Harianto and Minister for Immigration and Multicultural and Indig Enous Affairs

[2003] AATA 184

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 184

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/682

GENERAL ADMINISTRATIVE  DIVISION		)
Re		NELLY HARIANTO

Applicant

And MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member

Date4 February 2003

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing, the Tribunal the Tribunal sets aside the decision under review and remits the matter to the Respondent for further consideration in accordance with the Tribunal's reasons for decision.

G Ettinger
  Senior Member

CATCHWORDS

IMMIGRATION – business skills (migrant) (class AD) visa – cancellation of Applicant’s mother’s primary business skills visa – cancellation of Applicant’s visa as secondary visa holder – extreme hardship – meaning of extreme hardship – subjective test

Migration Act 1958 – section 134(4) and (5)

Freeman & Secretary, Department of Social Security (1998) 19 FCR 342

Wong v Minister for Immigration & Multicultural Affairs 2000 AATA 961

Kim v Minister for Immigration & Multicultural Affairs (1995) 37 ALD 481

Salim & Others v Minister for Immigration & Multicultural Affairs (2002) AATA 899

REASONS FOR DECISION

4 February 2003   Ms G Ettinger, Senior Member                 

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. The Respondent pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. 

3.        The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member G Ettinger

Signed:         
          ....................................................................................……………………………….

Associate

Date of Hearing  4 February 2003

Date of Decision  4 February 2003

Representative for Applicant      Mr Christopher Livingstone

Solicitor for Respondent              Mr Murray Allatt

DRAFT JUDGMENT
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N 2002 of 682
By SENIOR MEMBER G. ETTINGER
HARIANTO v MIMIA
SYDNEY, TUESDAY, 4 FEBRUARY 2003

MS ETTINGER: The matter before the Tribunal was an application made by Ms Nelly Harianto, the applicant in these proceedings, seeking review of a decision by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, the respondent, made on 23 April 2002 cancelling her business skills visa pursuant to section 134 of the Migration Act 1958. The visa so issued to the applicant as a member of a family unit of Ms Fi Fong Chu, she having at one time satisfied the relevant requirements referrable to the establishment of an eligible business in Australia.

Once Ms Fi Fong Chu's visa had been cancelled the respondent was then by statute required to cancel the secondary visa of Nelly Harianto and her brother. The cancellation is subject to the provisions of section 134 subsection 4 and subsection 5 of the Act. At the hearing of this application the applicant was represented by Mr Christopher Levingston, solicitor, and the respondent by Mr Murray Allatt, solicitor of the Australian Government Solicitor.

The issue before the Tribunal: I have noted that sections 134 subsection (5) of the Migration Act provides that the Minister must not cancel a business visa under subsection 134(4) if the cancellation of that visa would result in extreme hardship to the secondary visa holder, so that the issue for determination by the Tribunal is whether the cancellation of the applicant's visa would result in her experiencing extreme hardship. The relevant legislative provisions, we all know, are section 134 which deals with cancellation of business visas, as I have spoken about above.

The evidence before the Tribunal: The documents lodged by the respondent with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 are before the Tribunal. The applicant also tendered the statement of the applicant dated 20 December 2002, which was exhibit A2, and the report of a psychologist, Dr Christopher Lennings, which was exhibit A1.

I move then to the evidence of Ms Nelly Harianto: Ms Harianto's statement dated 20 December 2002 was exhibit A2; she also gave oral evidence. Mr Levingston made an application for certain additional evidence, which the applicant wished to give, to be made confidential. As it was of a sensitive and personal nature, I agreed it would be suppressed pursuant to a confidentiality order made under section 35 of the Administrative Appeals Tribunal Act 1975. As to further evidence, I noted that Ms Harianto was born in Indonesia on 20 March 1978. She came to Australia with her brother on a student visa.

From 1999 until its cancellation on 23 April 2002 the applicant held a business visa as a dependant of her mother's business skills visa.  The applicant told me that she graduated from the University of New South Wales with an Arts Degree majoring in psychology and sociology.  She is currently running a cafe, an activity commenced in July 2002, that is, after the cancellation of the visa in April 2002, the date currently taken into account.  Ms Harianto then gave evidence of certain events which occurred in her childhood in Indonesia which she claimed to have impacted on her life and contributed to her claim that to return to Indonesia would cause her extreme hardship.

She was able to recall details such as dates, names and occurrences and, as I agreed to make a suppression order pursuant to section 35 of the AAT Act, I have not detailed this evidence here. I do note, however, that Mr Allatt cross-examined Ms Harianto about these events. The applicant indicated that she had informed her parents about the disturbing events and that she had been disappointed in their reactions to her distress. Ms Harianto gave evidence that she visited her family in Indonesia from time to time and her travel dates are documented at paragraph 50 of her statement and at exhibit A2.

