Chen and Minister for Immigration and Multicultural and Indigenou S Affairs

[2003] AATA 1023

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1023

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/331

GENERAL ADMINISTRATIVE  DIVISION		)
Re		YUN HSIANG CHEN

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms N Bell, Member

Date10 October 2003

PlaceSydney

Decision  The decision under review is affirmed.

[sgd]     N Bell
  Member

CATCHWORDS

MIGRATON ACT – Business Skills Visa – extreme hardship – university studies interrupted -   compulsory military service

Migration Act 1958 s 134

Re Chen & Ors v MIMIA [2002] AATA 628

Re Ng v MIMIA [2002] AATA 1276

Re Salim & Ors v MIMIA [2002] AATA 899

Re Wang v MIMA [2000] AATA 961 

REASONS FOR DECISION

October 2003   Ms N Bell, Member     

1. This is an application by Mr Yun Hsiang Chen ("the Applicant") for review of a decision dated 3 February 2003 made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Respondent") to cancel the Applicant's secondary business skills visa. The primary business skills visa was held by his mother Ms Su Chin Lai and was cancelled by the Respondent on the same date pursuant to section 134 (4) of the Migration Act 1958 ("the Act").  At the hearing before the Tribunal the Applicant was represented by Mr Chen Kuo, solicitor and the Respondent was represented by Ms Susan Goodman, solicitor. The Tribunal had before it the following documentary evidence:

Exhibit No	Description	Date
T1-19 pp1-117	Documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1	Applicant's Statement of Facts and  Contentions	14 June 2003
A2	Statutory declaration Mr Yun Hsiang Chen	23 April 2003
A3	Certificate from Council of Taitung City of Taitung Prefecture and translation	2 June 2003
A4	Extract of Regulations for Exit Control of Male Persons of Conscription Age and translation
R1	Respondent's Statement of Facts and Contentions	6 August 2003
R2	Applicant's movement records

2.      The Applicant gave oral evidence to the Tribunal.

background

3.      The Applicant, who is aged 21, is a national of Taiwan and first came to Australia in August 1997 on a student visa. After completing the Higher School Certificate the Applicant commenced a Bachelor of Psychology at the University of New South Wales in February 2001.

4. By letter dated 14 October 2002 the Respondent notified the Applicant of the intention to cancel the Applicant's business visa under section 134 of the Act. The Applicant submitted a letter opposing the cancellation of his visa on 6 November 2002. On 3 February 2003 a delegate of the Respondent decided to cancel the Applicant's visa. On 27 February 2003 the Applicant lodged an application for review of the decision to cancel his visa.

legislation

5. Section 134 of the Act empowers the Respondent to cancel a business visa in certain circumstances. The relevant provisions of the Act in this case are sections 134(1), (4) and (5).

6.      The issue for the Tribunal to consider is whether the cancellation of the Applicant's visa would result in extreme hardship to him.

applicant's evidence

7.      In his statement dated 23 April 2003 (Exhibit A2), the Applicant explained that he came to Australia to study in 1998 as an overseas student at Waverley College and continued his studies until October 2000 when he completed the Higher School Certificate. Meanwhile his parents began applying for a permanent visa under the Business Skills Migration Scheme and were granted that visa in October 1999. As a dependent student, the Applicant was also granted a visa.

8.      The Applicant explained that in 1999 his older brother, a freshman in a university in Taiwan, was killed in a car accident. Following the Applicant's mother's inability to meet her business visa undertakings, her visa was cancelled.

9.      The Applicant said that if his visa is cancelled he will not be able to complete his degree program in the foreseeable future. He outlined his ambition to become a clinical psychologist and noted that he is in the third year of his degree program. He said that the third year of the program is vital because it impacts on the student's admissibility to a professional masters degree program.

10.     The Applicant said that if his visa is cancelled now he will be required to depart Australia within a limited time and, although he has the option of applying for a student visa offshore, his current studies will be interrupted. He outlined his fear that he will not get his visa in time to continue his studies without irreversible interruption.

