Howes and Minister for Immigration and Citizenship

[2008] AATA 905

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 905

ADMINISTRATIVE APPEALS TRIBUNAL      )

)       No: 2007/1660

GENERAL ADMINISTRATIVE DIVISION		)      No: 2007/1661
Re		MARK OWEN HOWES RICHARD JAMES HOWES

Applicants

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Ms L R Tovey, Member

Date              6 October 2008

PlacePerth

Decision The Tribunal sets aside the decision of the Respondent to cancel the 127 business skills visas of Mark Owen Howes and Richard James Howes.

…(sgd) Ms L R Tovey.............

Member

CATCHWORDS

IMMIGRATION – business skills visa – extreme hardship – turns on own facts

Migration Act 1958 (Cth), s134

Procedures Advice Manual (PAM), paragraph 15.2

Chawla and Minister for Immigration and Citizenship [2008] AATA 715

Kim v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 38 AAR 304

Kumar v Minister for Immigration and Ethnic Affairs (1997) 144 ALR 441

Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481

Re Janes and Secretary, Department of Employment and Workplace Relations (2008) 103 ALD 222

Re Philp and Minister for Immigration and Citizenship (2007) 99 ALD 368

Vairy v Wyong Shire Council (2005) 223 CLR 442

REASONS FOR DECISION

6 October 2008 Ms LR Tovey, Member

1.      This is an application for review of decisions made by a delegate of the Respondent ("the Minister") on 4 April 2007 cancelling the 127 business skills visas of Mark Owen Howes and Richard James Howes.  Because they have a common surname, it is convenient to refer to the applicants by their first names.

BACKGROUND FACTS

2.      The following background facts, which I find by reference to the applicants' written statements, were not in contention between the parties.

3.      Mark and Richard are currently aged 23 and 21 years respectively.

4.      The applicants are both citizens of Zimbabwe.  In 2002 the two family farms operated by their parents were forcefully taken from them by the Zimbabwean government without compensation.  The applicants' family were given 45 days to leave the farms with threats of beatings if they had not moved by then.  The applicants', with their parents, subsequently moved to Harare where the applicants' father found a job as a site manager at a hotel that was being renovated at the time.

5.      In early 2003 the applicants' father applied for a business skills visa, which was granted on 29 April 2003.  Both the applicants were granted visas as secondary holders at that time, as were their mother and two other brothers.

6.      The applicants' first came to Australia, with other members of their family including the applicants' father, at the end of 2003 to get an indication of what life in Australia would be like in comparison to what they were experiencing in Zimbabwe.  At that time it had been Mark's intention to start university in South Africa when the family returned to Zimbabwe.  However, while in Perth Mark and his parents decided that he should commence his university studies at Curtin University.  The fact that he had a visa and had relatives in Perth influenced that decision.  The applicants' parents decided to remain in Zimbabwe at that time.

7.      Mark commenced the first year of a Bachelor of Arts course at Curtin University in Perth in February 2004.  In October 2004 his youngest brother was killed in a traffic accident in Zimbabwe.  As a result he returned to Zimbabwe to be with his family.  While there he decided not to continue his Bachelor of Arts degree.

8.      In February 2005 Mark returned to Australia with Richard.  Mark intended to start a plumbing apprenticeship, and started a pre-apprenticeship course in July 2005.  He completed the pre-apprenticeship course and began his apprenticeship at the beginning of 2006.  He was continuing his apprenticeship at the date of the hearing of this application.  During this time he was involved in study at TAFE and other work to support himself, including packing supermarket shelves at night.

9.      Since his arrival in February 2005 Richard has undertaken a variety of manual labouring jobs and a short course as a fitness trainer.  At the hearing of this application he had been accepted as a student in a Bachelor of Science course, majoring in sports and exercise science, at Edith Cowan University in Perth.

