Wijaya and Minister for Immigration and Citizenship
[2007] AATA 1943
•13 November 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1943
ADMINISTRATIVE APPEALS TRIBUNAL )
) N 2006/1572
GENERAL ADMINISTRATIVE DIVISION ) Re HANDY WIJAYA Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member Date13 November 2007
PlaceSydney
Decision The Tribunal affirms the decision under review to cancel Mr Wijaya’s Business Skills visa subclass 127 (Business Owner) and remits the matter to the Minister for the appropriate action to be taken.
.................[sgd]...........................
Ms G Ettinger Senior Member
CATCHWORDS
IMMIGRATION – Business Skills Visa – cancellation – whether Applicant made a genuine effort to obtain a “substantial ownership interest” in an “eligible business” in Australia – residual discretion considered, and discretion not exercised – decision affirmed.
Migration Act 1958 ss 134(1), 134(2), 134(3), 134(10)
Kim v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 38 AAR 304
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342
Re Griffiths and Migration Agents Registration Authority [2001] AATA 240
Shi v Migration Agents Registration Authority (2007) 158 FCR 525
Re Angkadjaja and Minister for Immigration, Multicultural and Indigenous Affairs [2004] AATA 699
Re Lau and Minister for Immigration and Multicultural Affairs (2002) 35 AAR 395
Re Harlim and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 767
Puzey v Commissioner of Taxation (2003) 131 FCR 244
Re Koosasi and Minister for Immigration and Citizenship [2007] AATA 1311
Re Koosasi and Immigration and Multicultural Affairs [2006] AATA 179
Hope v Bathurst City Council (1980) 144 CLR 1; 29 ALR 577
Re Jo and Minister for Immigration and Multicultural and Indigenous Affairs (2004) 38 AAR 394
Re Hindrodjojo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 724
Koosasi v Minister for Immigration and Multicultural Affairs (2006) 43 AAR 462
Re Wong and Minister for Immigration and Multicultural Affairs [2006] AATA 277
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
REASONS FOR DECISION
13 November 2007 Ms G Ettinger - Senior Member
BACKGROUND
1. Mr Handy Wijaya, a citizen of Indonesia was granted a Business Skills visa subclass 127 (Business Owner) which included visas for his wife and three children on 24 June 2003 (T7). Mr Wijaya first entered Australia on his Business Visa on 12 July 2003. He has spent a total of 34 days in Australia from the date of the grant until the visa was cancelled on 26 October 2006 (T2). Mr Wijaya has appealed the decision of the Minister to this Tribunal. The matter was first listed for hearing before me in July 2007. Mr Wijaya did not attend, and the matter was postponed, at his request, to October 2007. Contrary to previous advice that he would be attending, I was informed on the morning of the October 11 hearing that Mr Wijaya would not be attending in person, but that he would be available to give evidence by telephone from Hanoi. He did that. I was assisted by a particularly competent interpreter in the Indonesian language, Ms Piper.
2. I noted from the evidence that Mr Wijaya owns and operates a motor spare parts business in Indonesia which he claims has a turnover of $A10,000,000. He indicated that his son Harry assists with the business.
3. Mr Wijaya does not own any real estate in Australia, and only one of his three children spent time in Australia. Harry spent two years in educational activities in Australia and the rest of the time he was in Indonesia and the USA. The other children were educated either in Indonesia and/or in the USA.
4. Mr Wijaya registered a business name in Sydney, Sky Rainbow International, on 17 June 2005, indicating he and his wife were the proprietors and partners of the business (T10/81). Mr Wijaya said that having obtained his Business Visa, he intended to export flour, gypsum and seafood from Australia.
5. Sky Rainbow International was involved in approximately five transactions between 2005 and July 2006, consisting of three exports of flour, export of two gold bars and one export of cattle heads. I find that although Mr Wijaya could be said to have a “substantial ownership interest” in that he and his wife were the only proprietors and participants in Sky Rainbow International, he did not have an “eligible business” in Australia, neither did he utilise his skills in actively participating at a senior level in the day-to-day management of that business. I was satisfied from the evidence that there have been no further exports since July 2006, and that accordingly, any further intentions, (if any), Mr Wijaya has as to business in terms of section 134(1) of the Migration Act1958, (the Act), appear not to have been pursued.
