Gunawan and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 505

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 505

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/951,         )  N2002/952

GENERAL ADMINISTRATIVE DIVISION		)
Re		CARFIAN GUNAWAN and PRISSILIA GUNAWAN

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal MS N BELL

Date20 May 2004

PlaceSydney

Decision The decisions under review are affirmed.

[sgd] Ms N Bell, Member  

CATCHWORDS

CITIZENSHIP AND MIGRATION – Application for review of decision to cancel secondary business skills visas – whether cancellation of visas would result in extreme hardship – hardship not exceptional or exceedingly great in degree – decision affirmed.

CASES

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

LEGISLATION

Migration Act 1958 sections 134(1),(4),(5)

REASONS FOR DECISION

20 May 2004 MS N BELL            

1. This is an application by Mr Carfian Gunawan and Ms Prissilia Gunawan ("the Applicants") for review of a decision dated 6 June 2002 made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Respondent") to cancel the Applicants’ secondary business skills visas. The primary business skills visa was held by their father M Silvan Hartanto Gunawan 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 Applicants were represented by Mr R Turner, solicitor and the Respondent was represented by Mr G Peek, solicitor.

2.      The Applicants gave oral evidence to the Tribunal, as did Ms Yulianty Tambum, Carfian’s partner and Mr Andrew Lam, Prissilia’s husband.

BACKGROUND

3.      Carfian Gunawan moved from Indonesia to New Zealand to study in 1993 when he was 14 years old and moved to Australia to continue his studies when he was 16 years old.  Prissilia came to Australia in 1996 to study when she was 15 years old. 

4. Both Applicants applied for Australian citizenship and were advised by the Department in September 2002 that their applications had been approved and that they would be advised as to the date of the ceremony. However, the Department wrote to each of the Applicants on 30 May 2003 and advised that because the Applicants are no longer permanent residents they do not meet the requirements of the Australian Citizenship Act 1948 and their applications for citizenship were therefore refused. In the meantime they had withdrawn their applications for review of the decisions to cancel their secondary business visas on the basis that their applications for citizenship had been approved as advised by the Department. The Applicants sought to reinstate their applications after being advised by the Department that their applications for citizenship had been unsuccessful and on 13 August 2003 the Tribunal decided to exercise the discretion to reinstate the applications.

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 Applicants’ visas would result in extreme hardship to them.

EVIDENCE

7. Carfian Gunawan gave oral evidence to the Tribunal and confirmed his outline of evidence (Exhibit A3).  His evidence was that he has returned to Indonesia only twice, first in 1995 and then in 1999 in connection with the grant of his secondary business visa.  He has recently completed his studies in Information Technology.  He has been offered two jobs but was unable to accept them because he is unsure of his status and his ability to remain in Australia.  He gave evidence of his relationship with Ms Yulianty Tambun who is a permanent resident of Australia.  He became engaged to her last year and they intend to marry before the end of 2004.  They have been living together since September 2003 and have been in a relationship since 1999.

8. Mr Gunawan said that if he had to return to Indonesia he would be going back to a country he has not lived in since 1993.  He knows no one except his parents and has no friends.  He said he has not explored employment opportunities in Indonesia because he has been hopeful that he will be able to remain in Australia.  He said he would be provided with accommodation by his parents but would be expected to obtain employment.  He does not have much contact with his parents, speaking to them on the telephone only once every month or two months.

9. He said he would also have to change his and his fiancée’s plans to get married at the end of the year because they would not wish to get married in Indonesia as none of their friends are there.

10. Mr Gunawan said that while studying in Australia he has done some paid work but has also been supported by his parents and fiancé.

11. In his outline of evidence Mr Gunawan described the burning of his parents’ home and their church in 1998 in racial riots.  He is concerned that in Indonesia he would not be able to worship freely as a Christian.

12. Ms Yulianty Tambun, Mr Gunawan’s fiancé, gave evidence that she came to Australia from Indonesia with her family, as a permanent resident, in 1993.  She works as an Assistant Manager, Small and Medium Enterprise Banking with the ANZ Bank.  She said that she cannot imagine living apart from Carfian and that if he were forced to return to Indonesia she would have to move back there with him.  She said it would be like “putting a stop on her life” because her career would simply have to pause.

13. Ms Tambun said that she and Carfian live in a unit that is owned by Carfian’s parents and so do not pay any rent.  She also said she has not provided any financial support to Carfian while he was studying.

14. Ms Prissilia Gunawan’s evidence was as in her outline of evidence (Exhibit A3) and her oral evidence to the Tribunal.  She said she has almost completed her studies in Real Estate.  She married Andrew Lam on 27 March 2004 and has lived with him and his parents for over two years.  She has known her husband for 4 years.

15. She said she had been advised by the Department that if she made an offshore application for a spouse visa it would take up to 12 months to process.  She said she and her husband would have to put everything on hold and delay their plans to have a family and to buy a house.  She said they have been putting everything on hold for a couple of years now, waiting for the outcome of this matter.  She said her husband offered to return to Indonesia with her but she knows it will affect everybody including his parents and the rest of his family and she doesn’t want him to do that.

16. Ms Gunawan conceded that she had not made enquiries of employment opportunities in Indonesia but also noted that she had not lived in Indonesia since she was 15 and has no knowledge of the property market there.

17. Mr Andrew Lam’s evidence to the Tribunal was that he is a Civil Engineer, employed by Mosman Council as a development engineer.  He said he has made no inquiries as to whether he could accompany Prissilia if she had to return to Indonesia but would be prepared to go with her “if it came to that”.

18. Mr Lam said that his wife means everything to him and he would be lost without her.  He confirmed their plans for children and the purchase of a house.

