Cai and Minister for Immigration and Multicultural and Indigenous Affairs
[2006] AATA 212
•9 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 212
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1386
GENERAL ADMINISTRATIVE DIVISION ) Re MIAOMIAO CAI Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Senior Member Robin Hunt Date9 March 2006
PlaceSydney
Decision The Tribunal sets aside the decision under review.
..............................................
[Sgd] R Hunt
Senior Member
CATCHWORDS
MIGRATION – cancellation of visa –claim that hardship would cause extreme hardship - subclass 128 business skills visa – secondary visa holder – holder studying in Australia – meaning of “extreme hardship” – consideration of visa holder’s circumstances – health, education and prospects in China – trauma resulting from history of abuse - cancellation will cause extreme hardship to applicant - decision set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975, s 33(!AA)
Migration Act 1958, ss. 43, 48, 82, 134, 135, 136 and Schedules
CASES
Harijono and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1443
Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 31
Lee and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 973
Man Ki Kim v Minister for Immigration and Multicultural and Indigenous Affairs (1995) 37 ALD
Salim and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899
Sutoyo and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 604
Then and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 18
Wang and Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 961
REASONS FOR DECISION
9 March 2006 Senior Member Robin Hunt
SUMMARY
1. Ms Miaomiao Cai, the applicant, applied to the tribunal for review of a decision made by a delegate of the Minister, cancelling her visa. Ms Cai held a secondary business skills visa as a dependent of her father, the principal visa holder. Ms Cai claimed that her visa should not be cancelled as the consequences would cause her extreme hardship. The tribunal has found that cancellation of Ms Cai’s visa would result in extreme hardship to her. This means that her visa should not be cancelled. The decision under review is set aside. Ms Cai’s application for review is successful.
BACKGROUND
2. Ms Cai was granted a permanent entry visa, subclass 128, on 14 February 2001 as a dependent of her father, Mr Cai, the primary visa holder. Mr Cai had been granted a subclass 128 business skills visa. Ms Cai travelled to Australia, entered as a secondary holder of a subclass 128 visa, and commenced studies at the University of NSW (UNSW) in 2002. Subsequently, the Minister cancelled Mr Cai’s visa. Cancellation of Ms Cai’s visa ensued as a result. Ms Cai and her father both applied to the tribunal for review of the decisions to cancel their visas. Her father withdrew his review application on 7 September 2005, after a tribunal hearing, and the decision to cancel his visa became final.
ISSUE
3. The issue for the tribunal is whether the cancellation of Ms Cai’s visa would cause her extreme hardship. In accordance with section 134(5) of the Migration Act 1958 (“the Act”), the Minister must not cancel her visa in that circumstance.
CONSIDERATION AND FINDINGS
The decision maker’s obligation to the tribunal
4. As a preliminary, I asked the Minister for information about the legislation dealing with the consequences of cancellation of a visa. The provisions of s 33(1AA) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) require the person who made the decision to use his or her best endeavours to assist the tribunal to make its decision in relation to the proceeding. Nevertheless, the Minister initially declined my request. This caused me some concern as to possible lack of procedural fairness. Fortunately, before I published my reasons, I had before me, from both the solicitor for Ms Cai and the Minister’s representative, an outline of the legislative restrictions that might apply to a person in Ms Cai’s position should the tribunal affirm the cancellation decision.
APPLICABLE LEGISLATION
5. I have summarised the effect of some pertinent legislative provisions below. Section 135(1)(a)(b) of the Act provides that the visa holder must be given written notice stating that the Minister proposes to cancel the visa and inviting the holder to make representations concerning the cancellation within a specified time period. These steps are not at issue in this case.
6. Section 134(4) of the Act sets out that, where the Minister cancels a person’s business visa and another person, being a secondary visa holder, holds that visa as a member of the first person’s family, the Minister must cancel that visa, subject to sub s 134(5). Section 134(5) of the Act provides that the Minister must not cancel the visa of a secondary visa holder if the cancellation “would result in extreme hardship” to that person.
