Chang and Ors and Minister for Immigration and Multicultural Affairs
[2006] AATA 383
•2 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 383
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2005/343
Nº V2005/723GENERAL ADMINISTRATIVE DIVISION Nº V2005/724
Re: CHARLISTIO CHANG AND
RICKY CHARLESTIO ANDRIKA CHARLESTIO
Applicants
And: MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal: Regina Perton, Member
Date: 2 April 2006
Place: Melbourne
Decision:The Tribunal affirms the decisions under review.
. . . . . . . . . . . . . . . . . . . . . . . . .
Member
MIGRATION ‑ business skills visa ‑ cancellation ‑ whether eligible business ‑ whether utilising skills in actively participating at a senior level in the day‑to‑day management of business ‑ whether genuine effort ‑ whether extreme hardship
Migration Act 1958 s 134(1), (2), (3), (4), (5), (10)
Hope v Bathurst City Council (1980) 144 CLR 1
Puzey v Commissioner of Taxation [2003] FCAFC 51
Re Griffiths and Migration Agents Registration Authority [2001] AATA 240
Re Salim and Minister for Immigration and Multicultural and Indigenous Affairs (2002) 36 AAR 42
Re Setiawan and Minister for Immigration and Multicultural Affairs [2002] AATA 260
Re Tang and Minister for Immigration and Multicultural Affairs [2000] AATA 997
Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961REASONS FOR DECISION
2 April 2006 Regina Perton, Member
1. Chalistio Chang is an Indonesian citizen who arrived in Australia on 6 December 2001 as the holder of a subclass 127 business skills visa (business visa). Mr Chang’s wife and children were also granted business visas as his dependents. Mr Chang established a company, Sunny Shine Pty Ltd (Sunny Shine), in Australia in which he has a 50% share, his brother-in-law holding the other half. On 31 March 2005, the Minister’s delegate cancelled Mr Chang’s visa under s134(1) of the Migration Act 1958 (the Act) on the basis that Mr Chang had not complied with the terms of the visa. Since his family were granted visas because Mr Chang was granted a visa, the cancellation of his visa resulted in the cancellation of their visas.
2. Mr Chang maintains that he has satisfied all the conditions of his visa and that the decision to cancel the visa was incorrect (application N° V2005/343). His son Ricky Charlestio (Ricky), born on 8 January 1979 (applicationN° V2005/723) and daughter Rika Charlestio (Rika), born on 1 December 1982, (applicationN° V2005/724) claim that cancellation of their visas would result in extreme hardship.
3. The issues before the Tribunal are: whether Sunny Shine is an eligible business; whether Mr Chang is actively participating at a senior level in the day‑to‑day management of the business; and whether he has made a genuine effort to obtain an interest in an eligible business and participate in day‑to‑day management of the business. The Tribunal also needs to consider whether Ricky and Rika would suffer extreme hardship if their visas were cancelled.
MR CHANG’S EVIDENCE
4. In a written statement (Exhibit A1), Mr Chang stated that since leaving school, he has worked in a family business in Palembang in the southern part of Sumatra. There are two aspects to that business. One is a factory manufacturing cement roofing tiles and paving blocks. The other is a shop which sells building materials such as doors, windows and timber with an adjoining warehouse used for storage.
5. With the assistance of an Indonesian-speaking accountant in Perth, Mr Chang and his brother-in-law, Hendi Darsono, incorporated Sunny Shine on 27 March 2002. He and Mr Darsono each hold a 50% share of the company. Mr Chang stated that he has found it difficult to establish a business in Australia since being granted his business visa. He stated that he does not speak English very well. He stated that it is very hard to come to a new country and start up a business without a command of the language.
6. Mr Chang stated that he started to research business opportunities in Australia after he was granted the visa. He considered exporting building supplies to Indonesia as he had knowledge of that industry. After visiting some Australian building supplies businesses, he realised that Sunny Shine could not make money exporting building supplies. This was because of the higher cost of Australian materials over the same product in Indonesia as well as the export costs and rising Australian dollar. He tried exporting cattle but gave up the idea after a couple of shipments as it was not very profitable and difficult to manage.
