Haresh Mohandas KHEMLANI and and and and Minister for Immigration and Citizenship
[2013] AATA 401
•14 June 2013
[2013] AATA 401
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1569
Re
Haresh Mohandas KHEMLANI
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
File Number(s)
2012/3757
Re
Renu Sitaldas PUNJABI
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
File Number(s)
2012/3845
Re
Javin Haresh KHEMLANI
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
File Number(s)
2012/3862
Re
Angela Haresh KHEMLANI
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Mr S Penglis, Senior Member
Mr W Evans, MemberDate 14 June 2013 Place Perth Pursuant to s 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review.
...(Sgd) S Penglis.....................................................................
Mr S Penglis, Senior Member
Catchwords
IMMIGRATION – business skills visa – cancellation – whether “genuine efforts” made by primary applicant to obtain substantial ownership interest in an eligible business in Australia and actively participate at a senior level in the day-to-day management of such a business – whether the Tribunal should exercise residuary discretion in favour of primary applicant – whether cancelling the visas of the secondary applicants will cause “extreme hardship” – decision cancelling visa affirmed - turns on its own facts
Legislation
Migration Act 1958, Section 134
Cases
Buljeta and Minister for Immigration and Multicultural Affairs [2003] AATA 10 at [58]
Iqbal and Minister for Immigration and Citizenship [2010] AATA 1029
Kim v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCA 31
Koosasi and Minister for Immigration and Citizenship [2007] AATA 1311
Lau and Minister of Immigration and Multicultural Affairs [2002] AATA 703
Leo and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 309
Lu and Minister for Immigration and Citizenship [2010] AATA 177
Philp and Minister for Immigration and Citizenship [2007] AATA 2092
Soegijono and Minister for Immigration and Citizenship [2008] AATA 244
Tan and Minister for Immigration and Citizenship [2008] AATA 720
Tansari and Minister for Immigration [2008] AATA 400 at [138]
Teo and Minister for Immigration and Citizenship [2007] AATA 1118, stating at [80]
Weng and Minister for Immigration and Citizenship [2010] AATA 60 (and on appeal at [2010] FMCA 670)
Yam and Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2004] AATA 283Click here to enter text.
REASONS FOR DECISION
Mr. S. Penglis, Senior Member
Mr. W. Evans, Member14 June 2013
The primary applicant (Mr Khemlani) is the husband of the first secondary applicant (Ms Angela Punjabi). Mr Khemlani and Ms Punjabi have 2 children: the second secondary applicant (Javin) and third secondary applicant (Angela).
Mr Khemlani and Ms Punjabi are from Indonesia. They were both born there. Mr Khemlani and Ms Punjabi married in 1993. They had their honeymoon in Australia. They decided “when we had children Australia would be the place we would settle. From the time the children could understand we tried to explain what we had in mind. Everything we did was directed to that aim. This included educating the children outside the Indonesian school system at an International School”.
Javin was born in Indonesia on 10 February 1994. He has lived in Australia since he was “about 12” years old. He completed high school in 2012 and has applied to study at a university in Perth.
Angela was born in Indonesia on 2 September 1996. She has lived in Australia since she was “about 9” years old. She is presently in her penultimate year of high school.
Ms Punjabi and the two children moved to Australia in February 2009. Mr Khemlani remained in Indonesia to run his business.
Mr Khemlani was granted a Business Talent (Migrant) (sub-class 132) visa on 19 December 2008. Ms Punjabi and the two children were also granted sub-class 132 visas on the basis of being members of the primary applicant’s family unit.
Mr Khemlani has travelled to Australia on a regular basis for about 10 days each month to be with his family.
Despite efforts to do so, Mr Khemlani has not succeeded in acquiring a substantial ownership interest in an eligible business in Australia. Nor has he participated at a senior level in the day-to-day management of such an eligible business.
On 28 March 2012, a delegate of the respondent decided to cancel Mr Khemlani’s visa (finding that Mr Khemlani had not made “genuine efforts” to satisfy his visa conditions) and, as a consequence, the visas held by Ms Punjabi and the two children were also cancelled.
That is the reviewable decision the subject of this application.
In respect of Mr Khemlani, the issues for determination are whether or not he undertook “genuine efforts” to obtain a substantial ownership interest in an eligible business in Australia and to utilise skills in actively participating in a senior level in the day-to-day management of the eligible business. If not, should the residual discretion be exercised in his favour?
The Tribunal need only consider the position of the secondary applicants if the Tribunal upholds the reviewable decision with respect to Mr Khemlani. Should that occur, in respect of each of the secondary applicants, the question to be considered is whether the relevant secondary applicant will suffer “extreme hardship” as a result of the cancellation decision. If the Tribunal is satisfied that they (or any of them) will, it is open to the Tribunal to decide that that applicant’s visa not be cancelled.
THE FACTS
These are applications where the facts were not contentious. Each of the applicants gave evidence and was cross-examined. There was nothing in any of their evidence, or in the manner in which they gave their evidence, that causes the Tribunal to have any reservation about accepting their evidence as both truthful and reliable. Quite properly, no submissions to the contrary were made on behalf of the respondent.
It is therefore unnecessary for the Tribunal to summarise the evidence given by each of the applicants. Rather, it is sufficient for the Tribunal to set its findings based on that evidence.
Mr Khemlani was born in Indonesia on 17 April 1967. Mr Khemlani and Ms Punjabi married in Indonesia in 1993. They honeymooned in Australia.
The decision was made by Mr Khemlani and Ms Punjabi to migrate to Australia in the early 2000’s. However, it was when they honeymooned in Australia in 1993 that they “decided when we had children Australia would be the place we would settle. From the time the children could understand we tried to explain what we had in mind. Everything we did was directed to that aim. This included educating the children outside the Indonesian school system at an International school”.
In about May 2006, the two children moved to Australia on student visas. They were enrolled in local schools. Ms Punjabi accompanied them as their guardian. There was no evidence that Ms Punjabi has ever worked in Australia.
Mr Khemlani, however, could not move to Australia because of his business commitments in Indonesia. Mr Khemlani described his business as being “very hands on”. He said “although I have staff I must be there for most of the time to supervise the staff”.
Prior to moving to Australia, Mr Khemlani and Ms Punjabi had purchased an investment property in Sydney, settlement of which occurred in November 2001. That property is still owned by Mr Khemlani and Ms Punjabi and generates a rental income.
Prior to applying for a visa, Mr Khemlani, through his company Sunray International Pty Ltd (which was registered in January 2005), entered into a lease of a shop in a retail area in Perth known as ‘Harbour Town’. Of this venture, Mr Khemlani said “The Harbour Town business was opened in about December 2005 but only lasted for 7 or 8 months before I was forced to close that. Because I was caught between Indonesia and Australia I could not devote my full time and attention to the Harbour Town premises / business. The business started losing money and stocks started disappearing and a decision was taken to close the business. Our rental was high and daily sales were in the hundreds instead of thousands of dollars. Yet our rental was about $8,000 per month gross”.