7. If the tribunal sets aside the decision under review, the cancellation of Ms Cai’s subclass 128 business visa will be taken not to have occurred: (See s.136(6) of the Act). If the tribunal affirms the cancellation decision, the operation of subsection 134(8) and section 82 of the Act will result in cancellation coming into effect within 28 days after the tribunal’s decision.
8. The decision to cancel Ms Cai’s subclass 128 visa was made on 29 September 2004. She lodged her application for review on 26 October 2004. Because of subsection 134 (8) of the Act , the cancellation has not yet taken effect and she still holds her subclass 128 visa. While she holds a subclass 128 visa, Ms Cai is still a permanent resident.
9. Ms Cai might apply for a bridging visa to allow her to stay in Australia on a temporary basis once her present visa is cancelled. She would be eligible for a subclass 050 bridging visa E but condition 8101 (no work) must be imposed on this visa under clause 050.612A. Other conditions may be imposed on a bridging visa including variants of a no study condition. Condition 8201 provides the holder must not engage in studies or training for more than 3 months and condition 8207 provides the holder must not engage in any studies or training in Australia. Ms Cai would be adversely affected by the imposition of a no study condition as she has at least 1 year of coursework before she completes her degree.
10. Section 48 of the Act provides that a non-citizen in the migration zone, whose visa is cancelled, may apply for particular visas only as prescribed. Ms Cai is a non-citizen currently in the migration zone. Such a person may apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class. The types of visa prescribed for the purposes of the section are set out in regulation 2.12 of the Migration Regulations 1994 (“the Regulations”). The Minister did not dispute Ms Cai’s submission that she would not be eligible to apply for any of the visa classes prescribed. As Ms Cai is a Chinese citizen and would be unable to apply for a further visa within Australia, other than a temporary bridging visa, she would have to return to China.
11. Once Ms Cai’s visa is cancelled, if she is still in the migration zone with no appeal underway and no bridging visa, she will become an unlawful non-citizen. As an unlawful non-citizen, she must be detained under s. 189(1) of the Act. Then, she must be removed as soon as possible: (See s.198(2)). Ms Cai, of course, has the option of leaving before she becomes unlawful.
Can Ms Cai apply for a higher education visa while onshore?
12. Ms Cai wishes to continue her tertiary studies in Australia and has considered whether she might successfully apply for a suitable student visa. A subclass 573, higher education sector, visa would meet her requirements to enable her to continue her studies. Clause 573.21 sets out primary criteria. For an applicant to apply, within Australia, for a subclass 573, higher education sector, visa, certain requirements must be met. Under subclause 573.211(1), an applicant must meet the requirements of subclause (2), (3), (4), (5) or (6). Ms Cai does not hold any of the prescribed visas for subclause 573.211(1). She is currently the holder of a substantive visa and therefore cannot apply under subclause 573.211(2). For the purposes of subclause 573.211(3), she must not be the holder of a substantive visa and her last visa must have been a student visa or other special visa there set out. For the purposes of subclause 573.211(4), (5) and (6), she must be the holder of one of a range of specified visas and she does not hold one of these visas. Therefore, Ms Cai cannot apply for a subclass 573 visa while she is in Australia.
Might Ms Cai apply for a bridging visa while onshore?
13. Ms Cai is eligible to apply for a bridging visa E. However, such a visa is a stopgap only and the usual term is 3 months. Ms Cai has at least one year of studies to complete before she will achieve her degree. She gave oral evidence that completing her degree is likely to take longer if she is allowed to pursue her subject preferences. Therefore, she cannot expect to continue with her university course in Australia if her visa is cancelled. A bridging visa will not give Ms Cai sufficient time to complete her course even if a no study condition is not imposed. In addition, the Procedures Advice Manual suggests an applicant who wants to study for more than 3 months should be advised to apply offshore.
Might Ms Cai apply for a resident return visa while onshore?
