IMMIGRATION - cancellation of business visa pursuant to s 134(1) of the Act - Indonesian businessman causing company to be incorporated in Australia - export of food stuffs - Business Plan formulated - extensive lead time - whether Applicant obtained a substantial ownership interest in an eligible business - whether Applicant utilised his skills in the day-to-day management of that business - whether Applicant intends to continue to hold a substantial interest in that business - evidence of genuine effort - exercise of discretion - decision under review set aside.

Migration Act 1958 (Cth) s 134

Migration Series Instructions- 133: Visa Cancellation under subdivision G - Cancellation of Business Visa

MIMA v Sharma [1999] FCA 31; (1999) 90 FCR 513

Re Bhyat and MIMIA [2003] AATA 1051

Re Yam and MIMIA (2004) AATA 283

Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1

Re Thomas and MIMIA [2005] AATA 637

Re Badenhorst and MIMA [2006] AATA 742

Re Malcov v MIMA [2005] AATA 1290; (2005) 89 ALD 447

Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342

Re Griffiths and Migration Agents Registration Authority [2001] AATA 240

Re Lau and MIMA [2002] AATA 703; (2002) 35 AAR 395

Re Halim and MIMIA [2002] AATA 767

Re Best and MIMIA [2005] AATA 348

Re Nagaria and MIMIA [2004] AATA 579

Kim v MIMIA [2004] FCA 31; (2004) 38 AAR 304

1. Mr Budi Soesanto Koosasi is a citizen of Indonesia who on 7 January 2002 was granted a Business Skills (Migrant) (Class AD) sub-class 127-Business Owner visa. At the time of granting the visa to Mr Koosasi, secondary visas were also granted to his wife Lilijana Santoso and their three children.
2. On 17 May 2005 a delegate of the then Minister for Immigration, Multicultural and Indigenous Affairs ("the Respondent") pursuant to section 134 of the Migration Act 1958 ("the Act") cancelled the visa that had been granted to Mr Koosasi with a consequential cancellation of the visas granted to his family. The basis upon which the former cancellation took place were that he had not "demonstrated that he has made or intends to make a genuine effort to comply with the conditions attached to his business visa".
3. The Respondent in the course of the reasons given for cancellation of the business visas stated:

• ... I do not believe the visa holder's business exists for the purpose of generating continuous and substantial business sales, or to generate future sales and/or profits;
• the lack of business transactions conducted by Great Bamboo Pty Ltd is reflected in the bank statements provided, in that there are minimum business transactions. ...
• ... the financial statement for 2003/04 financial year indicates that Great Bamboo Pty Ltd generated a turnover of $47,366 with a gross profit for the year of only $2,175. You have stated further that you consider Great Bamboo Pty Ltd has met departmental guidelines of $100.000 turnover, however, though not clearly articulated in the guidelines, the turnover relates to each financial year, not a cumulative total since the company was registered;
• you had stated that Great Bamboo Pty Ltd has developed links with international markets, however you have failed to provide sufficient documentation to demonstrate how the company has created these links. On the basis of the three transactions completed by Great Bamboo Pty Ltd to date, it appears that the company is merely acting as an agent and this does not meet any of the objectives of 134(10)[sic] as outlined above; and
• ...You have failed to provide sufficient recent documentary evidence in the way of business correspondence, e-mails, agreements or contracts signed by the visa holder to indicate his senior role in the day-to-day management of his Australian business.

... The visa holder is expected to make sustained and continued efforts to meet visa requirements. Although he has provided a business plan (undated) for Great Bamboo Pty Ltd, he has failed to provide any evidence that he has met or has realistic and achievable plans in place which will enable him to meet any of his stated business objectives.

Although you have stated that the visa holder has been in negotiation with various overseas customers, you have failed to provide documentary evidence that he has participated in consultations/meetings with prospective business or joint venture partners in Australia or overseas, in an attempt to improve the performance of Great Bamboo Pty Ltd.