Mr Khemlani was granted a sub-class 132 business visa on 19 December 2008.
During the period of his visa, Mr Khemlani travelled extensively in and out of Australia. He spent on average about 10 days a month with his family in Australia. He was unable to stay longer because he “was concerned to keep my business in Indonesia going so as to support my family…and to put myself into a position where I could relocate to the business in Australia. To this end the numerous trips to Australia included as the primary purpose not only to be with my family but to review business opportunities in Australia”.
In respect of business opportunities which Mr Khemlani pursued, Mr Khemlani gave the following in evidence (in respect of which findings of facts are made).
“Whilst in Australia and also from Indonesia numerous enquiries were made concerning a number of proposed business ventures. These included the following:
(a) Easy Way Tea
Discussions were held with Ivy Chin during early 2009. Ms Chin was the Business Development Manager of Easy Way Tea.
After discussions were held I was informed that the proprietor of the business had decided not to proceed with the concept of franchising but would open new stores themselves.
(b) Hair Science WA
I was introduced to a Mr Baden Giles Thomas, Managing Director of Hair Science WA. Mr Thomas had an operating Hair Science business and I visited there on a number of occasions on my trips whilst in Australia.
However, on most of the occasions that I attended at Mr Thomas’ premises I noticed that there were no or very few people in attendance and I then started to doubt the viability of the business in question.
Mr Thomas had a partner in Indonesia and I met with him in Indonesia.
I was, however, not comfortable with the sort of proposals that were put to me.
One of the proposals was that I would open up a Hair Science business in Claremont. In this regard I met Mr Thomas at the Claremont premises.
Subsequently negotiations were entered into and I was asked for a commitment of approximately $500,000.00. This was with a view to going into the business together with Mr. Thomas.
Although negotiations continued over a period I did not feel comfortable either with the people that I was dealing with nor the viability of the business and did not pursue the business. There was also talk about the possibility of opening up a Hair Science business in Rockingham.
In or about April/May 2012 I decided not to proceed with this business.
(c)Over the ensuring period I held various discussions with my accountant a Mr Tan.
One of the businesses discussed with Mr Tan was the possibility of starting a health spa based on an Indonesian or Balinese concept of health and massage. However I felt that I did not know enough about the local industry to pursue this.
(d)Donut King
In about May 2010 enquiries were made concerning a Donut King franchise in Riverton. This was not pursued as it was felt to not be substantial enough.
(e) Coffee Club
In about 2005 I had met the Coffee Club owner and was subsequently offered a Coffee Club franchise for the Carousel shopping Centre. This was not pursued because at that time my family and I were hoping to travel to Melbourne instead of Perth.
In about May 2010 there were again communications between myself and the Coffee Club Group. Having regard to the amounts required to set up a business of that nature I did not think it was feasible.
(f) BB’s Café
During or about May 2010 discussions were also held with the Regional Sales and Leasing Manager of Retail Food Group (Victoria and Western Australia) concerning the abovementioned BB’s café. The information that was provided was that the store fit-out would cost between $300,000.00 to $350,000.00. My assessment of the business was that it was not viable in relation to the amount of money that required to be invested.
(g) TAB
Enquiries were then made about acquiring a TAB franchise. Application forms were completed but I then became concerned about the advent of online gambling and did not pursue my enquiries.
(h)In or about February 2011 I entered into discussions with Nandos Franchising Australia. I was informed at that point in time that there were no new premises then available. One existing business was seen by me in Victoria Park but it was subsequently sold to someone else. I made enquiries at the Claremont Shopping Centre and spoke to the Manager but there was no premises available for a Nandos.
(i)Pie Face
Later in the year and during or about August 2011 I opened discussions with the Franchise Development Manager of Pie Face. I contended at this stage that I was pursuing food interests because my experience at Harbour Town had affected my confidence in conducting a retail clothing business.
(j) Commercial Property Development
In about mid 2008 my wife and I entered into negotiations to purchase a proposed commercial land subdivision being Lot 269 Windrest Way, Point Cook, Victoria. The land was subdivided and settlement took place on 1 May 2009. The purchase price was $182,000. The intention was to develop and then sell. However, before development, it was sold.”
With respect to his efforts to comply with his visa conditions, Mr Khemlani gave the following further evidence (in respect of which findings of fact are made).
“I did not fully recover from the global financial crisis. A lot of my funds were invested in shares and stocks which lost substantial value. I had to dispose of assets which I had available to me to make up losses on the Stock Exchange and to survive financially.
I then entered into negotiations with a view to starting up a coffee shop. I had discussions with a friend named Justin James who worked in that type of business and was happy to go into business with him. Justin James had been a manager for the last seven years in a food business and Justin James and I entered into discussions to open up a business.
The premises in question that we were looking at were occupied by Hans Café at 24 Main Street, Ellenbrook.
Justin James also endeavoured to obtain premises in the City but these were not successful.
Arising from the negotiations with Justin James I obtained details from AXIA Corporate Property the leasing agents for 24 Main Street, Ellenbrook (Shop 4). The lease term was supposed to be for six years with effect from 1October 2012.
Subsequently Justin James informed me that he wishes to pursue his own business interests without the involvement of myself.
In November 2012 I also held discussions with real estate agents Knight Frank about a café opportunity at Downey Drive and Ley Street in Como. The property in question was not yet ready for leasing but was in the process of being constructed. The suggestion was made as to a five year lease plus five year option and rental was calculated to be approximately $52,000.00 per annum plus approximately $15,100.00 per annum in outgoings. From enquiries made the estimated cost of fit-out and design was to between $250,000.00 and $300,000.00. Negotiations occurred whereby it was intended that there be a rent free period to allow fit-out.
Because of the cancellation of my Visa this was(sic) created substantial instability insofar as my future efforts to obtain a substantial ownership interest in an eligible business in Australia.
As set out above, I have most recently been involved in negotiations to acquire premises for the purpose of establishing a coffee shop. This is preferable from my point of view having regard to my business background because the previous types of businesses that I have looked at were on a franchise nature. These businesses required a substantial capital investment but only resulted in one business being acquired. Acquisition of future businesses or establishing more “branches” of the business wold(sic) be dependent on the franchisor agreeing.
Accordingly, the reasons I have more seriously been considering a food/coffee shop type business is that once I get the model correct on one shop then it would be my intention to open additional branches.
I have learned through bitter lessons that the clothing industry which is the industry in which I have had most experience is not(?) difficult to trade in Australia particularly if one is using staff to manage premises.
On the other hand I am aware there are many food businesses where branches operate successfully under management. This is because there are sophisticated software programs which control purchases and sales.
Whilst cash sales in the food business would potentially be a problem it is my experience that more and more people will pay for purchases even small purchases with cred(sic) card or debit card. This would, nevertheless, leave a small percentage of sales which would be transacted by cash. Unfortunately in business this is an issue that is built into the cost of running the business namely “shrinkage” where staff succumb to the temptation of not accounting for all monies received especially cash monies.