10.     On 4 April 2007 the business skills visa of the applicants' father was cancelled.  The Minister's delegate also cancelled the applicants' visas on that date, as a consequence of the cancellation of their father's primary visa and in the absence of any representation by the applicants that they would suffer extreme hardship if their visas were cancelled.

11.     The applicants now seek a review of that decision by this Tribunal.

LEGISLATIVE BACKGROUND

12. In general terms, s. 134 of Migration Act 1958 (Cth) ("the Act") confers a discretionary power on the Minister to cancel a primary holder's business class visa in circumstances where the holder has not, and does not intend to, hold a substantial interest in and participate in the management of an eligible business.

13. Section 134(4) the Act provides that, subject to s. 134(5) and s. 135 of the Act, the Minister must cancel a business skills visa held by another person who is a member of the family unit of the holder of the cancelled business skills visa if that person would not have held the business skills visa but for that membership.

14. Section 134(5) of the Act provides that the Minister must not cancel the other person’s business visa under s. 134(4) if the cancellation of that visa would result in extreme hardship to the person.

ISSUES

15.     It is common ground between the parties that the only issue for my determination is whether cancellation of the applicants' visas would result in extreme hardship to them.

APPLICABLE PRINCIPLES

16.     In Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481 at 487 Foster J stated, in the construing the phrase "extreme hardship or irreparable prejudice" appearing in reg 812.723(6)(a) of the Migration Regulations 1993 (Cth):

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

17.     However, as Tamberlin J noted in Kumar v Minister for Immigration and Ethnic Affairs (1997) 144 ALR 441 at 446, the words "extreme hardship" call for no paraphrase or substitution.

18.     In that regard, I note the Minister's reference to paragraph 15.2 of the Procedures Advice Manual (PAM) issued on 15 March 2007, which states:

"Under policy, 'would result' means that the hardship that will be a necessary and a direct consequence of the visa cancellation rather than a possibility or probability. For example, a student would need to demonstrate that as a direct consequence they could not eventually complete their studies on a Student or other visa.

'Extreme hardship' is not [a] defined term for business visa cancellation purposes. Under policy it means that the visa holder would face the utmost or highest degree of hardship if their visa were to be cancelled. The relevant hardship must be a necessary consequence of the cancellation of the visa, a mere possibility or probability would not be sufficient to constitute extreme hardship (emphasis added)."

19. There are a number of points at which this passage, in my view, goes beyond the effect of s. 134(5) of the Act.

20.     Firstly, in referring to "the utmost or highest degree of hardship" the policy engages in the kind of paraphrase and substitution which Tamberlin J cautioned against in Kumar.  As Tamberlin J recognised in that case, there may be a range of degrees of hardship and it is an error to paraphrase the provision in terms of an absolute test.

21. Secondly, while the Act specifies a requirement that the cancellation "would result" in extreme hardship, it does not distinguish between direct and indirect consequences. Hardship may be relevant even if it could not be said to be a "direct" consequence of the cancellation of the visa. For example, if the cancellation would require a person to return to a place where they would be subject to violence, it would ordinarily be difficult to characterise a resulting injury as a direct consequence of the cancellation of the visa. That does not deny that a conclusion that the cancellation of the visa "would result" in extreme hardship would be open in those circumstances.

22. Thirdly, the policy states that a "mere possibility or probability would not be sufficient to constitute extreme hardship". It is true that the Act specifies that the cancellation "would result" in extreme hardship. It does not specify that the cancellation "might result" or "would probably result" in extreme hardship. However, as Keifel J pointed out in Kim v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 38 AAR 304 at [33], the words "would result" do not however require more than the civil standard of proof. Keifel J considered that the Tribunal would err if it required that "hardship must be extremely likely or even certain to follow from the cancellation".

23.     As I noted in Re Janes and Secretary, Department of Employment and Workplace Relations (2008) 103 ALD 222 at [30]-[31], a policy must be consistent with the relevant Act before it can be adopted to aid an administrative decision. Because the PAM is, in my view, inconsistent with s. 134(5) of the Act in the above respects, it does not reflect an approach which I should adopt. All that is required, in my view, is that I be satisfied that it is more probable than not that extreme hardship would result from the cancellation of the applicants' visas.

