Andri and Minister for Immigration and Citizenship
[2007] AATA 1375
•28 May 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1375
ADMINISTRATIVE APPEALS TRIBUNAL ) No. V 200600806
) V 200600807
GENERAL ADMINISTRATIVE DIVISION ) Re FELIX PURNAWARMAN ANDRI
CAROLINE ANDRIApplicants
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal: G.D. Friedman, Senior Member Date:28 May 2007
Place:Melbourne
Decision: The Tribunal affirms the decisions under review. (sgd) G. D. Friedman
Senior Member
MIGRATION ‑ business skills visa ‑ cancellation - whether extreme hardship to secondary visa holders
Migration Act 1958 s 134(5), 499
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481
Re Harijono and Anor and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 882
Re Salim and Ors andMinisterfor Immigration and Multicultural and Indigenous Affairs [2002] AATA 899
Re Setiawan and Minister for Immigration and Multicultural Affairs [2002] AATA 260
Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961
Rokobatini v Minister for Immigration Multicultural Affairs (1999) 57 ALD 257
REASONS FOR DECISION
28 May 2007 G.D. Friedman, Senior Member
1. Caroline and Felix Andri are Indonesian citizens who came to Australia as students and then became secondary visa holders when their father was granted a business skills visa. Their visas were cancelled when Mr Andri’s visa was cancelled for non-compliance.
2. The issue before the Tribunal is whether cancellation of the children’s visas would cause them extreme hardship.
WHAT IS EXTREME HARDSHIP?
3. Section 134(5) of the Migration Act 1958 provides in relation to a visa held by a person who is a member of the family unit of a person whose business visa has been cancelled:
The Minister must not cancel the other person’s business visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person.
4. In Re Setiawan and Minister for Immigration and Multicultural Affairs [2002] AATA 260 the Tribunal noted that the meaning of the words extreme hardship was considered by the Federal Court in Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481 at page 487:
...It is, in my opinion, important to approach the phrase "extreme hardship" in a broad way. Clearly, it imports a high degree, perhaps a very high degree of hardship, but it must be applied in the context of the facts of the particular case.
5. In Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961 the Tribunal stated at [29]:
…Clearly, whatever view is taken, hardship involves more than inconvenience or detriment. Affectation must be to a considerable degree before it can properly be called hardship.
At [30] the Tribunal stated:
…There are many meanings of the word "extreme" offered in the Macquarie Dictionary. Some of the more helpful suggestions are "of a character or kind farthest removed from the ordinary or average", "utmost or exceedingly great in degree", "farthest, utmost or very far in any direction", "going to the utmost lengths, or exceeding the bounds of moderation", "the utmost or highest degree, or a very high degree". The use of the word "extreme" can be contrasted with the use of the word "undue" found in Ministerial Guidelines relating to hardship associated with deportation. In order to enliven the prohibition against a Minister cancelling another person's business visa under subsection (4), there must be shown to be not only hardship and not only undue hardship, but extreme hardship.
6. In Re Salim and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899 the Tribunal held at [46] and [47]:
46. However, it would be strange or unusual and unexpected if three relatively young, intelligent and capable persons had not in the years developed such relationships. It will be hard to leave these people. It will be hard to readjust to a life outside Australia and the university environment. But this hardship is one within the contemplation of the legislature when it chose to insert the word "extreme" as to qualify the hardship. And it must be "extreme" to the particular individual.
47. The Tribunal does not consider that the hardship that will undoubtedly be experienced by each one of the Applicants is exceptional, unexpected or of such a nature as to qualify for the description of exceedingly great in degree. Unfortunate yes, emotional yes, financial yes to a degree. But not extreme.
7. Disruption to studies, of itself, is not extreme hardship (Re Harijono and Anor and Ministerfor Immigration and Multicultural and Indigenous Affairs [2004] AATA 882).