6. Mr Poynder who represented Mr Wijaya submitted that his client satisfied the tests in section 134(1) of the Act, but indicated that he was not in a position to make submissions with regard to section 134(2) of the Act. However he submitted that Mr Wijaya’s stated intentions were to continue to hold a substantial ownership interest in what he thought was an eligible business.
7. I have found from the evidence before me that Mr Wijaya has not, pursuant to section 134(1) of the Act obtained an “eligible business” in Australia. Therefore his substantial ownership in Sky Rainbow International is not a “substantial ownership interest” in an “eligible business” in Australia. I am also satisfied that he has not utilised his skills in actively participating at a senior level in the day-to-day management of the business. In coming to a decision about the Applicant’s Business Visa, I have also considered any genuine effort (section 134(2)), and his intentions for the future, and I have considered the application of the residual discretion (Kim v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 38 AAR 304).
8. I affirm the decision of the Respondent to cancel Mr Wijaya’s Business Visa, and remit the matter to the Minister for the appropriate action to be taken to implement my decision. My reasons follow.
ISSUE BEFORE THE TRIBUNAL
9. The issue to be decided was whether the Tribunal should, affirm, vary or set aside the decision of the Minister to cancel Mr Wijaya’s Business Skills visa pursuant to section 134(1) of the Migration Act 1958 (the Act).
10. In deciding this issue, I had to consider whether I was satisfied that Mr Wijaya:
· had, at the relevant time, not obtained a “substantial ownership interest” in an “eligible business” in Australia; or
· was not utilising his skills in actively participating at a senior level in the day-to-day management of that business; or
· did not intend to continue to hold a “substantial ownership interest” in, and utilise his skills in actively participating at a senior level in the day-to-day management of an “eligible business” in Australia.
11. In doing so, I noted that the Minister, and the Tribunal standing in his shoes, must not cancel Mr Wijaya’s Business Skills visa under section 134(1) of the Act if satisfied that he (section 134(2)):
· has made a genuine effort to obtain a “substantial ownership interest” in an “eligible business” in Australia; and
· has made a genuine effort to utilise his skills in actively participating at a senior level in the day-to-day management of that business; and
· intends to continue to make such genuine efforts.
12. Mr Poynder told me that he would not be making oral submissions regarding the application of section 134(2). He did however make mention of the application of section 134(2) of the Act in the Applicant’s Statement of Facts and Contentions.
13. I was mindful of the residual discretion which can be exercised pursuant to the decision in Kim, but noted again that Mr Poynder did not argue that this was an appropriate case for the discretion to be exercised.
APPLICABLE LEGISLATION
14. Section 134 of the Migration Act1958 empowers the Minister to cancel a business visa in certain circumstances. The relevant provisions in the case of Mr Wijaya are as follows:
“134 Cancellation of business visas
(1) Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australia visa, an investment-linked visa or a family member's 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.
(2) 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).
…”
15. I also had to consider section 134(10) which is discussed in the paragraphs which follow.
EVIDENCE BEFORE THE TRIBUNAL
16. The evidence before the Tribunal comprised the documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the T- Documents”), together with Mr Wijaya’s statement dated 19 April 2006 with Annexures which consisted of his Business Skills Profile, a Record of Interview by the Department of Immigration and Multicultural Affairs, and accounts prepared by Reignhart Accounting dated 28 March 2007 relating to the period 1 July 2006 to 31 December 2006 (Exhibit A1).
CONSIDERATIONS
17. In coming to the correct and preferable decision regarding whether the decision to cancel Mr Wijaya’s Business Skills visa should be affirmed, varied or set aside, I have into account all the evidence, both written and oral, the submissions, case law and legislation.
18. I acknowledge the approach in cases which are relevant to the decision making process as follows: Freeman v Secretary, Department of Social Security (1988) 19 FCR 342, and in Re Griffiths and Migration Agents Registration Authority [2001] AATA 240 at paragraph 39, where Deputy President Forgie said:
“Where the decision under consideration is a cancellation decision, the Tribunal must consider whether or not that decision was correctly made at the time it was made.”