24.     The issue which I have identified is a question of fact, to be determined having regard to all of the relevant material placed before me.  I note that there was a tendency in both parties' written submissions to refer to the facts of other cases which have been determined by the Tribunal with a view to identifying factors which should, or should not, constitute extreme hardship.  I do not consider that to be a useful exercise, and understood both parties to disavow the approach in their oral submissions.  Precedents are relevant to the extent that they identify legal principles to be applied to facts as found, but decisions of fact are not binding in later cases.  The ultimate factual judgment will depend upon the evidence and circumstances in the particular case, rather than a comparison of factual conclusions drawn in other cases: Vairy v Wyong Shire Council (2005) 223 CLR 442 at [3]-[4], [30]-[31].

25. Finally, there is a question of the point in time at which extreme hardship is to be considered. If the extreme hardship results from the cancellation, it must occur after the cancellation takes effect. In the present case if the decision to cancel the applicants' visas is affirmed, the cancellation will take effect 28 days after my decision: see s. 134(8) of the Act. It would follow that, in making that prediction, I am not confined to facts or circumstances existing at the date of the Minister's decision to cancel the visas. That is possibly in contrast to the position when the Tribunal considers whether to cancel a primary visa holder's visa: see the discussion in Re Chawla and Minister for Immigration and Citizenship [2008] AATA 715 at [27]-[29]. The Minister accepted that the relevant date which the Tribunal must consider is the date of the hearing, not the date the Minister's delegate made his decision.

CONSIDERATION OF THE ISSUES- EXTREME HARDSHIP

General Observations

26.     The applicants' case was helpfully summarised by their counsel in the following terms:

"The applicants are young adults.  Mark has less than one year to go before he is a qualified plumber.  Richard has only embarked upon a tertiary course but has qualifications which will permit that tertiary course to become a career.  So what the tribunal encounters is two young adults who have embarked on a course pursuant to the visa that has been cancelled which is most likely to lead them to qualifications and a career that will give them a higher degree of security and certainty and, one hopes, happiness and prosperity.  It is a trite proposition, with respect, to point out that a qualification that permits someone to have a career is one of the most important components for a young person in establishing the security and the happiness of their future life.

It is in the context of being deprived of that security and certainty, that the submission is made, that requiring them to go back to Zimbabwe amounts to extreme hardship.  So we would ask the tribunal to stand back from the respondent’s position of comparing distilled and isolated factual phenomena.  To stand back and look at whether for these applicants this is extreme hardship.  On the one hand they, until the cancellation of the visa, were looking forward to enjoy, all being well, a constructive, sensible, certain future in a prosperous, secure, stable democracy.  The result of a cancellation of their visa is to condemn them to financial insecurity and to living in a society in social, economic and political chaos."

27.     I accept that submission, and am satisfied, on the balance of probabilities, that cancelling the applicants' visa would cause them extreme hardship of the kind described in the applicants' submissions.  For the reasons which I explain further below, I accept the above argument and am satisfied, on the evidence taken as a whole, that cancellation of the visas would result in extreme hardship for both applicants.

The Political, Economic and Social Situation in Zimbabwe

28.     The applicants produced a bundle of material describing the political, economic and social situation in Zimbabwe.  Although much of the material was in the form of press reports the Minister, in his Statement of Facts and Contentions, conceded "the basic truth and content of this material".  In those circumstances, I accept that the economic and social situation in Zimbabwe in 2006 and 2007 can be summarised in the following manner, reflected in that material.