7. Mr Chang then started exporting Australian wheat flour to Indonesia. Mr Chang stated that he has been greatly assisted by Wagiman Tandum (Wagiman) who is the Indonesian representative of an Australian company, Manildra Flour Mills Pty Ltd. (Manildra). He stated that he has developed a strong business relationship with Wagiman who has helped arrange for Sunny Shine to export wheat flour to a company in Indonesia, which in turn sells the product locally. He indicated that Sunny Shine could not afford to hire staff in its early stages and that his children in Australia could not assist as they were full-time students. Mr Chang stated that in terms of day to day management of Sunny Shine, he has been responsible for all the financial dealings and liaison with Wagiman.
8. Mr Chang stated that he had planned to expand Sunny Shine’s business beyond export of wheat flour. He had considered property development as a possibility but stated that this is a long process. He stated that he has been hampered by being unable to visit Australia as often as he would have liked. He stated that this is largely a result of a property dispute over ownership of his building supplies shop which began in January 2001. He initiated proceedings in the local court, the other person counter-claimed and there have been a series of appeals over several issues, one of which is still pending. He provided copies and translations of documents concerning the court cases. Mr Chang stated that his legal costs in relation to the Indonesian property dispute have been around AU$200,000. He stated that he has a genuine commitment to spending more time in Australia; to growing and diversifying the business of Sunny Shine and to being involved in the day to day management of the company at a senior level.
9. Mr Chang provided copies of various records concerning Sunny Shine including profit and loss statements, bank accounts and tax returns as well as documents concerning its wheat flour exports.
10. In his oral evidence, which was given with the assistance of an interpreter, Mr Chang provided further detail about the court cases in which he has been involved. He stated that the legal dispute had been going on for almost five years. He said that the court cases had impacted on the amount of time he had available for finding more customers in Indonesia and coming to Australia.
11. In his oral evidence Mr Chang also amended some of his responses to a business survey supplied to the Department of Immigration and Multicultural Affairs (DIMA) in September 2004. He said that he does not work a minimum of 30 hours per week each week for Sunny Shine but rather he works when there is a burst of activity such as merchandise arriving or being distributed. He also clarified that he owns 50 per cent rather than 100 per cent of the business. He also stated that his response in the survey that he had not experienced any difficulties in his business to that date was incorrect. He cited language difficulties as an example of difficulties experienced.
12. Mr Chang stated that his role in Sunny Shine is to look for potential customers and liaise with Manildra, mainly through Wagiman. He has also met the general manager of Manildra, John Campbell. He confirmed that all his wheat flour sales to the date of cancellation had been with one customer. He said that he has been trying to find other customers by contacting biscuit factories, bread shops and other shops selling biscuits and bread.
13. Under cross-examination Mr Chang stated that he first formed a relationship with Manildra in Indonesia after he was granted a business visa. He said that Wagiman and Mr Campbell are often in Indonesia with Wagiman. He said that he was introduced to Wagiman by a friend and finds it easy to deal with him as he speaks Indonesian, unlike Mr Campbell. Mr Chang stated that his Indonesian customer is Lahan Pangan Sejahatara (Lahan) which is a general importing company. Mr Chang indicated that he has no ownership or interest in Lahan. He stated that he does not know if Lahan imported additional products sourced from Manildra except the imports from him; nor does he know if Lahan was buying from Manildra before he started selling to it. He also said that he does not know if Lahan buys wheat flour from any other companies in Australia. Mr Chang agreed that his last sales to Lahan were in September 2004 and that there had been twelve sales in total to Lahan.