1. The Tribunal has set forth above some of the reasons given by the Respondent for the cancellation decision. They are not all of the reasons but they are indicative of the matters that warrant further consideration in the context of the present application.
2. By his present application Mr Koosasi seeks to have the cancellation decision set aside.

1. The Respondent maintained that the issues for determination in this application are whether Mr Koosasi:
   • Had or had not obtained a substantial ownership interest in an eligible business in Australia; or
   • Had or had not utilised his skills in actively participating at a senior level in the day-to-day management of that business; or
   • Did or did not intend to continue to hold a substantial interest and so utilise his skills in the eligible business.

further, whether the Applicant had made a genuine effort to:

• Obtain a substantial ownership interest in an eligible business in Australia; and
• Utilise his skills and actively participate at a senior level in the day-to-day management of that business; and
• Intends to continue to make such effort.

and further, whether in the exercise of its discretion the Tribunal ought to affirm or not the decision under review.

1. At the hearing of the application before the present Tribunal Mr Koosasi was represented by Mr Poynder of Counsel. The Respondent was represented by Ms Hooper, Solicitor of the DLA Phillips Fox Lawyers.
2. The documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked T1 to T33. Other documentary evidence was tendered on behalf of Mr Koosasi and marked accordingly:

Bundle of documents relating to Exhibit B (28 pages)

Bank statements from 22 December 2006 to 22 February 2007

1. Mr Koosasi gave oral evidence upon which he was cross-examined.

(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

(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;

(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;

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;

(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.

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

including such an interest held indirectly through one or more interposed companies, partnerships or trusts.

relevant designated investment, in relation to an investment-linked visa (other than a family member's visa), means the designated investment that was, in deciding to grant the visa, regarded as satisfying the criterion referred to in paragraph (a) of the definition of investment-linked visa.

return visa has the same meaning as in the regulations.

1. The Migration Series Instructions -133: Visa Cancellation under subdivision G - Cancellation of Business Visa ("MSI - 133 Guidelines") provide what is said to be guidance as to whether a genuine effort has been made for the statutory purpose. The guidelines are not binding upon the Tribunal, however, they are of assistance in determining the statutory prerequisites. They are not exhaustive. The factors to be considered as stated in the instructions are:

(a) business proposal which is considered genuine, realistic and achievable;

(b) formal contract with partners or joint ventures;

(c) written evidence of detailed consultations with at least three business advisers...;

(d) physical presence in Australia for more than six moths since first arrival as a Business Skills class migrant;

(e) transferred to, and retained in, Australia at lest 50% of the funds indicated as available for transfer within two years...;

(f) minimum A$100,000 or 10% ownership previously held by the person...;

(g) minimum A$100,000 business activity as indicated by turnover. This may include other business activity not considered "eligible business" but cannot include passive investment, eg, purchase of shares.

1. Whilst it may be true, that the above Migration Series Instructions are designated as applicable to an earlier period they do nevertheless provide guidance for a decision-maker.

1. The Tribunal is to look at the situation as it was as at the date of the decision under review in deciding whether the cancellation decision was at that time the correct or preferable decision (MIMA v Sharma [1999] FCA 31; (1999) 90 FCR 513 at 526). As elsewhere indicated in these reasons, this requirement does not however preclude the Tribunal receiving evidence of post-cancellation activities provided that there is a relevant nexus between those activities and the events, effort and intentions pre-cancellation and their likely business outcomes (Re Bhyat and MIMIA [2003] AATA 1051 at para 37; Re Yam and MIMIA (2004) AATA 283 at para 56).
2. That is, as was submitted on behalf of the Respondent, the Tribunal is to have regard to all evidence, even that after the cancellation, to the extent that it may be relevant to establish intention and represent the outcome, consequence or flow on effect of activities commenced prior to cancellation. Conversely, a lack of business activity subsequent to cancellation may, but not necessary must, indicate a lack of genuine efforts to carry out such activities. The latter is not the case in the present application.

