Gilani and Minister for Immigration, Multicultural and Indigenous Affairs

[2005] AATA 1149

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1149

ADMINISTRATIVE APPEALS TRIBUNAL      )

)No N2005/349 & N2005/350

GENERAL ADMINISTRATIVE  DIVISION		)
Re		IMRAN GILANI KHURAM GILANI

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date18 November 2005

PlaceSydney

Decision The decisions under review are affirmed.

.............................................

Ms N Bell

Senior Member

CITIZENSHIP AND MIGRATION – Business Visa – Sons of Visa Holder – Question of Extreme Hardship Should Sons Visas be Cancelled – Hardship Not Found – Decisions of Minister Affirmed

Migration Act (Cth) 1958

Kim & Darmawan v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481

Re Wang v Minister for Immigration and Migration and Indigenous Affairs [2000] AATA 961

Re Salim and Minister for Immigration and Multicultural Affairs (2002) 36 AAR 42

Re Hsu and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 620   

REASONS FOR DECISION

18 November 2005 Ms N Bell, Senior Member

1.Imran Gilani and Khuram Gilani are brothers and the sons of Yousuf Gilani.   Yousuf Gilani held, and had cancelled, a business visa.   Imran and Kuram held visas as family members of Yousuf Gilani.   Both sons are citizens of Pakistan.  Imran arrived in Australia in 1993, at the age of 13 and completed his secondary school education here.    Khuram arrived in Australia in 2003 at the age of 17.

2.When Yousuf Gilani’s visa was cancelled, Imran and Khuram’s visas were also cancelled, in accordance with section 134(4) of the Migration Act 1958 (the Act). Yousuf Gilani did not apply for review of the cancellation of his business visa. However, Imran and Khulani have applied for a review of the decisions to cancel their visas on the basis that the cancellations would result in “extreme hardship” to them. If “extreme hardship” would result from cancellations then the visas must not be cancelled (s.134(5)).

3.The only issue I have to decide, therefore, is whether cancellation of the visas would result in extreme hardship.  Each application to the Tribunal must be considered separately but I note the relevant legislation and case law to be considered in respect of each application is similar.

relevant law

4.In considering these applications I am mindful of the principles stated in the following decisions.

5.In Kim & Darmawan v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481 Foster J said the test of “extreme hardship” is a subjective one but it imports a high degree of hardship.

6.In Re Wang v MIMIA [2000] AATA 961 Deputy President McMahon noted that “hardship” involves more than inconvenience and detriment and that s.134(5) requires “not only hardship and not only undue hardship but extreme hardship.”   He also noted that the section requires that the adverse consequence would undoubtedly result from the cancellation.

7.In Re Salim and Minister for Immigration and Multicultural Affairs (2002) 36 AAR 42, Deputy President Purvis considered it would be strange if a young, intelligent and capable person had not, over some years, developed relationships with others that would be hard to leave or that it would be hard to readjust to life outside Australia.  However, he did not consider such matters to amount to extreme hardship.

8.In Re Hsu and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 620 the Tribunal compared the difficulty of settling into Australia for children largely ignorant of English with the considerably less difficult task of returning to Taiwan proficient in Mandarin and concluded that such a return did not amount to extreme hardship.

imran gilani

9.In a statement dated 21 March 2005 Imran said:

“ Being relocated to Pakistan would force me to live in an unhealthy, unsafe and economically challenged environment, where my developed skills and expertise would count for nothing and would be considered irrelevant, hence the possibility of obtaining any form of employment would be virtually impossible.

I do not have any friends or family members whom I can get any form of support or rely upon in Pakistan, I would not even have a roof over my head in that country, as I do not have substantial finances to leave Australia and support myself in Pakistan due to the fact that I have contributed most of my earnings towards repaying my home loan.”

10.Imran said he has been employed by Dunn and Bradstreet Australia in the debt collection area for 2 years.  He is currently enrolled in a Bachelor of Business (Operations Management) course with 3 subjects or 1 semester left to complete.  He purchased a house 2 years ago for $337,000 with $60,000 provided by his father and a mortgage of $240,000.  He has not made any enquiries about putting the property on the market but, on the basis of real estate magazines he has read, considers it has decreased in value.

11.Imran said he has only spent about 6 months of the last 13 years in Pakistan and was last there over 4 years ago.  He has done a “Google” search on the internet for job vacancies in Pakistan and found no debt collection agencies there.  He has heard from friends that Pakistan is very corrupt.  He has also looked up some University courses there and has looked at possibilities for study in the US and UK.  However Imran said these options would be very expensive.

