Hsu and Ors and Minister for Immigration and Multicultural Affair S and Indigenous Affairs
[2003] AATA 620
•30 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 620
ADMINISTRATIVE APPEALS TRIBUNAL )
)No. N2002/846; N2002/848
)N2003/294; N2003/296
)N2003/297
GENERAL ADMINISTRATIVE DIVISION ) Re CHAO HSIEN HSU (N2002/846)
and
HUI CHUN CHEN (N2002/848)
and
CHIA YU HSU (N2003/294)
and
CHE YU HSU (N2003/296)
and
TAN LING HSU (N2003/297)
Applicants
And
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr J. Block, Deputy President Date30 June 2003
PlaceSydney
Decision The decisions under review are affirmed. (Sgd) Mr J. Block
..............................................
Deputy President
CATCHWORDS
Immigration - Business Migration - Business Skills Visa - cancellation of Primary Business Skills visa - consequent cancellation of secondary visas - whether cancellation would result in extreme hardship.
Migration Act 1958 - section 134
Migration Series Instruction number 133
Haman and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1113
Chen and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 477
Wong and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 54
Choi and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 297
REASONS FOR DECISION
30 June 2003 Mr J. Block, Deputy President
PART A GENERAL AND INTRODUCTORY
1. In respect of case number N2002/846, the decision under review is the decision dated 17 May 2002 by the Department of Immigration, Multicultural and Indigenous Affairs (“DIMIA”) pursuant to which it cancelled a subclass 127 business visa (referred to in these reasons as “the primary visa”) granted to Chao Hsien Hsu (referred to in these reasons as “the Husband”).
2. In respect of case numbers N2002/848, N2003/294, N2003/296 and N2003/297, the decision under the review is the decision also dated 17 May 2002 by DIMIA, pursuant to which it cancelled the visas (referred to in these reasons as ‘the secondary visas”) issued to Chun Chen Hui (referred to in these reasons as “the Wife”) and her three children, Chia Yu Hsu, Che Yu Hsu and Tan Ling Hsu (collectively “the Children”). The secondary visas were issued to the Wife and the Children in consequence of the issue of the primary visa. They were cancelled when the primary visa was cancelled, DIMIA having determined that, notwithstanding representations made on behalf of the Wife and the Children, cancellation of the secondary visas did not result in extreme hardship within section 134(5) of the Migration Act 1958 (“the Act”).
3. The matter was heard during the course of two full days, being 19 February 2003 (“first day”) and 16 June 2003 (“second day”). Mr S Henry, a Legal Practitioner, appeared for the Applicants. Mr G Cranwell, solicitor, appeared for the Respondent on the first day and Ms L Watson, solicitor, appeared for the Respondent on the second day.
4. The Tribunal had before it the T documents in respect of each of the Husband and the Wife. The T documents in respect of the Husband are understandably enough much longer and more comprehensive than those in respect of the Wife. References to T documents contained in these reasons should be construed as references to the T documents in respect of the Husband.
5. The Tribunal also accepted the tender of four exhibits:-
Exhibit A1 is a report by Anna Robilliard (a psychologist) dated 4 February 2003.
Exhibit A2 is a school report in respect of Julie, the oldest child and issued in her anglicised name.
Exhibit A3 is a school report in respect of Alex, the second child and issued in his anglicised name.
Exhibit A4 is a Statutory Declaration by Chun Chen Hui 19 November 2002.
Having regard to the fact that the Wife, when she came to give evidence stated that Exhibit A4 was true and correct, it is set out in these reasons as follows:-
“STATUTORY DECLARATION
I, Hui Chun Chen, aka Cindy Chen, of 2/107 Forest Road Hurstville 2220 do solemnly and sincerely declare as follows:
I arrived in Australia as a permanent resident on 12/2/1999, I was accompanied by my three children Chia Yu Hsu (“Julie”), Che Yu Hsu (“Alex”) and Tan Ling Hsu (“Denise”). Julie is now aged 12, Alex is aged 9 and Denise is aged 6. When we migrated to Australia they were aged 9, 6 and 2 respectively. In Australia we faced business and personal difficulties but I have persevered and with the children we have tried to become good migrants.
Before we migrated to Australia my Husband and I visited several times and my Husband became involved in business activities, including the export of goat meat to Asia, through the acquisition of Nagaella Station Pty Ltd. Unfortunately that business was not successful because of the dishonesty of the manager who we appointed to run it. In my Husband’s absence I registered a company, Twin Stars Pty Ltd, to purchase Nagaella Station from the liquidator. I was a director and shareholder and the children were also shareholders. Twin Stars bought Nagaella Station for $750,000 and then sold the factory part of it to repay a bank loan of $550,000. The farm part of Nagaella Station was sold recently for $200,000.
I had to get involved in these business activities myself, and to make a genuine effort to save the business, because my Husband has only visited Australia for 8 days since obtaining permanent residence. The reason is that he has not been able to leave Taiwan due to a dispute with the taxation authorities arising from a commercial dispute over a failed business venture.
The children and I have been very largely on our own although we have visited Taiwan on 3 occasions since our migration. I have undertaken 510 hours of English language training and now have reasonable English to enable me to undertake a certificate course in business at St George TAFE which finishes at the end of this month. I would then like to undertake another business course to prepare me for going into business myself in Australia. Before coming to Australia I helped my Husband in business. I believe that my business experience in Australia to date, my English language skills, my TAFE qualification, and assistance from the NSW Department of State and Regional Development will help me successfully become involved in setting up and operating a small trading business. I am now aware of assistance which is available to people wanting to start up a small business.
After our arrival in Australia my Husband has been running a courier business in Taiwan but this closed around February 2002. Since then he has not been able to send any funds to support myself and my children. We have had to rely on family allowance but I am very hopeful that when my course is completed I can establish myself so that we do not have to rely on the Government anymore. I have also recently acquired $200,000 in capital as the result of the sale of the Nagaella Station farm by Twin Stars.
Apart from my own business and educational activities I have been preoccupied with bringing up our three children. Julie is completing year 7 at Penshurst Girls High School after finishing her primary education at Hurstville Public School. Alex is completing year 4 at Hurstville Public School. Denise is completing year 1 at Hurstville Public School. The children have all fitted in well into their school environment and I am proud of their performance. They have made many friends here. I have also made a number of close friends. The children will face severe disadvantages if they have to re-locate to Taiwan. For each of them their main language is now English. Julie can speak, read and write in Chinese but at a lower level than that of persons of the same age in Taiwan. Alex and Denise can’t read or write Chinese. Alex and Denise have some spoken Chinese but are well below native speaker level. The children regard themselves as Australians and want to complete their education here. If we were to return to Taiwan they would each go into a lower level grade than their peers of the same age. The education system there is also extremely competitive. It will be very hard for my children to catch up because nearly all students of their age undertake extra tuition after school irrespective of their attainment levels.
Our financial situation in Taiwan would be very difficult. My Husband doesn’t seem to be in a position to support us and their (sic) is no social security system as there is in Australia. There is also no assistance available to start up a small business such as I hope to do in Australia.
My Husband and I invested about $1,680,000 net in Australia which consisted of the Nagaella Station farm purchase for $170,000, another $120,000 for fencing, another $500,000 to buy back Nagaella Station from the liquidator and another $490,000 to buy the abattoir (after allowing for repayment of bank loan on sale). We have only received back about $200,000 for the sale of the farm. We also repaid a bank loan of $400,000 so our net loss is about $1,480,000.”
