Sukarti and Minister for Immigration and Multicultural and Indige nous Affairs [2003] AATA 108 (17 January 2003)

Last Updated: 6 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 108

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/687

GENERAL ADMINISTRATIVE DIVISION

)

Re

ADIPURNA SUKARTI

Applicant

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Senior Member M D Allen

Date 17 January 2003

Place Sydney

ADMINISTRATIVE APPEALS TRIBUNAL ) No N2002/687

)

GENERAL ADMINISTRATIVE DIVISION )

Re: ADIPURNA SUKARTI

Applicant

And: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member M D Allen

Date 17 January 2003

Place Sydney

Decision FOR 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 - Applicant not resident in Australia - No real attempt to comply with conditions of visa - Purchase of a business after cancellation is not compliance with visa conditions.

Migration Act 1958 - s134

Wong v Minister fro Immigration [2002] AATA 54

Huang v Minister for Immigration [2002] AATA 656

Chan v Minister for Immigration [2002] AATA 477

REASONS FOR DECISION

Senior Member M D Allen

1. 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.

2. 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.

3. 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 16 - 17 January 2003

Date of Decision 17 January 2003

Solicitor for Applicant Comasters Law Firm

Solicitor for Respondent Blake Dawson Waldron

DRAFT DECISION

ADMINISTRATIVE APPEALS TRIBUNAL

Matter No N2002/687

By MR M.D. ALLEN, Senior Member

SUKARTI and MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS AFFAIRS

SYDNEY FRIDAY, 17 JANUARY 2003

MR ALLEN: By application made the 15th day of May 2002, the applicant sought review of a decision made the 10th day of April 2002 and received by him on the 17th day of May 2002 to cancel his Business Skills Visa. As a consequence of the cancellation of the applicant's Business Skills Visa the visas issued to the applicant's wife and children were also cancelled but no applications have been lodged with the Tribunal on their behalf.

The grounds for the cancellation of the applicant's visa were set out in a decision which is replicated at document 22 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act (1975). The relevant section of the Migration Act (1958) is section 134 which reads inter alia:

Subject to sub section (2) under 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 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.

Subsection (2) provides:

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.

Subsection (3) read:

Without limiting the generality of matters that the Minister may take into account in determining whether a person has made a 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) A 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, and

(ii) The reasons why the person no longer holds the interest or participates in the management.

Subsection (10) then defines eligible business as:

Meaning 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 v The Minister 2002 AATA 54:

The date of the cancellation of the visa is the date at which the Tribunal must consider whether the correct or preferable decision was made.

At document T4 there is set out certain guidelines which are applied by the respondent in determining whether or not to cancel a Business Skills Visa. As has been pointed out in many cases by this Tribunal, starting with Bainting v Minister for Immigration, etcetera, 6 AAR 259.

Statements of policy cannot override the Tribunals duty to make the correct and preferable decision on the material available to it and in accordance with law.

In particular, I consider that of the guidelines in this matter, paragraphs 4..3.2 and 4.3.3 are unduly favourable to visa holders. Paragraph 134(1)(b) of the Migration Act must be read in context with the other paragraphs of subsection (10) of section 134.

The applicant was granted his Business Skills Visa on or about 22 December 1998. He then visited Australia but at the time his visa was cancelled he had spent only some two months in Australia. At document T19 dated 3 December 2001 it was pointed out to the applicant and not challenged in these proceedings that he had to that time only spent 18 days in Australia since granting of the visa.

I agree with Senior Member Muller as he then was in re Huang v The Minister 2002 AATA 656 para 12 that:

Not only must the eligible business operate in Australia to comply with the Act, the visa holder must participate at a senior level in the day to day management of the Australian business in Australia, albeit with trips overseas from time to time.

The applicant conceded in cross-examination that at the time of cancellation he did not own an eligible business. His case therefore depends upon his fulfilling criteria in subsection (2) of section 134. As stated above matters to be taken into account in assessing this question are set forth in subsection (3) of section 134 but those matters are not exclusive.

Following the grant of permanent residency to the applicant and as a result of that members of his family and in particular two of his children, Kimanto and Mailina pursued their education in Australia. They resided in a unit which the applicant had purchased for some $700,000 in the area of Sydney known as The Haymarket, which is adjacent to the central business district.

Mr Kimanto Sukarti gave evidence, he confirmed the applicant's evidence that the applicant had remained in Indonesia to conduct his Indonesian businesses. At the behest of his father he, Kimanto, made some inquiries as to businesses which might be undertaken in Australia. One such business was a laundry. Mr Kimanto Sukarti telephoned some five laundries and requested figures from them. Two responded and he placed those figures before the applicant's accountant and then migration agent.

The accountant informed Kimanto that the figures showed that the laundry businesses were not viable and that his father would be better to concentrate on an import/export business. Although this advice has been criticised by the applicant's solicitor in these proceedings there is nothing to suggest that the advice was in any way inaccurate. Compare the evidence of Ms Sue Sukarti who said that the businesses having regard to the price and the wages were, as she understood, "not so good".