12.Imran’s father is a resident of Thailand and owns and runs a business there.  Imran considers that if he went to Thailand he would not be able to work there because he does not have resident status.  However, he said he is only guessing at this.  His father supported him and his brother to the extent of some $30,000 in addition to his contribution to the purchase of the house.  However, Imran said he did not expect his father would provide any further financial support to him were he to remain in Australia.  He said his father would support him if he went to Thailand but he would prefer not to be a burden on him.

13.For this reason he would go to Pakistan instead and stay, in the short term, with his Aunty who would take him in for a short while.  Imran said if he is forced to leave Australia it will put him back about 5 years by wasting his 5 years’ work in the debt collection industry.  He said he is no longer in a romantic relationship and has no plans to marry.

khuram gilani

14.In a statement dated 21 March 2005 Khuram said:

“Since my arrival I have invested a lot of my financial earnings towards my education as I am currently studying as a full fee paying student at the University of Western Sydney, further I am currently working for NRMA as a customer service representative.

As I never anticipated leaving this country I have developed deep ties and am deeply rooted within Australia, although some may consider two years as being a fairly short time to develop deep ties, I would like to emphasise that I turned 18 in this country and have spent the maturity and personal development stages of my life here.”

15.Khuram said he has had a number of jobs since arriving in Australia in 2003.  His last job was doing sales orders.  He said he resigned from this job in September because he was not happy with the workplace.  He has since been living from his savings.  He is also doing the Uni Track course at the University of Western Sydney and has completed 4 subjects.  He has applied to do University business courses but has not yet enrolled.  He said he has been supporting himself, while living with his brother, and paying his own University fees.

16.He said if he went back to Thailand, he is not sure whether his father would support him but he was satisfied he would be able to live with his parents.  He said he would go to Pakistan first and apply for a resident visa for Thailand.  He said he can speak Thai but cannot read or write it.  He cannot speak Urdu.  He spent 6 years in Thailand and has been back there twice since coming to Australia.  He has friends there.  He last went to Pakistan 3 or 4 years ago.

17.He agreed that he had adapted to Australia well and would be likely to adapt equally well to life in Thailand, albeit with fewer opportunities than he would have here.  He said he is not in a serious romantic relationship.

consideration

18.Imran Gilani pointed to the disruption of his career, his studies and his property ownership that would result from the cancellation of his visa.  He did not point to any evidence to show that he could not live and work in Thailand and his enquiries concerning employment in Pakistan were very limited.  His enquiries concerning study overseas were inconclusive.  He had not investigated the likely sale price of his house were he to put it on the market.  The points he made in relation to these matters were speculative and unsupported.

19.I note his evidence that his father would be likely to offer support to him if he went to Thailand and his evidence of relatives with whom he could live in the short term if he returned to Pakistan.  His evidence was that the relationship he had pointed to in his early communications in relation to this application no longer exists. 

20.The difficulties Imran pointed to are more in the nature of disruption to his plans, likely to be distressing but unlikely to place him in hardship and very unlikely to place him in extreme hardship (Wang’s case).  It is not surprising that he has formed ties with the Australian community but this does not constitute hardship (Salim’s case).  There is simply no evidence to support his assertion that it would be impossible for him to obtain work in Pakistan and his own evidence was that he would be given some assistance by his Aunty.  There is no evidence to support his assertion that, on the sale of his property, he will receive no funds.  His circumstances, if his visa is cancelled, will be difficult and perhaps wrenching but they will not amount to extreme hardship.

21.Khuram’s case is even less compelling.  His ties to the Australian community are fewer, having been here for less than 3 years and 10 years less than his brother.  His mere presence in Australia when he turned 18 does little to deepen his ties to the Australian community.

22.He is currently unemployed and, while he is studying, he has not yet enrolled in a tertiary course.  He is confident he could live with his parents in Thailand and agreed he would be able to adapt to life there.   He said he would apply for residence in Thailand if his visa is cancelled.

23.Again, this points to disruption but not to hardship; extreme or otherwise.

24.I consider that neither Imran Gilani nor Khuram Gilani has established that the cancellation of his visa would result in extreme hardship.

decision

25.The decisions under review are affirmed.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.

Signed:         ............[Linda Blue]...............................
  Associate

Date of Hearing  18 October 2005
Date of Decision  22 November 2005
Solicitor for the Respondent     Phillips Fox