11.     The Applicant said that if his visa is cancelled then on his return to Taiwan it is almost certain that he will be obliged to serve a two- year military service period. He said he would be prevented from departing from Taiwan again even if he were to regain an Australian visa because he would be enlisted to serve his two-year term in  military service. The Applicant said that a two-year interruption to his studies would disable him from completing his course because the University of New South Wales only allows a student program leave for a maximum of two semesters. He said that this means that all his previous efforts will amount to nothing.

12.     The Applicant explained that he has been residing in Australia for the past five years and has become accustomed to the Australian way of life.

13.     The Applicant said that if he returns to Taiwan he would have to sit the joint university entrance examinations for subjects studied in high school. He also noted that by the time he completes military service he will be 24 years old and financially will not be able to afford to engage in full-time studies and could not expect his parents to support him any longer. He noted that it was not without difficulty that he gained his parent's approval and support to come to Australia to study. He noted that tuition at university costs approximately $12,000 a year and living expenses amount to approximately $15,000 per year. He also noted that these do not include sundry expenses such as medical fees, books, recreational and travelling expenses.

14.     In oral evidence to the Tribunal the Applicant said that he had wanted to come to Australia to study since childhood and in particular wanted to study psychology which is not well developed in Taiwan. He also knew that he needed English in order to practice as a clinical psychologist.

15.     The Applicant said that it was only by a process of long negotiation that his parents agreed to him coming to Australia to study.

16.     The Applicant said that he has inquired in Taiwan about recognition of his Australian Higher School Certificate and has found out that because he is a Taiwanese citizen he would have to obtain Taiwanese secondary school qualifications. He said that he has not inquired about secondary school qualifications in Taiwan and whether he could enrol there. He said that his academic Chinese is not very good now because he has been using English for the last six years. He said that in order to sit the entrance exam for a Taiwanese university he would have to study the Taiwanese high school years ten, eleven and twelve. He said there is a "cramming school" but that would take a lot of time and energy to do.

17.     The Applicant said that if he returns to Taiwan and is required to do his two years military service he understands that a two semester of program leave is all that he will be allowed by the university. He has not made specific inquiries about this, however, and does not know whether he would be allowed back into the course in his particular circumstances. In any event, he said, he would be 24 years old and could not rely any more on his parents financially.

18.     The Applicant said that he has many friends in Australia. He said that he has visited Taiwan during each year of his absence in Australia for approximately two to three months to see his family.

19.     The Applicant also said in order to apply for a student visa off shore he would have to provide a certificate of enrolment in a course in Australia.

20.     The Applicant said that if he had to cease his studies, he would be very depressed and would be rendered hopeless.

21.     In cross-examination the Applicant said that during the times he returned to Taiwan he stayed at his parents house and usually spent time with his parents at their work or stayed at home alone. He said that he has grandparents on each side but does not see them very often even though they live in Taiwan. He said that he has about five aunts and uncles who live about three hours drive away in different cities but one uncle lives in Taitung City as do the Applicant’s 17-year-old and 16-year-old cousins. He also said that he has other cousins in Taiwan but does not see them very often. He said that he has lost contact with his friends in Taiwan.

22.     The Applicant said that he has not inquired as to whether he would be given credit for the subjects he has already completed if he abandoned his course and began the course again at a later date. He said that, although he has not made specific inquiries, he does not think he would obtain credit for his Australian course work at a university in Taiwan.

23.     The Applicant agreed that if he returned to Taiwan he would be supported by his parents, living at their house. He was of the view that he would not be able to get any work in Taiwan because his education is poor and the unemployment rate is very high.

other evidence

24.     Exhibit A3 is a certificate from the Council of Taitung City in Taiwan noting that the Applicant's enlistment for military service is to be deferred until he completes his study overseas and returns to Taiwan.

25.     Exhibit A4 is the Taiwanese Regulations for Exit Control of Male Persons of Conscription Age (“the Regulations”). The Regulations provide as follows:

"Article 2: These regulations and other relevant regulations controlling the departure and arrival of people apply to male persons who have not yet served their term of obligatory military service and who are between 19 years of age and 41 years of age. These regulations only take effect from First of January of the following year after their first turning 19 until Thirty-First of December of the same year after their first turning 41 years of age (such people are hereinafter referred to as males of conscription age).