FACTUAL SITUATION RELEVANT TO BUSINESS ACTIVITY AND FINDINGS OF FACT

1. Prior to his obtaining the business visa Mr Koosasi had been carrying on commercial activities in Indonesia. Initially he worked for his brother in a motor vehicle retail business, this from about 1980 to 1990. By the latter date he had assumed responsibility for the day-to-day management of the company. In 1990 he left his brother's company and commenced trading in the purchase and sale of second-hand cars. The business developed rapidly from 1990 to 1997 but then "went through a rough time" in 1997 and 1998 on account of economic and political instability in Indonesia.
2. Whilst Mr Koosasi was maintaining his automotive activities, his wife opened and then conducted a restaurant.
3. It was in 1996 that Mr Koosasi first visited Australia. Members of his family had already settled in the country and his brother-in-law had a part interest in a café. Mr Koosasi and his wife spent time discussing the prospect of they themselves moving to Australia and opening a café and a motor vehicle dealership. They sought out possible locations for a café and made enquiries as to availability of equipment and costs. Mr Koosasi was himself primarily interested in the export of motor vehicles from Australia to Indonesia and he made enquiries as to availability of stock, and generally as to market conditions. He attended a seminar held by the Department of State and Regional Development on establishing a business in Australia.
4. Mr Koosasi sought advice from a migration agent and his application for a business visa was lodged on 22 June 1999. It was granted on 7 January 2002. His intention at that time in relation to his Indonesian business was uncertain. He contemplated passing it over to "his right-hand man" or maintaining it as the "marketing arm and showroom for the cars which I hoped to import from Australia". His wife was interested in the food market, exporting to and importing into Indonesia Australian products. Mr Koosasi also spent time after the grant of the visa, consulting with business people in Indonesia enquiring about the possibility of exporting Australian wheat flour.
5. The café/restaurant idea was, on the advice of the brother-in-law, abandoned. Mr Koosasi also determined that his "right-hand man" was without the ability to handle the Indonesian business. He then decided to close the business and "concentrate more" on the business prospects in Australia. He sold his stock of motor vehicles and other assets.
6. Mr Koosasi had been in Australia in February and March 2002. He returned in January 2003 and caused a company Great Bamboo Pty Limited to be incorporated. He began collecting information about products, which could be exported to Indonesia. In May 2003 he closed down completely the motor vehicle business in Indonesia. He then accelerated his enquiries as to the export potential of several products including wheat flour to biscuit manufacturers, flavoured drinks, soap products and fruit juice. He and his wife visited numerous suppliers seeking product information and samples for despatch to Indonesia. They discussed their intentions with numerous people.
7. Mr Koosasi says that he spent most of 2003 undertaking research in Australia for suppliers and "contacting, visiting, investigating" and researching companies and products. In October 2003 he and his wife purchased a home in Sydney for a price of $1.1million, the necessary funds being transferred from Indonesia. He contacted a business consultant. He asked his accountant to develop a business plan reflecting work done to that time and projected future development. The plan was completed in March 2004.