14. When asked for more detail of his dealings with Lahan, Mr Chang stated that he only purchases wheat flour from Manildra after he is given an order. Wagiman advises Mr Chang of the date of arrival of the ship in Indonesia. Mr Chang then informs Lahan. Mr Chang was referred to phytosanitary certificates issued by the Australian Department of Agriculture, Fisheries and Forestry (T9 p 160, 210, 218), which indicate that Manildra was the exporter. He was also referred to shipping insurance documents which showed Manildra as the insured exporter. Mr Chang stated that he was unsure about such matters as Wagiman usually arranges such matters. Mr Chang conceded that Manildra organises the shipping company, the shipping insurance, packs the goods, pays the shipping costs, organises the phytosanitary certificates, deals with problems with shipping, etc. He also conceded that his involvement is to pass on the information to Lahan that Manildra has given him about the ship’s departure from Australia and anticipated arrival date in Indonesia. Mr Chang stated that Manildra sends him a document which he passes on to Lahan. He confirmed that he does not read English.
15. Mr Chang was questioned about a bank account that Sunny Shine has with HSBC Bank. He stated that he opened the account in about December 2004. He indicated that Sunny Shine did not previously have any bank account. Mr Chang was referred to an invoice to Lahan (T12 p 195) in which the instructions for payment were to an ANZ Bank Account. Mr Chang indicated that the account was Manildra’s. Mr Chang denied that Lahan was paying Manildra directly and said that he usually pays the account. He said that Lahan pays Sunny Shine and Sunny Shine pays Manildra. He stated that the money from Lahan went into his account in Indonesia and then he transferred money to Manildra. He confirmed that none of the money paid by Lahan went through a Sunny Shine business account as there was no bank account.
16. Mr Chang stated that he usually only takes a profit of between 5 to 10 US Dollars per tonne of wheat flour. He confirmed that Sunny Shine had only made profits of $3,000 to $6,000 in the financial years it had been operating. He acknowledged that with such small profits, it was not possible to support his family in Australia. Mr Chang confirmed that he has lost Lahan as a customer but claimed that he now has a new customer. He also admitted that he has not started a property development business, despite expressing his intention to do so. He confirmed that the only business currently undertaken by Sunny Shine is the export of wheat flour. He indicated that he works full time in his Indonesian business. He said that as well as the work involved in individual shipments, he has been looking for other business. He confirmed that Mr Darsono, who owns the other fifty per cent of Sunny Shine, also works for the company. He stated that Mr Darsono does not speak or read English. He confirmed that Sunny Shine takes the orders from Lahan and then orders the wheat flour from Manildra. Manildra organises shipping and customs. Mr Chang confirmed that he receives the goods for Lahan but that Lahan picks up the goods from the dock and transports it in its own trucks. He indicated that he does not know why Lahan has stopped purchasing wheat flour from Sunny Shine.
17. Mr Chang was given the opportunity to present the further documentation he stated that he had available in Indonesia. On 9 January 2006, the Tribunal received a letter dated 27 December 2005 written by John Campbell, General Manager of Manildra, in which he confirmed payments received from Sunny Shine for 10 invoices dated between July 2003 and September 2004. Attached were invoices in Sunny Shine’s name addressed to Lahan and Cash Out Vouchers in Lahan’s name with the same date as the invoice date.
LEGISLATION
18. The relevant legislation is the Migration Act 1958 (the Act). Section 134(1) of the Act provides:
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
(c) does not intend to continue to:
(i)hold a substantial ownership interest in; and
(ii)utilise his or her skills in actively participating at a senior level in the day-to-day management of;
an eligible business in Australia.
Is Sunny Shine an Eligible Business?
19. Section 134(10) of the Act defines eligible business as one that the Minister reasonably believes is resulting in or will result in one or more of the following:
(a)the development of business links with the international market;
(b)the creation or maintenance of employment in Australia;
(c)the export of Australian goods or services;
(d)the production of goods or the provision of services that would otherwise be imported into Australia;
(e)the introduction of new or improved technology to Australia;
(f)an increase in commercial activity and competitiveness within sectors of the Australian economy.