6. The Respondent furnished the Tribunal with a comprehensive Statement of Facts and Contentions dated 11 October 2002, which includes, in clause 4, a helpful chronology. That statement also contains relevant legislation, and in particular section 134 of the Act. It is set out in full in these reasons as follows:-
“RESPONDENT’S STATEMENT OF FACTS AND CONTENTIONS
1. References are to T documents (“T”), folios (“f”).
2. Mr Chao Hsien Hsu will be referred to as the applicant.
3. Ms Hui Chun Chen will be referred to as the secondary applicant.
4.The Department of Immigration and Multicultural and Indigenous Affairs will be referred to as DIMIA.
Facts
Date Event
12/04/1994 Applicant registers Nagaella Station Pty Ltd (T8, f 29).
29/08/1996Nagaella Station Pty Ltd purchases the Broken Hill Abattoir (T8, f29).
24/08/1998 Applicant granted a subclass 127 business visa.
12/02/1999Applicant enters Australia for first time following grant of visa. Applicant then spends 8 days in Australia prior to the cancellation of his visa.
20/05/1999 Nagaella Station Pty Ltd wound up (T14, f98).
19/07/1999Twin Stars (Aust) Pty Ltd registered (T14, f89). The applicant is not a shareholder or director of this company.
13/09/2001Survey of Business Skills Migrant - 24 Months (Form 1010) sent to applicant by DIMIA (T4).
24/09/2000Applicant returns Form 1010 (T5). The applicant does not record that he was currently engaged in business activity in Australia.
23/10/2001DIMIA requests further details in relation to whether the applicant has made genuine efforts to meet the requirements of section 134(1) of the Act (T6).
09/01/2002Applicant responds to DIMIA request for further details (T8). The applicant conceded that his business in Australia had been suspended from May 1999 to the present time.
10/01/2002Notice of intention to cancel visa under section 134 sent to the applicant and secondary applicants (T9).
08/03/2002Applicant makes submission opposing cancellation of his visa (T11). The applicant claimed to have been appointed as an agent for Scorex Pty Ltd. The applicant does not have an ownership interest in this company (T14).
17/05/2001Decision by DIMIA delegate to cancel subclass 127 visa of applicant and secondary applicants (T2).
Legislation
5. The Migration Act 1958 (“Act”) relevantly provides:
134 - Cancellation of business visas
(1)Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australia visa, an investment‑linked visa or a family member’s visa), by written notice given to its holder, if the Minister is satisfied that its holder:
(a) has not obtained a substantial ownership interest in an eligible business in Australia; or
(b)is not utilising his or her skills in actively participating at a senior level in the day‑to‑day management of that business; or
(c) does not intend to continue to:
(i) hold a substantial ownership interest in; and
(ii)utilise his or her skills in actively participating at a senior level in the day‑to‑day management of;
an eligible business in Australia.
(2)The Minister must not cancel a business visa under subsection (1) if the Minister is satisfied that its holder:
(a)has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and
(b)has made a genuine effort to utilise his or her skills in actively participating at a senior level in the day‑to‑day management of that business; and
(c)intends to continue to make such genuine efforts.
(3)Without limiting the generality of matters that the Minister may take into account in determining whether a person has made the genuine effort referred to in subsection (2), the Minister may take into account any or all of the following matters:
(a) business proposals that the person has developed;
(b)the existence of partners or joint venturers for the business proposals;
(c)research that the person has undertaken into the conduct of an eligible business in Australia;
(d)the period or periods during which the person has been present in Australia;
(e)the value of assets transferred to Australia by the person for use in obtaining an interest in an eligible business;
(f)the value of ownership interest in eligible businesses in Australia that are, or have been, held by the person;
(g)business activity that is, or has been, undertaken by the person;
(h)whether the person has failed to comply with a notice under section 137;
(i)if the person no longer holds a substantial ownership interest in a particular business or no longer utilises his or her skills in actively participating at a senior level of a day‑to‑day management of a business:
(i)the length of time that the person held the ownership interest or participated in the management (as the case requires); and
(ii)the reasons why the person no longer holds the interest or participates in the management (as the case requires).
(4) Subject to subsection (5) and to section 135, if:
(a)the Minister cancels a person’s business visa under subsection (1) or (3A); and
(b)a business visa is held by another person who is a member of the family unit of the holder of the cancelled visa; and
(c)the other person would not have held that business visa if he or she had never been a member of the family unit of the holder of the cancelled visa,
the Minister must cancel the other person’s business permit or business visa by giving written notice to that person.
(5)The Minister must not cancel the other person’s business visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person.
…
(10) In this section:
…
eligible business means a business that the Minister reasonably believes is resulting or will result in one or more of the following:
(a)the development of business links with the international market;
(b) the creation or maintenance of employment in Australia;
(c) the export of Australian goods or services;
(d)the production of goods or the provision of services that would otherwise be imported into Australia;
(e) the introduction of new or improved technology to Australia;
(f)an increase in commercial activity and competitiveness within sectors of the Australian economy.
established business in Australia visa means a business visa a criterion for whose grant:
(a)relates to the applicant having an established business in Australia; or
(b)is that the applicant is a member of the family unit of the holder of a visa a criterion for whose grant is as mentioned in paragraph (a).
…
ownership interest, in relation to a business, means an interest in the business as:
(a) a shareholder in a company that carries on the business; or
(b) a partner in a partnership that carries on the business; or
(c) the sole proprietor of the business;
including such an interest held indirectly through one or more interposed companies, partnerships or trusts.”
CONTENTIONS
General approach
6. The respondent contends 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.
7. This approach to cancellation decisions was adopted by Davis J in Freeman v Secretary, Department of Social Security (1988) 19 FCR 342. That case arose out of a decision to cancel a pension on a particular date in circumstances where the former pensioner was entitled to the pension at the time of the decision of the Tribunal, albeit not at the time of the cancellation decision. His Honour took the following approach:
a) The Tribunal’s function was to reconsider the primary decision and to determine whether the decision to cancel the pension at that time was the correct or preferable decision to have been made (at 344-345).
b)The issue was whether the decision to cancel was correct or preferable and not whether the applicant was entitled to a pension as at the date of the Tribunal’s decision (at 345.1).
c)‘The ambit of the jurisdiction of the Administrative Appeals Tribunal in relation to the review of a decision to cancel a pension or benefit is therefore less than would be the jurisdiction of the Tribunal in respect of a refusal to grant a pension or benefit or a decision suspending the payment of a pension or benefit … [I]f the Tribunal comes to the view that the decision to cancel was the correct or preferable decision, then no further matter remains for the Tribunal’s consideration.’ (at 345.7)
8. See also ACI Pet Operations Pty Ltd v Comptroller-General of Customs (1993) 118 ALR 144 at 141-142 per Foster J; Secretary of the Department of Social Security v O’Connell (1992) 27 ALD 263; Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257 at [30]; Secretary, Department of Social Security v Pusnjak [1999] FCA 994."
9. The Tribunal has construed the above authorities as supporting the simple proposition that the Tribunal is limited to events as at the date of the primary decision in cases of review of decisions cancelling subclass 127 visas under section 134 of the Act: Re Taslim and Minister for Immigration and Multicultural Affairs (unreported, DP Handley, 3 December 2001); Re Wong and Minister for Immigration and Multicultural Affairs [2002] AATA 54; Re Purnama and Minister for Immigration and Multicultural Affairs [2002] AATA 237.
Section 134(1)(a) and (b)
10. The respondent contends that:
(a) the applicant has not obtained a substantial ownership share in an eligible business in Australia; and
(b) the applicant has not utilised his skills by actively participating at a senior management level in the day to day management of that business.
11. The applicant does not have any ownership interest in Twin Stars (Aust) Pty Ltd or Scorex Pty Ltd. There is also no evidence that either company meets the requirements of an “eligible business” as set out in section 134(10) of the Act.
12. The applicant has provided no evidence of his day to day management at a senior level of Twin Stars (Aust) Pty Ltd, which is fully owned by Ms Cindy Hsu.
