Choi and Minister for Immigration and Multicultural and Indigenou S Affairs

[2003] AATA 297

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 297

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2002/52

GENERAL ADMINISTRATIVE  DIVISION		)
Re		WING KWAN CHOI and WING CHEUNG CHOI

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal The Hon C R Wright QC., (Deputy President)

Date31 March 2003

PlaceAdelaide

Decision The decision under review is affirmed.

(The Hon C R Wright QC)

Deputy President

CATCHWORDS

Immigration - Business Migration - Business Skills visa - cancellation of primary business skills visa - consequent cancellation of secondary visas held by daughter and son - whether cancellation would result in extreme hardship to daughter or son.

Migration Act 1958 - s134

Re Park and Minister for Immigration and Multicultural and Indigenous Affairs 2202) AATA 1219

Re Salim and Minister for Immigration and Multicultural and Indigenous Affairs (2002) AATA 899

REASONS FOR DECISION

31 March 2003 The Hon C R Wright QC., (Deputy President)  

Introduction

1. On 24 January 2002, the respondent’s delegate decided to cancel the Business Skills Visas (“BSV’s”) held by the two applicants. Both applicants now seek to review that decision pursuant to s136 of the Migration Act 1958 (“the Act”).  Their application was heard by the AAT in Adelaide on 25 and 26 February 2003.  Mr Tom Lo a friend of the applicants appeared as their advocate and Ms E Reed appeared as counsel for the respondent.

2. The applicants are the son and daughter of Mr Siu Man Choi. Mr Siu Man Choi (“the primary holder”) was the primary holder of a business skills visa. The applicants were secondary holders of the same BSV as the primary holder. The primary holder’s BSV was cancelled under s134 of the Act on 24 January 2002. The Minister’s delegate was satisfied that Mr Siu Man Choi had failed to satisfy relevant criteria under s134 of the Act.

3. When the business visa of a primary visa holder is cancelled, the Act, by operation of s134(4), requires the cancellation of business visas held by members of the family unit of the primary visa holder. This requirement is subject to one exception: s135(5) of the Act provides that the business visa of a member of a family unit must not be cancelled if the cancellation of that visa would result in extreme hardship to that person.

4.      The applicants assert that the cancellation of their business visas would result in extreme hardship.   The respondent asserts that the cancellation of the applicants’ business visas would not result in extreme hardship to either of the applicants.

Statutory Framework

5. The source of the power to cancel the primary visa holder’s Business visa is to be found in s134(1) of the Act which provides:

“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.”

6. The source of the power to cancel the applicants’ Business visas is s134(4) of the Act which 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.”

7. Section 134(4) operates subject to s134(5) which provides:

“(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.”

8. Section 136 of the Act provides (inter alia) that an application may be made to the Administrative Appeals Tribunal for review of a decision of the Minister under s134(4) of the Act.

9.      There has been no challenge to the validity of the cancellation of the BSV of the primary visa holder.   The respondent submits that the AAT review is accordingly confined to a consideration of whether or not the cancellation of the visa of either applicant would result in extreme hardship to the relevant applicant.

10.     The applicants contend

(a)That they have been living and have been educated in Adelaide since 1995.  They have no living relatives in their original place of residence in Hong Kong, apart from their mother.   All their friends and close relatives now live in Adelaide.

(b)That the first applicant is 23 years of age and is studying at Flinders University.   She has completed her Bachelor of Commerce Degree and is now studying for the degree of Bachelor of Banking and International Finance which she expects to complete in December 2003.

(c)That the second applicant, her brother, is 22 years of age.   He is studying at the University of South Australia for the degree of Bachelor of Engineering (Mechanical and Manufacturing) which he expects to complete in December 2004.

(d)That if their visas are cancelled they will no longer be eligible to pay HEC’s fees to complete their degrees, as they are at the present time, and they will have to pay full International Student Fees which are substantially higher.