19. There is a line of Tribunal cases which has followed the above authorities, supporting the proposition that the Tribunal is limited to events at the date of the primary decision in cases of review of decisions cancelling Business Skills visas pursuant to section 134 of the Act.
20. I must therefore have regard to all relevant evidence to enable the making of findings of fact with respect to the Applicant’s situation at the date of cancellation. I noted also that Nicholson J in Shi v Migration Agents Registration Authority (2007) 158 FCR 525, [10], stated at [10.8]: “This does not mean that the Tribunal cannot receive evidence of facts that occurred after the date of the decision under review provided that evidence bears on the merits of the decision as at the time that it was required to be made…”.
21. I am mindful that although for the present Freeman and Shi are good law, Shi has been granted leave to appeal by the High Court.
22. In regard to Mr Wijaya, I can also take into account future intentions, genuine efforts, and action taken beyond the date of cancellation and up to the date of hearing. Re Angkadjaja and Minister for Immigration, Multicultural and Indigenous Affairs [2004] AATA 699 and Re Lau and Minister for Immigration and Multicultural Affairs (2002) 35 AAR 395 and Re Harlim and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 767.
23. I moved then to consider the relevant tests in section 134 of the Act.
DISCUSSION RELATING TO SECTION 134(1) & 134(10) OF THE ACT
24. The first issue for me to determine was whether or not Mr Wijaya has made a genuine effort to obtain a “substantial ownership interest” in an “eligible business in Australia”. “Ownership interest” and “eligible business” in Australia, are defined in section 134(10) as follows:
“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;
...”
“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.”
25. As to “ownership interest” , Mr Poynder argued on behalf of Mr Wijaya that he and his wife are the owners of the business Sky Rainbow International which was registered in 2005. He submitted as explanation for the lateness of the establishment of the business that the Applicant spent time between the grant of the Business Visa and 2005 researching markets, and establishing himself. I noted that Mr Wijaya when asked why it had taken him so long from the grant of the visa in 2003 to register the business, answered that he was getting his affairs into order.
26. I noted that initially the place of business nominated for Sky Rainbow International, which on the evidence before me was Mr Wijaya’s only business, was Mr Wijaya’s migration agent’s address which was later changed to his accountant’s address. I accepted that Mr Wijaya had at the relevant time, a “substantial ownership interest” in a business in Australia, because he and his wife are the sole proprietors, and are partners in Sky Rainbow International. I must however also consider whether that is ownership in an “eligible business”, and whether Sky Rainbow International is accordingly an “eligible business” pursuant to the legislation.
27. In that regard Mr Poynder referred to the “badges of trade” identified in Puzeyv Commissioner of Taxation (2003) 131 FCR 244, and referred also to Deputy President’s reversal (on remittal from the Federal Court), (Re Koosasi and Minister for Immigration and Citizenship [2007] AATA 1311), of the original decision to affirm the cancellation of Mr Koosasi’s Business Visa (Re Koosasi and Immigration and Multicultural Affairs [2006] AATA 179).
28. Mr Poynder referred to subsections (a) to (f) in section 134(10) of the Act. He submitted that Mr Wijaya and Sky Rainbow International satisfied at least one of the subsections, that is (c) of section 134(10) of the Act in that he exported approximately $186,000 worth of goods from Australia between August 2005 and July 2006. He said that the gold was sold in Hong Kong, and that ultimately that could lead to links with the international market. He submitted that accordingly Mr Wijaya met the conditions in section 134(1)(a) of the Act in that he had obtained a substantial ownership in Sky Rainbow International which could, through its activities be classified as an eligible business in Australia. Mr Poynder conceded that Mr Wijaya did not satisfy all the subsections above.
29. Mr Poynder referred to paragraph 16 of the Respondent’s Statement of Facts and Contentions, and the reference to Puzey v Commissioner of Taxation, and submitted that the test of what constituted a business should not be construed as narrowly as the Respondent suggested. He referred to Hope v Bathurst City Council (1980) 144 CLR 1; 29 ALR 577 at pp 582/3 where the Court had referred to the dictionary meaning of business and referred to business as “carrying on a business”, implying repetitive acts. He submitted that the High Court in Puzey criticised the lower court’s emphasis on a business having to be “significant”, and stated: “But a man may carry on a business although he does so in a small way”.