13. The reference in section 134(1)(b) to the “day to day management of that business” indicates that an eligible business must have some element of continuity and repetition. In Hope v Bathurst City Council (1980) 141 CLR 1, Mason J considered that the use of the phrase “carrying on the business”, as a qualifier of the noun “business”, required that there be a commercial enterprise in the nature of a going concern, “that is activities engaged in for the purpose of profit on a continuous and repetitive basis”. Similar qualifying words in section 134(1)(b) compel a similar result.
14. There is no evidence of any day to day activity of the business of Twin Stars (Aust) Pty Ltd. The applicant has provided evidence of only one sale agency agreement entered into by Ms Hsu on behalf of Twin Stars (Aust) Pty Ltd.
Section 134(2) and (3)
15. Section 134(2) states that the Minister must not cancel a business visa under section 134(1) if the Minister is satisfied that its holder has made, and will continue to make, a genuine effort to obtain a substantial ownership interest in and utilise his or her skills in actively participating at a senior level in the day to day management of an eligible business in Australia. Section 134(3) sets out the matters which the Minister may take into account when determining whether a person has made the genuine efforts referred to in sub-section (2).
16. Paragraph 4.5.1. of the Migration Series Instruction: Cancellation of Business Visa (“MSI”), lists some of the factors which may assist decision-makers in determining whether a genuine effort has been made for the statutory purposes. These include:
(a) business proposal which is considered genuine, realistic and achievable;
(b) formal contract with partners or joint venturers;
(c) written evidence of detailed consultations with at least 3 business advisers (accountant, lawyer, bank/financial institution, state/territory government, Business Development Office, AUSTRADE, Business/Trade Association);
(d) physical presence in Australia for more than 6 months since first arrival as a business skills class migrant;
(e) transfer to, and retained in, Australia at least 50% of the funds indicated as available for transfer within two years;
(f) minimum Australian $100,000 or 10% ownership previously held by the person. If the person is no longer in business, the reasons for loss of ownership are also relevant;
(g) minimum Australian $100,000 business activities as indicated by turnover. This may include other business activity not considered “eligible business” but cannot include passive investment eg purchase of shares;
(h) failure to comply with a notice for information under s.137 ie mandatory monitoring of Australian address and return of survey forms.
17. An examination of the sub-section (3) and paragraph 4.5.1 indicates that none of the items assist the applicant in demonstrating that he has made the required genuine effort. In particular, as at the date of the cancellation decision:
(a) the applicant had spent only 8 days in Australia since his initial arrival in Australia as a business skills visa holder. This limited period is inconsistent with the applicant making genuine efforts to obtain and engage in a business in Australia. The period also falls well short of the six months referred to in the MSI;
(b) the majority or all of the applicant’s business activities with Nagaella Station Pty Ltd occurred before the grant of his business skills visa, and cannot constitute genuine efforts towards obtaining and engaging in a business in Australia;
(c) the applicant does not have an ownership interest in Twin Stars (Aust) Pty Ltd or Scorex Pty Ltd;
(d) the applicant’s activities with Twin Stars (Aust) Pty Ltd have not resulted in the export of Australian goods and services;
(e) the applicant’s appointment as an agent to Scorex Pty Ltd has not resulted in him obtaining the requisite substantial ownership interest in an eligible business in Australia;
(f) the applicant has not produced a business plan or analysis of the business environment.
Sections 134(4) and (5)
18. The meaning of extreme hardship, in the context of section 134(5) of the Act, was considered by the Tribunal in Wang v MIMA [2000] ATAA 961 in which Deputy President Mc Mahon made the following observations:
(a) “it is clear that hardship in subsection (5) must be judged subjectively” (at para 28);
(b) “taking the degree of hardship on a scale of 1 to 10 extreme hardship does not necessarily have to rate a 10. Anything between 9 and 10, for example, might still be called extreme” (at para 28);
(c) “the meaning of hardship must depend upon the context in which one finds it” (at para 29);
(d) “clearly, whatever view is taken, hardship involves more than inconvenience or detriment. Affectation must be to a considerable degree before it can properly be called hardship” (at para 29);
(e) “there is no reason to give a broad and generous construction to the concept of extreme hardship. To do so may retract from the force given in the balance of the legislative scheme to the other interests which are involved” (at para 34).
19. Section 134(5) of the Act does not speak in terms of an onus of proof in terms of establishing extreme hardship. Further, the Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks appropriate (section 33(1)(c) of the Administrative Appeals Tribunal Act 1975). However, a commonsense onus of proof lies on the secondary applicants to make out their cases: Sullivan v Department of Transport (1978) 1 ALD 383. Accordingly, there remains at least a rudimentary evidentiary threshold, which the secondary applicants must satisfy. This is especially the case when the standard to be satisfied is extreme hardship as opposed to mere hardship.
20. To establish extreme hardship one must do more than merely assert it; one must provide an evidentiary basis or foundation for it. The secondary applicant, who was born on 21 June 1963, has provided no such evidentiary foundation. Accordingly, the respondent contents that the Tribunal could not be satisfied that the cancellation of the secondary applicants’ business visas would result in extreme hardship to them.
Conclusion
21. Accordingly, the respondent submits that the decision of the Minister’s delegate which is now under review should be affirmed by the Tribunal.”
7. The Applicants did not file a Statement of Facts and Contentions. However, Mr Henry did file a Statement of Issues in respect of each of the two matters which of course are linked. Mr Henry said that those Statements of Issues could serve as the Statements of Facts and Contentions in respect of the Applicants. If only as a matter of balance, each of those two Statements of Issues are included in these reasons. The Statement of Issues in respect of the Husband dated 30 September 2002 reads as follows:-
“Re: Chao Hsien Hsu and Minister for Immigration and Multicultural and Indigenous Affairs
Administrative Appeals Tribunal Application N2002/846
STATEMENT OF ISSUES
1.Under Section 134(1) of the Migration Act 1958, The Minister must not cancel a business visa if the Minister is satisfied that its holder:
(a)has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and
(b)has made a genuine effort to utilise his or her skills in actively participating as a senior level in the day-to-day management of that business; and
(c)intends to continue to make genuine efforts.
We submit that Mr Hsu has made a genuine effort to obtain a substantial ownership in an eligible business in Australia. Between 1991 and 1998, Mr Hsu has conducted extensive market research into establishing a meat export business from Australia. He has liased with government departments in Australia regarding the requirements for meat export and establishing a business in Australia. He has also conducted negotiations with abattoirs in Australia regarding Taiwanese markets requirements for the cutting and packaging of meat. After 18 months he got his first order, he restructured his company and specialised in the import of goat meat from Australia but still maintained an export division to sell computer parts and components to existing buyers from overseas."
Mr Hsu purchased an abattoir through the establishment of another company in 1994 to secure the steady flow of goat meat. In August 1996 he formed another agreement to buy an abattoir in Broken Hill with a value of $1.3 million. Mr Hsu obtained a loan from the National Australia Bank for $910,000.00 and he personally invested $390,000.00 in the project. This strongly suggests his commitment to carry on a business in Australia.
Mr Hsu and his family obtained Australian permanent residence in August 1998. In the first two years of taking over the operations Mr Hsu was able to increase the export sales of the company from $4,686,016.00 for the first year to $7,943,683.00 for the year ended 30/06/1998.
In order to further increase the export sales of the company and to pay its annual wages bill of around $1 million, Mr Hsu decided to extend his stay in Taiwan before coming to Australia for permanent settlement in order to secure further sales agreements.