However, as a businessman, I realise that this is part of the cost of doing business but can be limited by training and monitoring of the type of staff employed.
Accordingly, I would see myself more in a managerial and administrative role in supervising a number of coffee shops without being involved in the day to day “standing behind the counter”. This is where I believe my strengths are.
To all intents and purposes I have not put matters on hold insofar as committing myself to anything because of the possibility that my appeal to the Tribunal may not be successful.
Other factors
Quite apart from the fact that I wish as a businessman to operate and expand a business in Australia I am also under the added pressure from my wife and children.
I have seen my wife and children who have transformed during our stay in Australia. I have seen the way my wife and children have blossomed in Australia and how Indonesia has more and more for them become a “foreign” country.
Accordingly, quite apart from my obligations under the Business Skills Visa there is the additional and very pressing incentive for me to cut my business ties with Indonesia and switch my full time and attention to establishing and growing a business in Australia.
These have been difficult times and a large part of my base in Indonesia was wiped out as a result of the global financial crises.
This resulted in me having to expend much time and energy trying to re-establish myself in Indonesia to put myself into a position where I would have the funds available to buy into or establish a business in Australia.
Genuine efforts
As I have said above, I have looked into various possible ventures. Most of these have been in the form of an established business model but with a downsize identified by me above namely expansion being limited to the decision of the franchisor.
Whilst the food or coffee business has not really been something I have previously been interested in it is apparent to me that in Australia this is a growth industry and one of the few areas where I as a businessman can apply my business abilities to the growth of a business of that nature.
I realised that I was obliged to obtain a substantial ownership interest within a certain period of time and that I have no(sic) done so and that on the face of it I have not complied with my obligations.
Nevertheless, I say that this must be viewed in context of my own personal circumstances regarding what happened to my business activities in Indonesia and also my investments in Indonesia.
It is certainly my intention to obtain a substantial ownership interest in an eligible business in Australia in which I can be actively involved and which is able to make reasonable profits in relation to the effort put in.
The overall plan would be as follows:
a)Within(sic) 6 and 12 months of a decision by the Tribunal (were it to set aside the cancellation), to establish a(sic) first coffee/food shop. In the next year to consolidate the running of that business and then start seeking alternative premises to open up additional branches. In the third year I would anticipate having identified one to two locations where I can duplicate what has been created in the first location.
b)Thereafter, I would like to see the business grow by adding one new business per year (not more at this stage because of my understanding of the difficulty that the hospitality industry experiences in relation to staffing)(sic).
c)My skills would be applied to negotiating with suppliers for the best possible prices for the “chain”, cleanliness, presentation and creation of a “point of difference” in a sector which is already very competitive.
Insofar as the first venture is concerned, I would be actively seeking a joint venture. In this regard, I refer to what I previously said about my negotiations with Justin James. My ongoing discussions with Justin reveal that he may be still amenable to a joint venture with me putting in most of the capital and the overall business experience and him providing the detail of running a business of this nature.
Since cancellation I continued with my efforts.”
With respect to his wife and children, Mr Khemlani gave the following evidence (in respect of which findings of fact are made).
“Whilst my wife and children are entitled to make their own claims insofar as extreme hardship is concerned I nevertheless need to bring to the Tribunal’s attention my perceptions as a father and husband. My wife and children have been living in Australia since 2006. Javin was about 12 and Angela was about 9 when they arrived.
This is a traumatic time for the family because I remained to a great extent in Indonesia (although I would travel regularly to Australia)(sic) and the family had to learn to get on with it. This made by wife, Renu a much stronger person in having to make sure that the day to day running of the family went smoothly particularly for our children who we will sacrifice anything for their future. She has put her life on hold to care for the children.
Part of their future we decided would be a future in Australia and that is what we have all committed ourselves to.
More and more the children have become more Australian than Indonesian and I have seen the alienation from their Indonesian friends and family as the years go by. They have become reluctant to visit Indonesia and re(sic) embarrassed by the maids and drivers. Drivers are used because I do not consider it safe for them nor my wife to use public transport.
Their ability to speak Indonesian is becoming more and more limited and even when they visit Indonesia they prefer to speak in English with their family and friends.
I do not see how they would be able to fit into an environment where they must again start learning to speak Indonesian without the benefit of having gone to school in Indonesia during the important years of schooling. Even the school they attended was an International school not an Indonesian school.
Since the cancellation of my Visa the family have had endless discussions about the consequences and whilst it would be possible for the children to apply for Student Visas to continue with their studies in Australia.(sic) The difficult(sic) that I have is being able to support the children with their school fees. Furthermore for the children they have no certainty in terms of permanent residency.
The specific intention when coming to Australia was to make Australia our home. Certainly I realise the hardship that they and my wife who is very close to the children would suffer in having to return to Indonesia after having committed themselves to Australia. Whilst I as an adult who has been a businessman for some years would (if I were alone and without family) not suffer extreme hardship I cannot say the same for my wife and children.
I understand that if the children could not come back to Australia then they would need to repeat 1.5 to 2 years of study before being able to put themselves back in the position that they were in Australia. This includes Indonesian language studies. They both dislike speaking Indonesian especially as that is the language that is used to communicate with the staff in our home when they visit. Whilst I am accustomed to servants in the home they cannot bear it.
Javin is enrolled for university this year in Business and Finance in a 4 year course. Because of his anxiety and ability to concentrate he put off studies till June.
Whilst there is a Business Management course available to him in Indonesia he would be obliged to do at least one course in Indonesian per semester. Regrettably I know that he has no interest and could not or would not participate. Because he has limited prospects in being a professional in Indonesia I would therefore insist that he comes into the family business. Unfortunately, he has no interest in that but I don’t know how else I can help him become financially independent.
Insofar as Angela is concerned, she has her heart set on legal studies. She is not able to complete such studies in Indonesia because the legal system there is not compatible with Western legal systems. She would need to study elsewhere. Also she is totally opposed to subservience of women in a Muslim Society.
I have had tears and angry words at home and threats from the children that they will not return to Indonesia. Under any circumstances I am my wits end. at the end of the day whatever I and my wife, Renu have done has been for what we believed to be in the best interests of the children. If the Visa cancellations are not overturned it appears that we will, in fact, have done the worst possible thing that we could have for the children which really is through circumstances not within my wife or children’s control but through my inability to acquire a substantial ownership interest in an eligible business and participate in that business within the necessary time frame. I have always old them that their future is in Australia – yet now I have failed them.”
In addition to corroborating the evidence given by Mr Khemlani, the evidence given by the secondary applicants was to the following effect (in respect of which findings of fact are made):
·Because they went to an International school in Indonesia and were subsequently educated in Australia, neither of the children are proficient in the Indonesian language. In particular they do not speak, read or write the language sufficiently to enable them to study or work in Indonesia other than in a place in which English is used as the primary language of communication.
·Since they were old enough to understand, they have been told by their parents that they would be brought up and live in Australia.
·Both children have developed close friendships in Australia and neither of them have any close friendships or other close relationships (including family) in Indonesia.