She described her relationship with her parents and life in Indonesia for her.  She claimed the difficulties were her parents tried to exert what she considered excessive control over her in relation to living in their house and being dependent on them.  In that regard, she also gave evidence of her sister aged 28 who has lived in Singapore for 10 years, and her brother, who wanted to stay in Australia.  She told me that her parents were seeking to retire, in part due to the political pressure and problems they had experienced, and she would have no choice but to take over the family hardware business if she returned there.  She did not want to do that.

There was pressure on her to marry a person selected by the family as suitable and this was raised in conversation with her regularly she said, and not to be resisted if she moved back to Indonesia.  Ms Harianto also discussed fears of encountering certain relatives whom she did not want to meet.  The applicant also told me that she felt Australian and preferred the mores of Australia in relation to honesty and could not relate to the way of life and corruption in Indonesia.  Ms Harianto also said that she has always wanted to come and live in Australia and loves the freedom of choice here.

I next move to consider the report of Dr Christopher Lennings:  A comprehensive report including results of tests carried out by Dr Christopher Lennings, a psychologist, was exhibit A1 before the Tribunal.  He did not address the additional issues Ms Harianto raised at the Tribunal because she did not tell him about them.  Dr Lennings described from his findings that Ms Harianto, who is of Chinese descent, had an unhappy childhood due to anti-Chinese sentiment and expressions of that in Indonesia.  He also recognised her feelings towards her parents, whom she described also to the Tribunal, as traditional and conservative.

He mentioned that she described them as controlling and keen to see her in a marriage they would arrange for her in Indonesia and keen to have her involvement in the family business.  Dr Lennings described Ms Harianto as being a woman of good psycho-social adjustment despite having a somewhat difficult childhood.  He found her to be intelligent, psychologically resourceful and well adjusted.  He mentioned if returned she would be in a fraught family situation.

Submissions and conclusions:  In coming to a decision I had to take into account the evidence, both written and oral, the submissions of the parties as well as the legislation and relevant case law to decide whether the cancellation of the visa granted to the applicant would result in extreme hardship being experienced by her.  I was mindful that it is well settled that the Tribunal may have regard only to evidence which relates to events, actions or intentions which occurred or were held prior to the time of the cancellation decision.

The approach to cancellation decisions is well stated in the decision of Davis J in Freeman v Secretary, Department of Social Security. The citation is (1988) 19 FCR 342. I was mindful there was no disagreement between the parties in that regard, and Mr Allatt in his helpful statement of facts and contentions has mentioned other cases such as ACI Pet Operations v Controller General of Customs, Nong v Minister for Immigration and Multicultural Affairs, and others which have been followed in Tribunal decisions such as Taslim, R Wong and R Puhrnama.

Accordingly, Mr Levingston considered, and I agree, that since Ms Harianto's cafe had only been operating since July 2002, that activity was not relevant to the decision before the Tribunal.  I have noted further that the parties endorsed, and I agreed with the approach to the issue of hardship taken by Deputy President McMahon, as he then was, in Si Way Wong v Minister for Immigration and Multicultural Affairs, a decision given in 2000, the AAT number is 961. The Deputy President stated at paragraph 28:

"Hardship from the point of view of the person allegedly experiencing must be judged subjectively."

Further, at paragraph 29:

"Clearly, hardship involves more than inconvenience or detriment.  Affectation must be to a considerable degree before it can properly be called hardship."

At paragraph 30 the Tribunal considered the significance that should be ascribed to the word "extreme" as used in the statute.  The Tribunal 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 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 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 the Minister cancelling another person's business visa under subsection (4) there must be shown not only to be hardship and not only undue hardship but extreme hardship.  The relevant hardship must be a necessary consequence of the cancellation of the visa.  A mere possibility or probability would not be sufficient.  There must be shown not only hardship of an extreme kind but hardship which would follow the cancellation.  One is to look at the consequences to the applicant that would result from the cancellation."

I noted the meaning to be ascribed to the words "extreme hardship" was also considered by the Federal Court in Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481. It is said there:

"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 valuated 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."

The Court continues:

"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".  Within the area there may be varying degrees of burden; one less than another but each meriting the description."

I have also noted further in Salim and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2002) AAT 899, where Deputy President Purvis affirmed the decisions of the respondent in regard to three dependents in situations not dissimilar to the present one.  He stated as relevant:

"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 of their formative years in this country, having received a part or whole of their secondary education and tertiary education at Australian schools, 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.