Article 3: The term "exit" herein means departure from Taiwan territory and "Taiwan territory" means the Taiwan territory as defined in Article 2 of "Relations Between People of Taiwan territory and Mainland China territory".

…

Article 5: Males of conscription age who made their exit before reaching the conscription age, who were studying overseas before 31 of December of the year when they first turned 19 and to whom the following circumstances apply may apply to Exit/Entry Control Bureau of Police Commission of Ministry of Domestic Affairs (hereinafter referred to as Exit/Entry Control Bureau) for re-exit with certified document of current enrolment status. These people are allowed to stay for no more than two months on each entry.

(1)  Those who are doing bachelor degree programs, master degree programs or doctoral degree programs at government recognised institutes.

(2)  The maximum age for each program is as follows: 24 for bachelor degree programs, 27 for master degree programs and 30 for doctoral degree programs. The final day of each relevant age falls on 31 December. However, if a bachelor degree program requires more than 4 years to complete, for every year exceeding 4 years, the age limit is increased one year accordingly. If the graduates then continue their studies for master degree programs, their age limit is also thus extended accordingly. However, the maximum age for doctoral degree programs cannot exceed 33.

…

Article 9: Males of conscription age of the following groups are prohibited from exit:

(1)  Those who are schedule for enlistment.

(2)  Those who have been notified for health examinations for conscription purposes.

(3)  Overseas Chinese who take up residency in Taiwan territory or who study in Taiwan territory and are obliged to serve in the armed forces under relevant laws.

(4)  Those who are prohibited from exit under other relevant laws.

…

Article 13: The following authorities also play a part in exit control of males of conscription age and they should do as follows:

(5)  Local government

[2] enlistment of students is deferred. However, if students of conscription age leave school because they have discontinued their study, are expelled from school or are struck off the school roll, the relevant school should, under relevant regulations, notify the local government within 30 days of their leaving school so that the deferment approval can be revoked."

26.     Exhibit R2 is the movement record of the Applicant which shows, between August 1997 and February 2003, nine return visits to Taiwan by the Applicant ranging in duration from one week to three months.

27.     Following the hearing of this matter the Applicant, with the Tribunal’s leave, provided to the Tribunal and to the Respondent a copy of the University of New South Wales Student Handbook entry in relation to program leave. That entry provides:

"Students who discontinue their current enrolment with the intention of resuming their studies at a later date need to ensure that they maintain standing in their program by formally applying for program leave.

Program leave may be granted to undergraduate or postgraduate students. Leave is generally restricted to a total of two sessions and applications for leave in excess of two sessions will be approved only in exceptional circumstances at the discretion of the program authority.

Program Leave is not usually available to International students.   International students should seek advice from the UNSW International Student Officer regarding visa requirements before applying for a course discontinuation or program leave.

Undergraduate and postgraduate students may be granted program leave before initial enrolment in the program. This type of program leave is usually referred to as deferment of enrolment. Deferment will normally be granted once only and for a maximum of 2 sessions.

…"

submissions

28.     Mr Chen for the Applicant submitted that if the Applicant re-enters Taiwan and has no Australian visa then the conscription authorities in Taiwan will be notified immediately and the process of conscription will begin automatically.

29.     He submitted that, in accordance with the decision in Re Wang v Minister for Immigration and Multicultural and Ethnic Affairs [2000] AATA 961, the hardship to be experienced by the Applicant should be judged subjectively. Mr Chen submitted that the Applicant is very ambitious academically and that the consequences of possible events seem much larger to a young man.

30.     Mr Chen submitted that Taiwanese culture is based on Confucianism, which places scholars in very high regard. He submitted that in Taiwan families' hopes fall on a young man. He submitted that the consequences of having his visa cancelled would be disastrous for the Applicant and would include depression and a strong feeling of hopelessness. He said that society in Taiwan is divided into scholars and others and for the Applicant to get half way to an achievement and then stop would be a disaster and he would consider himself a failure.

31.     Mr Chen also submitted that even if the Applicant were able to get a student visa before he is conscripted, he would not be able to exit Taiwan because Article 5 of the Regulations requires him to be under 19. He also noted that he is not allowed to stay in Taiwan for more than two months unless he is able to specify a date of resumption of university beyond that time.