Thus the day-to-day management of the company was delegated to the local Manager of the Company who had been operating the business for some time. However the manager’s incompetency lead to the non payment of the payroll tax on time, which resulted in winding up petition by the Deputy Commissioner of Taxation at the Supreme Court on the 11/03/1999. Mr Hsu was not informed and consequently a court order was handed down on the 20/05/1999 for the winding up of the company and the appointment of a liquidator.
Mr Hsu was given an offer by the liquidator to buy back the business with the related property. To pursue this a company called Twin Stars (Australia) Pty Ltd was set up on 19/07/1999 and an agreement for Sale of Business was drawn up in October 1999 at a total price of $750,000.00 However the bank did not agree to such an arrangement which made the rescue plans offered by Mr Hsu not workable.
After a prolonged period of negotiations between the Liquidator and all the creditors, another Deed of Settlement was drawn up between the relevant parties, whereas Mr Hsu was required to settle his personal guarantee with the bank (which amounted to $293,712.41 as at 31/01/2001 and was accruing interest, fees and charges on a calendar monthly compound basis) in addition to the payment for the business and property. The matter was settled in October 2001 and Mr Hsu finally managed to get back the business in the name of the new company.
Due to the mismanagement of the local staff Mr Hsu has been engaged in the winding up of his company and has tentatively sought new avenues for the establishment of the business. Consequently he has had to spend a lot of his time overseas in Taiwan to develop the export business of the abattoir owned by him in the name of Naegella Station Pty Ltd.
It has been shown that Mr Hsu did have an interest in an eligible business in Australia and utilised his business skills accordingly in the export business by being based in Taiwan for what was intended a short period in order to secure the sales contracts.
Re: Hui Chun Chen and Minister for Immigration and Multicultural and Indigenous Affairs
Administrative Appeals Tribunal Application N2002/848
STATEMENT OF ISSUES
1.Under Section 134(5) of the Migration Act 1958, the Minister must not cancel the other person’s business visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person.
As secondary visa holders, the visa was cancelled pursuant to s134(1) of the Act on the 5 October 2000. Section 134(5) provides that the Minister must not cancel a business visa under section 134(4) if the cancellation of that visa would result in extreme hardship to the secondary holder.
In Man Ki Kim v MIMA the notion of extreme hardship must be approached in a broad way because “hardship” is a relative term and “extreme” was deemed to be evaluated against the facts of the particular case. Consequently such an evaluation must be taken with full and proper consideration given to all the facts. In Siwei Wang v MIMA (2000) “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.
Mr Hsu and his Wife, Cindy Chen and three Children Julie, aged 12, Alex, aged 9 and Denise aged 6.
The hardship that would be suffered by Mr Hsu’s dependents would be considered extreme under the circumstances, since they have spent a number of formative years in a culture that is completely different to the one they may have to return to. The language, culture and social contacts that they have acquired over the number of years that they have spent in Australia is far more significant than the time spent in Taiwan and the idea of returning fills the children with dread and fear.
The oldest daughter in particular, Julie, is 12 years old and is in her first year at Penshurst Girls High School. On arriving in Australia with her family in 1999, Julie knew very little English and had a formidable task ahead of her in learning the language and assimilating into her new school environment. However over a period of time Julie patiently overcame the many barriers by helpful teachers and the friends that she made at school. Arriving from Taiwan at the age of 9, Julie did find it extremely difficult however with the dedication and perseverance she completed Primary school and is now studying at High School.
She has adapted well, learnt the language and has become a highly regarded pupil and has made many friends. It has however not been without a certain amount of stress that the move from Taiwan to Australia has brought to a young girl. However she has succeeded becoming a popular and hard working student whose school work is held up as an example for other new students. However severing ties with Taiwan has come at a great cost. Julie no longer can read or write the Chinese language and she has lost contact with all her friends back in Taiwan. The Taiwanese education is so competitive that children are often tutored 7 days a week to compete for the finite number of opportunities in Taiwan. Julie would be placed at distinct disadvantage should she be made to return. These years that Julie has spent in Australia have been important years in her education and it is at this time that she will set her long term goals for the future.
According to her mother, Julie has shown traumatised behaviour when her mother explained to her the possibility that they may be asked to leave Australia.
The second child, Alex is in Year 3 at Hurstville Public School. He consequently does not read or write Chinese. He only speaks Chinese at home. Since coming to Australia at a very early age he has little memory of life back in Taiwan. He has all his friends in Australia and is doing very well at school.
The youngest daughter, Denise is six years old and is currently in Year 1 at Hurstville Public School. She has spent more than half of her formative years so far in Australia. She has no recollection of life in Taiwan and does not read or write Chinese.
Taiwanese society is very different to Australian society in many respects. With regards to the children this is most obvious with the competitive way society is structured especially the education system. As mentioned previously the culture of high achievement is characterised by children being tutored for up to seven days a week in order to achieve the highest possible grades. If these children are returned to Taiwan, psychologically they will be at an extreme disadvantage and face hardship that will be evident in their struggle to catch up for many years to come."
8. Evidence was given by each of the Husband, the Wife, and Julie (Chia Yu Hsu – the eldest child), and in the case of the Husband, by telephone link to Taiwan; each of the Husband and the Wife had the assistance of an interpreter in the Mandarin language, although the Wife demonstrated that over the four years during which she has lived in Australia, she has gained considerable fluency in English and on occasions answered questions in English without waiting for the interpreter to translate. This is not surprising when one considers that she devoted some 510 hours to the study of English through a course to which I will refer later in these reasons.
9. I intend to deal in Part B with the evidence of the Husband, in Part C with the evidence of Julie and in Part D with the evidence of the Wife. As will be seen, there were often significant evidentiary discrepancies. Moreover and especially in respect of the Husband, his oral evidence did not include or was inconsistent with a number of allegations contained in the Statement of Issues filed on his behalf; this was also so but to a lesser extent in respect of the Wife; their oral evidence was moreover markedly inconsistent with the letter by Stephen Lee (“the Lee letter”) referred to later in these reasons. The Statement of Issues in respect of the Husband is particularly at odds with the evidence; by way of one example, it specifies that the Husband had to spend “a lot of his time in Taiwan”; in fact and save for 8 days, the Husband has spent all of his time since the grant of the primary visa more than 4 years ago in Taiwan. An even more flagrant inconsistency is the fact that while the Husband relied on the alleged ban (referred to more fully later in the reasons) as his excuse for the fact that he has spent so little time in Australia, the Statement of Issues referable to him is entirely silent on this vital aspect. This cannot be a mere slip since the Statement of Issues is in this particular respect consistent (in its omission of any reference to the ban) with the Lee letter.
10. In respect of Exhibit A1, Mr Cranwell did not require Ms Robilliard for cross-examination and agreed to the tender of her report subject to his right to comment on its relevance. He noted in particular that it was prepared on 4 February 2003, at a point in time nearly a year after the visas had been cancelled. It refers in its terms to meetings with the children which would, having regard to the date of the report, have taken place after the visas had been cancelled. Mr Cranwell contended that it is accepted that in visa cancellation cases of this nature, the Tribunal must consider the position at the date of visa cancellation and must not have regard to evidence thereafter. Mr Henry contended that Exhibit A1 relates in its terms also, at least in part, to a period prior to cancellation and was thus relevant and should be considered on this basis. Mr Cranwell said that he would deal with this aspect in the course of closing submissions. As matters turned out, Mr Cranwell was transferred to Queensland; Ms Watson completed the case and did not make any particular submissions in this regard. I will revert to Exhibit A1 later in these reasons.
11. No witness statement was submitted on behalf of the Husband. However, Mr Cranwell did not object to him giving evidence and his evidence took up most of the first day.
