Cha and Minister for Immigration and Citizenship

[2007] AATA 1936

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1936

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2006/2524

GENERAL ADMINISTRATIVE DIVISION		)
Re		SUN YEONG CHA

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Robin Hunt, Senior Member

Date12 November 2007

PlaceSydney

Decision The decision under review is set aside.

...................[Sgd].....................

Ms Robin Hunt
  Senior Member

CATCHWORDS

IMMIGRATION - business skills visa – secondary visa cancellation – consequent on cancellation of primary visa – secondary visa holder wife of former primary visa holder – joint business enterprise in Australia - extreme hardship claim – wife operates business in Australia – wife separated from husband - finding cancellation will cause extreme hardship - decision set aside.

Migration Act 1958 subsections 134(4), 134(5)

Migration Series Instruction 133

Procedures Advice Manual (PAM3)

Man Ki Kim v Minister for Immigration (1995) 37 ALD 481

Lee and Minister for Immigration [2004] AATA 973

Salim v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899

Freeman v Secretary, Department of Social Security (1988) 19 FCR 342

Surinakova v Minister for Immigration (1991) 33 FCR 87

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

REASONS FOR DECISION

12 November 2007 Robin Hunt, Senior Member         

SUMMARY

1.      Sun Yeong Cha, the applicant, has been operating a hair dressing salon as the holder of a subclass 128 (Senior Executive) visa, which entitled her to permanent residence in Australia. Ms Cha held her subclass 128 (Senior Executive) visa as a secondary visa holder. The visa was granted to her as the dependent of her husband. When her husband’s primary visa was cancelled, Ms Cha’s visa was automatically cancelled. In seeking review of the cancellation decision, Ms Cha argued she would suffer extreme hardship if her visa were not restored. I have decided that ms Cha would suffer extreme hardship. This means her visa should not be cancelled.

Background

2.      The early background leading to this application is not in dispute. Ms Cha first entered Australia in July 2001 as the guardian of her two sons, who arrived in Australia as the holders of student visas. The visas of Ms Cha and her sons were temporary visas. Subsequently, Ms Cha’s husband, Sa Yong Jang, applied for and was granted a subclass 128 (Senior Executive) visa. Sa Yong Jang entered Australia as the primary visa holder and Ms Cha and their two sons were granted subclass 128 (Senior Executive) visas as his dependants. Ms Cha became a secondary subclass 128 (Senior Executive) visa holder on 11 August 2003. Subclass 128 (Senior Executive) visas entitle holders to permanent residency.

3. On 15 November 2006, Ms Cha's subclass 128 (Senior Executive) visa was cancelled pursuant to section 134(4) of the Migration Act 1958 (the Act), after Sa Yong Jang's visa was cancelled pursuant to section 134(1). Under subsections 134(4) and 134(5) of the Act, when a primary visa is cancelled, the secondary visa must be cancelled also unless the secondary visa holder would suffer extreme hardship as a result of the cancellation.

4.      All the members of Sa Yong Jang’s family initially applied to the Tribunal for review of the cancellation decisions which affected them. I heard the applications of Dong Ig Jang and Sun Yeong Cha, together. For my reasons for decision in Dong Ig Jang’s case, see matter number 2006/2525. Ms Cha’s husband, Sa Yong Jang, and Ms Cha’s other son withdrew their review applications.

Issue

5.      The issue for me to decide is whether or not cancellation of Ms Cha’s visa would cause her extreme hardship according to subsection 134(5) of the Act.

consideration of the evidence

6.      Ms Cha furnished affidavits which set out some aspects of the history of her marriage, her activities in Australia and matters which she claimed will cause her extreme hardship as a direct result of the cancellation of her visa.  Ms Cha also gave oral evidence with the aid of an interpreter.