32.     Ms Goodman for the Respondent referred the Tribunal to the decision in Re Wang and to discussion in that decision of the meaning of the word "hardship". She submitted that the Applicant had not provided adequate evidence of adverse consequences arising from the cancellation of his visa and in particular was unable to point to such things as having no place to live, having to return to an unfamiliar place or having no means of support. She also noted that the Applicant is currently only 21 years old.

33.     Ms Goodman allowed that the conscription issue as it pertains to the Applicant is unusual but noted that the Applicant has not established that adverse consequences will inevitably flow. She maintained that an alternative interpretation of Article 5 of the Regulations is available, which would allow the Applicant to re-exit Taiwan. In this way, she submitted, the Applicant has not established that he would be unable to leave. Similarly, Ms Goodman submitted, the Applicant has not established that any absence from his course must be limited to two semesters. He has made no inquiries and the information on program leave published by the University of New South Wales is not conclusive.

34.     Ms Goodman also submitted that there is no evidence that the Applicant could not get credit for courses already done were he to return in some years to his course and nor is there evidence that he would be unable to study psychology in Taiwan, although she granted he would have some difficulties with language and secondary school qualifications.

35. Finally Ms Goodman submitted that being unable to complete a degree does not amount to extreme hardship within the meaning of the Act. She referred the Tribunal to a number of cases including Re Chen & Ors v MIMIA [2002] AATA 628, Re Ng v MIMIA [2002] AATA 1276, Re Salim & Ors v MIMIA [2002] AATA 899 and Re Wang v MIMIA [2000] AATA 961.

consideration 

36. Section 134(1),(4) and (5) of the Act provides:

134  Cancellation of business visas

(1)       Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australia visa, an investment-linked visa or a family member’s visa), by written notice given to its holder, if the Minister is satisfied that its holder:

(a)       has not obtained a substantial ownership interest in an eligible business in Australia; or

(b)       is not utilising his or her skills in actively participating at a senior level in the day-to-day management of that business; or

(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.

(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 Re Wang, Deputy President McMahon discussed the operation of section 135(5) of the Act and said:

27. In Man Ki Kim v Minister for Immigration and Ethnic Affairs 37 ALD 481, Foster J considered the phrase "extreme hardship or irreparable prejudice".. His Honour was concerned principally in considering whether the reasons given by the Immigration Review Tribunal in that case were adequate. However, in considering that adequacy, he had occasion to deal with the phrase "extreme hardship" dissociated from its accompanying words. At page 487 he said:

"..it is, in my opinion, important to approach the phrase "extreme hardship" in a broad way. Clearly, it imports a high degree, perhaps a very high degree of hardship, but it must be applied in the context of the facts of the particular case. "Hardship" is in itself a relative term. What may be a "hardship" to a sensitive person, or one in a particularly vulnerable situation, may be no great burden at all to a person of more stoical disposition or in a more protected situation. Similarly, the word "extreme" must be evaluated against the facts of the particular case. Such an evaluation cannot, consistently with the duties imposed upon the decision-maker by the Act, be approached in a dismissive or perfunctory fashion. A full and proper consideration of the person allegedly suffering the hardship or prejudice must be undertaken. Again, as emphasised in the passages cited, separate consideration must be accorded to the questions of "extreme hardship" and 'irreparable prejudice". They are different concepts.

...

"In addition to what I have already said, I consider that the application of the word "extreme" must also be approached with caution. Obviously there are varying degrees of hardship which may be suffered by any individual. "Trivial", "minor", "moderate" are adjectives which spring to mind as conveying such varying degrees. 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 of continuum of hardship. It obviously connotes an area within which an ascertainable burden of hardship must find itself 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: cf Dell v Dalton (1991) 23 NSWLR 528; 14 MVR 158."

28. It is clear that hardship in subsection (5) must be judged subjectively. The use of the phrase "to the person" indicates this. What His Honour said in Man Ki Kim is relevant to that observation. The reference to Dell v Dalton above is by way of analogy. In that case, the Court of Appeal in effect held that a worst case scenario does not necessarily mean the worst case imaginable. What His Honour was saying in Man Ki Kim could be illustrated by taking the degree of hardship on a scale of one to ten. Extreme hardship does not necessarily have to rate a 10. Anything between nine and ten, for example, might still be called extreme.