19. The Applicant submitted to the Tribunal, at the Tribunal’s request and after the conclusion of the hearing, a document entitled “An Abridged Guide (Client’s) to Visa Grant Times by Subclass”.  The information in the document relates to visa grants made during the period 1 June 2003 to 30 November 2003 and the figures given are said to be based on the time actually taken to process 75% of cases.  The document indicates that the time taken to process a spouse visa was 55 weeks.

20. The Respondent also submitted material to the Tribunal on this issue, at the Tribunal’s request.  The material provided was a copy of email correspondence from the First Secretary, Immigration, Australian Embassy Jakarta to the effect that the average processing time for an application for partner migration is 6 months, provided “that a complete application is lodged, and there are no concerns about health, character, custody of any children or about previous migration history.”

SUBMISSIONS

21. Mr Turner, for the Applicants submitted that it is a conglomeration of numerous factors that would give rise to extreme hardship on the part of the Applicants were their visas to be cancelled.  He described that conglomeration as made up of the separation of each of the Applicants from their partners, their uncertain prospects for employment in Indonesia, their absence from Indonesia since their early teenage years and all that follows from that including the absence of friends and their unfamiliarity with the country and their approval, later withdrawn, for Australian citizenship.

22. Mr Turner pointed to the commitment between the Applicants and their partners but suggested that the relative youth of their relationships and the formative stage at which the relationships stand makes them vulnerable to the strain that would be caused by separation or, at least the disruption caused by those partners joining the Applicants in Indonesia.  He also submitted that, having been advised of the approval of their applications for Australian citizenship, the loss of that approval and the consequent opportunity to continue uninterrupted their relationships and plans for the future elevates the hardship that would be suffered by them were they to be forced to return to Indonesia.

23. Mr Turner submitted that the difficult position of Chinese living in Indonesia, as described by the Applicants in their outlines of evidence, adds to the extremity of the hardship they would suffer if their visas were cancelled.

24. Mr Peek, for the Respondent, submitted that there is no basis on which the Tribunal could infer, from events which occurred some 6 years ago in Indonesia, that the Applicants would suffer any harm or restriction of religious freedom in Indonesia.  He also submitted that there is no evidence that an equivalent course to the one currently being undertaken by Prissilia Gunawan would not be available in Indonesia.  He also noted that the Applicants could apply for student visas if they wished to continue their studies in Australia.

25. Mr Peek submitted that any hardship involved in the time taken to process the Applicants’ applications for permanent residence based on their relationships would be no different from that suffered by any applicant for a visa on that basis.  He submitted that there is no evidence that the relationships would end if such an application had to be made and that the existence of the Applicants’ relationships places them in a position that is better than those who do not have an alternative basis on which to seek permanent resident status.  He also submitted that the Applicants’ approval for citizenship can only play a very minor role in the Tribunal’s consideration of hardship and is a matter of a technical nature.

Consideration

26. Sections 134(1),(4) and (5) of the Act provide:

“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.

27. Both parties drew my attention to the decision of Deputy President Purvis in Salim v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899. The relevant passage is at paragraph 44 and following:

“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.”

28. There has been no suggestion that the relationships between Carfian Gunawan and Yulianty Tambun, and Prissilia Gunawan and Andrew Lam are not genuine and I find accordingly.  Both of the Applicants have formed committed and genuine relationships in Australia.  I find, on the evidence of Mr Lam and Ms Tambun, that the Applicants’ partners would consider returning to Indonesia with them so as to avoid separation.

29. The approval given to the Applicants by the Department of their applications for citizenship would, I accept, accentuate their disappointment with a decision to cancel their visas.  However, this also serves to indicate, but not guarantee, the likelihood of a relatively smooth passage of any offshore visa application.

30. I note that, while Ms Gunawan’s evidence was that her real estate studies are not yet completed, there is no evidence as to the possibility of her completing those studies in Indonesia. It is, however, a matter of common knowledge that familiarity with local conditions is important to the selling of real estate and it is unlikely that her studies in that area would be able to continue seamlessly in Indonesia.

31. The evidence of Mr Gunawan was that, on his return to Indonesia, he would be provided with accommodation by his parents and I infer that similar support would be given to Ms Gunawan.  They would be returning to family with whom they have maintained regular, but infrequent contact over the years and who, at least in the case of Mr Gunawan, provided monetary and other support to them.

32. There is differing evidence as to the time generally taken to make an application for a spouse or partner visa from Indonesia.  The evidence from the Respondent is that in a simple case the usual time is 6 months.  The Applicant’s evidence is calculated on the basis of an average (of presumably straightforward and not straightforward cases) and is 12 months.  I accept Ms Gunawan’s evidence that she was advised by an officer of the Department that such an application would take 12 months to process.  On the basis of the evidence before me I can only conclude that the Applicants may expect a processing time of any partner visa application made by them from Indonesia of less than 12 months but more than 6 months.

33. I am mindful of the Respondent’s submission that the Applicants are in a position that is better than most, given that they have an alternative available to them, by virtue of their relationships, to secure permanent residence.  There cannot, of course, be any guarantee that offshore applications made by them would be successful but there is no indication that they would not succeed.

34. Taking all of these matters into account, and being mindful of the principles set out in the decision in Salim (supra), while I appreciate that a return to Indonesia will be distressing and disruptive for the Applicants, I do not consider that the hardship that will be experienced by them in consequence of the cancellation of their visas is extreme, that is, it will not be “exceptional, unexpected or of such a nature as to qualify for the description of exceedingly great in degree”.

DECISION

35. The decisions under review are affirmed.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of MS N BELL

Signed: Guy Moloney           .....................................................................................

Associate

Date/s of Hearing  29 March 2004
Date of Decision  20 May 2004
Solicitor for the Applicant          R Turner
Solicitor for the Respondent     G Peek