7.      Ms Cha told the Tribunal she has two sons, the older of who was in Australia as an exchange student for approximately 6 months before returning to Korea. Her younger son, Dong Ig Jang, who is a student, was attending TAFE in Sydney at the time of the Tribunal hearings. After Ms Cha had settled in Australia as the carer of Dong Ig Jang, her husband made very few visits. The respondent’s records show that Sa Yong Jang visited Australia for 13 days only between the date of entry on his visa and its cancellation over three years later. The date of his first entry on the business visa was in August 2003 and the decision to cancel his visa was made in November 2006. While Ms Cha’s husband left her and their younger son on their own in Australia, he did send money to Ms Cha to maintain them in Australia.

8.      The Reverend Kisoo Jang, of the Uniting Church, appeared before the Tribunal. He gave evidence to the effect that he was the family’s religious adviser and was in regular contact with the parties. He saw Ms Cha two or three times a week and rang her husband in Korea to talk to him. He had also visited Sa Yong Jang in Korea. He told the Tribunal that he had recently learned from Ms Cha that she and her husband no longer had a marital relationship although they had not divorced. He gave an account of how this information came to light and why Ms Cha had been reluctant to disclose it earlier. When asked why he thought Ms Cha had not divorced, the reverend gave evidence to the effect that it was frowned upon in Korea although quite a high percentage of younger people divorced nowadays.

9.      The reverend said he had concerns about the marriage for some time. Sa Yong Jang came to see him when visiting Australia but only discussed his son and not his wife. Rev Jang also noticed that, on the two occasions when Sa Yong Jang visited Australia, he was here for only a few days.  Shortly before the Tribunal hearing, the reverend attended a conference with Ms Cha’s legal advisers and chatted to her afterwards over a cup of coffee. He gave evidence that Ms Cha “opened up” to him and admitted the marriage had ended.

10.     Rev Jang gave further evidence about his fears for the applicant if she returned to Korea. He said he was aware that the employment situation for a man over 40 returning to Korea after an absence would be very difficult and that it would be worse for a woman. He thought it would be a tragedy for Ms Cha if she had to return to Korea. He reported his concerns to her solicitor and agreed to give evidence to this effect.

11.     The applicant told the Tribunal that she and her husband had marital difficulties since about 1995.  They had tried reconciliation and this was part of the reason for her husband’s migrating to Australia on a work visa with the whole family as his dependents. It was an attempt to “make a new start”.  Her husband first tried a software business. Nothing really came of the software business originally planned.  Instead, her husband instructed Ms Cha to look around for a small business, and she investigated cafes, restaurants and hairdressing salons.  Eventually, in August 2005, she found a hairdressing salon in Burwood, which she and her husband purchased for $80,000, made up of $18,000 for equipment and $62,000 for goodwill. A copy of the contract of sale is included in the documents initially provided with the primary visa holders’ review application and is before me.

12.     Ms Cha gave further evidence that, after she and her husband purchased the salon, she shut it for a short period for renovations. When it re-opened, she changed the name from Lee’s Hair World to Chic Hair Salon. The purchase and renovation of the salon was funded primarily by the sale of an investment property owned by Ms Cha and her husband in Queensland.

13.     Copies of documents before me show Chic Hair Mode, on 2 November 2005, was entered on the Australian Business Register in the joint names of the applicant and Sa Yong Jang, her husband. Ms Cha gave evidence about the turnover of the business since they had owned it. Financial documents were also available to the Tribunal. Ms Cha said that, in the quarter ending 31 December 2005, turnover was $17,798.00. Quarterly figures she supplied showed turnover increased progressively until it was $36,166.00 for the quarter ending 30 September 2006. In the year 2007, Ms Cha said turnover for each quarter had been about $31,000 to $33,000. That is, the quarterly turnover of the salon has increased from $17,798 in October-December 2005 to around $30,000-$35,000 over the past year.