29.     A printout of the CIA World Factbook dated 16 September 2007 gave the following description of the historical and then current political situation in Zimbabwe:

"The UK annexed Southern Rhodesia from the [British] South Africa Company in 1923. A 1961 constitution was formulated that favored whites in power. In 1965 the government unilaterally declared its independence, but the UK did not recognize the act and demanded more complete voting rights for the black African majority in the country (then called Rhodesia). UN sanctions and a guerrilla uprising finally led to free elections in 1979 and independence (as Zimbabwe) in 1980. Robert MUGABE, the nation's first prime minister, has been the country's only ruler (as president since 1987) and has dominated the country's political system since independence. His chaotic land redistribution campaign, which began in 2000, caused an exodus of white farmers, crippled the economy, and ushered in widespread shortages of basic commodities. Ignoring international condemnation, MUGABE rigged the 2002 presidential election to ensure his reelection. The ruling ZANU-PF party used fraud and intimidation to win a two-thirds majority in the March 2005 parliamentary election, allowing it to amend the constitution at will and recreate the Senate, which had been abolished in the late 1980s. In April 2005, Harare embarked on Operation Restore Order, ostensibly an urban rationalization program, which resulted in the destruction of the homes or businesses of 700,000 mostly poor supporters of the opposition, according to UN estimates."

30.     The Factbook summarised the economic problems facing Zimbabwe in the following terms:

"The government of Zimbabwe faces a wide variety of difficult economic problems as it struggles with an unsustainable fiscal deficit, an overvalued exchange rate, soaring inflation, and bare shelves. Its 1998-2002 involvement in the war in the Democratic Republic of the Congo drained hundreds of millions of dollars from the economy. The government's land reform program, characterized by chaos and violence, has badly damaged the commercial farming sector, the traditional source of exports and foreign exchange and the provider of 400,000 jobs, turning Zimbabwe into a net importer of food products. Badly needed support from the IMF has been suspended because of the government's arrears on past loans, which it began repaying in 2005.  The official annual inflation rate rose from 32% in 1998, to 133% in 2004, 585% in 2005 and approached 1000% in 2006, although private sector estimates out the figure much higher. Meanwhile, the official exchange rate fell from approximately 1 (revalued) Zimbabwean dollar per US dollar in 2003 to 160 per US dollar in 2006."

The Factbook at that time noted a very high unemployment rate and proportion of the population living below the poverty line (both 80%, 2005 estimate).  Food and fuel are in short supply, and basic commodities have disappeared from regular shops as a result of a dramatic drop in food production and forced government price reductions and freezes.  The result has been to create what was described in an August 2007 report as a thriving black market.

31.     In June 2005 it was reported that:

"Zimbabweans are switching to barter, payment in kind and the use of foreign currencies, such as neighbouring South Africa's rand, instead of the local dollar to survive hyperinflation and the accelerating economic meltdown.

Zimbabwe's currency is still officially pegged at Z$250 to one US dollar; early last week the informal market price was about Z$100,000 to US$1, but by Monday 25 June it had crashed to Z$400,000 against the US dollar. In January this year US$1 was being traded for Z$3,000.

The country's inflation rate - the highest in the world - is officially at more than 3,700 percent, although independent economists believe the real rate of inflation is around 20,000 percent and could reach 1.5 million percent by the end of 2007."

32.     In September 2007 it was reported that US$ 1, previously worth Z$250, was buying Z$30,000 at official rates and Z$200,000 on the black market.  That put Zimbabwe's official annual inflation at 7,364%, with the International Monetary Fund warning that it could reach 100,000% by the end of 2007.

33.     While an end to the "land reform program" was announced in August 2003, seizures of the remaining "white owned commercial farms" were reported in February 2007.  There were continuing reports of political and other violence in the country in 2006 and 2007.  Corruption by public officials was said to be widespread.

34.     The media also report significant health issues facing Zimbabwe, including a significant AIDS and cholera epidemics.  The media further reported that the health system is in a very severe state of neglect.

