Gunawan and Minister for Immigration and Citizenship

[2008] AATA 391

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 391

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 2007/4199

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SATRIA WIDYA WANGSA GUNAWAN

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Senior Member M D Allen

Date14 May 2008

PlaceSydney

Decision The decision under review is affirmed.

.................[sgd]......................

M D Allen  

Senior Member

CATCHWORDS

BUSINESS SKILLS VISA – review of decision cancelling applicant’s visa – secondary visa holder – residual discretion not to cancel visa if cancellation would result in extreme hardship – decision under review affirmed

LEGISLATION

Migration Act 1958 section 127, 134(4) and 134(5)

CASE LAW

Re Salim and Minister for Immigration and Multicultural and Indigeneous Affairs [2002] AATA 899

Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961

REASONS FOR DECISION

14 May 2008 Senior Member M D Allen

1.      The Applicant is the son of Wahiudi Widjaja whose Business Skills Visa was cancelled on 25 July 2007. The Applicant had been granted a sub-class 127 business visa as he was a member of Mr Widjaja’s family. 

2.      Upon the cancellation of Mr Widjaja’s visa, the sub-class 127 visa, granted to the Applicant, was also cancelled, Migration Act 1958 subsection 134(4), as were the sub-class 127 visas granted to the Applicant’s mother and three siblings. In these proceedings, the Applicant sought review of that decision on the ground that the cancellation of his visa will cause him “extreme hardship”.

3. The Applicant’s application was heard at the same time as the application by his father, to set aside the cancellation of his Business Skills Visa. In AAT matter number [2008] AATA 390, I affirmed the cancellation of the Business Skills Visa issued to the Applicant’s father.

4. Subsection 134(5) Migration Act 1958 states:

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.

5.      The term “extreme hardship” was explained by Deputy President Purvis QC in Re Salim and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899 at para 13, namely:

“As was noted by the Tribunal in Siwei Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961 and in Setiawan and 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 ‘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”.

6. The Applicant gave evidence that he came to Sydney in 2002 .i.e. before the granting of his section 127 visa, and has continued to reside in Sydney since that time. Cross-examined, he conceded that he has returned to Indonesia to visit his family each year, and that his two brothers now reside there.

7.      The Applicant obtained a Bachelor of Commerce at the University of Sydney, and an MBA at the University of Technology Sydney. He then, in April 2007, obtained employment with Cabcharge and, since August 2007, has been employed as an accountant with State Street Australia Ltd. Although employed as an accountant, he has not yet qualified for recognition as a member of one of the accounting professional bodies.

8.      Cross-examined, the Applicant stated that his degrees are recognised in Indonesia, and he believed he could obtain employment there. He conceded that there are firms of international accountants who have practices in Indonesia. I note that his parents, with whom he says he would live, reside in Jakarta.

9.      The Applicant’s father, who’s matter was heard at the same time, gave evidence that his two other sons are employed in his ceramic manufacturing company. Although not questioned on the point, I draw the inference that the Applicant could also find employment in his father’s company, particularly with his accounting skills.

10.     In his statement (exhibit A4), the Applicant said that he has a girlfriend who resides in Sydney. No further evidence was given as to this relationship.

11.     No other grounds were advanced by the Applicant as to why he would suffer extreme hardship upon the cancellation of his visa. He points out that he enjoys living in Sydney, has developed friends here, owns an apartment in Pyrmont and owns a motor vehicle.  He does not want to return to, or work in, Indonesia.

12.     I agree that it would be upsetting to the Applicant’s current life style to have to return to Indonesia but, as was pointed out by Deputy President McMahon in Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961, the requirement to leave Australia is the result contemplated by the statute upon the cancellation of the s 127 visa, and of itself cannot amount to hardship. The task is to look at the consequences to the Applicant that would, undoubtedly, result from the cancellation.

13.     In this matter, the Applicant has family in Indonesia who are in more than comfortable circumstances. The father estimated, in evidence, that his company made a profit equivalent to $A1.300 million last financial year. Recently, he has managed to transfer $A1,050 million to his Australian bank account.

14.     The Applicant concedes he could find employment in Indonesia using his qualifications, which are recognised in Indonesia. Although he mentioned a “girlfriend”, there is no evidence of any permanent relationship, nor are there any children of the relationship.

15.     I am satisfied, on the material before me, that the Applicant would not suffer extreme hardship due to the cancellation of his visa, therefore, the decision under review is affirmed.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen

Signed: [sgd]  [sgd]   .....................................................................................
  Mwela Kapapa, Associate

Date/s of Hearing  14 – 15 April 2008
Date of Decision  14 May 2008
Counsel for the Applicant          Mr B Zisper
Solicitor for the Respondent      DLA Phillips Fox