20. In Hope v Bathurst City Council (1980) 144 CLR 1 the High Court held that carrying on a business denotes pursuing activities for the purpose of profit, undertaken on a continuous and repetitive basis. In Puzey v Commissioner of Taxation [2003] FCAFC 51, the Full Federal Court stated that a business requires some repetition of acts and something of a permanent character.
21. On the question of the material to be taken into account when considering the exercise of the discretion to cancel a business visa, the Tribunal notes that in Re Griffiths and Migration Agents Registration Authority [2001] AATA 240 the Tribunal stated (at paragraph 41):
…
Whether concerned with an entitlement decision or a cancellation decision, and in the absence of any legislative direction to the contrary, the evidence upon which the relevant facts rest, is that before the Tribunal. In so far as it is pertinent to the facts to be found, the evidence is not limited to that either known to the decision‑maker or in existence at the time that the decision under review was made.
22. In Re Tang and Minister for Immigration and Multicultural Affairs [2000] AATA 997 the Tribunal stated (at paragraph 9):
… The ordinary principles of administrative review apply. It is the function of this Tribunal to deal with the question having regard to the evidence put before it at the time and having regard to all facts and circumstances that have occurred up until the date of the hearing.
23. The Tribunal accepts that s 134 of the Act contemplates that consideration should be given to a person’s intention. Therefore, while the exercise of the discretion at the time of cancellation of the visa is the primary focus, occurrences after the date of cancellation may be relevant to address adequately the matters raised in s 134 of the Act to establish intentions or circumstances at or after that date.
24. Sunny Shine was incorporated in March 2002. Two shipments of cattle were made to Indonesia in 2002. Mr Chang gave evidence that the company decided that such exports were not viable and has not undertaken any since then. Between July 2003 and September 2004 there were ten exports of wheat flour attributed to Sunny Shine, all being sales to Lahan. There were also two earlier exports. However, Sunny Shine’s role in the exports can be described as token. Manildra prepares all of the documentation, arranges shipping, shipping insurance and customs clearances. Mr Chang gave evidence that his role is to inform Lahan of the time of arrival of the goods, with Lahan picking up the goods from the wharf and transporting it in its own vehicles. While there are invoices signed by Mr Chang for Sunny Shine addressed to Lahan and Cash Out Vouchers in Lahan’s name signed by Mr Chang as showing payment received, the moneys did not go through a Sunny Shine bank account as there was no such account. Sunny Shine’s bank account was only opened after notice of intention to cancel Mr Chang’s business visa was served on him in November 2004.
25. Sunny Shine’s role in the export of wheat flour to Indonesia is in the nature of a non-essential conduit between Manildra and Lahan. In effect, it is Manildra which is selling to Lahan. Manildra’s Indonesian representative, Wagiman, appears to be the main player involved in the transactions. According to the evidence, it is he who assists Mr Chang with Sunny Shine’s documentation. The Tribunal is not satisfied that Sunny Shine’s token role in the wheat flour exports to Lahan constitutes business activity. This conclusion is supported by Sunny Shine’s minimal profits on the transactions.
26. Mr Chang stated that he was not aware of why he lost Lahan’s business and appears to have made no effort to find out more about the loss of business or if he could reclaim it. He provided evidence of sales of wheat flour from Manildra to Indonesian firms in Sunny Shine’s name in early 2005 But these appear to be of a similar transaction to the sales made to Lahan, namely as a token conduit.
27. Sunny Shine does not employ any staff. Hence, there is no evidence that Sunny Shine is creating or maintaining employment in Australia. It is not producing goods or services that would otherwise be imported to Australia. It is not introducing new or improved technology to Australia or increasing the commercial activity and competitiveness within sectors of the Australian economy. Sunny Shine has not demonstrated that it has developed business links with the international market, merely acting as a token conduit for dealings between another Australian business, Manildra, and an Indonesian business, Lahan. For these reasons the Tribunal finds that Sunny Shine is not an eligible business for the purposes of s 134(10) of the Act.
