Dawson and Minister for Immigration and Citizenship

[2007] AATA 1122

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1122

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W200600045

GENERAL ADMINISTRATIVE   DIVISION		)
Re		DENISE JENNIFER DAWSON

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP  

Respondent

DECISION

Tribunal Mr B.H. Pascoe, Senior Member  

Date9 March 2007

PlacePerth

Decision The Tribunal affirms the decision under review.

..........(Sgd. Mr B H Pascoe)................

Senior Member

IMMIGRATION – cancellation of business skills visa – applicant member of family group – whether would suffer extreme hardship – traumatic robbery and attack in south africa – elevated anxiety if forced to return – loss of support by daughter – financial consequences

LEGISLATION

Migration Act 1958

CASES

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

REASONS FOR DECISION

9 March 2007 Mr B.H. Pascoe, Senior Member  

1.      This is an application to review a decision of the respondent to cancel the Business Skills Visa of the applicant made on 13 January 2006.  At the hearing the applicant, Ms D.J. Dawson, was represented by Mr S. Gerber of counsel and the respondent by Mr S. Ferguson of counsel.  Evidence was given by Ms Dawson, her daughter, Ms B. Latsky, and a clinical psychologist, Mr Z. Krupenia.

2. On 12 June 2002 the husband of Mr Dawson, Mr A.C. Dawson was granted a sub-class 127 Business Skills Visa. She was also granted a sub-class 127 visa on the basis of being a member of her husband’s family unit. Subsequently, Ms Dawson entered Australia on 29 October 2002 and stayed for 21 days. She returned to Australia on 13 April 2003 and, apart from three visits back to her country of origin, South Africa, has remained here since. On 11 August 2005 notices of intention to cancel the visas of Mr and Mrs Dawson were sent to their authorised representative. On 13 January 2006, both visas were cancelled pursuant to s 134 of the Migration Act 1958 on the grounds that Mr Dawson had not satisfied the requirements of a Business Skills Visa. Section 134(4) provides that the Minister must cancel a Business Skills Visa held by a family member who holds the visa solely as such a family member. Section 134(5) provides that such family member visa must not be cancelled if such cancellation would result in extreme hardship.

3.      Ms Dawson gave evidence of being the victim of a theft of her valuables and motor vehicle by four armed men on 7 December 2002 in South Africa.  She was held by the arm with a gun at her head while the men took her personal property and jewellery and changed the number plates on her vehicle.  She said that she was terrified of being raped and/or murdered.  She was eventually told to walk away and, after walking for some distance, was able to obtain assistance.  Ms Dawson reported the incident to the police.  On 10 December 2002 she consulted a clinical psychologist who reported that she had presented with an acute stress disorder, was treated with an action centred trauma management programme and successfully completed her trauma counselling.  There was the one consultation only.

4.      Ms Dawson said that she immediately decided to leave South Africa and relocate to Australia where her daughter was residing.  She said that it took 18 weeks to sell her home and arrange for her belongings to be shipped to Australia before her arrival on 13 April 2003.  She has purchased a home, works full time, drives a car and has gained many friends in Australia.  Ms Dawson stressed that she is close to her daughter and grandchildren and that her son, currently living in London, has applied to come to Australia also.  Ms Dawson is separated from her husband who did not travel to Australia with her in April 2003 and has been in Australia for three short visits in 2004 and 2005 only.  Ms Dawson acknowledged that her marriage had been in difficulties since 2000.  She said that she had some hopes that a move to Australia to rejoin her daughter may strengthen the family unit.  This is at some odds with an earlier statement in her evidence that she may not have come to Australia if not for the December 2002 incident and the fact that her husband’s first visit here after October 2002 was in September 2004.

5.      Ms Dawson said that she is terrified at the thought of returning to South Africa and suffers regular panic attacks and nightmares since she was first advised of the prospect of her visa being cancelled.  She believes that the level of violent crime prevalent in South Africa would severely exacerbate her anxiety and depressive state.  She believes that she would not be able to obtain employment in South Africa at the age of 57, with preference given to indigenous population and lack of qualifications.  Ms Dawson maintained that she would need to work to be able to live in South Africa.  It is noted that her net assets at 10 November 2005 were approximately $380,000 and likely to have appreciated somewhat since as a result of increases in house prices.  Ms Dawson said that she would leave any money in Australia for her children if forced to return to South Africa.  She said that while her parents are alive in South Africa they are very elderly and could not provide her with support.  In addition she has a brother and sister there but she has not sought to rely on them in the past and pride would not allow her to now seek their support.

6.      Ms Dawson has returned to South Africa on three occasions since April 2003.  The first was for 14 days in December 2003 which she said was with her daughter for a family reunion Christmas.  The second was for 10 days in May 2004 for continuation of specialist dental treatment commenced prior to April 2003.  She travelled alone but said that she relied on friends to meet her and accompany her at all times while in South Africa.  The third visit was for some seven weeks from February to April 2005 which Ms Dawson said was to arrange her son’s wedding there.  She maintained that she was nervous the whole time there, had difficulty sleeping but was able to cope with help of family and friends.

7.      Ms Latsky said that she did not believe that her mother could cope if she was required to return to South Africa to live.  She believed her mother had changed significantly since the December 2002 incident.  She felt that, with the support of family here, her mother had been able to lead a normal life, albeit being more anxious than before.  Ms Latsky spoke strongly of the escalating crime rate in South Africa but acknowledge little direct knowledge and having formed her views primarily from media reports.  She had travelled with Ms Dawson to South Africa in 2003 and 2005 and believed that Ms Dawson had been highly sensitive and nervous, particularly in a motor vehicle.