It would be strange or unusual or 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 your 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;  emotion, yes;  financial, yes, to a degree, but not extreme"

.

Having considered all that case law, I turn to Mr Levingston's submissions regarding the applicant in which he submitted I should accept the evidence of the applicant, as given, and the assessment of Dr Lennings.  I have no problem about that.

Mr Levingston conceded, and I agreed, that the issue of political unrest, the economic situation and anti-Chinese sentiment in Indonesia, whilst they may create difficulties for the applicant, did not in this type of case assist with the extreme hardship test.  That was also, of course, the view of Mr Allatt - and I accepted that.  What was relevant, however, Mr Levingston submitted was that Ms Harianto arrived in Australia aged 17;  that she had spent seven formative years in education, including tertiary education here, and that she is oriented towards Australia in her thinking and her lifestyle.

He submitted that the evidence indicated Ms Harianto had expectations stemming from her psychological needs and her Australian training which her parents could not fulfil, citing their relevant indifference to her informing them of childhood problems.  He referred to paragraph 22 of Dr Lennings' report and his reference - that is, the doctor's report - to a fraught family situation.  Mr Levingston referred to Ms Harianto's evidence which was that she had no means of independent support if she returned to Indonesia.

She would be required to live in her parents' home, which she said she would find intolerable.  She would be pressed into an arranged marriage with no other alternative available and she would be pressed into working in the family business.  He emphasised at age 25, with her Australian orientation, Ms Harianto, notwithstanding that she is resourceful, would find that oppressive and totally unacceptable.  Referring to her affidavit, Mr Levingston said that Ms Harianto had written there that she was no longer part of her society at home and viewed Indonesia as Australians do, as a holiday destination.  He related that to the cultural transition she had undergone.  He submitted that, taken as a totality, that constituted extreme hardship.

Mr Allatt submitted that the economic, political and anti-Chinese situation did not go to the issue of extreme hardship. He submitted that the relevant issues to be considered in relation to extreme hardship were Ms Harianto's family situation, personal matters made confidential pursuant to the section 35 order, Ms Harianto's view of herself as an Australian, the degree of possibility in relation to the parents pressing for an arranged marriage and the business involvement in Indonesia, as described by the applicant.

Mr Allatt submitted that the way Ms Harianto had managed to deal with the issues raised in the evidence regarding the personal matters led to the view that this issue did not meet the test for extreme hardship.  Mr Allatt submitted he relied on the cases of Wang and Salim, which have been mentioned above.  In his written submissions at paragraph 14 Mr Allatt stated that to establish extreme hardship one had to do more than merely assert it;  one must provide an evidentiary basis or foundation for it.

Having considered the evidence, case law and legislation, I took further account of the submissions of the parties and I have included in that, although it wasn't tendered, the respondent's statement of facts and contentions.  I agree with the assessment that Ms Harianto is a resourceful and intelligent person and, accordingly, she has coped well with a new environment in Australia.  She arrived here aged 17 on a student visa and has completed her bridging studies and a degree.  Indeed, Ms Harianto has adjusted so well that she has adopted Australian values and feels Australian.  She spoke to me about the honesty of Australians and her abhorrence of corruption she experienced in Indonesia.

As Mr Levingston submitted, and I accepted, the applicant was in her formative years and has spent the last seven years becoming Australian.  Mr Allatt had cross-examined the applicant about the personal evidence she gave and made no submissions that I not accept it.  He did, however, submit that this issue did not meet the extreme hardship test.  I have, however, considered that it is certainly one of the factors that leads to that.  I have considered the submissions of both parties and Ms Harianto's evidence regarding what a difficult time she would have returning to her family where, what she considers, excessive control would be exerted upon her.

This extends to whom she marries and there is uncontroverted evidence that there is pressure from her parents to enter into an arranged marriage. As the applicant is unmarried now, there is no alternative to living in her parents' home. To give up the Australian mores she values so much and to work in the family hardware business, which she doesn't want to do - vigorously doesn't want to do - she would also have to be involved in family functions with visitors she may not care to welcome. In particular, given her evidence in the section 35 part of the hearing, in my view, she would generally suffer extreme hardship. I find from all the material before me that the applicant would suffer extreme hardship as contemplated by the legislation and the case law if her Australian visa were cancelled.

My decision is then as follows: The Tribunal is satisfied that cancellation of Ms Harianto's visa would, so far as she is concerned, result in extreme hardship to her in satisfaction of the tests in section 134 subsection (5) of the Migration Act. Accordingly, the Tribunal sets aside the decision under review and remits the matter to the respondent for appropriate action to be taken.