30. Referring further to Puzey v Commissioner of Taxation, Mr Poynder submitted that the Respondent was relying on paragraph 46, whereas he, on behalf of Mr Wijaya, emphasised paragraph 47, where the Court said that “perhaps not too much attention should be given to the concept of repetition where the activity is one, such as plantation operation, where the activity will continue over a relatively long period of time but where there will be significant periods of what may be referred to as inactivity. Business does not mean being busy …”. Mr Poynder applied those principles to Mr Wijaya’s situation, submitting that he has secure suppliers on whom he can rely, and that at the stage to which his business had progressed in Australia, his involvement of 20 hours a week sufficed. He submitted also that Mr Wijaya also telephoned Reignhart, his accountants, daily. Mr Poynder relied on Re Jo and Minister for Immigration and Multicultural and Indigenous Affairs (2004) 38 AAR 394 and ReHindrodjojo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 724 where the Tribunal was satisfied that given communications available, physical presence of a Business Visa holder is not necessarily required to conduct an eligible business.
31. Mr Poynder also referred to paragraph 54 of Puzey v Commissioner of Taxation where the Court stated that the case was on “the border line”, and stated further that it was possible the Judge below saw Mr Puzey as no more than a passive investor, despite the agreements he entered into which sought to give him the appearance of a person carrying on a business. The Court continued: “On the other hand this was a commercial transaction, notwithstanding the obvious interest Mr Puzey had in the taxation benefits which accompanied it.” Mr Poynder submitted that Mr Wijaya’s situation was apposite in that he was actively involving himself in business in Australia for profit, notwithstanding his interest in maintaining the requirements of his Business Visa.
32. Mr Poynder also referred to Koosasi v Minister for Immigration and Multicultural Affairs (2006) 43 AAR 462 in which Branson J held that there was lack of clarity in regard to the findings the Tribunal made regarding “substantial ownership interest” and “eligible business” and remitted the matter to the Tribunal. Mr Poynder referred to the decision of Deputy President Purvis in Koosasi v Minister for Immigration and Citizenship [2007] AATA 1311 which followed, and in which the Tribunal found for the Applicant. He submitted that the situation was similar to that of Mr Wijaya in that Deputy President Purvis held in Koosasi, that the Applicant and his wife were equal partners in a business, and held that they had a substantial ownership interest. Similarly in Koosasi, there had been only a few exports of flour, fruit and meat, and Deputy President Purvis had accepted that the business activities of the business in that case “constituted a commercial enterprise in that it was an ongoing concern engaging in export trade…”, and held that the trade was engaged in for the purpose of deriving a profit. Mr Poynder referred me to the annexures to Exhibit A1 and the statements of accounts in the T-documents. He submitted that as in Puzey v Commissioner of Taxation, Mr Wijaya and Sky Rainbow International kept financial records, acted in a business-like way, had a profit motive, and generally exhibited the badges of trade referred to in that case.
33. Ms Linacre who appeared for the Respondent made the point that at the time of cancellation in October 2006, Sky Rainbow International was not an eligible business in terms of the legislation, and that Mr Wijaya accordingly did not have a “substantial ownership interest” in an “eligible business” in Australia. The Respondent referred to the evidence of business transactions Mr Wijaya or Sky Rainbow International had made, noting that there was no evidence that Mr Wijaya undertook any business activities in Australia in the two year period from the grant of the visa until he was confronted with the 24 month survey. Ms Linacre submitted that the Applicant was involved in only five transactions from the grant of the visa in 2003 until its cancellation in October 2006. She submitted that shortly after receiving the 24 months survey in 2005, Sky Rainbow International was listed as the buyer in two flour exports, and purchased two gold bars which Mr Wijaya took to Hong Kong. Ms Linacre submitted that the Respondent did not agree with Mr Poynder’s interpretation of Hope and emphasised that to satisfy being an eligible business in terms of the legislation, the activities had to be continuous, genuine, profit driven, repetitive and real. She submitted that the transactions Mr Wijaya or Sky Rainbow International had made were one-off and not on-going or repetitive, there were no running agreements for supply, and that there was a lack of continuity in the business transactions. The Respondent relied on the indicia meant by badges of trade as discussed in paragraph 48 of Puzey v Commissioner of Taxation.