8. In October 2003 Great Bamboo Pty Limited made the first of its exports from Australia to Indonesia. Wheat flour was purchased from Manildra Flour Mills at a cost of US$31,500 and sold to an Indonesian company for US$32,955. A net profit of AU$2,175 was made on the shipment. Following negotiations by Mr Koosasi and his wife, the sale of West Australian beef liver was effected to another Indonesian company. The latter goods were purchased in August 2004 for a price of US$21,242 and in September 2004 sold for US$23,057. Again in August 2004 after contacting importers of fruit in Indonesia and concluding negotiations, Great Bamboo Pty Limited purchased oranges and mandarins at a cost of $24,464 and sold them again to an Indonesian company for $27,626. In March of the following year another Indonesian food company placed an order with Great Bamboo Pty Limited for wheat flour. The flour was acquired again from Manildra Flour Mills for a purchase price of US$29,403 and exported in April 2005 for a sale price of US$32,670.
9. Mr Koosasi was still interested in investing in the car industry. In March 2005 after enquiries and discussions, he was invited to join the firm Indo Motor, which had a workshop at Kensington in Sydney. He invested $50,000 for a half-partnership interest with the then owner. However, his relationship with the owner deteriorated and in October 2005 their business relationship was terminated.
10. On 25 May 2005 the business visa was cancelled. Mr Koosasi says that after that time he was worried about his future operations in Australia and his commercial activities were to an extent curtailed. He had sold his business in Indonesia, moved with his family to Australia and purchased the real estate. He felt his "world had collapsed". During this time he lived on his savings. He appealed against the cancellation to this Tribunal, which on 1 March 2006 affirmed the decision under review. An appeal was then lodged with the Federal Court, which on 21 September 2006 allowed the appeal, set aside the Tribunal decision and remitted the matter to the Tribunal for a re-hearing.
11. The decision of the Federal Court restored the business visa, which was then to expire, after five years, in January 2007. Mr Koosasi says that he then "felt confident" about his business and started to again look for an export. In the month following the Federal Court decision, a long business acquaintance and friend in Indonesia, who was aware of the past business activities of Mr Koosasi and Great Bamboo Pty Limited and its export of wheat flour introduced a prospective wheat flour importer to him. Mr Koosasi and the importer negotiated and as a consequence a sale was effected. Wheat flour was purchased by Great Bamboo Pty Limited on two occasions, on 28 November 2006 and 19 December 2006 for US$66,323 and US$67,001 respectively and on 15 January 2007 and 14 February 2007 sold to the Indonesian enterprise for US$70,819 and US$71,544.
12. The latter mentioned transactions were initially funded by utilising monies of Great Bamboo Pty Limited maintained in its bank account with HSBC Bank Australia Limited, Sydney and loan monies made available to the company by Mr Koosasi and his wife. In all, between $80,000 and $90,000 was remitted to the account of Great Bamboo Pty Limited by Mr Koosasi and his wife.
13. It is the plan of Mr Koosasi to continue the trading activities of Great Bamboo Pty Limited. He further says that the most recent Indonesian importer has indicated to him that a new order is forth coming. In addition he is currently looking for a partnership or sole ownership interest in a car workshop.
14. It is apparent that Great Bamboo Pty Limited did not live up to the business plan designed for it by the accountant. However the company did engage in business activities and did maintain financial information relevant to the business transactions. Proper accounts were prepared for the 2004 and 2005 financial years. They have not as yet been prepared for the 2006 financial year.
15. Mr Koosasi says that he does not now have any business interests other than those in Australia. He wants to continue being involved "in the daily management of the company" and to bring back to Australia his wife and daughters. His son is studying at the University of New South Wales and is in Australia on a student visa. Mr Koosasi has travelled "many times" to Indonesia since 2002 to meet business suppliers and to "try to find market opportunities for Australian products".