(e)The applicants say that they were inappropriately prevented from making citizenship pledges at a citizenship ceremony on 26 January 2002 and they were thereby deprived of the opportunity of  becoming Australian citizens.

11.     Both applicants and their mother, Ms Siu Chun Chan, gave oral evidence at the Tribunal hearing.   Ms Siu Chun Chan’s oral evidence was supplemented by a Statutory Declaration made by her on 24 February 2003 (Exhibit “B”).   The primary visa holder Mr Siu Man Choi did not give evidence.   In addition a number of documentary exhibits, including the section 37 (“T”) documents (Exhibit “A”) were taken into evidence.   In the main these exhibits (“C” to “I”) related to the differences in fees charged for university education under the HECs scheme, on the one hand, and to International students on the other.

12.     The respondent called no evidence.   Some minor aspects of the evidence of the applicants and their mother was tested by cross-examination but essentially their testimony was not challenged.

13.     The substance of the relevant evidence of each applicant was set out in their Statement of Facts and Contentions and their Additional Statement of Facts and Contentions.   What follows is the substance of those documents, omitting only grammatical errors, irrelevancies, argumentative material, or unnecessary repetitions.

First Applicant’s History

14.     The first applicant arrived in Adelaide on 30 August 1995.   She attended the following educational institutions.

Educational Institution  Period   Course

Bethesda Christian College  1995 to 1996            Year 11 to Year 12

Douglas Mawson Institute of TAFE         1997 to June 1999   Advanced Diploma of A  Accounting

University of South Australia  July to December     Two subjects
  1999

Flinders University  2000 to present       Bachelor of Commerce  and Bachelor of Banking

& International Finance     

15.     The first applicant and Kenny Hui were Year 11 classmates in Bethesda Christian College.   Since 1996, Kenny has been the boyfriend of the first applicant and they have a steady relationship.   Kenny’s parents, Kent and Irene Hui, regard the first applicant as a member of their family.   The first applicant respects Kent and Irene Hui as her relatives.   Ms Siu Chun Chan, the mother of the first applicant, regards Kenny as a member of her family.   Kenny respects Ms Chan as his relative.

16.     When the first applicant arrived in Adelaide in August 1995, she stayed with the family of Mr Almond Chan, one of three brothers of Ms Chan, who are Australian citizens living in Adelaide.

17.     The first applicant has ten cousins living in Adelaide.   Two of them were born while the first applicant was in Adelaide.   The first applicant has been a babysitter to  them over the years.   Further, as the first applicant had received Chinese primary and secondary education when she was in Hong Kong, she has a good knowledge of the Chinese language and has been teaching her cousins the language.

18.     The brothers of Mr Chan, uncles of the first applicant, operate their own Chinese restaurant businesses in Adelaide.    The first applicant has helped them in the kitchen and take-away food section whenever they are short of staff.  Since 1999, the first applicant has been earning a weekly income of about $90.

19.     The brothers of Ms Chan and their wives treat the first applicants as their own daughter.

20.     In 1997, the first applicant met Maggie Hui who is an overseas student from Hong Kong.   Since 1997, Maggie has been the girlfriend of Rasheed Lau who is a cousin of Kenny Hui.   Maggie has completed a Bachelor degree in Asian Studies in 2001 and is studying at the Flinders University for a second degree.   Maggie has applied for a permanent resident visa.    The first applicant and Maggie have become best friends.   They regard each other as sisters.

21.     In 1996 as Year 12 students, the first applicant and Kenny Hui attended the Chinese class in Adelaide High School.   They met Kelvin So and Matthew Leung who are Australian citizens living in Adelaide.   They have developed their friendship over the years and are now best of friends.

22.     In 2000, the first applicant met Rachael Wegener in Flinders University.   Both of them are doing the Bachelor of Commerce course.   They have become best friends.   Each of them has been invited to attend the family gatherings of the other.  For example, Rachael was invited to attend the birthday party of Irene Hui, the mother of the boy friend of the first applicant.