29. The word "hardship" has received attention in various contexts. In Re Kabalan 113 ALR 330 Gummow J noted (unsurprisingly, as he put it) that each case must depend upon its own particular facts. I would respectfully add that the meaning of "hardship" must depend upon the context in which one finds it. In relation to Landlord and Tenant Legislation, Asprey J defined it in FG O'Brien v Elliott [1965] NSWR 1473 at 1475 as "a matter of appreciable detriment, whether financial, personal or otherwise". This was not a definition that commended itself to a Full Court of the Family Court in Re Whitford 24 ALR 424. In the context of family law, their Honours considered that "hardship" means something more burdensome that "any appreciable detriment". At 430, they offered the view that "hardship" in the context with which they were concerned was "akin to such concepts as hardness, severity, privation, that which is hard to bear or a substantial detriment".. 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.

30. Although words cannot be substituted for other words appearing in a statute, it is permissible to resort to a dictionary in order to establish the ordinary English meaning of the words used in the statute. The cases supporting this approach are gathered and discussed in "Statutory Interpretation in Australia" by Pearce and Geddes, 4^th edition at paragraph 3.15. The meaning of words will always be taken from the context in which they appear. However, the deliberate choice of the word "extreme" by Parliament, requires one to understand what was meant by the use of that particular degree of hardship. 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. Furthermore, that hardship must result from the cancellation.

31. The use of the word "would" in subsection (5) indicates that the hardship must be a necessary concomitant of the cancellation. A mere possibility or even a probability would not be sufficient. Thus the bar is set doubly high. To avoid a cancellation, there must be shown not only hardship of an extreme kind, but hardship which will necessarily follow cancellation. Although no one can accurately predict the future, the legislation requires the decision maker to find that the adverse consequence will almost certainly happen. To demonstrate the constituent elements in subsection (5) is to undertake a particularly onerous task.

32. Hardship is a condition that bears hard upon one. In the present case, it is clear that the applicant does not wish to leave Australia. That in itself cannot amount to hardship. 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.

33. In this case, it is difficult to see even a moderate degree of hardship in the particular fears of the applicant. There should be no financial or emotional hardship. There will be none of the hardship associated with returning to an unfamiliar country with which one has not had a connection for many years. There will not be the hardship of being without a place to live. There will not be the hardship of being without friends or family.

34. The Migration Act and Regulations, taken as a whole, disclose a compromise which represents a balance between various competing interests. There is no reason to give a broad and generous construction to the concept of extreme hardship. To do so may detract from the force given in the balance of the legislative scheme to the other interests which are involved. It is not necessary in the present case, however, to extend the meaning of the phrase beyond its ordinary English meaning. In my view, the hardship, if any, which the applicant would suffer is nowhere near the extent of the hardship which would be required in order to fit the statutory description.

38.     A similar analysis was made by Deputy President Purvis in Re Salim.

39.     In Re Chen & Ors the Tribunal found the following circumstances not to amount to severe hardship:

19. There is no doubt that cancellation of the visa for Pen Ling Chen would cause serious disruption to his life. He has lived in Australia for over four years. He has lost contact with his friends in Taiwan. He is half way through a degree course at Griffith University. He is currently in a relatively serious romantic relationship with a fellow student at Griffith University; they plan to marry each other.

20. If the visa was cancelled, Pen Ling Chen would have to abandon his studies in Australia, abandon his girlfriend and return to Taiwan to live with his parents.

21. Although the Tribunal accepts that the cancellation of Pen Ling Chen's visa would cause him distress and possibly hardship, it would not amount to "extreme hardship".

40.     In Re Ng Deputy President Muller reached different conclusions on the question of extreme hardship in the following circumstances:

17. Yin Wah Ng (also known as Maggie):

(i) She is 19 years old;

(ii) She first arrived in Australia on 27 December 1998 and stayed for one week.

(iii) She returned to Australia in 2000 and began a "foundation course" which was designed to prepare her for study in Australia.

(iv) In 2001 she enrolled in a Bachelor of Business degree course at Queensland University of Technology.

(v) She attended the classes and did well in her first year of the course.