28. Mr Chang has not become involved in any business other than Sunny Shine. As the Tribunal has determined that Sunny Shine is not an eligible business, the Tribunal finds that Mr Chang has not obtained a substantial ownership interest in an eligible business in Australia (s 134(1)(a) of the Act).
Is Mr Chang Actively Participating at a Senior Level in the Day‑to‑Day Management of the Business?
29. Despite the oral amendments to his responses in the business survey, in relation to the transactions involving Manildra and Lahan, it seems unlikely that there would be much time or effort required by Mr Chang or Mr Darsono. Manildra organises the shipping, insurance and the documentation. Lahan picks the goods up from the docks in Palembang. Mr Chang gave evidence that he certifies the arrival of the goods but such a role would not be particularly time-consuming or difficult.
30. The Tribunal accepts that the legal disputes in which Mr Chang has been involved have affected the time available for travel to Australia and the development of further business. It also takes into account his lack of English and unfamiliarity with Australia. The Tribunal also accepts that management of a company can be undertaken without the manager being in Australia. However, on all the available material before it, the Tribunal is satisfied that Mr Chang spends most of his time managing his Indonesian business. Manildra, and its Indonesian representative, Wagiman, appears to have undertaken most of the work required for Sunny Shine’s limited business activity. For these reasons the Tribunal finds that Mr Chang is not utilising his skills in actively participating at a senior level in the day-to-day management of the business (s 134(1)(b) of the Act); and consequently he is unable to satisfy s 134(1)(c) of the Act.
Was Mr Chang Making a Genuine Effort to Obtain Substantial Ownership of an Eligible Business and to Participate in Day‑to‑Day Management?
31. Section 134(2) and 134(3) of the Act provide:
(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;
(g)business activity that is, or has been, undertaken by the person;
(h)whether the person has failed to comply with a notice under section 137;
(i)if the person no longer holds a substantial ownership interest in a particular business or no longer utilises his or her skills in actively participating at a senior level of a day-to-day management of a business:
(i)the length of time that the person held the ownership interest or participated in the management (as the case requires); and
(ii)the reasons why the person no longer holds the interest or participates in the management (as the case requires).
…
32. Paragraph 4.5 of the Ministerial Guidelines of the Migration Series Instruction (MSI) N° 133 Visa Cancellation Under Subdivision G ‑ Cancellation of Business Visas (the Guidelines), entitled What is a “genuine effort”?, contains the following factors to assist decision‑makers in determining whether a genuine effort has been made under s 134(3) of the Act:
…
a. business proposal which is considered genuine, realistic and achievable;
b.formal contract with partners or joint venturers;
c.written evidence of detailed consultations with at least three business advisers (accountant, lawyer, bank/financial institution, State/Territory government business development office, Austrade, business/trade association);
d.physical presence in Australia for more than six months since first arrival as a Business Skills class migrant;
e.transferred to, and retained in, Australia at least 50% of the funds indicated as available for transfer within two years (under Factor 4 of the Business Skills Points test);
f.minimum A$100,000 or 10% ownership previously held by the person. If the person is no longer in business, the reasons for loss of ownership are also relevant;
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;
h.failure to comply with a notice for information under s 137, ie mandatory monitoring of Australian address and return of survey forms.
33. The Tribunal has considered the factors listed in s 134(3) of the Act and the Guidelines in MSI-133, as well as several cases cited by the parties. In assessing Mr Chang’s claims against these factors and the Guidelines, the Tribunal takes into account Mr Chang’s evidence about his desire to broaden his business, the challenges he has faced, such as his lack of English and his legal battles and the business proposals he has investigated and rejected. However, on the available material before it, the Tribunal is not convinced that any of his proposals are realistic or achievable (s 134(3) (a)). Sunny Shine has no Australian partners or joint venturers, other than dealings with Manildra in supplying wheat flour, which does not fit the description of a formal contract with partners or joint venturers (s 134(3)(b)). There is no written evidence of research into the conduct of an eligible business in Australia beyond general visits to building suppliers (s 134(3)(c)). Mr Chang has spent 86 days in Australia from the grant of the visa in late 2001 to the date of its cancellation (s 134(3)(d)), which is substantially less than the minimum of six months suggested in the Guidelines, even taking into account his legal problems during this period.