12. There is one aspect of the evidence with which I can conveniently deal with at this early stage. There are suggestions in Exhibit A4 (and see in particular the fifth and second-last paragraphs) that the Husband has not treated the Wife as he should have done, and that at least to some extent, he has “let her down”.. However, the oral evidence before me would indicate that the family remains united. The Wife said that there were daily telephone conversations. (Julie said that there were weekly telephone conversations.) There was nothing in the oral evidence by the Wife which would suggest that the Husband’s failure to provide maintenance for her and the children after February 2002 was resented by her, or in other words which was suggestive of any estrangement.
13. In a fax to the Tribunal dated 20 November 2002 and under cover of which Mr Henry sent inter alia, Exhibit A4, he said in the third paragraph:
“Ms Chen has not had the support of her Husband in Australia as he is apparently prevented from leaving Taiwan. It is to her credit that she appears to have combined the roles of housewife, mother, student and business person with a perseverance and tenacity in the face of adversity which is indicative of the qualities that Australia should be seeking in new migrants. She has clearly made genuine efforts to sort out her and her Husband’s business affairs in Australia including the establishment of the company, Twin Stars Pty Ltd which ultimately bought Nagaella Station from the Liquidator. Her intention is to establish a trading business. She and the children have made a case for hardship should they have to return to Taiwan.
It is to be noted in particular that the fax in question was sent in November 2002; some considerable time prior to November 2002, Nagaella had sold both the farm and the abattoir; the Wife was possessed of residual capital resulting from those sales, and Nagaella Station was, as a matter of stark reality, a thing of the past. . To the extent that the Wife’s business intentions are relevant given that it is the Husband who held the primary visa, the evidence before the Tribunal did not indicate any intention (or for that matter ability) on the part of the Wife to establish a trading business.
And he said in the final paragraphs of that fax:
“It is my understanding that as a matter of policy the Department will generally take account of the actions of a secondary applicant, including business activities, in deciding whether or not to cancel Family business skills visas.
It is considered that Mr Chu’s looks to be quite weak given that he has only spent eight days in Australia since becoming a permanent resident. Clearly his Wife has been operating as the family’s principal representative in Australia. It is respectfully submitted that the information provided, and possibly further information to be provided, may warrant the Department having a fresh look at the circumstances of Ms Chen and the children, obviously on an entirely without prejudice basis. I have instructions to withdraw Mr Chu’s Administrative Appeals Tribunal application should agreement be reached to refer Ms Chen’s application to the Department for further consideration.”
PART B – THE EVIDENCE OF THE HUSBAND
14. I had asked Mr Henry at the commencement of the hearing to inform me as to why the Husband could not come to Australia to give evidence at the hearing. His evidence commenced for this reason with an explanation of why this was so. It is convenient however before dealing with that evidence to note that the whole family (Husband, Wife and the three Children) first came to Australia after the visas were granted, in February 1999. They stayed for about eight days and returned to Taiwan. In early June 1999, the Wife came to Australia for a very brief period (about three days) in order to deal with certain financial and legal difficulties and to which I will refer later in these reasons. The Husband spoke of an attempt to visit Australia in April 1999; in respect of that attempt he was stopped from doing so by the authorities in Taiwan. I infer, although this was not made clear at the hearing, that this attempted trip was separate from the Wife’s short trip at the beginning of June 1999 and my impression that he was stopped from accompanying her may not have been correct. In June 1999, the Wife and children took up residence in a rented unit in Hurstville and have been there ever since that time, excluding three trips to Taiwan (one of nearly two months in duration) to visit family in Taiwan.
15. The Husband said that in 1999 he was the Chief Executive Officer of a delivery or courier company (similar to DHL) in Taiwan and referred to in these reasons as “the courier company”. The courier company (conducted under the name of Shunwind Express) which employed 100 people, experienced a cash-flow shortage and in consequence failed to pay sales tax to the Taiwanese taxation authority in an amount, equivalent in Australian currency to about A$70,000.00 (referred to in these reasons as “the tax debt”). An offer to pay the tax debt in instalments was refused. Because he was the Chief Executive Officer of the courier company and although there were other directors, he became in consequence prohibited from travelling outside Taiwan for a period of five years. This was the period first referred to by the Husband in his evidence. Subsequently, he said that in fact, the period can be longer and perhaps six or seven years, and so much so that he did not think that it would be possible for him to travel to Australia until 2006. Yet later in his evidence, he said that upon payment of the sum of $70,000.00, the ban would be removed. He said also that the ban would be removed if payment were merely guaranteed by his friends and relations. There was no evidence before me as to the precise juristic nature of what, to Australian eyes, seems to be a rather draconian measure. A legal opinion by way of confirmation of precisely of what is involved would have been of assistance. At an early stage of his evidence, the Husband said that “if necessary I will probably pay that in order to leave”.
16. That the Husband would be free to leave upon payment was borne out by the Wife’s evidence. In consequence of the sale of certain assets, she became possessed (about 18 months ago) of a significant capital sum which was much greater than $70,000.00. When asked why she did not pay that amount to secure the release of the Husband from the ban, her answer was quite simply that she did not want to make that payment unless and until she was satisfied that she and her family would be allowed to stay in Australia. There was also evidence before me as to the export from Taiwan to Australia of very substantial amounts required to purchase certain assets. As to whether there was a ban as alleged is perhaps open to doubt having regard to the Lee letter referred to later in these reasons. It seems clear on the evidence before me that there was no need for the Husband to stay in Taiwan; if there was a ban, his release could have been secured, but it was not. As to why this should be so is a matter of some conjecture. It is possible that this was so because he was heavily involved in 1999 and thereafter in the courier company and also a meat business.. The meat business, which commenced in 1989, involved the import of meat and the sale of that meat to wholesalers but at some point in time thereafter, and probably when the courier company failed, became a retail meat operation. The courier company failed in either June 2001 or February 2002; the evidence varied on this point as it did on many other points. (The Wife’s evidence was that the ban was placed upon him as chairman of the board of directors of the courier company).
17. In respect of the courier company, the shareholders were his friends and relatives. He owned 50 per cent of the issued shares and was until it closed, its only executive director. The Husband said of the ban that it was imposed on someone like him, notwithstanding that it related to tax owed by the courier company, in that the Taiwanese Government uses measures of this nature to bring pressure to bear on persons involved at a high level in a company to make payment of tax payable by the company with which they are involved. As noted previously, the ban lasts for five years from the time the tax was incurred (in this case said to be 1999) but can be longer “if procedural matters have to be sorted out”.
18. The courier company was originally owned by a friend and classmate of the Husband. The classmate borrowed money from the Husband which eventually led to the Husband taking control of it. This occurred in either 1994 or 1995. However, the courier company ceased to trade in either June 2001 or February 2002.
19. The meat exporting business was commenced in 1989. It would seem (as set out previously) that at or about the time when the courier company closed its doors, the meat business became a retail business and apparently only in a small way. The present position is that the Husband is running the retail meat business and either on his own or with minimal assistance.
20. The Husband obtained the primary visa in 1998. He had been involved in the meat business and indeed was the sole agent in Taiwan of an Australian meat exporting enterprise. In this capacity, he imported beef and lamb from Australia.
21. The Husband said that as he was buying quality meat from Australia, it was suggested to him that he buy a farm in Broken Hill. He said that the farm was purchased in 1995 through a company called Nagaella Station Pty Limited (“Nagaella”) in which he and his Wife were the only shareholders and of which they were the only directors. The price of the farm, inclusive of stamp duty, was $200,000.00 which was paid in cash and for this purpose exported from Taiwan to Australia. (Questions by me as to how Nagaella was capitalised and whether by way of share capital and/or share and loan capital were never answered). The Husband said that although the Wife was a director of Nagaella, she was not involved in its affairs. However, a Mr James Peri (“Peri”) of Melbourne was a friend who was put in charge because he was trusted. The Husband did not know whether Peri was a shareholder or director but said that he might have had a small holding. Mention was made of 1%.