8.      Ms Dawson consulted a clinical psychologist, Mr Z. Krupenia, in Australia.  She believed that this commenced in 2005 after first becoming aware of the possible cancellation of her visa and the recurrence of panic attacks and anxiety.  She had taken some anti-depressant medication in the past.  She said she visited Mr Krupenia monthly at first but reduced the frequency as her health improved.

9.      Mr Krupenia gave evidence that he was first contacted by Ms Dawson by telephone on 2 May 2006.  She advised him that she was suffering stress with the knowledge of possible visa cancellation and sought counselling and the possibility of a report on her condition.  After Ms Dawson provided background by way of email, he first saw her on 16 May 2006 and has seen her on 5-6 occasions.  Mr Krupenia believed that Ms Dawson had symptoms of post traumatic stress disorder (PTSD) experiencing nightmares, flashbacks, anxiety and depression relating to her experience in December 2002.  He said that, while in Australia, the relief of being in a safe country had overshadowed these lingering traumatic effects but they had resurfaced at the prospect of having to return to South Africa.  Mr Krupenia had understood that Ms Dawson had seen a psychologist in South Africa prior to her departure on some four occasions and believed that it would have been preferable to receive treatment there soon after the incident.  He was not surprised at her not seeking treatment in Australia until 2006 as it was the prospect of returning to South Africa which had caused her symptoms to resurface.  He believed that such a return could severely increase her anxiety condition but accepted that it was treatable and treatment was available in South Africa.

10.     The question for the Tribunal is whether Ms Dawson would suffer extreme hardship if her visa is cancelled.  As Deputy President Purves said in Salim and Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899 at paragraph 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.

For Ms Dawson it was submitted that she had suffered a severe traumatic experience and its ongoing effect would be significantly greater if forced to return to South Africa. It was said that she would have difficulty coping both emotionally and financially without the support of a husband or either of her two children. For the respondent it was submitted that the test of s 134(4) is onerous and requires satisfaction that there is a near certainty of extreme hardship. It was said that there was no evidence that Ms Dawson’s experience in 2002 was other than a random attack and likely to be repeated and while the effect of a return to South Africa on her anxiety state may be possible, it was not probable.

11. Whilst it is appropriate to feel considerable sympathy for Ms Dawson and accept that there is no detriment to Australia in allowing her to stay in this country, it is necessary to be able to find that she qualifies under the onerous test of s 134(4). It is accepted that she suffered a traumatic event in South Africa and that there is widely disseminated anecdotal evidence that the level of violent crime in South Africa is significantly higher than in Australia. However, it cannot be said that, if Ms Dawson returned to live in South Africa that it would be more likely than not she would be subject to a robbery and/or assault. In relation to her mental health, Mr Krupenia believed that symptoms of PTSD could emerge and her anxiety could increase on return to South Africa. Not surprisingly he could not be definite in any prognosis.

12.     It should be said that there are some concerning aspect of the evidence in this case.  Ms Dawson spoke of the hope of restoring her marriage in Australia with her daughter.  However, there was no mention of any involvement by her husband in the period after December 2002 when she said that she packed her belongings, sold the family home and arranged to move to Australia.  Her husband first visited Australia for 14 days in September 2004 some 18 months after her arrival here.  In 2002 they visited Australia at different times, not together.  It seems clear that the marriage was finished well before the decision to travel to Australia.  This leads to the next concern.  Ms Dawson held her visa as an attachment to her husband’s Business Skills Visa.  That visa has conditions requiring an active involvement in an Australian business.  Given his three very short visits in 2004 and 2005, it is somewhat surprising that no consideration appears to have been given to the real possibility of cancellation and a move to obtain a more appropriate visa.  The next concern is that, notwithstanding the emphasis in evidence on Ms Dawson’s fragile mental and emotional state, there was no apparent attempt to seek professional help other than one consultation with a psychologist in South Africa and then consultation with Mr Krupenia only from May 2006.  It is clear that part of the reason for that consultation, and possibly the major reason, was to obtain a report for use in proceedings relating to the objection to the cancellation of the visa.  Another aspect is that Ms Dawson has returned to South Africa on three occasions, one of which was solely to obtain dental treatment.  While maybe somewhat nervous, she coped apparently with the aid of friends.  She has a clear support base available there in parents, siblings and friends and appropriate medical treatment.

13.     On balance, I cannot be satisfied that Ms Dawson would suffer extreme hardship if her visa is cancelled.  Normal hardship in having to leave the life she has established in Australia with her daughter and family is accepted.  Some possibility that her anxiety condition would be exacerbated is accepted although it is noted that Ms Dawson gave every appearance of being a relatively resilient person.  She may well have some financial hardship if she is unable to work in South Africa but she has a reasonable capital base at present under her control and there is no evidence of what financial support she is entitled to or capable of receiving from her estranged husband in South Africa.

14.     There would appear to be no reason why, immediately after her return to South Africa or possibly before, Ms Dawson cannot apply for another form of visa.  She has a daughter living here and the likelihood of a son coming to Australia to live.  Given the background it would be hoped that the Minister would look very favourably to an application for a family reunion visa.

15.     It follows from the foregoing that the decision under review should be affirmed.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.H. Pascoe, Senior Member

Signed:         ...............(Ms R Riberi).................................
  Associate

Date of Hearing  19 February 2007
Date of Decision  9 March 2007

Counsel for the Applicant                   Mr S Gerber

Solicitor for the Respondent              Mr S Ferguson
  Australian Government Solicitor