14. The effect of the provisions set out above is to compel Ms Cai to apply offshore if she wishes to continue her studies in Australia. Ms Cai did apply previously for a resident return visa but was unsuccessful. The Minister’s representative advised the tribunal that, as Ms Cai had not lodged a valid application for a resident return visa, she was not refused the visa but was simply informed that her application was invalid. While Ms Cai already holds a permanent visa, she is not entitled to apply for a resident return visa, which would otherwise enable her to depart and return to Australia. Subclass 155 provides for the grant of a five year resident return visa and subclass 157 provides for a three month resident return visa. However, clause 1128(3)(e) of Sch. 1 to the Migration Regulations 1994 does not permit the grant of a resident return visa where the applicant’s most recent permanent visa was cancelled. She therefore will be unable to apply for a resident return visa once the cancellation of her present visa becomes final.
Might Ms Cai return to Australia by applying offshore?
15. Ms Cai might apply for a subclass 573 visa offshore. She would encounter some difficulties with this course of action. Ms Cai submitted through her representative it was extremely unlikely that she would be able to return to her studies in Australia once her visa was cancelled because of her poor academic performance and her health. She must meet health criterion 4005 (at subclause 573.323) yet she suffers from severe anxiety and clinical depression. As well, she does not have a good academic record. Her poor performance is one of the considerations for a delegate of the Minister is required to take into account in determining whether she is a genuine student.
16. Ms Cai’s representative referred to the explanation of an accredited specialist in immigration law, Mr Christopher Levingston, about difficulties faced by students, in a similar case concerning a student whose visa was under threat of cancellation, Lee and MIMIA [2004] AATA 973. Senior Member Lindsay referred to the opinion that Ms Lee would face a credibility problem in satisfying the Department that she was a genuine applicant for a student visa, which is a temporary visa, when she previously held a permanent visa. Ms Cai’s representative said she would face the same problem. Criterion 573.223 requires the Minister be satisfied the applicant is a genuine applicant for stay and entry as a student. Satisfaction involves the stated intention of the applicant to comply with entry conditions and “any other relevant matter”. Ms Cai submitted that, in the same way as Ms Lee, she would be very unlikely to overcome the effect of cancellation of a permanent visa although it was possible. The cancellation of a permanent visa obviously is a relevant matter in the exercise of the discretion imported by the criterion. The seeking of a temporary visa immediately after having to leave Australia due to the cancellation of a permanent visa is not a sound basis for an application. I have taken these considerations into account in evaluating Ms Cai’s likely future prospects.
17. As well, I note that Ms Cai’s academic performance has improved since she made different subject choices instead of continuing with the subjects she finds difficult. I have had the opportunity of hearing evidence about the reasons for her
difficulties and am persuaded that she is a genuine student who will perform better in her chosen field. This is indicated by her language teachers’ evidence. I am persuaded after hearing Ms Cai and considering the material before me that Ms Cai is a genuine student.
18. Ms Cai’s representative also highlighted that Ms Cai was unlikely to be granted a student visa, which is a temporary visa, because she has indicated that she hopes to retain her permanent resident status. She does not wish to depart and further indicated at the tribunal hearing that she intended to apply for citizenship. These intentions are not positive factors for the granting of a temporary visa after which the holder is expected to depart.
19. I also take note that citizens of the Peoples Republic of China are graded under category 4 in Gazette Notice, 12 October 2005, for applications for subclass 573 visas. This means that Ms Cai is subject to a stronger presumption against the grant of a visa than those falling within categories one to three. Other countries in category 4 are Cambodia, Lebanon and Pakistan. Countries are scaled one to five but there are presently no countries scaled five. Ms Cai would have to make a stronger case than an applicant in the lower categories to establish that she is a genuine student.
