with his sister Sunny in the family home in Perth and he hopes to continue working in Australia when he completes his studies. He is presently 22 years of age. If he were able to, he would prefer to continue to live in Australia and would hope to work here. If that is not possible, he would return to Jakarta..
50. In his evidence Victor’s principal concern was that he might have to return to Indonesia before finishing his undergraduate degree. He gave evidence about enquiries that he had made about possibly undertaking certain units that were offered at Curtin University’s Indonesian campus but so far as he could establish all those units were post graduate ones and not therefore available to him. His concern was that if he was unable to complete his degree he would have wasted all of his study in Australia and he would not be able to find appropriate employment in Indonesia without that degree.
51. Victor gave evidence that if he had to return to Indonesia he would return to the family home and would live with his parents and older brother. In the past five years he has returned to Indonesia at least once a year for about two months on each occasion. Occasionally when he is in Indonesia he has worked with his brother in the family business. Although he would prefer not to, he would be able to get a job with his brother in his father’s company. He would prefer not to do that because there is no particular job available for him. Nevertheless, he would be financially dependent on his parents.
52. In Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961 at 28-31, Deputy President McMahon observed that extreme hardship in the context of s134(5) must be judged subjectively; that hardship involves more than inconvenience or detriment – it must be affectation to a considerable degree; that helpful dictionary definitions of the word “extreme” include “utmost or exceedingly great in degree” or “to a very high degree”; that the hardship must necessarily result from the cancellation – a mere possibility or even a probability would not be sufficient. The fact that a person does not wish to leave Australia of itself cannot amount to hardship because that is the result contemplated by the statute once cancellation occurs. What must be looked at are the consequences to the person that undoubtedly would result from a cancellation.
53. In the present case it is apparent to me that Victor would prefer to remain in Australia to complete his degree and to find work. However, it is also apparent that Victor has retained his ties in Indonesia and, although it may not be his preference, he could find work in the family business in Indonesia.
54. I am satisfied that the possibility of having to leave Australia prior to completion of his degree was Victor’s principal concern. That is an entirely understandable attitude for a young man to take and I formed the view at the hearing that it would be unfortunate if Victor was unable to complete his degree at Curtin University as planned. In the circumstances I do not consider that Victor would suffer extreme hardship if his visa was cancelled but, in order to avoid the detriment of not being able to complete his degree, I have postponed the delivery of this decision until after 21 November 2003 – that being the date on which his final semester finishes (Exhibit V1).
55. My decision is that I affirm the decisions made on 16 April 2002 to cancel the visas held by Mr Wijaya and Victor.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Murray Allen, Member
Signed: ............(sgd T Heng).................................
AssociateDate/s of Hearing 28 May 2003, 24 June 2003, 8 July 2003
Date of Decision 4 December 2003
Counsel for the Applicant Represented by daughter Sunny Wijaya
Counsel for the Respondent Cressy Wallwork
Solicitor for the Respondent Blake Dawson Waldron