34. Ms Linacre queried the evidence regarding Mr Wijaya’s contact with Australia, submitting that there was no evidence of telephone calls or emails, nor meetings from China where he said he spent a lot of time on business. Ms Linacre submitted that if indeed Mr Wijaya spent 20 hours a week on his Australian business for a $5,000 annual profit, that was not a good indicia of business. She submitted he had no business plans, and no regular contact with Australia.
35. I was mindful that the Minister’s representative contended that Sky Rainbow International did not constitute an “eligible business” within the terms of section 134(10) of the Act.
36. In coming to a decision regarding whether Sky Rainbow International was an “eligible business” within the terms of section 134(10) of the Act, I noted that it was not in dispute that it made only five transactions during the period in which Mr Wijaya held the Business Visa. These commenced in 2005 after the 24 months survey, and consisted of three wheat exports, and the purchase of two bars of gold which Mr Wijaya told me he took to Hong Kong. Mr Wijaya also made one purchase of cattle heads which he presumably onsold. There was no evidence before me that Sky Rainbow International was conducting any business in Australia after July 2006, or that it will conduct a business on a continuous or repetitive basis for the purpose of profit since that time. Mr Wijaya’s evidence was that he spent a large part of his time on business sourcing motor parts in China, although he said that his son is beginning to take the business over.
37. It is well established that a business must be shown to be a commercial enterprise involving activities being pursued for the purpose of profit on a continuous and repetitive basis (Hope v Bathurst City Council (1980) 144 CLR 1). Both parties made submissions about what constituted an eligible business.
38. I noted that the Full Federal Court considered the meaning of business in Puzey v Commissioner of Taxation. I noted at paragraphs 46 and 47 that the Court stated:
“The question whether a person is carrying on a business is a conclusion to be drawn from all relevant facts and circumstances.”
39. The Court referred to other cases such as Hope, and continued:
“A person may carry on a business, notwithstanding that the person had some other activity, such as full time employment. It is not necessary in concluding that a business is carried on that the acts to be undertaken are acts of the person seeking to establish he or she is carrying on a business.
….
It will be relevant in deciding whether a business is carried on that there is some repetition of acts and that the activities in question have ‘something of a permanent character’. Hope per Mason at 8. What is required is that activities be engaged upon ‘on a continuous and repetitive basis’. Hope at 9. However perhaps not too much attention should be given to the concept of repetition where the activity is one, such as plantation operation, where the activity will continue over a relatively long period of time but where there will be significant periods of what may be referred to as inactivity. Business does not mean being busy.”
40. In deciding whether or not a business is carried on, courts have pointed to what have been called in the United Kingdom the “badges of trade”, indicia which, “while no one of them will be determinative of whether a business is carried on, collectively will demonstrate a business…”.
41. Those indicia include activities which have to be continuous, genuine, profit driven, repetitive and real. Considering the evidence before me of the five exports Sky Rainbow International made between August 2005 and July 2006, I preferred the submissions of the Respondent which indicated that transactions Mr Wijaya or Sky Rainbow International had made were one-off and not on-going or repetitive, that there were no running agreements for supply, and that there was a lack of continuity in the business transactions.
42. I have also considered each of the subsections of 134(10), (a) to (f) in order to come to a decision, and noted Mr Poynder’s submissions that the Applicant satisfied sub-section (c), which is that he conducted export trade. As already stated above, the Applicant made five exports commencing in the final phase of his Business Visa. For the reasons given above, and relying on the indicia in Puzey v Commissioner of Taxation and Hope, I am not satisfied that he comes within the parameters of conducting an eligible business within the terms of section 134(1) of the Act.