23.     The first applicant has made many other Australian friends and has established valuable friendships with these people.

24.     Since 25 January 2002 when the first applicant was asked not to attend a citizenship ceremony on the following day, all the people mentioned above have continuously provided, amongst other things, strong emotional support to the first applicant.

25.     The first applicant left Hong Kong when she was 16 years old.   She has not been maintaining contact with her childhood friends.

Second Applicant’s History

26.     The second applicant arrived in Adelaide on 20 April 1995.   He attended the following educational institutions:

Educational institutiion  Period  Course

Bethesda Christian College  1995 to 1996  Year 10 to Year 11

Scared Heart College  1997 to 1998  Year 11 to Year 12

Bethesda Christian College  1999 to 2000  Year 11 to Year 12

University of South Australia  2001 to present                   Bachelor Engineering
  (Mechanical and
  Manufacturing)

27.     When the second applicant arrived in Adelaide in April 1995, he too stayed with the family of Mr Almond Chan.

28.     The second applicant has acted as babysitter to his ten cousins over several years.   Further, as the second applicant had received Chinese primary and secondary education when he was in Hong Kong, he has a good knowledge of the Chinese language and has been teaching his cousins the language.

29.     The brothers of Ms Chan, uncles of the second applicant, operate their own Chinese restaurant businesses in Adelaide.   The second applicant has helped them in the kitchen and take-away food section whenever they are short of staff.   Since 1999, the second applicant has been earning a weekly income of about $90 from this source.

30.     The brothers of Ms Chan and their wives treat the second applicant as their own son.

31.     In 1995, the second applicant met Kenny Hui whilst they were schoolmates in Bethesda Christian College.   Kenny, the boyfriend of the first applicant, has provided continuous assistance to the second applicant in his Year 11 to Year 12 studies.   They have been team mates in a basketball team during the past five and half years.  They are good friends.

32.     Kenny’s parents, Kent and Irene Hui, regard the second applicant as a member of their family.   The second applicant respects Kent and Irene Hui as his relatives.

33.     In 1996, the second applicant met Rasheed Lau who is a cousin of Kenny Hui.  They were classmates in Bethesda Christian College.   Rasheed is an overseas student from Hong Kong.   They have been team mates in the basketball team mentioned before in the past five and half years.   They are good friends.  Rasheed is applying for a permanent resident visa and is being sponsored by his aunty, Irene Hui.

34.     The second applicant has made many other Australian friends and has established valuable friendships with these people.

35.     Since 25 January 2002 all the people mentioned above have continuously provided, amongst other things, strong emotional support to the second applicant.

36.     The second applicant left Hong Kong when he was 15 years old.   He has not maintained contact with his childhood friends since then.

Factors Relevant to Citizenship Issues and Financial Difficulties

Citizenship

37.     In late 2000 and early 2001, both applicants experienced significant family problems in relation to the impending divorce of their parents and the serious illness of their grandmother.   Consequently, both applicants experienced emotional stress and difficulties in their tertiary studies.

38.     Both applicants had stayed in Australia for a total of 24 months by June 2001.  They could have applied for Australian citizenship at any time thereafter.   However, because of the personal reasons referred to above they deferred their applications for grant of Australian citizenship until 17 September 2001.

39.     On 17 September 2001, the Minister informed both applicants by letter of his approval of their applications for the grant of Australian citizenship.

40.     Both applicants knew that they needed to make a Pledge of commitment at a citizenship ceremony before they could receive their Australian Citizenship Certificates.  They  believed attending a citizenship ceremony on Australia Day would be another important event in their lives.   On 21 December 2001, the City of Mitcham invited both applicants to attend the Australia Day Citizenship Ceremony on 26 January 2002.