20. Another matter that was brought to my attention was the possibility of Ms Cai facing a three year preclusion if she sought a subclass 573 student visa. If Ms Cai became unlawful and later left Australia as an unlawful non-citizen or as the holder of a bridging visa granted on the basis of departure, she would face a ban under item 4014 of Schedule 4 of the Regulations Ms Cai’s representative suggested she might become unlawful through no fault of her own if her bridging visa expired during the appeal process and her stay was not extended via a further bridging visa or the Department did not process her bridging visa application. If she were unaware for some reason that she had become an unlawful non-citizen, she would be caught by item 4014.
Will Ms Cai suffer extreme hardship?
21. Ms Cai submitted she is left with the options of leaving Australia and giving up her studies or of waiting in China and hoping that she may overcome the many difficulties of returning to Australia at some later time and being permitted to resume her studies some years later. However, I accept that none of the legislative barriers preventing Ms Cai from continuing her studies in Australia nor possible difficulties in obtaining permission to return once she is offshore amounts to extreme hardship. All persons who have their visas cancelled face similar restrictions and barriers and something more is required. Along with any other person forced to leave Australia after visa cancellation, Ms Cai will experience hardship, having spent an important part of her formative years in this country and undertaking tertiary education at an Australian university. However, she must demonstrate not only that she will have to adjust to life outside Australia in common with most people who have their visas cancelled after a period of residence in Australia. The legislation requires that the hardship be "extreme”. The tribunal has consistently approached the notion of extreme hardship as something more. For example, see cases referred to below and the recent decision of Member Griffith in Then and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 18.
22. However, Ms Cai claims extra factors will cause her extreme hardship. I have turned to the courts for the meaning of “extreme hardship” to see if Ms Cai meets this criterion. Keifel J pointed out in Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 31at 33, that the words do not result in more than the civil standard of proof and that the subsection requires that a causal outcome is able to be predicted. The word “extreme” qualifies the hardship and not the standard of proof. As well, in Man Ki Kim v Minister for Immigration and Multicultural and Indigenous Affairs (1995) 37 ALD 481, Foster J approached the phrase as importing a high degree or very high degree of hardship as seen in the context of the particular facts of the case.
23. In the case of Wang and Minister for Immigration and Multicultural and Indigenous Affairs [2000] AATA 961 at 29, Deputy President McMahon stated that, “hardship involves more than inconvenience and detriment. Affectation must be to considerable degree before it can properly be called hardship”. He continued at para. 32, “the fact that the loss of a visa means that the applicant would need to leave Australia cannot of itself amount to hardship as this is the result contemplated by the statute upon cancellation. One must look at the consequences to the applicant that undoubtedly would result from the cancellation.”
24. The tribunal again considered the meaning of extreme hardship in the case of Salim and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899 at 44 where Deputy President Purvis observed that,
… hardship that will most certainly occur as a consequence or result of the cancellation that is relevant and it is for the decision maker to be satisfied that this hardship will be extreme before the legislative cancellation can be avoided. It is not the need to leave Australia that evidences the hardship, for this is the contemplated legislative result of the cancellation. It is the subjective consequences to the secondary visa holder that would undoubtedly or almost certainly result from the cancellation that is to be seen as constituting extreme hardship.
consideration of the evidence and submissions
25. Ms Cai made two written statements about her background and her experience in Australia as well as giving oral evidence before me. She set out that she was born in Beijing, China, in 1982 and was aged 23. Ms Cai had previously attended school in Beijing from 1992 to 1998 and did her higher school studies in England from 1998 to 2001. She told the tribunal that she liked studying and wanted to educate herself in order to have a career in a profession. She received several offers to commence tertiary studies with universities in the UK. She had not taken up any of these offers because her parents had wanted her to study in Australia and were paying her expenses. She travelled here to join her parents who had decided to do business here.
26. Ms Cai entered Australia on 15 June 2001 and commenced a Bachelor of Computer Science degree at the University of New South Wales (UNSW) on 4 March 2002. Ms Cai was unable to enrol sooner as she had missed the usual cut-off enrolment date. There was no urgency in any event as she was not relying on a student visa for her stay in Australia.