Day-to-Day Management
43. Mr Poynder submitted that notwithstanding Mr Wijaya had spent only 34 days in Australia during the currency of his Business Visa, his presence in Australia was not essential in order to run an eligible business. In that regard he referred to the case of Re Wong and Minister for Immigration and Multicultural Affairs [2006] AATA 277, in particular to paragraphs 41 – 48 where Deputy President Jarvis commented upon the existence of a conflict of authority in the Tribunal regarding whether the requisite day-to-day management of an eligible business must take place in Australia or whether it may take place overseas. I noted that Deputy President Jarvis mentioned a number of decided cases.
44. In support of Mr Wijaya’s case, Mr Poynder cited Re Jo and Minister for Immigration and Multicultural and Indigenous Affairs and Re Hindrodjojo and Minister for Immigration and Multicultural and Indigenous Affairs. He submitted that in those cases the Tribunal had held that the business need not be conducted from Australia, but that it was satisfactory as long as what was necessary for the particular business was attended to. He submitted that Mr Wijaya had given evidence of securing suppliers and seeking export markets for flour, gold and cattle heads, and that the success of those was not decisive. The Applicant had also given evidence of spending 20 hours a week on his Australian business.
45. Ms Linacre submitted on behalf of the Minister, on the other hand, that Mr Poynder had overemphasised Mr Wijaya’s involvement in business in Australia, and that Hope, which is a High Court case had been relied on for the definition of business since the matter was decided in 1980. She submitted that to be an eligible business, Mr Wijaya’s business would have to be a commercial enterprise involving activities being pursued for the purpose of profit on a continuous and repetitive basis. She submitted that on the evidence of the five exports conducted, this was not so, and that these were discrete exports and not signs of a repetitive continuous business; it had no running agreements she submitted.
46. Ms Linacre submitted that I not accept Mr Wijaya’s evidence of his spending 20 hours a week on his Australian business which she said would be quite disproportionate to the $5,000 profit which he had made on the exports.
47. In considering the parties’ submissions regarding the location of a Business Visa holder in conducting his or her business, I found Deputy President Jarvis’ consideration of several cases in the business visa area of assistance. I noted that in Wong, he concluded after examining Tribunal cases and considering various provisions of the Acts Interpretation Act 1901, and the interpretation of various words and phrases, that sections 134(1) and (2) of the Migration Act 1958 did not require the relevant management of an eligible business to take place in Australia. The Deputy President stated that at [48]:
“… the correct approach is to examine the facts of each case to determine the role (or, if the business is not established, the intended role)of the person concerned in the eligible business, and also the nature of the business and what is (or will be) required for the day-to-day management of that business at a senior level. In many cases, no doubt the business will be such that the relevant management activities will need to occur in Australia. However, as has been pointed out in earlier tribunal decisions, with modern technology the day-to-day management of a business in Australia can often take place from overseas. … However, where the discretion to cancel a business visa arises, the fact that the relevant management activities will not take place in Australia will be a relevant but not decisive, consideration.”
48. I accept that each business and each case needs to be considered on its own facts. I have also considered the guidelines issued by the Minister in considering whether Mr Wijaya has been involved in the day-to-day management of any business in Australia. The guidelines do not have the force of the law, but I am entitled to take them into account (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577).
49. I preferred the submissions of the Respondent, and I do not accept Mr Wijaya’s evidence that he spent 20 hours a week on his Australian business, or even the 10 – 20 hours – perhaps not every week – which he conceded after further questioning. In coming to a decision that Mr Wijaya has not been involved in day-to-day management, I am mindful that business can be conducted remotely and by electronic means (Re Jo and Minister for Immigration and Multicultural and Indigenous Affairs and Re Hindrodjojo and Minister for Immigration and Multicultural and Indigenous Affairs).
50. However I noted:
· Mr Wijaya’s vague references to the business in Australia;
· his lack of knowledge of the names of companies with whom he had done business in relation to the flour;
· his general reference to email correspondence and the small amount of correspondence available; and
· the fact that he spent only 34 days in Australia for the whole of the visa period, did not convince me that he had a role in the day-to-day management of his rudimentary Australian business. His last transaction was in July 2006, after the notice of cancellation.