41.     As events unfolded, on 25 January 2002, an officer of the Department of Immigration and Multicultural and Indigenous Affairs rang the first applicant:

·     To ask her not to attend the Australia Day Citizenship Ceremony on 26 January 2002 because the Department had cancelled her permanent residency visa and that of her brother.

·     To tell her the officer would ring the City of Mitcham and would ask the City to remove her and his name from the list of people making Pledges of commitment in the Citizenship Ceremony.

·     To ask her to inform the second applicant of the matters referred to above.

As a consequence neither applicant attended or participated in the Citizenship Ceremony.

Financial Matters

42.     The applicants are presently living at 57 Fiveash Drive, Pasadena, a suburb of Adelaide.   That property was purchased in 1995 for a price of $165,000 by the applicants’ mother.   She negotiated a bank loan of $100,000 to finance the purchase with repayments to be made over a period of 10 years.    This time frame was shortened in 1999 when Siu Chun Chan came to Adelaide with her husband the primary visa holder.   The two applicants, who had been holidaying with their parents in Hong Kong returned with them on 31 January 1999.

43.     The primary visa holder and his family came into Australia on the BSV, which is the subject of these proceedings.   The primary visa holder was then a partner in a leather goods business in Hong Kong, and, it is claimed, he genuinely intended looking for business opportunities in Australia.   This claim was disputed by counsel for the respondent who suggested to the applicants and their mother that the real reason for the primary visa holder obtaining a BSV was so that he and the family members could qualify for permanent residence and, in consequence, secure the children’s tertiary education at greatly reduced rates compared with those which would be payable by them as overseas students.  Weight was initially given to this contention when it was pointed out and conceded by the witness that the primary visa holder had returned to Hong Kong on 3 February 1999, only 4 days after his arrival, and had not returned since.   Having regard to these circumstances it is highly regrettable that the primary visa holder was not available to give evidence at the hearing.

44.     It was, however, explained by the applicants and their mother that the primary visa holder now lives in China outside Hong Kong and that he operates a relatively unsuccessful restaurant.   It was also explained that his sudden return to Hong Kong in February 1999 had been precipitated by a crisis which had developed in Hong Kong during his short absence when he was informed by his brother, whom he had left in charge of his affairs, that his business partner in the leather goods business would not recognise him as having authority to act on the primary visa holder’s behalf in the business and, furthermore, he, the brother, had discovered that there were certain irregularities occurring in relation to that business.   It was also explained that on his return to Hong Kong the primary visa holder became embroiled in legal disputes with his partner which were only resolved by protracted litigation and a court order.    During this time the applicants’ mother returned to Hong Kong in about May 1999 as she felt she had to go back to assist her husband who was becoming seriously stressed by his problems.   The Hong Kong business partnership was dissolved and the primary visa holder’s partner was ordered to pay out his share of the partnership by instalments.   However  these instalments were not fully paid.    In April 2000, the applicants’ mother returned to Australia.   Her marriage to the primary visa holder was breaking down.   She described subsequent events in her Statutory Declaration (Exhibit B) in these terms.

“Early in 2001, Mr Siu Man Choi, the father of the first and second applicants, and I have applied for divorce in a Hong Kong court.   As Mr Choi has not obtained his full entitlement of cash payments under the settlement with his former Chinese business partners, he made an offer which was not acceptable to me to settle out assets in the divorce.   We have taken actions against each other in the divorce application.  This later bitter dispute has substantially drained both parties financially.   Our application for divorce was granted in late 2001.

As the result of divorce, Mr Choi is under a Hong Kong court order to provide me an annual amount of HK$100,000 as maintenance fees.   I have informed the applicants that Mr Choi has not made payments of the maintenance fees on a timely manner.

In 1996, Mr Choi and I provided the deposit for the purchase of the house at 57 Fiveash Drive, Pasadena, 5042.   At present, the monthly loan repayment is $1,800.  Although Mr Choi is experiencing financial difficulty, he has promised to provide the applicants with funds from China on a regular basis to enable them to make the loan repayments and other rates and taxes.