CANCELLATION FACTORS- SECTION 134(1) OF THE ACT

1. Mr Koosasi has a 50 per cent interest in the issued capital of Great Bamboo Pty Limited. His wife is the sole owner of the other half interest. This is a substantial ownership interest. Even be it that the number of transactions as at the date of cancellation were small, the monetary value was not. The export of wheat flour, fruit and meat to Indonesia clearly was in aid of developing business links with that market and did entail the export of goods. The exports had resulted and were at the cancellation date resulting in export and the development of relevant business links. The intent of Mr Koosasi and the business activities of Great Bamboo Pty Limited were directed to this end. Investment in a motor vehicle workshop was a business activity that would or could result in an export market and development of such commercial associations.
2. The business activities of Great Bamboo Pty Limited constituted a commercial enterprise in that it was an ongoing concern engaging in export trade that maintained appropriate records from which trading figures, expense, profit and balance sheet items were extracted. The trade was engaged in for the purpose of deriving a profit. The export transactions were genuine and real. The pre-requisites discussed in Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at page 9 were here present. The magnitude or size of the activities or their frequency is not necessarily an indicia of the genuineness or bona fide character of those activities.
3. The transactions involving Great Bamboo Pty Limited and Indonesian importers were of the one kind. They were exports of foodstuffs all intended to form a line of repetitive business resulting in a profit. The transactions that occurred after the cancellation were consequential upon information made available by Mr Koosasi to the Indonesian friend and business acquaintance in 2002.
4. As earlier indicated Mr Koosasi had and has a 50 per cent interest in the issued capital of Great Bamboo Pty Limited. The cost price of the goods that were purchased by the company was funded by monies transferred into the business by Mr Koosasi and his wife. Whilst in dollar terms the ownership interest was not great, it was substantial in the sense of control and entitlement to a significant share of the results of trading.
5. I am satisfied on the basis of the above factual situation that Mr Koosasi had at the time of cancellation obtained a substantial ownership interest in an eligible business. He had by way of Great Bamboo Pty Limited entered into business transactions one after the other, of a continuous nature and of a similar kind, for the purpose of realising a profit (see Hope v Bathurst City Council (supra) at 9).
6. Mr Koosasi subsequent to the incorporation of Great Bamboo Pty Limited and to an extent before that time applied himself to the prospective development of an export business. He made contact with suppliers in Australia and possible importers in Indonesia. As is apparent from emails and letters in evidence he was active in arranging the terms of supply and conditions of export. From the date when his visa was granted to its cancellation, he spent 360 days in Australia and for the 17 months prior to the cancellation he spent more than one half of his time in this country. When in Indonesia, he was investigating possible importers.
7. The situation with Mr Koosasi was much like that of the Applicant in Re Thomas and MIMIA [2005] AATA 637 where at para 24 it was stated:

It seems to me, on reading the legislation and the guidelines... that the purpose of the business skills visa is to attract to Australia successful individuals with special business skills and some capital, who can, over time, advance the interests of the Australian economy and therefore the community. The guidelines recognise that the individuals may reside at least initially for significant periods in another country and be involved in business activities in that country. The aim is to encourage business people to become owners or part-owners of an Australian business and to be actively involved in working for that business and managing it at a senior level. Modern means of communication allow business people to manage a business from almost anywhere in the world. There is no requirement that a person who obtains a business skills visa has to immediately spend all or even most of his or her time within Australia. The granting of the visa and the other requirements do suggest however, that the ultimate objective is the eventual settlement within Australia of the individual concerned.

1. Of course in this matter Mr Koosasi had clearly evidenced business skills and some capital. He was anxious to become an owner or part owner of an Australian business and to be actively involved in it. Further he had settled with his family in this country. The involvement of Mr Koosasi in the eligible business was in Australia and in Indonesia. The business was a continuing business. As was submitted on behalf of Mr Koosasi the management attention required to be given to a commercial activity is to be consistent with the needs of the specific business. In addition much of the time spent by Mr Koosasi in Indonesia in 2002 to May 2003 was in aid of disposing of his then business and freeing him to apply himself more effectively to his business in Australia.
2. Consequent upon the sale of his business in Indonesia he applied himself to obtaining export prospects in Australia and searching out possible buyers in Indonesia. He evidenced an intention to continue doing so, that is, maintaining his interest in Great Bamboo Pty Limited and utilising his skills in actively participating in an eligible business in Australia. Indeed at the date of cancellation he was involved in the acquisition of a further interest, namely a partnership interest in a motor vehicle workshop.