14.     Ms Cha gave evidence that she has been responsible for running the salon since it re-opened in 2005.  Ms Cha further explained there was almost 100% turnover of the clientele of the salon after she re-opened.  It now consists of about 70% Chinese (Burwood has a large Chinese community), 20% Indian, Italian, Greek and Australians, and 10% Korean clients. Although she was not a trained hairdresser, she had learnt a lot about hairdressing since she bought the business. Ms Cha did not claim that she carried out hairdressing duties personally but she did attend to all her clients personally and saw that they received the service they were looking for. She “welcomes” clients and ensures they get good service.  While she employs an experienced hairdresser, Ms Soo Ran An, Ms Cha explained that Ms An was in her early 20s and a little unreliable and not necessarily committed to the long term future of the salon.  Ms An would not be able to fill the role played by Ms Cha.

15.     Ms Cha gave further evidence that she employs at least one Australian resident, being Ms An, who holds the position of manager of the business. Three part time workers are also employed. The manager’s duties include building client relationships and supervising the hairdressing operations. However, it is Ms Cha who attracts the clients and is mainly responsible for building relationships. Ms Cha further said she often provides clients additional services for free. She tries to make her clients feel special and believes they come to see her because they know she will look after them.

16.     The applicant claimed that, as she runs the salon and clients come to see her personally, she would have little to sell if she cannot remain in Australia. Having to sell the business within 28 days, the usual period someone whose visa is cancelled is permitted to remain in Australia, will mean she is unlikely to achieve a good price. Ms Cha told the Tribunal that, if she has to leave Australia, she will lose the considerable financial investment that she and her husband made in the hairdressing salon.   This was confirmed in oral evidence by her accountant, Mr Jason Yu of Byrons Chartered Accountants. Mr Yu gave evidence to the effect that it would be extremely difficult to sell the business for a reasonable amount, or at all, within 28 days and that if Ms Cha was not available to undertake a “page in, page out” process for the buyer this would detract enormously from the value of the business to a buyer. The goodwill would be lost without Ms Cha to hand over in an orderly way and gradually introduce her clients to the buyer. Mr Yu described the possible sale of the business in these circumstances as “a rocket sale”.

17.     Ms Cha also said she had been planning to open a second salon, possibly in Chatswood. This plan was on “hold” pending the determination of her current application.

18.     In her affidavits, Ms Cha described her husband’s apartment in Seoul as having two bedrooms and being too small for her to share with him since they have separated. She also spoke of their financial difficulties since her husband lent money to someone who had lost it in a failed business venture.

19.     Ms Cha described her qualifications in one of her affidavits. When still in Korea, Ms Cha completed a degree as a child care worker and worked in this capacity for three years after graduation. She also is a qualified piano teacher and tutored students for fifteen years.

findings

20.     I accept that Ms Cha was a truthful witness. There was no evidence before me to contradict her claims apart from some material about the Korean divorce rate, which was explained, and Ms Cha presented as a person who was telling the truth. I am prepared to accept as the truth that her marriage has been in difficulties since 1995 and that the parties have finally separated. Despite these problems, Ms Cha and her husband purchased a hair dressing business as joint owners in 2005. Ms Cha has been responsible for the operations of the business. Her husband has conceded that he did not meet the requirements of s 134 of the Act and withdrew his application for review.  

21.     Ms Cha set up and operated the Australian business from the beginning. Ms Cha acknowledged that she sought her husband’s advice from time to time. However, it was she who ran Chic Hair Mode on a day to day basis. However, while Ms Cha has met some important criteria for the grant of a subclass 128 (Senior Executive) visa in her own right, Ms Cha cannot expect to return to Australia on such a visa, as the turnover falls short. With an approximate annual turnover of $120,000 for Chic Hair Mode, she does not meet the requirement that her main business has had a turnover of $500,000 for 2 of the 4 preceding financial years. Nor can she apply for an onshore permanent subclass 845, established business in Australia visa, as she is not the holder of a temporary substantive visa and does not meet the $200,000 turnover requirement attached to the ‘Business Skills Points Test” in Schedule 7, item 7170, for that subclass.  The respondent has not suggested there is any obvious avenue that would enable Ms Cha to return to Australia and continue the running of her business.