27. Ms Cai was aged 19 in 2001 when she came to Australia at her parents’ insistence. Once she was able to enrol, Ms Cai enrolled in the computer science course to please her parents. She said she wanted to study psychology and languages but her parents expected her to do the business and computer courses they selected. Ms Cai failed all subjects in her first year. She said she tried but was not good at these subjects. She left it too late to withdraw without failures being recorded. Ms Cai told the tribunal she felt under a lot of pressure from other causes as well. She gave evidence that her parents were telephoning her telling her they were divorcing and neither of them wanted her to live with them.
28. Then, Ms Cai took the year 2003 away from her studies as she had received a suspension notice and needed a break as well. Ms Cai complained that the stress of having her visa cancelled did not assist her performance in 2005 either. This meant her completion was delayed. While her confirmation of enrolment form stated she would complete her course at the end of 2005, she agreed under cross-examination, that she might not finish until the following year.
29. Ms Cai did not return to her studies for the year 2003 after an incident when her parents came to Australia and reacted violently to her course failure. At the end of 2002, her first year at university, her parents found out she had failed. Ms Cai gave evidence that they were very angry and beat her. She described a history of physical and emotional abuse by her parents from a young age. She gave evidence about instances that occurred when she was aged four and continuing up to age 22. She told the tribunal she had not mentioned this problem to anyone until a few days ago because it was very embarrassing and shameful. She gave evidence that her mistreatment had continued over the years except when she was living with her grandmother in her early childhood and when she had boarded at her school in England. Even on her most recent visit to see her parents, her mother had physically attacked her in public. Ms Cai did not accuse her parents of hating her. She told the tribunal that her mother rang her at least once a day. Ms Cai gave further evidence that in 2003 she took a part time job with a clothing retailer. She explained that she discontinued her studies because she received a suspension letter from UNSW. Around this time she sought counselling at the university and was advised to write a letter to the registrar explaining her difficulties. She was permitted to re-enrol in 2004 but still did not do well. She passed 2 subjects and failed 3. Ms Cai said she tried to persuade her parents to allow her to change courses as she was unable to do well at the computer science course but they would not agree. She was afraid of them and complied although her interests were languages and psychology.
30. In 2005, Ms Cai was still struggling and passed 6 subjects, 2 with credit. She failed 4. The subjects in which Ms Cai excelled were language courses. She studied Japanese and Chinese/English translation at an advanced level. In 2006, Ms Cai gave evidence that, if she is able to stay in Australia, she will transfer courses and work towards an arts degree. She told the tribunal that she is good at languages and would like to be an interpreter or a psychologist. Although she still relies on financial support from her parents, she has learned to be more independent, has rented a flat and found a job and has assumed household responsibilities. She hopes to be able to support herself financially as well as continuing her studies if she is able to stay in Australia. She has joined various societies, travelled to different parts of Australia and hopes her Chinese background and studies will make her employable in the areas she wants to continue studying. Ms Cai also told the tribunal that she had studied additional subjects at summer school at UNSW but did not yet have her results. Ms Cai has been accepted for re-enrolment at the UNSW in 2006. She produced her confirmation of enrolment form to the tribunal.
31. Ms Lu Jia, who lectured Ms Cai in her CHIN2500 Advanced Chinese Business Language and CHIN2502 Commercial Chinese class for 2 terms in 2005, gave oral evidence in person. Ms Lu said that in the first term she found Ms Cai had good spoken Chinese but that her writing skills were not so good. However, she made such an improvement that she asked Ms Cai to be a team leader the following term. Ms Lu expressed the opinion that Ms Cai’s experience in having been born and raised in China in her early years and then being educated in the UK before studying further in Australia, would make her particularly knowledgeable and suited for a future in global business. Ms Lu noted Ms Cai’s unique background and understanding of both cultures together with IT knowledge and advanced language skills. She also gave evidence that Ms Cai no longer fitted within the Chinese education system, because she left China when very young. Ms Lu did not hold herself out as an expert but said she had completed her own tertiary education in China and, from her experience, could not see how Ms Cai would be able to gain entry. The tribunal also heard oral evidence from Dr Yang Mu, lecturer in the Department of Chinese and Indonesian Studies, UNSW, whose lectures and tutorials in Chinese-English translation Ms Cai attended in 2005. Professor Jianguo Zhang of Beijing Xicheng College of Economic Science as well as Mr Yijun Wei, Senior Counsellor, Beijing Normal University, gave evidence by telephone about the difficulties Ms Cai would encounter in entering tertiary studies in China. Ms Sonia Gallart, Clinical Psychologist, provided a clinical psychological evaluation report prepared on 7 February 2006 and also gave oral evidence.