34. Mr Chang indicated in his response to the business survey that he had invested $50,000 in assets of the business, with the net worth of the business as at September 2004 being $3,797. The turnover of the business has been well in excess of $100,000 but the profits generated have been minimal, amounting to around 1.5 per cent of turnover. Mr Chang has not invested in any business other than Sunny Shine. The Tribunal is not satisfied that Mr Chang has made a significant investment in the business (s 134(3)(e)). The value of the ownership interest that he holds in eligible businesses in Australia is nil (s 134(3)(f)). There appears to have been minimal business activity undertaken by Mr Chang in the business (s 134(3)(g)). In respect of s 134(3)(h) he has not failed to provide additional material requested by the DIMA. Section 134(3)(i) is not applicable.
35. After considering all the relevant factors in s 134(3) of the Act, the Tribunal finds that Mr Chang has not made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia (s 134(2)(a) of the Act), or to utilise his skills in actively participating at a senior level in the day‑to‑day management of that business (s 134(2)(b) of the Act). Therefore, the Tribunal finds that the exercise of the discretion to cancel his visa is appropriate in this case.
Would Ricky and Rika Suffer Extreme Hardship if their Visas were Cancelled?
36. Section 134(4) of the Act provides:
…
(4) Subject to subsection (5) and to section 135, if:
(a)the Minister cancels a person’s business visa under subsection (1) or (3A); and
(b)a business visa is held by another person who is or was a member of the family unit of the holder of the cancelled visa; and
(c)the other person would not have held that business visa if he or she had never been a member of the family unit of the holder of the cancelled visa;
the Minister must cancel the other person’s business permit or business visa by giving written notice to that person.
(5) 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.
37. In a written statement dated 14 October 2005 (Exhibit A2) and in oral evidence, Ricky told the Tribunal that he first arrived in Australia on a student visa in August 2000. He initially studied English and in February 2001, commenced a Bachelor of Engineering (Civil Engineering) degree at RMIT University (RMIT). When his father was granted a business visa in November 2001, his status changed from being the holder of a student visa to a business visa. He completed his degree in February 2003 and subsequently undertook a Master of Engineering Management degree at RMIT, which he has recently completed.
38. Ricky is now 27 years old. He stated that he has now been in Australia for over five years. He said that he has become accustomed to the Australian lifestyle. He has only been in Indonesia for about two months in the past five years. He said that having to start his life over again in Indonesia would be very difficult given he was no longer used to the lifestyle there. Ricky stated that he purchased a house and land in late 2003 for $337,000. The existing house has been demolished and a new house built at an additional cost of around $300,000. He stated that the purchase of the house and the construction costs of the new home were paid out of his savings in Indonesia. He stated that if he were forced to leave Australia, he would have to sell the house and would lose a significant amount as the property market is now flat.
39. Ricky stated that if the visa is cancelled, he will have to leave Australia to lodge an off-shore application for permanent residence. Had he still been on a student visa, he could have applied for permanent residence while in the country. He stated that he will have to gain twelve months work experience overseas before he can apply for permanent residence. He stated that he did not know what his prospects are in relation to getting work in Indonesia as he had planned to work in Australia after completing his studies.
40. Ricky stated that he has been listed as company secretary of Sunny Shine since its incorporation but he has not helped his father with business due to his studies. He stated that he can now be of more assistance to his father as he is familiar with Australia and has a good command of English.