22. The amount of $200,000.00 referred to in paragraph 20 was paid in cash and with funds sent from Taiwan by the Husband. Apart from the amount of $200,000.00, an additional amount (unspecified) was remitted to put up a fence on the farm. T pages 36 and following are the accounts of Nagaella at 30 June 1998 which reflect paid up capital of $30,000; the accounts do not reflect loan accounts in favour of either of the Applicants.
23. In 1995, Nagaella bought a farm and raised goats. Those goats were “rounded up in the wilderness and fattened for the purpose of slaughter”. (A question of whether Nagaella required consent under the Foreign Acquisition And Takeovers Act 1975 was effectively left open; so for that matter, was the fact that at that time, company law required an Australian company to have at least one resident director).
24. The Husband said that he paid the amount of $200,000.00 at a time when the financial situation in Taiwan was good. However, the subsequent financial crisis in Asia had the effect that banks became reluctant to lend monies.
25. The Husband said that he bought the farm in Australia long before he came to Australia. He said that he was busy in Taiwan but that he had a friend in Australia to help him. He said that he did see the farm before buying it.
26. In 1997, the Husband learned of financial problems being experienced by an abattoir in Broken Hill. Nagaella bought the abattoir for $1.2m dollars; of this amount $610,000.00 was borrowed from National Australia Bank Limited (“the Bank”) on the security of the assets but without any requirement as to a personal guarantee by the Applicants.
27. Nagaella used “Broken Hill Exports” as a business name and was managed by an Australian company. According to the Husband, Nagaella then moved its office to Sydney. (As to why it first had its office in a place other than Broken Hill, and possibly in Melbourne was never explained). Peri had delegated his management role to someone else. According to the Husband, Peri was supposed to look after Nagaella but asked a subordinate to take over responsibility when he, Peri, bought his own business.
28. The move to Sydney took place on the advice of the new manager who, the Husband said, lived in Sydney. As to how it is possible for a manager to run a farm and abattoir in Broken Hill from Sydney was not explained. However, there were staff in the abattoir (38 people) and at the farm (2 people).
29. Nagaella got into financial difficulties. The Husband spoke of a tax problem. The nature of those difficulties were not explained nor for that matter was there any explanation as to how the tax problem arose or what it was or how much was involved. The Husband was altogether vague about all aspects of the business. The Bank called up its loan and liquidation proceedings were instituted, and as a consequence of which Nagaella went into liquidation in May 1999, shortly before the brief visit by the Wife to Australia at the beginning of June 1999.
30. The Husband said that when Nagaella went into liquidation (and he referred in this context to the end of 1998), he instructed solicitors and accountants to act for him and in consequence of which it became possible to buy the assets of Nagaella for $750,000.00. (As to whether the reference to 1998 was correct is doubtful). In order to pay for the assets purchased, he, the Husband, remitted $500,000.00 from Taiwan in 1999 and the balance was borrowed from the Bank. The terms applicable to the loan were not explained. Given that Nagaella went into liguidation in May 1999, the purchase of the assets took place presumably at some point in time after that date. A new company called Twin Stars Aust Pty Limited (“Twin Stars”) was formed or acquired for this purpose and, so the Husband said, his Wife and the Children were the directors. The Children are now aged respectively 13, 9 and 6 and so at the relevant time or thereafter, they could not possibly have been directors. The Husband said that their accountant advised him that the children could be directors of Twin Stars. The Husband is not and never has been a shareholder, he said that this was so because he was prevented from leaving Taiwan.
31. The Husband went on to say that “later on because he couldn’t come and the liquidator was making difficulties…” and because the Wife had to look after the three Children, it was necessary to sell the abattoir. This occurred at the beginning of 2001; after the Bank had been paid in full, the Wife was left with $30,000.00. Although this was not specifically stated, it is possible to infer that Twin Stars sold the abattoir and that the proceeds were withdrawn by the Wife from Twin Stars in reduction of a debt owing to her, but there was no evidence to support this inference.
The Husband went on to say that the farm was sold in 2002 because the Wife could not manage it. In consequence of the sale, she was left with another and further sum of $190,000.00; this amount was arrived at by deducting commission of $10,000.00 from the sale price of $200,000.00. The Husband was not sure when in 2002 the farm was sold. However, it is possible to infer that it occurred in February 2002 because once the Wife became possessed of $190,000.00 in cash in addition to the sum of $30,000.00 arising from the abattoir sale, the Husband stopped sending her money for her support and the support of the Children.
The Husband was asked, how much was lost altogether in the whole failed venture and his answer was that the loss was between $700,000.00 and $800,000.00 inclusive of the cost of the fencing. When he was asked, what in his view was the main reason why the venture failed, his answer was that he was not familiar with Australian law and made the investments in haste.
32. The Husband said also that the general manager and the other manager “were not honest”.. He had visited Australia on six or seven occasions before the station was purchased; he visited it on each occasion when he travelled to Australia.
33. The Husband’s evidence as to the whole venture was in all respects vague in the extreme. Notwithstanding the fact that he has a university degree in international trade, he did not display any degree of business competence. The Husband did not ever state that he took an active or any role in the management of Nagaella and whether through daily telephone calls or otherwise; on the contrary he had a manager whom he trusted. The Wife’s evidence that there were daily telephone conferences cannot be accepted if only because the Husband seemed to know so very little about the affairs of Nagaella.
34. It was put to the Husband that when he received the primary visa, he was engaged in both the courier business and also the meat importing business; he was asked, on the assumption that he was not prevented from travelling to Australia, what he intended to do about them. His answers were evasive; he replied simply that he could not come to Australia and take up residence in Australia because of the ban. He said also that if his Wife obtained permanent residence (following this hearing), he would join her within six months.
35. The Husband said moreover that because he was the eldest son, his parents expected him to remain in Taiwan. He said also that in 1999, he was considering the sale of the courier business and engaged business advisers but discussions for a possible sale fell through. The courier business, as I have noted, failed at a later time. As to the meat business, the Husband said that he planned to divide his time between Australia and Taiwan (with two months a year in Taiwan) in order to run the meat business. When asked what he would do in Australia, he said that he would export lamb and beef, making use for this purpose of his contacts in Australia.– The Husband currently lives in a one bedroom apartment in Taiwan. He said that he had real property previously but it was sold because of his business difficulties in Australia and in order to raise money to pay the Bank. He said also that he had capital “but most of it belongs to my father”.
36. As for the support of the Wife and the Children, the Husband said that she was using the capital referred to previously. He said that he knew that she was drawing social security in Australia “but the support from the Government is not enough”. He said that prior to the capital sums being received, he provided support, but his view was that the capital in her possession coupled with Australian social security should be enough for her needs. He said that if they (the Wife and children) returned to Taiwan they would stay with him. His one bedroom apartment is rented from a classmate at a cheap rate but if they returned, he would look for a bigger apartment.
37. It was put to the Husband that since the grant of the visa, he spent eight days altogether in Australia. He said that this was so because of the ban. (I have previously made the point that the ban does not figure in either the Lee letter or the relevant Statement of Issues)
38. The Husband agreed that Nagaella was wound up on 20 May 1999, a few months after the visas were issued. He agreed also that Nagaella was wound up because it was insolvent. He said that this arose in consequence of the tax office making a claim against Nagaella.
39. The Husband was then referred to T page 17, in which he stated in a survey of business migrants in answer to question 12 “my only income in Australia is the Centrelink family assistance”.. He said that he was not sure about this answer and that his Wife had filled in the form; “In my memory I didn’t fill in the form”. He was then asked whether the answer was correct. His answer was that it was “incorrect”.