8. On 15 March 2007 the Minister issued a new Procedures Advice Manual (PAM3) which sets out the procedures to be followed in the making of decisions under s 134 of the Act. PAM3 replaced Migration Series Instruction 133 (MSI-133) and was issued pursuant to s 499 of the Act which authorises the Minister to give written directions to decision-makers. The Tribunal accepts that PAM3 is a relevant consideration in its decision-making process (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577) and is the correct policy to be applied at the time of the Tribunal’s decision (Rokobatini v Minister for Immigration Multicultural Affairs (1999) 57 ALD 257).
9. Paragraph 15.2 of PAM3 states:
Under policy, ‘would result’ means that the hardship that will be a necessary and a direct consequence of the visa cancellation rather than a possibility or probability. For example, a student would need to demonstrate that as a direct consequence they could not eventually complete their studies on a Student or other visa.
‘Extreme hardship’ is not [a] defined term for business visa cancellation purposes. Under policy it means that the visa holder would face the utmost or highest degree of hardship if their visa were to be cancelled. The relevant hardship must be a necessary consequence of the cancellation of the visa, a mere possibility or probability would not be sufficient to constitute extreme hardship.
WOULD CAROLINE SUFFER EXTREME HARDSHIP IF HER VISA IS CANCELLED?
10. Caroline stated that cancellation of her visa would result in extreme hardship to her. She told the Tribunal that she arrived in Australia in 1997 at the age of 13 years on a student visa and studied Years 11 and 12 at Presbyterian Ladies’ College, after which she completed a Bachelor of Accounting degree at Monash University. In 2003 she was granted a business skills visa and permanent residency as a dependant of her father. She commenced a Bachelor of Banking and Finance degree at Monash University, and hopes to complete the course in June 2007.
11. In relation to her current situation, Caroline said that she has integrated into the Australian way of life and has adapted culturally and socially. Most of her friends live in Australia. She said that initially she returned to Indonesia each year for holidays, but has lost touch with most of her Indonesian friends after ten years, and has not been to Indonesia for nearly three years. She said that her parents visit her about once each year.
12. Caroline explained that she has been working as a bank teller on a part-time or casual basis. She produced a number of letters (Exhibit A2) from work colleagues praising the quality of her work and her character. She said that she has reached the final stage for selection in the bank’s 2008 graduate program, and that she is required to hold permanent resident status to be accepted into the program. She stated that her dreams of a career in accountancy with the bank would be shattered if she is unable to accept an offer as a consequence of the cancellation of her permanent residence visa.
13. Caroline acknowledged that her parents and extended family live in Indonesia, but she said that if she is forced to return to Indonesia she would have difficulty in finding employment, despite having two degrees, because her knowledge of the Indonesian language has declined considerably after an absence of ten years. Also, she would be competing with graduates who are more familiar with the language and culture, and as a woman she might have fewer opportunities than male graduates. She also agreed that as an accounting graduate she would have a good chance of obtaining an Australian permanent residence visa in an accounting-related category if she applied from Indonesia. However she emphasised that the criteria might change or she may have to wait for a lengthy period and miss out on the 2008 graduate employment programs. She said that having to leave Australia to apply for a visa in order to return would be extremely disruptive and would be highly detrimental to her career aspirations, and for these reasons cancellation of her visa would result in extreme hardship.
14. The Tribunal accepts that Caroline has lived in Australia for more than ten years, has formed a wide network of friends, is committed to the Australian way of life, has completed her accounting degree and has almost completed her banking and finance degree. She has worked hard to pursue her goal of a career in banking and has demonstrated an excellent work ethic in her casual and part-time employment with the bank. Clearly she is held in high regard by her work colleagues, and at the hearing she was hopeful of securing a place in the bank’s 2008 graduate program.