·Javin has recently completed his secondary school education and has enrolled at a university in Perth. He is interested in pursuing degrees in arts and business and would like to explore opportunities in Australia to develop his skills in soccer with a view to it becoming more than just a sport for him.
·Angela is in her penultimate year of high school. After completion of her secondary school education, she wishes to study to become a lawyer. She wishes to do that in a Western culture applying Western laws. She does not wish to practice law in Indonesia for reasons relating to her perception of the application of the rule of law in that country and her perception of limitations that exist for women entering and rising to senior positions within the legal profession in that country.
·If Angela were to return to the school system in Indonesia, because of the previous isolation from the national system and the limitations on her knowledge of the Indonesian language, she would be placed at least a year behind the year of schooling in which she now is, and with the Indonesian school year starting in the middle of the year, this could mean that, in effect, she would be 1 or 2 years behind if she entered into the Indonesian school system.
·The International school in which the children attended is still open and there is no reason (either practical or financial) why, if Angela returned to Indonesia, she could not complete her secondary school education at that school.
THE LAW
Section 134 of the Migration Act 1958 (Cth) provides that the respondent has a discretion to cancel a visa if satisfied that the visa holder has not obtained a substantial ownership interest in an eligible business in Australia, is not utilising his skills in actively participating at a senior level in the day to day managing of the business, or does not intend to do these things. The respondent must not cancel the visa if satisfied that the visa holder has made genuine efforts and intends to continue to make such genuine efforts.
Section 134(3) provides a list of matters that the respondent may take into account when determining whether a person has made genuine efforts to obtain a substantial ownership interest in an eligible business in Australia and to utilise his skills in actively participating at a senior level in the day-to-day management of that business.
The parties agreed (rightly in the opinion of the Tribunal) that whilst the Tribunal is not bound by Departmental Policy, the Tribunal should follow Ministerial or Departmental Guidelines unless there is some good reason not to: Buljeta and Minister for Immigration and Multicultural Affairs [2003] AATA 10 at [58]: Yam and Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2004] AATA 283.
The parties also agreed (again rightly in the opinion of the Tribunal) that paragraph 9.2 of the applicable Procedures Advice Manual provides guidance as to the matters that may be taken into account. They include the existence of a business proposal, the existence of partners or joint ventures, business research, presence in Australia, the value of assets transferred for use in obtaining an interest in an eligible business, the value of ownership interest in the eligible business in Australia which is or has been held by the person and whether the person has failed to comply with a notice under section 137 of the Act.
Nor was there any dispute about the following further propositions:
(a)A “genuine effort” must be more than a superficial or token effort: Yam.
(b)The use of the word “effort” implies that some exertion or endeavour must be involved: Iqbal and Minister for Immigration and Citizenship [2010] AATA 1029.
(c)A “genuine effort” must be “vigorous and determined”; Leo and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 309.
(d)Mere expressions of interest or enquiries ordinarily fall short of “genuine efforts”: Yam.
In addition to being “vigorous and determined”, efforts must be “sustained and continuous” in contrast to mere “sporadic and desultory activity”: Tansari and Minister for Immigration [2008] AATA 400 at [138] (and the decisions of the Tribunal referred to therein).
Commercial realities are to be taken into account. In particular, many genuine business attempts will fail despite the best efforts of participants: Lau and Minister of Immigration and Multicultural Affairs [2002] AATA 703.
As for the principles to be applied with respect to the exercise of the general discretion provided by section 134, written submissions filed on behalf of the parties after the hearing disclose general agreement as to the relevant principles, namely:
The residual discretion can only be exercised in favour of a primary visa holder and not with respect to secondary visa holders.
(b)The existence of a residual discretion not to cancel a visa even if the visa holder has not fulfilled the requirements of section 134(1) and (2) of the Act is well established: see, for example, Kim v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCA 31.
(c)Whilst the residual discretion is broad, it must be exercised in the context of the legislation in which it is found: Koosasi and Minister for Immigration and Citizenship [2007] AATA 1311; Weng and Minister for Immigration and Citizenship [2010] AATA 60 (and on appeal at [2010] FMCA 670).
It was also agreed that the factors relevant to the exercise of the residual discretion were comprehensively summarised by the Tribunal in Philp and Minister for Immigration and Citizenship [2007] AATA 2092. A useful summary of what the authorities have held in this regard was set out in the written submissions of the respondent after hearing (and accepted by the Applicants) in the following terms:
“The authorities have held that the discretion generally:
1may be used in an applicant’s favour where he or she has offered a satisfactory explanation of the inactivity;
2may be used if the granting of a little more time would allow the applicant to fulfil his or her visa obligations;
3should not be used where an applicant has spent only minimal time in Australia, and has no serious and realistic intention (beyond vague intentions) to spend more time in the near future;
4should not be used where an applicant has not permanently moved with his or her family to Australia, and has no serious and realistic intention (beyond vague intentions) to do so in the near future;
5should not be exercised where the visa holder has not acquired a permanent residential property in Australia, and has no serious and realistic intention (beyond vague intentions) to do so in the near future;
6should not be used where an applicant and his or her family have not developed a significant connection to Australia; and still have overwhelming ties to other countries;
7should not be exercised where an application was still significantly committed to his or her overseas business;
8should not be exercised unless the applicant can demonstrate a sustained commitment to trying to fulfil his or her visa obligations over a significant period;
9should not be exercised unless the applicant can show he or she has a genuine and realistic intention to begin playing a more substantial role in the eligible business in the near future;
10may be exercised where it is in the best interests of the child;
11should not be exercised unless the potential benefit to the Australian community outweighs its possible detriment, or where it has a negative impact on Australia’s international relations;
12may be exercised where the cancellation will cause hardship for the applicant and his or her family;
13should not be exercised where it adversely affects the objectives of Australia’s migration policy; and
14should not be used where a more appropriate visa option or solution is available to the applicant. The residual discretion should not be used merely because it is the option which would most convenience the applicant.”
The written submissions of the applicants after hearing agreed with the above summary and further noted that the Tribunal also considered the residual discretion in Teo and Minister for Immigration and Citizenship [2007] AATA 1118, stating at [80]:
“The most important criteria to be taken into account when exercising the discretion are the following:
·The best interests of any minor children affected by the decision to cancel;
·The benefit or detriment to the Australian community as a whole and in its international relations if the visa is cancelled;
·The hardship to the applicant and to the applicant’s family members who have relied on the grant of the visa to gain permanent residence in Australia;
·Whether a decision setting aside the cancellation would adversely affect the objectives of Australia’s migration policy.”
On the question of the extent to which hardship may be established in the context of the residual discretion by reference to a secondary visa holder such as family members, in Tan and Minister for Immigration and Citizenship [2008] AATA 720, the Tribunal followed the decision in Philp, and further stated (at [17]):
“Hardship is a broad issue depending on the circumstances and it is not sufficient that other secondary visa holders such as family members would have their visa cancelled to justify over-riding a cancellation decision pertaining to an applicant.”