40. The Husband was referred to the fourth-last paragraph of Exhibit A4 which sets out that he was running the courier business until it closed in February 2002; he did not disagree.
41. The Husband agreed that the abattoir and farm were bought by Twin Stars which was owned by the Wife. He also agreed that he had said that the Wife handled the sale of the abattoir; he said furthermore that she sold the farm because she was not able to manage it. (There was never any evidence by either the Husband or the Wife as to the Wife being actively engaged through Twin Stars in managing the assets acquired by Twin Stars prior to their resale; indeed and bearing in mind the fact that she was living in Hurstville, looking after the children and studying, it would not have been possible for her to do so).
42. The Husband then repeated that he had remitted income (although he did not specify any amounts) from Taiwan and only stopped doing so in February 2002. He said that the Wife did not receive Australian social security when she first came to Australia in June 1999 but later when she became eligible, applied for and received it. (The Wife’s evidence was that she received family allowance from soon after her arrival in June 1999 of $400.00 per fortnight rising thereafter to $560.00 per fortnight).
43. The Husband repeated that he had nothing to do with Twin Stars and took no part in the sale of the farm and the abattoir; he also said that although in principle this was correct, the Wife always consulted him.
44. He was then asked when the courier business was closed; he said that this occurred in June 2001. (The Wife said that the date of closure was February 2002). He said also that between June 2001 and February 2002, he allowed the staff to use some of the assets and in particular to make use of vehicles owned by the courier company. He was asked why the courier company did not sell the vehicles to pay its tax debt. His answer was that “the law stops you from selling the vehicles but it does not stop you from using them”.
45. It was put to the Husband that as Chief Executive Officer of the courier business (employing a hundred employees) and in a situation where there were no other executive directors, he could not possibly have participated in the day-to-day management of a business in Australia. His answer was that there were other staff members of the courier company and that in any event, he was devoting considerable time to his meat business in Taiwan.
46. It was put to the Husband that he came to Australia and left only eight days later. He said that this was because the value of the courier business was falling and he was involved in negotiations to sell it. When it was put to him that it would be difficult to sell a business involved in tax problems in Taiwan, his answer was that the tax involved was minimal.
47. The Husband was asked whether he intended to spend the next years away from his family. His answer was that “we are awaiting approval. If I get approval I will try to come to Australia”.. He then said that in such event, he would pay the tax which would be provided by relatives and friends or alternatively the same result could be achieved through guarantees from friends and relatives.
48. The Husband said that Nagaella having been wound up in 1999, he had no other interests in Australia.
49. The Husband at first did not agree that he had never produced a business plan. He said that when the abattoir was purchased, he had a plan. He agreed that since Nagaella was wound up, he had not produced a business plan. He agreed also that he had not produced evidence of advice from three business advisers and said that he did not know that this was required..
50. When it was put to the Husband that he had not transferred funds to Australia for business purposes after February 1999, he said that he had sent a large sum ($500,000.00) to Twin Stars to enable it to purchase the relevant assets, but again said that he had no interest whatever in Twin Stars.
51. The Husband said that he had intended to go to Australia in April 1999 but was prevented from doing so. He agreed that when the Wife and the children left for Australia in June 1999, he knew that it would be difficult to run a business in Australia. He knew also that they (the Wife and children) applied for citizenship in Australia as soon as the statutory period of two years have expired.
52. It was put to the Husband that the visas were obtained to enable the Wife and Children to obtain Australian citizenship and in circumstances where he was not able to leave Taiwan. His answer was that he did not use his visa and “they quite liked the country”.
PART C – THE EVIDENCE OF JULIE
53. Julie gave evidence towards the end of the first day. (In her case also no witness statement was produced but Mr Cranwell did not object). She is 13 years old and in year 8 at school in Penshurst. When she came to Australia, she could speak very little English and could not read or write English. She went straight into Hurstville Public School and took special English courses during each day.
54. Julie said that she has made four friends at school. She has no contact with friends in Taiwan. She said that school in Australia is more fun and more interesting and moreover the teachers are very nice and much nicer than Taiwanese teachers.
55. If she went back to Taiwan, she would have to attend special classes; the school hours in Taiwan are long (8:00am to 4:00pm) and there is strong competition for university places in Taiwan.
56. Julie said that she has contact with her father once a week. She said that she misses him very much.
57. Julie said she can speak Mandarin and also that she can read and write Mandarin but “only up to year 3”.. She is afraid that if she had to go back to Taiwan, she would have to catch up, and might have to drop to a lower class. In general terms, Julie made it clear that she likes Australia very much.
PART D – THE EVIDENCE OF THE WIFE
58. The Wife lives, as I have said, in a rented unit in Hurstville with the Children. She uses the anglicised name of Cindy. She and the Husband decided to invest in an abattoir in 1997 while she was still in Taiwan; they had previously (in 1994) bought the farm. Both the farm and the abattoir were bought through Nagaella of which she and her Husband were the only directors. (She made no mention of any involvement on the part of Peri).
59. The Wife said that they paid $150,000.00 for the farm; this amount was exported from Taiwan. (The Husband had said that the price was $200,000.00).
60. As to the abattoir, the Wife’s evidence was that the cost was $110,000.00 of which $90,000.00 was borrowed from the Bank. (These figures are so out of line with the real figures that I have to wonder whether there was not perhaps a translation error).
61. Mention was made at this time of T pages 36 and following, being the accounts of Nagaella for the year ending 30 June 1998.
Mr Henry said from the bar table that Nagaella’s total turnover for 1997, 1998 and 1999 was about $16m dollars. The accounts which form part of the T documents relate to the year ending 30 June 1998 and include comparative figures for the year ending June 1997, although the relevance of the previous year (the 1997 year) is dubious given that the abattoir was apparently purchased in or about June 1997. Those accounts show gross sales of about $8m dollars in 1998 and $4.7m in 1997; however and notwithstanding those large sales, Nagaella lost amounts of $111,646.00 in 1997 and $236,610.00 in 1998 respectively. The balance sheet at 30 June 1998 reflects negative equity for both years; the issued capital, as I have said, was $30,000.00 and the accumulated losses at 30 June 1998 were in the region of $600,000.00. There is no mention in the accounts of loan accounts owing to either the Husband or the Wife, although the balance sheet does record a loan account in favour of one M. Wang in the sum of $17,080.00. (Mr Wang was not mentioned during the hearing). (Except for Mr.. Henry’s statement there was no evidence before as to sales in the 1999 year).
62. The Wife said that she came to Australia in June 1999, Nagaella having gone into liquidation in May 1999. She attended meetings of liquidators, accountants and lawyers, in the hope that Nagaella could be saved. Even after the business was closed and even though the liquidator said that it was not her responsibility, she still paid “money to two persons to look after the property and the farm”.
63. The Wife said that their total investment in the farm and abattoir was about $1.4m. Since January 1999, the Wife has spent 510 hours learning English in an Adult Migration Education Program. She has also attended two TAFE courses, each for a semester of six months (costing $45.00 each), one in small business management and the other (current at this time and to be completed at the end of June 2003) in real estate management.
64. The Wife’s evidence as to financial matters differed markedly from that of the Husband. According to her, the farm and abattoir were bought in Twin Stars in August 2001 for $500,000.00. (She noted also that they had borrowed $900,000.00 from the Bank in the first place).
65. $500,000.00 was according to her, remitted from Taiwan in September 1999 even though the transaction was only completed two years later. The total price was $750,000.00 and they were “still $250,000.00 short”.
66. The Wife said that an additional $20,000.00 was sent from Taiwan in order to pay stamp duty. After the contract was completed, the liquidator refused to hand over the assets because Twin Stars still owed $100,000.00 in water rates. She did not agree to pay this amount although she did want to get the assets back. Eventually she and the liquidator reached agreement by way of compromise that they would pay one half each of the outstanding water rates.