32. Ms Cai contended she would suffer extreme hardship if she were forced to return to China. She claimed this for several reasons. She gave evidence about the disruption to her university studies and being unable to overcome the barriers that would prevent her continuing or resuming studies in China. Ms Cai contended she would be unable to study in China and that she would suffer financial detriment throughout her life as well as significant distress and personal shame. She had planned employment in a professional capacity over a long term, starting with her boarding school in England. The visa cancellation would waste the benefits of her high school studies in England and her university studies in Australia. Ms Cai claimed her high school education would not be recognised in China and she would have to sit a special entrance exam entailing three years preparation. In order to take the entrance exam, Ms Cai needed to be under the age of 25. She claimed that, once she had prepared, she would be too old to sit the exam. Similarly, Ms Cai said she would be unable to obtain credits or recognition at any Chinese university for her university studies in Australia. Initially, Ms Cai emphasised that she could not succeed entry to any Chinese university via the route to university admission for persons under the age of 25. By the time of the hearing, she had provided support for her contention that she would face major difficulties in qualifying for university entry in China through the entry exams for adults as well.
33. Ms Cai produced a letter from Professor Xudong Yang, a professor of building science at Tsinghua University, verifying her claims about the difficulties she would face in China. Two other academics, Professor Jianguo Zhang and Mr Yijun Wei made similar written assessments of Ms Cai’s prospects, setting out comprehensive analyses of the reasons for this. They also gave oral evidence about the difficulty of overcoming a lack of early education in Chinese history, geography, politics and other Chinese studies under the usual system for entry to tertiary studies. Mr Wei wrote that Ms Cai would face almost insuperable hurdles in entering a Chinese university because she had been educated overseas. He explained that he had been the principal of the university’s affiliated middle school where Ms Cai had studied earlier and he was now a senior representativelor. He said he had a background of more than 20 years in education. He was in a good position to know how the system operated.
34. Professor Zhang told the tribunal he was Chancellor of Beijing Xicheng College of Economic Science and had been in the education sector for more than 20 years. He gave evidence Ms Cai had virtually no hope of passing entry exams without a Chinese education background. While Professor Zhang and Mr Wei acknowledged that there was a route to university for adults who were too old to qualify in the same way as students who had recently completed school studies, this was more suitable for people who had been in the workforce and had a Chinese education background. Ms Cai would have to make up for all the school she had missed before she could sit an entry exam for university and this would take years. It was possible she might qualify for entry after years of study but it was still unlikely because she had missed out on the usual schooling.
35. Ms Cai also told the tribunal about her personal fears if she were forced to return to China to live. She was very emotional when giving this evidence and told the tribunal she found it hard to speak about her family problems and the extent to which she was frightened of her parents. She found it shameful and embarrassing. She had only revealed these problems to her solicitor a few days previously when he had questioned her about why she was so frightened to return to China.