However, in Lu and Minister for Immigration and Citizenship [2010] AATA 177, the Tribunal stated (at [63]) that:
“(T)he best interests of any children who are minors would be a relevant consideration, as would the hardship on the applicant’s family members who have relied upon the grant of the visa to gain permanent residence and, ultimately, citizenship. The interests of Mr Lu’s children, who are aged 20, 17, 16 and 11 and are all attending educational institutions in Australia would be relevant in matters for consideration.”
As for “extreme hardship”, the relevant principles were conveniently summarised at paragraphs 41 to and including 45 of the respondent’s Statements of Facts, Issues and Contentions as follows:
“41. 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. Foster J stated at [25] - [26]:
… 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 upon 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 on a continuum of hardship. It obviously connotes an area within which an ascertainable burden of hardship may fall and properly merit the description "extreme".
42. Hardship must be judged subjectively. Clearly, hardship involves more than inconvenience or detriment. The effect suffered must be to a considerable degree before it can properly be called hardship (Siwei Wang v Minister for Immigration and Multicultural Affairs [2000] AATA 961).
43. In Siwei Wang (supra) Deputy President McMahon also considered the significance that should be ascribed to the word "extreme" as used in the statute:
…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 many meanings of the word "extreme" offered in the Macquarie Dictionary. 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".
44. In Salim and Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899 Deputy President Purvis stated at [44] - [47]:
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.
Each of the Applicants will experience emotional hardship if required to leave Australia, they having spent a part or whole 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.
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.
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.
45. It is also clear that the onus is on the applicant to provide evidence that he or she will suffer extreme hardship (Setiawan & Anor v Minister for Immigration and Multicultural and Indigenous Affairs (unreported decision of the AAT, 8 October 2003).
46. The respondent contends that the secondary applicants have not provided any evidence of how they will suffer extreme hardship on the cancellation of their visas, as opposed to inconvenience or detriment.
47. The secondary applicants appear largely to rely on the disruption to their studies. The respondent contends that being unable to complete studies does not amount to extreme hardship under the Act (Chen v MIMIA [2002] AATA 1023). Furthermore, the secondary applicants have previously held, and can apply, for student visas to allow them to complete their studies.”
The applicants did not dispute any of those propositions, but referred to and relied upon other decisions of the Tribunal, including the following passages from Soegijono and Minister for Immigration and Citizenship [2008] AATA 244:
“45. The Tribunal acknowledges that the applicant will suffer hardship as a result of her visa being cancelled, but the Tribunal must be satisfied that this hardship would be “extreme” before setting aside a decision to cancel a visa.
46. The respondent’s Statement of Facts and Contentions set out case law regarding extreme hardship. Previous cases have set a high bar.
47. The Federal Court in Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481 at 487 ascribed to “extreme hardship” the following meaning:
… 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 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 …
48. The Tribunal has also taken note of previous Tribunal decisions, namely, Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961 and Re Setiawan and Minister for Immigration and Multicultural Affairs [2002] AATA 260, which found that hardship must be judged subjectively, that is, from the point of view of the person allegedly experiencing it. Deputy President McMahon stated at paragraph 29 in Wang [supra] that “hardship involves more than inconvenience or detriment. Affectation must be to a considerable degree before it can properly be called hardship”.
49. At paragraph 30 in Wang [supra] the Deputy President McMahon 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” offered in the Macquarie Dictionary… 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…
50. The relevant hardship must be a necessary consequence of the cancellation of the visa, a mere possibility or probability would not be sufficient.
51. The Tribunal must look at the consequences to the applicant that would result from the cancellation. In Kim [supra] at 487 Foster J stated that “the proper application of [a clause of the Migration Regulations 1993 which contained within the words extreme hardship] requires a focussed consideration of the situation of the applicant” at the relevant date being, in this case, the date of the hearing.
52. As Deputy President Purvis QC said in Re Salim and Minister for Immigration and Multicultural and Indigenous Affairs (2002) 36 AAR 42 at paragraph 46:
… 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.”
GENUINE EFFORTS
As noted above, Mr Khemlani was cross-examined by counsel for the respondent. It is unnecessary for the Tribunal to summarise that cross-examination as it merely served to reinforce that which the Tribunal finds based on Mr Khemlani’s own evidence in chief and the documents which were received into evidence, namely that during the relevant period, Mr Khemlani made no more than “enquiries” – his own word – concerning a number of proposed business ventures. In most cases, what Mr Khemlani did was no more than engage in preliminary discussions with respect to acquiring existing businesses or franchises (Easy Way Tea, Hair Science WA, Donut King, Coffee Club, BB’s Café, TAB, Nando’s and Pie Face). Having discussions with his accountant, Mr Tan, with respect to various business possibilities, and discussions with Mr James with respect to the prospect of establishing a café business are in the same category: they were general discussions which did not descend into any great detail. No business proposals were prepared, no formal partnerships or joint ventures entered, there was no specific business research (beyond mere generality) and no money was ever transferred into the country for use in realising the subject matter of these discussions.
The acquisition of commercial land for subdivision (which was never developed, but rather sold) appears to have been an isolated transaction in respect of which the investment was in the order of only $182,000, in respect of which there was no evidence of anything done in order to develop or to prepare to develop the land, which did not proceed and in respect of which the proposed “day to day” senior management role of Mr Khemlani was unclear.
The Harbour Town business is irrelevant because it preceded the relevant period. For the same reason, the purchase of an investment property in or about November 2001 (which is still held) is irrelevant.
It was submitted on behalf of Mr Khemlani that “the efforts made were in the light of the background circumstances referred to below more than superficial or token, required exertion or endeavour and were vigorous and determined”. The background circumstances referred to “are the global financial crisis which occurred in the period 2007/2008… On his evidence the Primary Applicant has stated that he had invested in shares and lost substantial funds as a result of the “crash” which put him back substantially in his business endeavours … To keep his family supported (they had already taken up residence in Perth on student visas in May 2006) he had to keep his business in Indonesia running. On his evidence, he would work approximately ten hours a day in that business and worked approximately six days a week … nevertheless he has spent approximately ten days in every month in Australia during which time he has pursued his attempts at compliance with section 134(1)(a) of the Act.
The Tribunal finds that the efforts undertaken by Mr Khemlani cannot fairly be described as was submitted on his behalf. They were not “vigorous and determined”. They did not involve any significant “exertion or endeavour” and were really no more than “superficial or token”. They were no more than ad hoc efforts. The Tribunal accepts that this may well have been so as a consequence of the “background circumstances” referred to on behalf of Mr Khemlani. That, however, does not change the nature or character of Mr Khemlani’s efforts: it simply explains why they were so.
The Tribunal thus has little hesitation in concluding that Mr Khemlani, as the primary applicant, did not make any “genuine efforts” to obtain a substantial interest in an eligible business in Australia and to utilise his skills in actively participating at a senior level in the day to day management of an eligible business.
The Tribunal therefore turns to consider the detailed submissions contained in the applicant’s submissions after hearing in relation to the exercise of the residual discretion.