The economy in Hong Kong is experiencing fundamental and structural changes over the past few years.   The unemployment rate for July 2002 was officially at its peak of 7.7%.   Hong Kong is in deflation mode for the past 44 months.   As I worked only as a clerk for more than 10 years in Mr Choi’s business in China before it ceased, I have not been able to obtain any gainful employment in Hong Kong in the past two and half years.   I have informed the applicants I was unable to support them financially.”

45.     The applicants’ mother returned to Australia late last year on a Tourist Visa. (Her BSV had been cancelled in January).    She also told me that she and her former husband had first started talking about his establishing a business in Australia in 1995 and it was decided to bring the children here first to study and “see if they like it here”..  They initially applied for the BSV in 1996, but it was not fully processed until 1999.   She said her former husband had a return air ticket to Hong Kong valid for 12 months when he arrived on 31 January 1999.  His plan was to take up to a year to find what to invest his money in.   “Then he would go back to China and bring his money to Australia”.   She also gave details of substantial sums which they had expended for English classes, medical checks, good behaviour certificates and fees payable to the Australian Embassy in Hong Kong.   She claimed they spent $113,280 (HK) in all.

46.     It seems strange to me that an experienced business man would (a) leave his Hong Kong business in such an uncertain state as that described when coming to Australia to start afresh in a new country, and (b) come here with such indefinite plans about how he would employ his assets and time in an Australian business.  I have already mentioned how unsatisfactory it is not to have had direct access to the primary visa holder to test his evidence as to these matters.   Notwithstanding the natural suspicions engendered by these considerations I am prepared to accept Siu Chun Chan’s evidence.   So far as can be judged when a witness is giving evidence through an interpreter, she did not appear to be deliberately untruthful.   The witness also told me that she owns the former matrimonial home in Hong Kong which has a value of about $700,000 HK.   Apparently an Australian dollar is worth about 10 Hong Kong dollars.   So, in Australian dollar terms she owns a property at Pasadena worth not less than $165,000 (Aus) and may be more if the current land price inflation is taken into account.   Her husband is paying the mortgage off at the rate of $1,800 per month, and the loan will be fully discharged by the end of next year.  It is probably fair to assume that she has an equity of at least $140,000 in that property.  She owns the Hong Kong apartment worth $100,000 (Aus) and she is receiving $10,000 (Aus) for maintenance from her former husband.    His current assets are largely unknown.   The first applicant says her father pays $300 per month to her for living expenses for her and her brother.

47.     During the second semester of his Engineering course last year the second applicant borrowed money from his uncle to pay the HECs fees then due as his father could not afford to pay.   The first applicant agreed in cross-examination that, had she been an overseas student paying full university fees for her degree course rather than a permanent  resident under the BSV entitled to pay HECs fees instead, she would have had to pay at least $20,000 more.   The first applicant receives no financial support from her mother and owns no assets of her own.    The most she would have to pay if her fees were assessed at overseas student rates until the end of her current course would be $4,400.   The second applicant would have to pay about $22,000 extra in fees to complete his course as an overseas student.  From the converse standpoint, of course, it is fair I think to argue that by coming to Australia in 1999 as BSV holders entitled to pay for their tertiary studies at HECs rather than overseas student rates, the applicants’ collectively have achieved a fee reduction which, were it to continue to the end of their degree courses would be in the order of $44,000.  It was contended that if either applicant had to forego completion of his or her present degree course and return to Hong Kong, a fresh start would be necessary to acquire a relevant and equivalent qualification as the Hong Kong system differs very substantially from the Australian system.  