22.     As her counsel put to me, Ms Cha has a bleak future if she returns to Korea as a separated woman who is likely to divorce. As Reverend Jang said, although Korea may have a high divorce rate, the wide acceptance of divorce is largely limited to the younger generation. The applicant has not sought a divorce because it is still a matter of great shame for older women to be divorced.  This perception among older citizens was emphasised by Reverend Jang. I note the BBC article produced by the respondent, “Koreans learn to live with divorce”, which refers to the upward trend in divorces having taken place over the last 30 years and involving “...a clash of cultures, between the old and the new...”. However, I consider that there is merit in the interpretation and qualification of this trend put to me by the applicant and Reverend  Jang regarding people of Ms Cha’s age and accept their evidence.

23.     I also accept that it will be very difficult for Ms Cha to re-establish herself in Korea.  As well, as she is separated from her husband, she cannot expect to resume co-habitation. She would find it very difficult to afford rent for a place for herself and her son once she had been forced to give up the income from her salon in Australia.  She does not hold the necessary qualifications to start a hairdressing salon in Korea, and she is unlikely to be able to return to piano teaching because of her five to six year break from teaching.  Her age would make it difficult to return to childcare, which is a career she has not pursued for many years as well.  I further accept that she has now lost contact with her friends in Korea and she feels that she will face prejudice and isolation as a single, divorced or separated woman.

24.     The applicant’s husband has conceded that he did not meet the requirements of s 134 of the Act. It was the applicant who set up and operated the Australian business with financial assistance and business advice from her husband. I consider it is part of the hardship to Ms Cha that I should take into account that she has put genuine and continuing efforts into the acquisition and management of the business in a similar way to the expectations for a primary visa holder to comply with visa conditions. Ms Cha has expended time and effort in maintaining a genuine business which employs at least one Australian resident, and which is beginning to show substantial returns.  It is likely she will lose the funds invested in the business, being the $80,000 purchase price and $30,000 on renovations and new equipment, as well as her livelihood. After hearing from her accountant I have no difficulty in finding it unlikely that the business could be sold for any substantial amount once Ms Cha is gone. The goodwill component developed by the applicant as manager will become virtually non-existent once Ms Cha has gone. In addition, Ms Cha will be unable to introduce her clients to new management in such a short time, bearing in mind that achieving a sale of a business can take months or even years and that the sale of the salon in 28 days would leave no margin for niceties.  In addition the applicant will lose the opportunity of future income through the business. 

25.     In her particular circumstances, I find that Ms Cha will suffer financially and personally if her visa remains cancelled and she has to leave Australia as a result. It is clear from her evidence that she is well settled in the Australian community and has close connections and support from her church. She will lose not only the support network she has built up if she has to leave Australia, but she will lose the investment that she and her husband have made in the hairdressing salon.  The further question is whether her circumstances amount to extreme hardship.

26.     It was put to me that, when compared to the finding of Justice Foster in Man Ki Kim v Minister for Immigration and Ethnic Affairs(1995) 37 ALD 481, that there was “no contest” that extreme hardship was made out by the loss of an employee who performed a vital executive role such that the loss could affect the viability of a business, then the loss of an entire business will generally be an “extreme hardship” also.  Certainly, I consider the loss of the business built up over the last two years is a severe hardship.

27.     The applicant’s submissions put to me by counsel were that she will suffer extreme hardship not just because of the loss of the business but also because of her close connections with the Australian community; in particular through the local church.  I agree with the submission that, while this on its own might not be sufficient to meet the test, when aggregated with the loss of her business, the requirements for “extreme hardship” are met. In all the circumstances, I find that these difficulties taken together are of sufficient degree to amount to extreme hardship.