(vi) She returned to Hong Kong for Christmas holidays at the end of 2001.

(vii) She came back to Australia for university studies in January 2002 and is currently enrolled at Queensland University of Technology.

(viii) She has in effect lived in Australia for two years.

(ix) If her visa is cancelled she will have to return to Hong Kong. She may be able to obtain a student visa to complete her degree at QUT. If she cannot obtain a student visa or any other appropriate visa, she will have to complete her studies in Hong Kong.

(x) The cancellation of her Business visa will probably cause her disappointment and a major disruption to her studies but I do not regard this consequence as "extreme hardship".

(xi) The decision to cancel the Business Skills visa of Yin Wah Ng is affirmed.

18. Yin Ping Ng (also known as Joey):

(i) She was born on 3 October 1979 and is 23 years old.

(ii) She first arrived in Australia on 22 March 1994 and stayed for one week.

(iii) She returned to Australia on 9 July 1994 to attend a foundation language course for five months on the Gold Coast.

(iv) In 1995, 1996 and 1997 she attended Glennie School in Toowoomba and completed years 10, 11 and 12 there.

(v) In 1998 she enrolled in a double degree Bachelor of Arts and Bachelor of Business at Queensland University of Technology.

(vi) She has one more subject to complete for her Bachelor of Arts degree and two semesters to complete for her Bachelor of Business degree.

(vii) She is currently employed part-time by an accountant, Kent S. Hacker, in Stafford.

(viii) She has lived continuously in Australia for eight years. She has established relationships with peers and has lost contact with her former friends in Hong Kong.

(ix) Miss Ying Ping Ng has been in a romantic relationship for the last five years with an Australian citizen and is planning to marry him.

(x) In my view the cancellation of the Business Skills visa of Yin Ping Ng (Joey) would cause serious disruption to most aspects of her life and in particular to her studies, professional prospects, social life and emotional well-being. It would cause her "extreme hardship" within the meaning of that term in the Act.

41.       The distinguishing circumstances of the Applicant in this matter are that, upon return to Taiwan, he will be faced with a period of two years of military service.  His evidence was that the intervention of this period will mean the end of his prospects of completion of his psychology degree and a masters degree qualifying him as a clinical psychologist.

42.     That evidence is somewhat inconclusive as he has not made inquires of the University of New South Wales as to the possibility of obtaining program leave for that period (although it is noted that the Student Handbook says that program leave is not usually available to international students) and has not made enquiries as to whether he would be granted credit for the work he has done so far should he enrol at a later date on a student visa.  Nor has he enquired as to whether Taiwanese tertiary institutions would give him credit for the work he has done in Australia.

43.     Similarly, it is not clear that Article 5 of the Regulations would act as a bar to the exit of the Applicant from Taiwan should he be able to obtain a student visa.  While the Applicant submitted that the Article requires a male of conscription age to be 19 years old in order to exit Taiwan as a student, the Tribunal is mindful that it had before it only an extract from the Regulations and that extract is silent on the question of whether regard would be had to the initial date of commencement of study of a student who defers his studies and later resumes them.   The Applicant was under the age of 19 when he first commenced study in Australia.

44.     The Tribunal cannot then be satisfied that the hardship asserted by the Applicant is a “hardship which will necessarily follow cancellation” (Re Wang).

45.     The Tribunal accepts that the cancellation of the Applicant’s visa will result in his return to Taiwan and the interruption of his studies and that this will cause him disappointment and some distress.

46.     As in Re Wang, there will be no financial hardship to the Applicant in the short term, he will not be without family and friends, he is not unfamiliar with Taiwan and he will not be without a home.  While the Tribunal accepts that the prospect of the Applicant’s conscription for military service is almost certain, it cannot accept that the more far reaching consequences described by the Applicant are so certain.

47.     For these reasons, the Tribunal considers that the cancellation of the Applicant’s visa would not result in extreme hardship to him.

Decision

48.     The decision under review is affirmed.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member

Signed:         .......................................................................................
  Associate

Date/s of Hearing  27 August 2003

Date of Decision                  10 October 2003 
          Solicitor for the Applicant    Mr Chen Kuo        
           Solicitor for the Respondent     Ms Susan Goodman