RESIDUAL DISCRETION
Starting with the best interests of the 2 children (of which only one is a minor), assuming, without deciding, that it is in fact proper to have regard to such matters when considering the residual discretion, the Tribunal finds that it is in their best interests to be with their parents. The Tribunal is not satisfied that it is in their best interests to remain in Australia, as opposed to returning to Indonesia. The evidence before the Tribunal did not squarely address this issue (as opposed to the related, albeit different issue of “hardship”).
Next, it was submitted “there is potential benefit to the Australian community to exercise the discretion as when the Primary Applicant acquires a business interest he will be further contributing to the Australian economy and community. This is evidenced by his previous opening of a retail clothing business in Harbour Town which unfortunately failed, but which did employ staff whilst operating … Furthermore, the Primary Applicant and his wife still own the investment unit in Sydney which they submit also contributes to the Australian community as creating employment for the management and maintenance of that unit.”
The Tribunal does not accept these submissions. There is no benefit to the Australian community “as a whole” by the visa not being cancelled. Having said that, however, nor does the Tribunal find that there will be any detriment to the Australian community “as a whole” if the visa is not cancelled. In short, the Tribunal sees no relevant benefit nor detriment to the Australian community as a whole nor in its international relations if the visa is cancelled.
As to whether there will be hardship to the applicants if Mr Khemlani’s visa is cancelled, for the reasons set out below when considering the applications of the secondary visa holders, the Tribunal is prepared to accept for present purposes that there will be “hardship” to the applicants of the nature therein set out.
As for whether a decision setting aside the cancellation would adversely affect the objectives of Australia’s migration policy, the Tribunal has no hesitation in concluding that it will. The policy underlying section 134 of the Act is clear and Mr Khemlani has failed to do that which the section speaks of. Moreover, Mr Khemlani continues to live and operate his business in Indonesia. He has no business interests in Australia. The Tribunal has heard no evidence of him having any close friends in Australia. He has no extended (as opposed to immediate) family in Australia. There is no investment that he has made in Australia that requires his presence here.
Ms Punjabi similarly has no extended family in Australia. She has no business interests in Australia. The evidence establishes that she has lived in Australia solely because of the fact that, pursuant to the decision made by Mr Khemlani and Ms Punjabi, their children are here, initially pursuant to student visas, and then subsequently as secondary visa holders in respect of Mr Khemlani’s business visa.
The children are here as secondary visa holders. Their positions will be analysed in detail below. For present purposes it is sufficient to note that they have lived in Australia for several years, have formed close friendships and wish to remain here permanently (so as to complete their education and thereafter to work here). Importantly, their expectations about remaining in Australia permanently have been brought about as a result of Mr Khemlani and Ms Punjabi misinforming them as to the true nature of their entitlements as secondary visa holders.
In those circumstances, to exercise the residual discretion in favour of Mr Khemlani essentially to allow his children to remain in Australia on a permanent basis is inconsistent with the policy underlying in section 134 of the Act (and indeed, the Act itself). This conclusion is fortified by the fact that the expectations of the children have been brought about by the primary visa holder himself (and his wife) by misrepresenting to their children the true state of affairs. To exercise the residual discretion in favour of Mr Khemlani in those circumstances would in effect enable the Act to be circumvented by primary visa holders (or others on their behalf) giving the secondary visa holders false expectations as to their future in Australia. Such conduct cannot be countenanced; indeed, it must be firmly rejected.
In this regard, the applications referred to and relied upon the following passage from Teo (at [86]):
“The final issue is whether setting aside that cancellation would be contrary to the objectives of Australia’s migration system. In the Tribunal’s view this would only occur where an application has made no effort to meet his original commitment, or where he obtained the visas effectively by misleading the Department.”
The Tribunal’s comments in Teo must be read in the context of the matter then before it. They ought not be read as limiting the issues which may be considered in other cases in regard to whether the exercise of the residual discretion would adversely affect the objectives of Australia’s migration policy. In any event, the decision is not binding upon the Tribunal. If the comments were intended to be of general application, they ought not be followed as there is simply no apparent reason why a consideration of the exercise of the residual discretion by reference to the potential adverse effects on Australia’s migration policy ought be restricted in this (or any) way.
Turning then to the other criteria which have been held to be relevant (and in respect of which submissions were made on behalf of the applicants):
The Tribunal accepts the explanation offered by Mr Khemlani as to why he has not made “genuine efforts” within the meaning of the Act. This factor therefore supports the exercise of the residual discretion in favour of Mr Khemlani.
(b)It was submitted that “whilst the Primary Applicant did not expressly provide evidence that a little more time would allow the(sic) him to fulfil his visa obligations, it is submitted that this should be implied from the Primary Applicant’s ongoing discussions with Justin James and his intention to continue seeking a business interest once the issue of his visa cancellation has been resolved”. The Tribunal disagrees. In the absence of any evidence on the point, there is no reason why the Tribunal ought conclude that all Mr Khemlani needs is a little more time. He has had a number of years to achieve his purpose, but has not done so. He pointed to nothing that was on the verge of fruition. The evidence clearly establishes, and the Tribunal finds, that the granting of a little more time is unlikely to have any impact on Mr Khemlani’s fulfilment of his visa obligations. This factor therefore supports the exercise of the residual discretion against Mr Khemlani.
(c)The Tribunal finds that Mr Khemlani has spent more than minimal time in Australia and, if able to do so, intends to spend more time in Australia in the near future. This factor therefore supports the exercise of the residual discretion in favour of Mr Khemlani.
(d)Mr Khemlani and Ms Punjabi have an investment in a State other than that in which they live. Their residence in Perth is rented. No clear evidence was given as to whether there was an intention to acquire a permanent residential property in Australia in the near future, although the Tribunal is prepared to infer such an intention from the evidence before it. Again this factor supports the exercise of the residual discretion in favour of Mr Khemlani.
(e)It was submitted that “the Primary Applicant has a significant desire to spend the majority of his time in Australia and intends to commit to permanently residing in Australia. He is currently prevented from doing so due to having not yet found a satisfactory business in Australia and so must continue his business in Indonesia in order to support his family financially”. Whilst the Tribunal accepts this, it finds that Mr Khemlani’s intentions are not “serious and realistic” but are “vague”. He was unable to inform the Tribunal of any plan or timeframe with respect to any permanent move to Australia. The Tribunal finds that Mr Khemlani’s present intention is to continue to permanently reside in Indonesia and run his textile business which is the predominant source of his and his family’s income. There are no plans in place for its sale or closure. His efforts to date to find an eligible business in Australia (which would allow him to close his business in Indonesia and relocate permanently to Australia) have been largely ad hoc. It is quite conceivable that, if permitted to do so, the status quo will continue for many years; nothing in the evidence received by the Tribunal causes it to find otherwise. This factor therefore supports the exercise of the residual discretion against Mr Khemlani.