35.     I note that, since the hearing of this matter, the political situation in Zimbabwe has changed, at least somewhat, following elections held in 2008.  However, neither party has sought to adduce evidence of any change to economic, social or political conditions, or contended that the general situation described in the above material has substantially improved.  In those circumstances, I accept the material presented by the applicants as reflecting the general situation which the applicants would face if forced to return permanently to Zimbabwe.

Impact of the Economic and Social Situation on the Applicants

36.     While accepting the material which leads me to the above conclusions about the general economic and social situation in Zimbabwe, the Minister submits that the material should be treated with caution.  The Minister submits that the Tribunal must take special care to ensure it only examines the subjective situation as it applies to the applicants specifically, and not make pre-conceived or generic judgments merely because of the highly publicised conditions of a country.  The Minister contends that, while Zimbabwe may be under intense international scrutiny, it does not automatically follow that an applicant from Zimbabwe whose visa is cancelled will face a higher degree of hardship than visa holders from other more politically, economically and socially accepted nations.  The Minister notes that the trend of the Tribunal has been to reject carte blanche claims of extreme hardship based on merely belonging to a certain ethnic or religious class, or where the returnee’s country of origin is subject to general conditions of racial and political violence: see, in the context of the situation in Zimbabwe, Re Philp and Minister for Immigration and Citizenship (2007) 99 ALD 368 at [139]-[142].

37.     I accept that submission of the Minister.  The evidence of the general economic and social situation in Zimbabwe is relevant to the extent that it shows the general situation of the country to which the applicants will be required to return.  However, it is important to identify the impact, if any, which that general situation will have on the particular person.

38.     In that regard it is relevant to note that the general situation did impact directly on the applicants' family when, in 2002, the family was forcibly evicted from their farms as part of the governments "land reform" program described above.  According to the evidence of the applicants, which I accept, that action resulted in a loss of the family's significant assets and a substantial reduction in their parents' income.

39.     Mark described the situation which would await him in Zimbabwe in the following terms, which I accept as an accurate description:

"I feel that if I were to return to Zimbabwe, I would not be able to support myself, and experience the feeling of independence that I have achieved here. It will also seriously disrupt my career as I am not due to finish my apprenticeship until the beginning of 2009.  I have intentions of starting my own plumbing business in Australia once I am qualified, this would not be possible in Zimbabwe due to on going political and economic instability. Businesses are being forced to close down because of this and due to other political factors.

…I would be unable to live independently as incomes, especially for young people, are virtually worthless in Zimbabwe due to hyper inflation. Many things that I take for granted in Australia such as owning a car, having my own place to live, a good standard of health care and my personal safety and political freedom would be lost if I returned to Zimbabwe.

I have a very small social network remaining in Zimbabwe, as the majority of my friends and other people my age are scattered around the world trying to make better lives for themselves. The nation's currency is worthless making it almost impossible to save money, which people in Australian take for granted, which would not be eaten away by hyperinflation over a period of time."

40.     After describing a violent incident which happened to his mother and a friend in neighbouring Mozambique and the "dismal" health services in both Mozambique and Zimbabwe, Mark said:

"Though this incident occurred in neighbouring Mozambique, it is similar to the violence experienced in Zimbabwe and is unsettling and continuous, I feel that raising a family, as I expect to do in the coming years, in such an unsafe environment, is impossible for me given that I have now experienced life in Australia for the past 3 and a half years and have established my life here."

41.     In his oral evidence Mark said that, while he did not know whether he could get a legitimate job as a plumber in Zimbabwe, if he were to return to Zimbabwe he was unsure of how he would make a living and unaware of anything legitimate that he could do.  He described the hardships being faced by his family in the following terms:

"Well, there’s power cuts every day and water cuts, medically it’s pretty bad if anything happens you’ve got to go to South Africa or whatever to try and get medical help.  Now it’s pretty – the crime rate’s pretty bad at the moment, there’s thieves and all that going on at the moment.  Food – food cuts. …

… my mum, she started importing or trying to get food from South Africa because there’s just no food in the shops and if it is it’s too expensive, so you know they don’t have three meals a day, like we do here, so it’s pretty – it’s not good, there’s no meat or anything, so you just get by I suppose."