36. Ms Sonia Gallart, Clinical Psychologist, BA., MA., M. Psych (Clin), M.A.P.S. provided a comprehensive eight page report about Ms Cai’s psychological state. Ms Gallart told the tribunal that it was not surprising that Ms Cai had not previously mentioned the traumas she had suffered. Many people found it hard to discuss being the victim of abuse by their parents. Ms Gallart acknowledged that it was a terrifying prospect for Ms Cai to have to return to China to live with her parents. Ms Gallart accepted the history of events that Ms Cai gave her at interview. Ms Gallart’s report showed a valid profile according to the trauma symptom inventory (TSI). She explained this is a 100 item test of post-traumatic stress and other psychological sequelae of traumatic events. Mr Gallart detailed Ms Cai’s responses and TSI scores and concluded that, while she was not currently suffering from a full-blown post traumatic stress disorder, her elevated scores suggested she had some residual post-traumatic sequelae from the abuse. Based on her “emotional profile and presentation throughout an extended clinical interview and multiple standardised assessments”, it was Ms Gallart’s “considered view” that she presented with psychological distress which was likely to be a direct result of the acts of her parents. Her presentation was consistent with a victim of childhood abuse. Ms Gallert wrote that she had encouraged Ms Cai to seek counselling and was concerned for her welfare as she had severe levels of anxiety and depression and had indicated to a friend that she would like to kill herself.
37. In summary, Ms Cai’s main claims as to extreme hardship were:
·She was unlikely to be permitted to return to Australia to continue her studies here which meant she would be unlikely to attain a degree and a professional qualification;
·She would be unable to enrol at a university in China and would never achieve any professional status. This was because she had been educated in England and had not studied according to the Chinese syllabus, which required particular study of Chinese history, geography and language. This meant she could not pass the Chinese university entrance exams. She was too old to qualify through the normal channels before she turned 25, the cut-off age for the usual exam, and she was highly unlikely to succeed in passing the special adult entry exams as well. Her years studying overseas in the UK and Australia with a view to achieving a professional qualification would be wasted;
·She would have very limited employment opportunities in China as she had not completed her education and achieved any qualifications. She acknowledged that she could probably find a job in retailing in China but said that it would be very poorly paid. She would have a very lowly standard of living;
·As she would be unable to find a job sufficiently lucrative to allow her to live independently in China, she would have to live with her parents. This meant she would have to endure continuing emotional and physical abuse. She was already psychologically damaged as a result of psychological and physical abuse and very afraid of what her parents would do to her if she returned to China with no qualifications;
·She wished to make herself a future in Australia as an interpreter or psychologist and had shown herself to be adept in Japanese and Chinese language at a high level. She was likely to achieve these goals if she remained in Australia and have a satisfying career. Her ability was acknowledged by her language teachers at UNSW.
Findings as to extreme hardship
38. Ms Cai will have to leave Australia without completing her university degree as the legislative provisions discussed earlier in these reasons will not permit her to stay. From the material before me, I accept that having to leave Australia will cause more than the usual hardship for Ms Cai. I am satisfied that her having to return to a situation of emotional and physical abuse and being unable to complete her tertiary education will amount to extreme hardship. While Ms Cai has what would normally be perceived as the advantage of family in China, unfortunately, Ms Cai’s is understandably fearful of returning to her family. In Australia, she has friends and prospects of a successful and useful career. The likelihood is that she can continue to support herself here, especially once she has her formal university qualifications. She has found part time employment and has continued to work part time in retailing while studying over the summer break. Her language teachers have a high opinion of her skills in this area and think she has a promising future here. The sum of the misfortunes Ms Cai is likely to suffer once she is forced to leave Australia amounts to something more than the usual hardship for a person whose visa is cancelled. I place particular importance on the psychologist’s report and the evidence of senior academics in China about the effect of Ms Cai’s having little education in the Chinese system as a result of her leaving at an early age and being educated in the UK. As I accept that, if she is forced to leave Australia, this will cause extreme hardship for Ms Cai, it follows that her visa should not be cancelled.
DECISION
39. The Tribunal sets aside the decision under review.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Robin Hunt
Signed: ...................................................................................
AssociateDate/s of Hearing 6 March 2006
Date of Decision 9 March 2006
Solicitor for the Applicant Simon Jeans
Solicitor for the Respondent Lenny Leerdam
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