CONSIDERATION OF SECTION 134(2)
51. I have noted that the Tribunal standing in the shoes of the Minister must not cancel a Business Skills visa pursuant to section 134(1) of the Act if the Tribunal is satisfied that the Applicant has made a genuine effort (section 134(2) of the Act), to obtain a “substantial ownership interest” in an “eligible business” in Australia.
52. Mr Poynder did not make submissions about the application of section 134(2) of the Act. I have to consider section 134(2), and whether Mr Wijaya has made a genuine effort in the terms of the legislation. The only evidence I have regarding genuine effort was the Applicant’s evidence that he continues to seek markets for Sky Rainbow International when he travels to China once or twice a month. His evidence was that his main focus there was not to do business in relation to his thriving motor spare parts business, but for his Australian business, which on the evidence before me has not made a transaction since mid 2006. Mr Wijaya told me that his son is taking over the motor business, and that he concentrates on the Australian business. I gave Mr Wijaya the opportunity of commenting on the fact I did not accept the evidence regarding the amount of time he spends on his Australian business, and that it was very unlikely to reflect the truth. I was not satisfied with his explanations.
53. In connection with genuine effort, there are guidelines to be considered and section 134(3) of the Act.
Consideration of section 134(3) of the Act and Genuine Effort
54. I was mindful that section 134(3) of the Act sets out some or all of the matters which can be taken into account when determining whether a person has made “genuine effort” referred to in section 134(2) of the Act. I am mindful that a failure to meet one or more of the tests in the following subsections will not of itself disqualify the Applicant.
“s 134 (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).”
55. Mr Poynder conceded in relation to section 134(3) of the Act that Mr Wijaya did not meet subsections (a), (b) or (c). He did not have business proposals which he had developed, there were no partners or joint venturers for business proposals, and the research Mr Wijaya had undertaken was informal in that he made contact with people he knew. In regard to (d), Mr Poynder accepted that Mr Wijaya had only been in Australia for 34 days over the Business Visa period. I noted that Mr Wijaya has not purchased real estate in Australia, and that the bank statement of HSBC dated July/August 2005 (T10/96), indicated a balance of $63,912.07 at the end of August 2005, not a very large amount in relation to a business. For the year said to have ended 31 July 2006, there were interim financial statements for Sky Rainbow International at T13, which showed a profit of $6,317.80 had been achieved for that period. In relation to subsection (h), I have no indication that Mr Wijaya has failed to comply with a notice.
56. Ms Linacre submitted that Mr Wijaya did not meet the tests for genuine effort and emphasised that he was vague about names of persons contacted, and did not demonstrate any on-going or future plans for business with Australia. He had no future orders.
57. Having considered the above indicia in section 134(3) of the Act, of which I may take into account some or all in assessing whether the “genuine effort” referred to in section 134(2) of the Act has been satisfied, I find that Mr Wijaya has not developed business proposals; he has no partners and there are no joint venturers; he has not undertaken research, he has transferred few assets to Australia, he does not have an eligible business, and he has only spent 34 days in Australia from the grant of the Business Visa until its cancellation.
58. I preferred the submissions of the Respondent, and cannot find that Mr Wijaya has made a “genuine effort” as envisaged under the Act. I am not satisfied that the discretion to not cancel his Business Skills visa should be exercised.
59. I have found that Mr Wijaya does not have a “substantial ownership interest” in an “eligible business in Australia”, and cannot be satisfied that he has made “genuine efforts” as envisaged pursuant to section 134(2) of the Act, or that he intends to.
60. This is not a case where the residual discretion available in Kim should be exercised in Mr Wijaya’s favour. He has not indicated, and I am not satisfied that allowing him more time in the terms envisaged in Kim would assist with satisfying the requirements of the legislation.
DECISION
61. The Tribunal affirms the decision under review to cancel Mr Wijaya’s Business Skills visa subclass 127 (Business Owner), and remits the matter to the Minister for the appropriate action to be taken.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed:
…[sgd]………………………………………
AssociateDate of Hearing: 11 October 2007
Date of Decision: 13 November 2007Counsel for the Applicant: Mr N Poynder
Solicitor for the Respondent: Ms A Linacre, Clayton Utz Lawyers
0
18
0