42.     Mark went on to describe the poor state of the health system, including the absence of skilled personnel, and the risks facing a white person expressing any political views.

43.     Mark told me that on the last annual trip to visit his family back in Zimbabwe, in December 2007/January 2008 he could see the "depreciation of pretty much everything", by which he meant that:

"The infrastructure is pretty bad.  The roads are quite bad and just the general medically and financially – yes.  The crime, it’s all gone up a notch.  … During the day you find as long as you stick to the areas they’re all right.  At night it’s – we’ve got electric fence so it’s not too bad."

44.     He went on to describe the dangers of driving in Zimbabwe, a fact tragically illustrated by the death of his youngest brother in a traffic accident.

45.     Richard agreed with Mark's written evidence as to the situation of their family in Zimbabwe.

46.     I accept the above evidence of the applicants, who were accurately described by their counsel as candid and honest in their evidence.  That evidence shows that the economic and social conditions generally prevailing in Zimbabwe have had a direct and substantial impact on the applicants' family and would have a serious impact on both applicants if they were required to return to Zimbabwe.  In my assessment, those consequences, which would result from the cancellation of the applicants' visas, do amount to extreme hardship.

Other Opportunities Available to the Applicants

47.     The Minister made a number of submissions to the effect that the consequences of the applicants living in Zimbabwe could be avoided with the assistance of their parents.

48.     On the evidence before me, I am not satisfied that the applicants' could rely on the assistance of their parents to support them, either in Zimbabwe or overseas.  Following the confiscation their farms the applicants' father has most recently been working as a farm consultant.  The family lives in a modest house in Harare.  While they do not know the details of their parents' finances, the applicants' understanding from their parents is that they cannot expect support.  There is no evidence before me which satisfies me that the applicants' parents would be both willing and able to support the applicants.  While the Minister pointed to a number of documents of the applicants' parents, the applicant's parents did not give evidence and the applicants were unable to give evidence about the documents, which were not theirs.  In those circumstances, I am not willing to place significant weight on the documents in considering the parent's financial position in a case involving the applicants.

49.     Nor is there any evidence before me which satisfies me that the applicants would be able to obtain permanent residence outside Zimbabwe if their visas were cancelled.  The applicants both hold Zimbabwe passports only, and their parents were both born in Zimbabwe.  While their mother holds a British passport, the applicants' understanding is that they are not eligible for British passports, and there is no evidence to contradict that.  Nor is there any evidence that they would be able to obtain some other kind of visa for return to residence in Australia or to obtain residence in another country where they would face a better economic and social situation.

50.     I do not consider that a return to formal university study would be appropriate for Mark or that study as a foreign student in a country outside Zimbabwe would be financially viable for either applicant.  In that regard I note that, while in Australia on a business visa, Mark is eligible for HECS assistance, which would not be available if he were to return on a student visa.

51.     For these reasons, I am not prepared to find on the available evidence that the consequences of the applicants' returning to Zimbabwe could be avoided in the manner suggested by the Minister's submissions.

Conclusion as to Extreme Hardship

52.     In my view, the above circumstances combine to lead me to the conclusion that both applicants would suffer extreme hardship if their visas are cancelled, of the kind described in the passages of their counsel's submissions quoted above.  It follows that their visas should not be cancelled.

DECISION

53.     For the above reasons I would set aside the decision under review.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Ms LR Tovey, Member

Signed:         (sgd) T Freeman....
  Associate

Dates of Hearing:  18 February 2008

Date of Decision  6 October 2008

Representative for the Applicants            Mr M Solomon and Mr D Barich

Representative for the Respondent         Mr SR Thackrah

Solicitors for the Applicants  Fiocco's Lawyers

Solicitors for the Respondent                   Australian Government Solicitor