41. In a written statement dated 14 October 2005 (Exhibit A3) and in oral evidence, Rika stated that she is the youngest child of Mr Chang. She first arrived in Australia on 6 December 2001 as a dependent on her father’s business visa. Rika completed a Certificate in Business and Information Technology at Monash University followed by a Diploma of Information Technology (Business Systems). She then completed a Bachelor of Business Systems degree at Monash University in November 2005. She stated that she is considering undertaking a Masters degree. Rika is now 23 years old.
42. Rika, like her brother, stated that if she had been on a student visa rather than on a business visa, she could have applied for permanent residence while in Australia. However, as a result of the cancellation of the business visa, she would have to return to Indonesia to lodge an application for permanent residence. She said that she had been informed this would be more difficult as she would need twelve months work experience before applying. Rika stated that she does not know how difficult it will be to obtain work in Indonesia as she has no relevant work experience. She indicated that she does not know how well her qualifications will be received in Indonesia. She stated that since arriving in Australia, she has only been back to Indonesia for about a month and has made Australia her home.
43. In Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961 the Tribunal stated (at paragraph 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 paragraph 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…
44. In Re Setiawan and Minister for Immigration and Multicultural Affairs [2002] AATA 260 the Tribunal stated (at paragraph 7):
…The meaning to be ascribed to 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 p 487 it was stated:
…Clearly enough, "extreme" hardship must find itself at the very high end of the scale. This does not mean, however, that in any given case, "extreme hardship" means, in effect, a particular point on a continuum of hardship. It obviously connotes an area within which an ascertainable burden of hardship may fall and properly merit the description "extreme". Within that area there may be varying degrees of burden, one less than another, but each meriting the description...
In Re Salim and Minister for Immigration and Multicultural and Indigenous Affairs (2002) 36 AAR 42 Deputy President Purvis said (at paragraphs 46 and 47):
…
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.
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…
45. The Tribunal takes into account that Ricky has been in Australia for more than five and a half years and Rika for over four years. They have both completed tertiary studies at Australian universities. There is no doubt that they enjoy living in Australia. There is also no doubt that cancellation of their visas would disrupt their established lifestyle and their employment plans. If Ricky wants to remain permanently in Australia, he will have to apply for a visa from Indonesia and may need to work there for at least a year. Rika is uncertain of her employability in Indonesia. She is considering further study in Australia. The Tribunal takes into account their evidence that there might be difficulty in settling back into Indonesia and in securing appropriate employment.
46. However Ricky and Rika are young and independent, and have the capacity and educational qualifications to be able to pursue employment in Indonesia or another country. The Tribunal takes into account that their parents and extended family live in Indonesia and would assist them with support and accommodation. They both speak Indonesian. Ricky came to Australia when he was twenty-one and Rika at the age of nineteen. Neither Ricky nor Rika provided evidence that they have made formal enquiries about the acceptability of their qualifications or the availability of work in Indonesia. Ricky indicated that he had bought a house and land and then built a house which is in his name. He stated that he would make a loss if forced to sell but did not provide a current valuation of the property. He did not mention considering other possibilities, such as renting the house out until he is able to return to Australia.
47. In considering all the relevant material, the Tribunal finds that, although cancellation of the visas may result in financial loss and will result in inconvenience, disruption to their lifestyle and changes to their plans, the level of hardship that they would experience would not be extreme for the purposes of the Act. Therefore, under s 134(5) of the Act, the Tribunal finds that cancellation of the visas would not result in extreme hardship to Ricky or Rika.
DECISION
48. The Tribunal affirms the decisions under review.
I certify that the forty-eight [48] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) . . . . . . . . . . . . . . . . . . . . . . . .
Clerk
Date of hearing: 19 December 2005
Final submissions: 10 February 2006
Date of decision: 2 April 2006
Counsel for applicant: Mr G. Gilbert
Solicitor for applicant: Ambi Associates
Advocate for respondent: Mr B. Wee
Solicitor for respondent: Australian Government Solicitor
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