(f)It was submitted that Mr Khemlani and his family have established a home and strong social connections to Australia. The Tribunal agrees with that proposition with respect to Ms Punjabi and the children, but not with respect to Mr Khemlani. Mr Khemlani’s only connection to Australia is the fact that his wife and children live here. Mr Khemlani’s significant connection (from the point of view of friends, extended family, business and permanent place of residence), is with Indonesia. This factor supports the exercise of the residual discretion against Mr Khemlani.
(g)It was submitted on behalf of the applicants that “whilst the Primary Applicant continues to own a business in Indonesia, his intention is to purchase or establish an eligible business in Australia and sell his business in Indonesia. This is evidenced by the fact that the applicant returns to Australia for about ten days every month to visit his family as well as make enquiries about establishing a business in Australia. Until he purchases or establishes a viable business in Australia, he is obliged to continue running his business in Indonesia in order to financially support his wife and children”. That submission is made in connection with the factor that the discretion “should not be exercised where an applicant was still significantly committed to his or her overseas business”. The fact of the matter is that Mr Khemlani is still significantly committed to his overseas business. The submissions made on behalf of the applicants are not inconsistent with that finding as they simply explain why Mr Khemlani is still significantly committed to his overseas business. This factor therefore supports the exercise of the residual discretion against Mr Khemlani.
(h)The next factor for consideration is that the discretion “should not be exercised unless the applicant can demonstrate a sustained commitment to trying to fulfil his or her visa obligations over a significant period”. Assuming, without deciding, that this is a legitimate factor to take into account – the Tribunal has reservations about whether this is so given that a consideration of the exercise of the residual discretion only arises where a finding has been made that there has been no “genuine efforts” made – the Tribunal’s finding is that the evidence establishes only an ad hoc (not sustained) commitment to try and fulfil Mr Khemlani’s visa obligations over a significant period. This factor therefore supports the exercise of the residual discretion against Mr Khemlani.
(i)The next factor is that the discretion “should not be exercised unless the applicant can show he or she has a genuine and realistic intention to begin playing a more substantial role in the eligible business in the near future”. The Tribunal finds this to be an irrelevant consideration for the purposes of this matter as the issue is not one of the applicant not participating in a sufficiently substantial role in an eligible business, but rather that there does not exist an eligible business in which Mr Khemlani can participate, either now or in the near future. The Tribunal considers this factor to be neutral.
(j)The final factor is that the discretion “should not be used where a more appropriate visa option or solution is available to the applicant”. The focus here is on Mr Khemlani, not his wife or his children. In regard to Mr Khemlani, no evidence was adduced for which a finding could be made that a more appropriate visa option or solution is available to him. This factor therefore supports the exercise of the residual discretion in favour of Mr Khemlani.
In the end, of all the criteria that has been considered, the main factor weighing in favour of the exercise of the residual discretion in favour of Mr Khemlani is the position of his children. However, for the reasons given, such considerations are significantly outweighed by many of the other facts to which the Tribunal has referred, particularly the Tribunal’s view that to exercise the residual discretion in favour of Mr Khemlani would be wholly inconsistent with the evident purpose and policy of the Act, a position brought about by Mr Khemlani and his wife failing to properly qualify the expectation they gave to their children with respect to their future in Australia and Mr Khemlani’s failure (notwithstanding for understandable reasons) to undertake anything more than ad hoc efforts to satisfy the conditions of his visa.
The Tribunal therefore refuses to exercise the residual discretion in favour of Mr Khemlani.
EXTREME HARDSHIP
The Tribunal finds that none of the secondary applications have made out a case of “extreme hardship” within the meaning of the Act.
As for Ms Punjabi, nothing was advanced by way of hardship on her part other than by reference to her children, namely an inability to give effect to her desire to have her children educated, and to live, in Australia, the impact upon her as a mother and the impact upon her children of having their visas cancelled and any hardship arising from a physical separation from her children should her visa be cancelled in circumstances where her children’s visas are confirmed.
On no account can the first two of the three factors referred to above be described as “hardship”. No doubt they will be matters of great disappointment and regret to Ms Punjabi; but they do not constitute “hardship”. Even if, contrary to the Tribunal’s finding, such matters could properly be described as “hardship”, they do not constitute “extreme hardship” within the natural and ordinary meaning of those words and as construed by the authorities referred to earlier.
The Tribunal accepts that a physical separation from her children would well constitute “hardship” on the part of Ms Punjabi, but again not “extreme hardship”. This is particularly so given that any such separation will be as a result of the children permanently residing in Australia, which is exactly what Ms Punjabi wants; the fact that the evidence establishes financial capacity on the part of the family to allow for at least one family member to travel between Indonesia and Perth each month; the age of the children and the ability to regularly communicate, not only by telephone and email, but by Skype.
In any event, such considerations are academic as the Tribunal’s decision will not result in any physical separation between Ms Punjabi and her children.
Turning then to Javin, he is now of adult age and has finished his secondary schooling. He has not yet started university. If he returned to Indonesia, his father made it clear in evidence that he would welcome Javin into the family business. That, however, is not something that Javin wants to do. He wants to pursue further education. He cannot do that in Indonesia because he is not sufficiently proficient in the Indonesian language, either written or oral.
Javin also wishes to explore the possibility of developing a career in soccer. He does not believe that this is something that he will be able to do in Indonesia.
Javin has many close friends in Australia. He has no close friends in Indonesia and is not close to his extended family.
As he has been told from a very early age that he would live in Australia, it is understandably difficult for Javin to comprehend the possibility that what he has been told may not come to pass and he may have to return to Indonesia.
It is unclear from prior decisions as to whether or not such circumstances constitute “hardship” as opposed to mere “disappointment” and “inconvenience”. For present purposes, the Tribunal is prepared to proceed on the basis that such matters do constitute “hardship”. Notwithstanding, the Tribunal does not consider such “hardship” to be “extreme”. There is no question of Javin having to interrupt existing studies. He has a job available for him in Indonesia. If he wishes to continue his studies, he can apply for a student visa to enable him to return to Australia for that purpose. Any such application would, of course, have to be considered by the Department on its merits. However, there was nothing in the evidence to suggest that there exists some obstacle (insuperable or otherwise) to such an application succeeding.
It is said that this does not obviate the hardship that the cancellation of Javin’s visa will create because a student visa, unlike the visa presently held should it not be cancelled, would not entitle Javin to remain in Australia after the conclusion of his studies. To do that, he would need to make a further visa application.
That is true. However, it is simply wrong in principle for a secondary visa application to assert “extreme hardship” as a result of the lack of any permanence with respect to residing in Australia. This is because the entitlement to permanence arising from the grant of a sub‑class 132 visa is conditional upon the visa conditions and/or the Act being satisfied. It is incumbent upon primary visa applicants to make very clear to their spouses and children to whom secondary visas are granted the true nature of the tenure associated with the grant. A failure to do so or, as in this case, a positive misrepresentation of the position, cannot subsequently be relied upon by the secondary applicants to make out a case of “extreme hardship”. To do so would be wholly inconsistent with the policy of the Act.
There is no evidence before the Tribunal by which it could make any findings as to Javin’s prospects of progressing with soccer in Australia or in Indonesia. It is not a factor which therefore can properly be taken into account, and the Tribunal does not do so.