Another inquiry undertaken by Kimanto was regarding the export from Australia of ball bearings. The applicant has the agency to sell a brand of ball bearings in the area of Pontianac in Kalamantan where he resides. Inquiries were made regarding prices from the Australian manufacturer but it was found that those prices were greater than the prices asked by the Malaysian factory of the same manufacturer and imported by the applicant via Singapore. It would appear that all Kimanto did was to obtain price lists from the Australian manufacturer.

Another enterprise attempted by Kimanto was the export of used truck engines. Apparently four were sent to Indonesia but other engines could not be sourced. The total profit from this exercise was some $11,000 and no further effort was made. No details were given as to just what inquiries were made to source other engines. Kimanto said that he had had regard to the Yellow Pages. No evidence was given as to how wide the search for second hand truck engines had been extended.

Kimanto also made an inquiry regarding chicken feed. Apparently the applicant does retail chicken feed in Indonesia but purchases it after it has been imported. His evidence was that the Australian manufacturer of this feed has an agent in Indonesia and refuses to sell to him direct. No inquiries were made from other manufacturers of chicken feed except for some in the Hunter Region of New South Wales. No evidence was given as to just what inquiries were made and from whom.

Kimanto's efforts seem to have been sporadic at best. This is understandable as he was at this time a student. He estimated that he had spent from 50 to 60 hours a week in face to face contact and own study. In 2002 he was outside Australia studying in China. In passing I note that the applicant's former migration agent in correspondence with the respondent referred to a proposed purchase of a car parts business at Wetherill Park which is on Sydney's outskirts. No evidence was given in these proceedings as to that activity.

Mr Kimanto Sukarti conceded in cross-examination that during his time in Australia he did not prepare any business plans or proposals. His only conferences were with the accountant and as he put it, "I was studying and did a little bit of research". There is no evidence that the applicant ever developed any business proposals himself and as to other matters referred to in subsection (3) of section 134, I find that there were no partners or joint venturers for business proposals.

As stated the applicant himself may have suggested some research to Kimanto but undertook none himself. As for periods in Australia he spent very little time in Australia, his periods were just visits as stated above. As at the end of 2001 he spent some 13 days. As to the value of assets transferred to Australia by the person for use in obtaining an interest in eligible businesses, there does not seem to have been any assets transferred with that particular and specific purpose, only the buying of a residential property which does not come within that criterion.

Para F of subsection 134(3) refers to the value of ownership interests in eligible business in Australia that are or have been held by the person and there is nothing that applies. Business activity, there has been none undertaken by the applicant in my view. In particular, in assessing whether the applicant ever conducted a business in Australia, I adopt what was stated by Deputy President Block in re Chan v The Minister 2002 AATA 477 at paragraph 7:

The reference in sub paragraph 134(1)(b) to the day to day management of a business indicates that an eligible business must have some element of continuity and repetition.

Thus the one off export for truck engines would not qualify. Similarly I can find no other business activity undertaken by the applicant in Australia prior to the cancellation of the visa. To my mind it is clear that the applicant was content to manage his various companies in Indonesia while his children studied in Australia. He stated he was aware of the requirements for a business visa but his attempts to comply with the conditions thereof were desultory at best.

The applicant has purchased property in Australia but I do not regard this as engaging in a business. In particular, even if he had traded in property it would be difficult to see how that constituted an eligible business as that term is defined in subsection (10) of section 134. After the cancellation of his visa the applicant through his company and the efforts of his daughter, Mailina, purchased the franchise of a Sushi business at the Chatswood Shopping Centre. At E of exhibit A1 is a letter dated 22 April 2002 from Mailina Sukarti to the selling agent of the Sushi franchisor referring to a meeting "last week".

A further document dated 30 April 2002 reads:

Receipt $2000 from Ms Mailina Sukarti as a good faith deposit for the purchase of any Sushi World franchise shop. The money could be used for part of the purchase of the shop, or if not purchased for our and the franchisor's reasonable expenses.

I draw particular attention to the wording, "any Sushi World of franchise shop". Apart from the fact that these events were after the cancellation of the visa and that there is no evidence that they related to any activities initiated prior to the said cancellation, the purchase of the franchise and the rapidity with which it was undertaken after the previous desultory activity since December 1998, is of itself proof that no business was entered into prior to cancellation and that no genuine effort had been made to enter into any eligible business.

It has all the hallmarks of a desperate effort to comply with the legislation after the decision had been made. So far as paragraphs B and C of section 134(2) are concerned they have no application as no eligible business or interest in an eligible business was ever obtained by the applicant. The decision under review will therefore be affirmed.

So far as the visas of Kimanto and Mailina Sukarti are concerned no application has been made to this Tribunal. But although out of time application could still be made seeking an extension of time. Given their ties here, I believe that such an application should be considered by their legal advisers as they impressed me during their time in the witness box as young people who would be assets to Australian society.

But so far as this application is concerned the decision under review is affirmed.