28.     The term, “extreme hardship” in s 134(5) is not defined in the Act or regulations. The former policy guideline, Migration Series Instruction 133, did not define the term or provide any guidelines as to its meaning. On 15 March 2007 the Minister issued a new Procedures Advice Manual (PAM3) which sets out the procedures to be followed in making decisions under section 134 of the Act. PAM3 replaced MSI-133 and issued pursuant to section 499 of the Act, which authorizes the Minister to give written directions to decision-makers. PAM3, as an instrument of policy, is a relevant consideration in the decision-making process. See Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577). The new guideline does not define the expression either and reads, in part:

‘Extreme hardship’ is not defined 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.

29.     The description in the guidelines is consistent with dictionary definitions of “extreme’ and “hardship”. The Macquarie Dictionary defines extreme firstly as “of a character or kind farthest removed from the ordinary or average”. The dictionary gives a second meaning of “utmost or exceedingly great in degree”.  The meaning of “hardship” is given as “a condition that bears hard on one” and variations of this, ending in “something hard to bear”. The Federal Court considered the phrase “extreme hardship” in Man Ki Kim (above), Justice Foster considered the meaning of extreme hardship and said it must be at the very high end of the scale. This also accords with the guidelines.

30.     I note that hardship is particular to the person involved and that every case will be different. Both parties referred to previous cases and I note that in one case often referred to, Salim v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899, DP Purvis said, at paragraph 44, that this hardship will be extreme before the legislative cancellation can be avoided. I agree with his observation that it is not the need to leave Australia that evidences the hardship, for this is the contemplated legislative result of the cancellation. I also agree that 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.

31.     In my opinion, the consequences to Ms Cha of the cancellation will be for her very hard to bear and she will suffer to a very high degree if she has to leave Australia. Her suffering will amount to extreme hardship.

32.     Lastly,   I note that the Tribunal’s role is to determine whether the decision of the respondent to cancel a visa was the correct or preferable decision as at the time of the decision under review.  However, Davies J the Federal Court in Freeman v Secretary, Department of Social Security (1988) 19 FCR 342, found in the context of the cancellation of another type of entitlement, at [9], that the Tribunal is entitled to take into account all the facts before it. In my opinion, the evidence about how the business has continued is pertinent to my decision. The continuing development shows the genuineness of Ms Cha’s intentions to make a go of the salon when she bought it.

33.     I am mindful that Ms Cha acquired the hairdressing salon in 2005 and that the cancellation decision was made in November 2006. Some of the evidence about the growth of the business relates to a period since the making of the cancellation decision.  However, I have proceeded on the basis that this history is relevant to my decision as Ms Cha and her husband had already purchased the business before the cancellation decision occurred. In addition, the steady growth of the business demonstrates Ms Cha’s good intentions when she made the purchase.

34.     Further, the new information about Ms Cha’s separation, which she admitted in 2007 but which had been brewing since 1995, and the continuing sequence of events since she arrived in Australia, casts light on her personal situation at the time of the delegate’s decision. Even though this information was not before the delegate, I am not prevented from taking it into account for the review. I am entitled to take the state of Ms Cha’s marriage into account in reaching a properly informed decision.  Also see the words of Hill J in Surinakova v Minister for Immigration (1991) 33 FCR 87 about after-acquired evidence and its being relevant “as showing the probability that such events may happen”.  For all these reasons, I find that the preferable decision in Ms Cha’s case is to restore her visa and to allow her to remain in Australia.

decision

35.     The Tribunal sets aside the decision under review.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Robin Hunt

Signed: [Talaishia Collis]
  Associate

Date/s of Hearing  22 August 2007 
Date of Decision  12 November 2007
Counsel for the Applicant         Mr N Poynder
Solicitor for the Applicant          Mr M Kah – Kah Lawyers
Counsel for the Respondent     Ms B McNeil – Clayton Utz