48.     In Park and Minister for Immigration and Multicultural and Indigenous Affairs (2002) AATA 1219, Senior Member Sassella said this at paragraph 50:

“50. Based on the advice in ex AH1 and AH2, the tribunal finds that the effect of the particular visas held by the applicants is that they can remain as permanent residents in Australia even if either or both visas are cancelled. The effect of a cancellation under clause 127.5 of schedule 2 of the Migration Regulations 1994 is that the cancellation applies only to the effect of the visa which is stated to be a permit to "travel to and enter Australia for a period of 5 years from the date of the grant". Thus, if the visa of an applicant is cancelled and that applicant leaves Australia, he will not be able to re-enter Australia without a new visa.”

49.     It is appropriate, based on the Regulations provided to the Tribunal to make a similar finding in the present case viz. that if their BSV is cancelled, the applicants can continue to reside in Australia and will not be deported, the only restriction on their movements being that if they leave Australia for any reason they will require a new visa to gain entry.   In these circumstances the argument that hardship will be caused to the applicants by being obliged to complete their studies overseas, is without substance.

Extreme Hardship

50.     The Minister must not cancel a family member’s business visa if the cancellation would result in extreme hardship to that person.   The concept of extreme hardship has been very usefully discussed in two recent decisions of the AAT.   In Salim and Minister for Immigration and Multicultural and Indigenous Affairs (2002) AATA 899 (8 October 2002), Deputy President the Hon R N J Purvis QC said, at paragraphs 12 to 14 of his decision:

“11. The issue for determination by the Tribunal, as earlier stated, is as to whether the cancellation of the visa granted to one or more of the Applicants would result in extreme hardship being experienced by her or him.

12. 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 487:

"...it is in my opinion, important to approach the phrase "extreme hardship" in a broad way. Clearly, it imports a high degree, perhaps a very high degree of hardship, but it must be applied in the context of "the facts" of the particular case. "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 on 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...

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 particular 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 in 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..."

13. As was noted by the Tribunal in Siwei Wang v Minister for Immigration and Multicultural Affairs [2000] AATA 961 and in Setiawan v Minister for Immigration and Multicultural Affairs [2002] AATA 260, hardship from the point of view of the person allegedly experiencing it must be judged subjectively. It involves more than inconvenience or detriment. Affectation must be to a considerable degree before it can properly be called hardship. At paragraph 30 in Wang [supra] the Tribunal considered the significance that should be ascribed to the word "extreme" as used in the statute and said:

"...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 meanings of the word "extreme"... 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..."

14. The relevant hardship must be a necessary consequence of the cancellation of the visa, a mere possibility or probability would not be sufficient. There must be shown not only hardship of an extreme kind but hardship which would follow the cancellation. One is to look at the consequences to the Applicant that would result from the cancellation. In Ashok Kumar v Minister for Immigration and Ethnic Affairs (1997) 50 ALD 488 the Federal Court referred to Man Ki Kim [supra] where it was stated at ALD 487 that "the proper application of [a provision of the migration (1993) regulations which contained within it the words extreme hardship] requires a focused consideration of the situation of the Applicant" at the relevant date. The relevant date in the present applications is the date of the hearing.”

51.     This passage was referred to by Senior Member Sassella with approval and endorsement in Park and Minister for Immigration and Multicultural and Indigenous Affairs (2002) AATA 1219 (26 November 2002).

52.     Although it is rarely useful to compare the facts of one case with another, particularly when the subjective impact of a particular course of conduct is the subject of the exercise, the following words of Deputy President Purvis in Salim are also most useful:

“44. As has already been noted in these reasons it is the hardship that will most certainly occur as a consequence or result of the cancellation that is relevant and it is for the decision maker to be satisfied that this hardship will be extreme before the legislative cancellation can be avoided. It is not the need to leave Australia that evidences the hardship, for this is the contemplated legislative result of the cancellation. It is the subjective consequences to the secondary visa holder that would undoubtedly or almost certainly result from the cancellation that is to be seen as constituting extreme hardship.