15. Undoubtedly Caroline would experience emotional and practical difficulties if forced to leave her network of friends in Australia and re-locate to Indonesia. Such a move would be inconvenient and disruptive, particularly as she does not wish to delay her applications for graduate positions in Australia. The Tribunal appreciates that any offer by the bank may be conditional on permanent residence status. However, if Caroline returns to Indonesia she would be in a strong position to apply for an Australian permanent visa in an accountancy-related occupational category. There is no evidence that processing of such an application would jeopardise any offer received from the bank or would prevent her from pursuing other career options in Australia. If she decided to remain in Indonesia her parents and extended family would be able to provide the necessary support for her re-integration into Indonesian society. Her Australian qualifications would be regarded highly by prospective Indonesian employers.
16. For these reasons the Tribunal finds that there is a possibility or probability that the disruption to Caroline’s life would cause hardship, but that any hardship suffered by her would not be a necessary and a direct consequence of the visa cancellation. Such hardship would not be the utmost or highest degree of hardship. Therefore the Tribunal finds that cancellation of Caroline’s visa would not result in extreme hardship to her.
WOULD FELIX SUFFER EXTREME HARDSHIP IF HIS VISA IS CANCELLED?
17. Felix stated that cancellation of his visa would result in extreme hardship to him. He told the Tribunal that he came to Australia in 1998 at the age of 12 years on a student visa and attended Westbourne Grammar School before commencing the Foundation Studies program (equivalent to Victorian Certificate of Education) at Melbourne Institute of Business and Technology in 2004. He said that despite his best efforts his academic results have been barely satisfactory, and he has taken on extra subjects to enable him to complete the program in June 2007. Felix explained that if he passes his exams he would gain entry to the second year of a Bachelor of Commerce course at Deakin University in second semester of 2007.
18. Felix stated that if his visa is cancelled and he is forced to return to Indonesia he would be unable to obtain suitable employment or a place at university because of his poor academic results and his lack of language skills after such a long absence. He said that he last returned to Indonesia about three years ago, and has lost contact with most of his Indonesian friends. Felix acknowledged that family support would be available, but maintained that his career options would be severely limited in Indonesia. He said that he would prefer to return to Australia to undertake the course at Deakin University, or perhaps a course at a TAFE institution, but was concerned that if he obtained a student visa he may be forced to return to Indonesia prematurely if he is unable to comply with the academic requirements of the visa.
19. In relation to his current situation, Felix said that he has integrated into the Australian way of life and has adapted culturally and socially. He said that, for these reasons, he would suffer extreme hardship if his visa was cancelled. Pastor V. Liu of the Emmanuel Baptist Church gave evidence in support of Felix and said that he has made a valuable contribution to the activities of the church. Pastor Liu said that Felix would face great difficulty in coping with the Indonesian education system because of poor academic results and language problems.
20. The Tribunal takes into account that that Felix has been in Australia since the age of 12 years. He enjoys living in Australia, has developed a network of friends and has contributed to the activities of his church. Despite some difficulties he is making a concerted effort to complete his studies for entry into a tertiary course that will assist his career prospects, and he would prefer to study in Australia. Cancellation of his visa would cause disruption to his established lifestyle and would be inconvenient.
21. If Felix wishes to pursue tertiary studies in Australia he would be able to apply for a student visa from Indonesia, and any delay in obtaining the visa would not appear to have a long-term adverse effect on his career options. As with Caroline, Felix has strong family support in Indonesia. He has lived independently of his parents for several years. If his visa is cancelled his family has the financial means to assist with accommodation in the family home and re-settlement in Indonesia.
22. For these reasons the Tribunal finds that there is a possibility or probability that the disruption to Felix’s life would cause hardship, but that any hardship suffered by him would not be a necessary and a direct consequence of the visa cancellation. Such hardship would not be the utmost or highest degree of hardship. Therefore the Tribunal finds that cancellation of Felix’s visa would not result in extreme hardship to him.
DECISION
23. The Tribunal affirms the decisions under review.
I certify that the twenty-three [23] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
(sgd) Lydia Zozula
Associate
Date of hearing: 1 May 2007
Date of decision: 28 May 2007
Advocate for applicant: Mr P. Chow, Migration Agent
Advocate for respondent: Mr M. PalfreySolicitor for respondent Clayton Utz
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