The same observations apply to Angela, save that her position is further complicated by the facts that:
She is still at school.
(b)She wishes to become a lawyer and practise law in a country which she considers (rightly or wrongly) offers greater opportunities to women than in Indonesia.
If Angela had to return to study in an Indonesian school, with the consequence that she would be retarded in her completion of secondary school by up to 2 years, this would seem to be close to, if not within, the territory of “extreme hardship”. However, the evidence establishes, and the Tribunal finds, that if Angela returns to Indonesia, she will be able to complete her secondary schooling education in the International school that she originally attended, and that that is exactly what her parents would facilitate.
As to the other matter raised by Angela, this is not a matter in respect to which any evidence was led other than evidence of Angela’s personal perceptions. The Tribunal is not in a position to, and therefore does not make any findings of fact with respect to those matters.
In any event, it is open to Angela, once she has concluded her secondary schooling in the International school in Indonesia, to apply to return to Australia on a student visa to undertake studies in law.
With respect to Javin and Angela, the Tribunal received evidence from a forensic psychologist, Ms Genevieve Willis. The summary of her professional opinion in the matter was in the following terms:
“It does appear that cancelling the visa of the secondary applicants would cause ‘extreme hardship’. Angela is in Year 11 at Penrhos(sic) College where she has studied since she was in year 4. Both children have spent very formative years in Australia, transitioning from childhood, through adolescence and into young adulthood. They are most certainly be(sic) integrated into Australian culture. Mrs Punjabi is also be(sic) integrated into Australian culture after living her(sic) for 7 years. She has developed strong friendships here and whilst she has her family in Indonesia, she reported she has lost contact with friends there.
It appears that there are several barriers to them having happy and fulfilling lives in Indonesia. For the children there are issues of being set back in their studies and having major limitations for possible career paths. There are also the difficulties of living in a mainly Muslim country and being non-Muslims. For Angela, as a young female and to have most of her living memories growing up in Australia, it would be likely to be the(sic) most difficult to adjust to living in a Muslim dominated culture. They all report that it is not safe for non-Muslims in some areas of the city. There are difficulties for them all with the Indonesian language, as Mrs Punjabi and Javin reported that they speak Indonesian, but cannot write the language, and Angela reported that she can neither write nor(sic) speak the language. It is reportedly necessary to be fluent in Indonesian to study and work there.
They would all be separated from secure and supportive friendship groups. They would have to adjust to majors(sic) changes in their lifestyle, such as a lack of independence and not be able to enjoy the outdoor lifestyle that they do here. Angela is at risk of having increased problems with asthma in Jakarta. Angela is at a critical stage in her education and this would be severely interrupted by a return to Indonesia. Given her present (though relatively minor) issues with anxiety, she may be at risk of suffering an anxiety disorder if placed under the pressures that returning to Indonesia would mean for her. Finally, it would appear that the family are very close and have strong relationships. It is likely to be detrimental to the family should they be separated.”
In cross-examination, Ms Willis confirmed that she identified no major psychological issues with either of the children (although, as noted in the “summary” above, Angela has “relatively minor issues with anxiety” and thus “may be at risk of suffering an anxiety disorder if placed under pressures that returning to Indonesia would mean for her”.
This evidence falls far short of establishing any additional matter in support of Javin’s and Angela’s submissions with respect to “extreme hardship”: it adds nothing to that which the Tribunal is able to determine for itself from the evidence adduced at the hearing.
Finally, the Tribunal notes that it was submitted on behalf of Javin and Angela that “applying for student visas to re-enter Australia prolongs their uncertainty as to what their future visa entitlement in Australia will be”, that “affirmation of (the cancellation decision) will result in a loss of confidence in essential guiding figures in their lives, namely their parents” and that “either of these scenarios represents … extreme hardship”. The Tribunal disagrees. Uncertainty as to what the children’s future visa entitlement in Australia will be, if constituting “hardship” at all, cannot properly be categorised as “extreme”. As for any loss of confidence in their parents, that is not a matter of “hardship” let alone “extreme hardship”. Moreover, even if “extreme hardship”, it arises not from the cancellation decision, but from what the children were wrongly told by their parents.
To make it clear, the Tribunal has much sympathy for the position that Javin and Angela find themselves in. That sympathy, however, cannot translate in the reversal of the reviewable decision with respect to Javin and/or Angela as there exists no legal basis for doing so. In particular, unlike the position of the primary visa holder, there is no residual discretion to be exercised in respect to the secondary visa holders.
CONCLUSION
By way of conclusion to its Statement of Facts and Contentions, the Respondent submitted that the decisions under review should be affirmed because:
“50.1 the primary applicant has failed to obtain a substantial ownership interest in an eligible business in Australia;
50.2 the primary applicant has failed to utilise his skills in actively participating at a senior level in the day-to-day management of an eligible business;
50.3 the primary applicant has failed to demonstrate that he intends to continue maintaining a substantial ownership interest in an eligible business in Australia, or utilise his skills in actively participating at a senior level in the day-to-day management of an eligible business;
50.4 the primary applicant has failed to make any genuine efforts to obtain a substantial interest in an eligible business in Australia or to utilise his skills in actively participating at a senior level in the day-to-day management of an eligible business;
50.5 the secondary applicants will not suffer from extreme hardship as a result of the cancellation of the primary applicant's visa;
50.6the correct or preferable decision is that the applicants' visas should be cancelled.”
The primary applicant did not suggest that the propositions contained in 50.1, 50.2 or 50.3 of the Respondent’s Statement of Facts, Issues and Contentions ought not be upheld and rightly so: the evidence clearly establishes each of those propositions.
For the reasons given in paragraphs 41 to 47 above, the Tribunal agrees with paragraph 50.4 of the Respondent’s Statements of Facts, and Contentions, namely that Mr Khemlani did not make any “genuine efforts” to obtain a substantial interest in an eligible business in Australia or to utilise his skills in actively participating in or at a senior level in the day-to-day management of an eligible business.
For the reasons given in paragraphs 48 to 60 above, the Tribunal is not persuaded that there exists any reasons (or combination of reasons) to justify the exercise of the residual discretion provided by section 134 of the Act in favour of Mr Khemlani.
For the reasons set out in paragraphs 61 to 82 above, the Tribunal agrees that the secondary applicants have not established that they will suffer “extreme hardship” as a result of the cancellation of the primary applicant’s visa.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for the decision herein of Mr S Penglis, Senior Member and Mr W Evans, Member
( Sgd) D. A Chapman
…………………………………
Administrative Assistant
Dated: 14 June 2013
Date of hearing:
16 and 17 April 2013
Written submissions after hearing
23 April 2013 (respondent) and 3 May 2013 (applicants)
Counsel for the Applicants:
Mr M Rothstein
Solicitors for the Respondent:
Rothstein Lawyers
Counsel for the Respondent:
Mr A Gerrard
Solicitor for the Respondent:
Australian Government Solicitor
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