45. Each of the Applicants will experience emotional hardship if required to leave Australia, they having spent a part of their formative years in this country, having received a part or whole of their secondary education and tertiary education at Australian schools and universities and having consequently formed a bonding with those with whom they came in contact whilst holding their visas. There is evidence as to each of them being held in high regard by their peers, social friends and academic acquaintances.

46. However, it would be strange or unusual and unexpected if three relatively young, intelligent and capable persons had not in the years developed such relationships. It will be hard to leave these people. It will be hard to readjust to a life outside Australia and the university environment. But this hardship is one within the contemplation of the legislature when it chose to insert the word "extreme" as to qualify the hardship. And it must be "extreme" to the particular individual.

47. The Tribunal does not consider that the hardship that will undoubtedly be experienced by each one of the Applicants is exceptional, unexpected or of such a nature as to qualify for the description of exceedingly great in degree. Unfortunate yes, emotional yes, financial yes to a degree. But not extreme.”

53.     I accept that if the applicants were forced to leave Australia without being able to complete their present tertiary studies this would be a serious hardship for them.  However such will not be the effect of the cancellation as I have already explained above.  This observation also provides a clear answer to the contention that visa cancellation will result in disruption or loss of friendships and close relationships with members of the wider Chinese family in Australia with consequent emotional trauma to each of the applicants.   It also provides at least a partial answer to the loss claimed to have been felt by both applicants in being unable to become Australian citizens as they had planned in January 2002.   Whether they will still wish to pursue that ambition once these proceedings have been concluded remains to be seen.  It seems to me that the only substantial argument which remains is that the applicants, by losing their HECs entitlements and having to pay fees at higher rates hereafter will suffer extreme hardship in a financial sense.   There are three obvious problems with that proposition however.   In the first place the applicants have never been obliged to earn the funds to pay their fees.   Those funds have always been provided, albeit with some apparent difficulty, by their father, or, more recently in the case of the second applicant, by his uncle.   It is not their financial hardship which may be taken into account, however.   It must hardship to one or both of the applicants which provides the touchstone.   A second problem arises from the consideration that by acquiring the benefits of the BSV the applicants’ father has been able to achieve a tertiary education for his children, at least to the present time at a much reduced cost, compared with that which would be payable if they had arrived in Australia in 1999 on overseas student visas.   Viewed in this way it may be said that to date the primary visa holder has acquired a considerable advantage when compared with other parents of overseas students.   Even accepting that he had legitimate reasons for leaving Australia on 3 February 1999 and staying away ever since (he has never returned) he ignored the reporting obligations which he undertook when applying for the BSV and took no steps to advise that Department that he had abandoned his intention to commence business operations in Australia.   Had he done so in a timely manner his BSV would probably have been cancelled much earlier than it was.   To some extent this point of view could be seen as counteracting on the applicants’ complaints about the eleventh hour frustration of their losing the opportunity to secure Australian citizenship.  

54.     The third consideration regarding any supposed financial hardship is this.  I have received no reliable evidence whatsoever upon which I can judge the ability of the applicants’ father to pay their University fees.  He continues to pay off the liabilities to the bank in respect of the home at Pasadena.   He continues to pay the living expenses of his former wife and he provides a substantial part of the living expenses of the two applicants.   They have part-time work and no doubt pay their own way to a significant extent from their average pay of $90 (gross) each per week, but this has always been the case and can scarcely be regarded as a hardship, let alone an extreme hardship.

Conclusion

55.     In the circumstances I am quite unable to conclude that there is an extreme hardship to either applicant which is a probable or likely consequence of the visa cancellation now under review.   Accordingly the decision under review is affirmed.

I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC., (Deputy President)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  25 and 26 February 2003
Date of Decision  31 March 2003
Counsel for the Applicant         Mr Tom Lo (Representative)
Solicitor for the Applicant           
Counsel for the Respondent     Ms E Reed
Solicitor for the Respondent     Sparke Helmore