1. As was stated in Re Badenhorst and MIMA [2006] AATA 742 at para 34 the Tribunal may have regard to all relevant evidence to enable the making of findings of fact in relation to the cancellation of a visa as at the date of the decision (Re Malcov v MIMIA [2005] AATA 1290; (2005) 89 ALD 447 at para 41; Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342; Re Griffiths and Migration Agents Registration Authority [2001] AATA 240). The Tribunal is also entitled however to look to future intentions (Re Lau and MIMA [2002] AATA 703; (2002) 35 AAR 395; Re Halim and MIMIA [2002] AATA 767. Whilst activities and transactions entered into after the date of cancellation of the visas may be relevant to establish intention they may also be of assistance if they represent the outcome of preparatory activities commenced prior to cancellation.
2. I am not satisfied that Mr Koosasi had not complied with section 134(1). But even if I were mistaken in this regard I am satisfied that he made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia and that he made a genuine effort to utilise his skills in actively participating at a senior level in the day-to-day management of his business. The proposals developed by him were genuine, realistic and achievable. The evidence before the Tribunal satisfies me that he intends to continue to make such genuine efforts.
3. The matters referred to in section 134(3) of the Act and the MSI - 133 guidelines are relevant in this respect.
4. Mr Koosasi initially made his own enquiries for food export business, café business and motor vehicle export business. He researched each one of them. He sought the advice of a business consultant and his accountant prepared for him a business plan. He is a joint owner with his wife of Great Bamboo Pty Limited and was for a period in partnership in a motor vehicle workshop. He extensively researched export prospects.
5. Mr Koosasi has been in Australia for the lengthy periods already discussed. As at 30 June 2005 a net amount of $38,394 was owing to Mr Koosasi and/or his wife by Great Bamboo Pty Limited. In addition $1.1million had been invested in real estate. The company had not as yet made profits commensurable with its turnover. The business activity already undertaken was not insubstantial. Sales for the 2005 financial year totalled $104,126.
6. On the basis of the factual situation above detailed I am satisfied that Mr Koosasi had made a genuine effort within the meaning of section 134(3) of the Act.
7. The power to cancel a visa under section 134(1) is a discretionary matter. Even if the statutory pre-requisites have not been established, the discretion available to the decision-maker may be exercised in an Applicant's favour. The Tribunal has a discretion not to exercise the power to cancel a business visa, even if the criteria set out in section 134(1) are not satisfied (Re Best and MIMIA [2005] AATA 348 at para 47; Re Nagaria and MIMIA [2004] AATA 579). A common ground on which that discretion can be exercised in favour of an Applicant is that further time should be give to the visa holder to undertake what was required of him (Kim v MIMIA) [2004] FCA 31; (2004) 38 AAR 304 at para 21).
8. I am satisfied that the circumstances outlined in Kim (supra) and Best (supra) are relevant to the present decision. Whilst it cannot be said that in every instance time should be given, where efforts are found to be genuine and directed to the statutory intention and sufficient to warrant more time being made available to meet the statutory requirements, then the discretion should be exercised. It is unfettered. However it is to be exercised having in mind the ends sought to be achieved by the statutory scheme.
9. It is apparent in this matter that Mr Koosasi had and has the intent to undertake what was required of him under the Act. He applied himself diligently to this task, his efforts resulting in the four sizeable exports pre-cancellation and the two subsequent to that date. I am satisfied on the basis of the above detailed factual situation, that even if there had not been at the date of cancellation compliance with section 134 (which I have found was not the case) Mr Koosasi would be likely thereafter to satisfy the criteria.
10. Mr Koosasi intended with his wife and family to immigrate to Australia for the purpose of establishing or participating in an eligible business. He intended to maintain a direct and continuous involvement on a day-to-day basis in the management of that business. It was however still in its early stages.
11. The Tribunal is satisfied that Mr Koosasi has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia and that he has made a genuine effort to utilise his skills in actively participating at a senior level in the day-to-day management of an eligible business in Australia. This being so, it is not necessary for the Tribunal to determine whether the discretion available to it should be exercised. If, however, the situation had arisen, where the exercise of the discretion would have been relevant then having in mind all of the circumstances of this matter and the involvement of Mr Koosasi in the various business activities earlier identified in these reasons, the Tribunal would have exercised the discretion in his favour.
12. The Tribunal accordingly will set aside the decision under review.

1. The decision under review is set aside and to the extent that it may be necessary the application is remitted to the Respondent for such further consideration as may be warranted. The Applicant has satisfied the requirements of section 134(2). Although not before the Tribunal, this decision should result in the cancellation decisions relating to Mr Koosasi's wife and the three children also being set aside.

I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis AM QC, Deputy President

Signed: ..........[Emily Gadsby].................................

Solicitor for the Respondent Ms K Hooper of DLA Phillips Fox