67. According to the Wife, the liquidator sold the abattoir for $450,000.00. After the Bank had been paid and liabilities in respect of legal costs and water rates had been discharged, she received $80,000.00 net. However, she herself had to pay legal costs of her own of $50,000.00 and in the end retained $30,000.00. She then sold the farm for $200,000.00 and she received this amount. (She made no mention of a commission of $10,000.00).
68. The Wife said that if they were allowed to stay in Australia, she would look for a job as an assistant in a computer office. She also said that if they were allowed to stay, she would pay the tax debt of $70,000.00 (to the tax authority in Taiwan), thus enabling her Husband to come to Australia, where they would start another business. (The Husband had said that what little capital he had left belonged to his father).
69. The Wife said that education and medical care are both free in Australia, and she has been receiving the family allowance since June 1999. She used to ask her Husband for money when she needed it and that his support had amounted to about $2,000.00 per month but this had stopped when she received the second capital sum in February 2002; (the Husband had not said anything about sending $2,000.00 per month, but merely referred to unspecified sums).
70. The Wife then gave evidence as to the hardship aspect. She said that the Husband would have to rent a bigger apartment in Taiwan. She also said that they would not know how to explain the situation to their relatives and friends, all of whom expected them (the Applicants) to succeed in Australia and so that in other words, there was a substantial “loss of face” aspect.
71. The Wife said also that the children have become used to the system in Australia. The two younger children can speak Mandarin but they cannot read it. She said that the system in Taiwan is too strict and the study load is too heavy. They would have to face examinations and probably would need extra coaching for this purpose in Taiwan. It was noted though that many children in Taiwan have extra coaching to prepare them for the competition for university places.
72. The Wife agreed that all three of the children can speak Mandarin but said that their fluency is sometimes low. Julie is now reading and writing Mandarin below the level of children of her own age in Taiwan.
73. The Wife then gave evidence as to the fact that Julie had recently become friendly with a girl, recently arrived from Taiwan and who attends the same school. Mr Henry asked the Wife whether she had noticed anything about the new girl’s progress. The answer was that the new girl needs special English tuition but is ahead in mathematics. (The significance or indeed relevance of this anecdotal evidence is not clear to me). The Wife spoke also of stress connected with the visa cancellations and the fact that she is taking Aropax. (an anti-depressant).
74. Notwithstanding Exhibit A4 and its suggestion that the Wife had been let down by the Husband, she said that they spoke every day to him (she and the Children) and they regarded themselves as still a married couple.
75. The Wife said that she, the Husband and the children came to Australia in February 1999 and stayed for seven or eight days. She came to Australia in early June for a period of three days in connection with Nagaella’s affairs. The family excluding the Husband returned to Australia on 16 June 1999. After eight months, they spent one month in Taiwan; after another four months, they again spent one month in Taiwan and after a further year, they spent two months in Taiwan. She maintains regular contact with her parents and brothers in Taiwan. She agreed that she is very close to her family in Taiwan and misses them.
76. The Wife said that if she were able to pay the tax debt in Taiwan, her Husband could come soon. It was put to her that he had remitted $500,000.00 in 1999 and could have then paid the tax amount of $70,000.00. She said that the most important thing at the time was to procure the return of the farm and abattoir. It was then put to her that having obtained those assets, she merely sold them and paid debts.
77. When asked categorically why she did not pay the tax debt in Taiwan, she said that they expected to make lots of money from the farm and out of which they would pay the tax debt. She said moreover that she did not use any of the proceeds of sale referred to previously because the visas had been cancelled. She said specifically “because I wasn’t sure I could stay here – I didn’t want to invest a lot of money”.
78. The Wife said that one of the big attractions of Australia is the social security allowance which is not available in Taiwan. (Exhibit A4 indicates reliance on social security for the living costs of the Wife and family).
79. The Wife said that none of the Children could speak English when they came here. She said that they are all doing well at school and would not want to leave Australia.
PART E – GENERAL COMMENTS
80. I note by way of general comment that I cannot reconcile the significant differences, in particular, but not only as to financial matters, as between the evidence of the Wife and the Husband respectively. The Statements of Issues and the Lee letter are in turn equally hard to reconcile with the evidence of either of the Applicants or for that matter with each other. The fax from Mr Henry referred to earlier in these reasons described the Wife as a woman who had procured the repurchase of Nagaella Station and who had intentions to start a business; that description on the evidence before me as hardly accurate.. I should note in this context also that this fax also was not put in cross-examination to either Applicant ; however the fax was sent to the Tribunal which can hardly ignore it. That fax went on to state (and correctly) that the Husband’s case was weak. The evidence as to the negotiations with the liquidator on water rates seemed decidedly odd, especially in the light of a lengthy and detailed Deed of Settlement which appears at page 49 (and following) of the T documents between the Bank, Nagaella, Twin Stars, Martin John Green and each of the Applicants (referred to in that Deed both by their Chinese names and by their anglicised names). That Deed which presumably would have dealt with all outstanding sums was (strangely enough) referred to only in passing.
81. I have previously noted that the Statements of Issues filed on behalf of the Applicants (and in particular that in respect of the Husband) included contentions which did not figure in the evidence of either of them. The Lee letter, referred to in the next succeeding paragraph, is even more inconsistent with the evidence given at the hearing, containing as it does references to transactions and companies which were not referred to in the evidence before me.
82. . The Lee letter (a letter by Stephen Lee dated 8 March 2002) appears at T pages 69 and 70; it was sent in response to notices of intention to cancel the visas; it was not referred to in the hearing. It is set out in full in these reasons as follows:
“8 March 2002
The Manager
Business Skills Section
Department of Immigration and Multicultural and Indigenous Affairs
PO Box 25
Belconnen ACT 2616Attn: Natalie
Dear Natalie
Re: Mr Chao Hsien Hsu
File No: 99/000141Further to our facsimile to you of 12/2/2002 we now forward the following additional information and documents on behalf of Mr Hsu:
Time Spent Overseas
Mr Hsu and his family obtained Australian permanent residence in August 1998. At that time Mr Hsu was required to spend a lot of his time and efforts in Taiwan to develop the export business of the abattoir owned by him in the name of Nagaella Station Pty Ltd. Unfortunately, the company went into trouble in March 1999 with a winding up petition by the Deputy Commissioner of Taxation at the Supreme Court of New South Wales, which resulted in a Court Order of 20/5/99 for the winding up of the company.
In order to maintain the business relationship with the distribution networks that he had built up in Taiwan over time, Mr Hsu decided to work for another Australian meat exporter in the name of Scorex Pty Ltd as their agent in Taiwan. At the same time, he would wait for the liquidation settlement of his Australian company before he could take any further steps in terms of Australian business plans and ventures. In this regard, please find enclosed a testimonial from Scorex Pty Ltd together with a brochure from that company. Also enclosed are some reference letters from the meat distributors in Taiwan confirming the business relationship with Mr Hsu over the years and their expectation from Mr Hsu in terms of future business relationship. According to Mr Hsu, the business world is very realistic that even though those business acquaintances were seem to be very supportive they could leave him in no time if he could not continue with his supply to them. That’s why Mr Hsu had to stay in Taiwan in the last few years even after the turbulence of his Australian business.
Future Business Plans
The liquidation matter was settled in October 2001 when Mr Hsu was allowed to use his new company Twin Stars (Aust) Pty Ltd to acquire the farm previously owned by the Nagaella Station Pty Ltd. On 16/1/2002 Mrs Hsu was able to sign up a Sale Agency Agreement with the Pans (Aust) Pty Ltd to buy goat meat from them for re-sale to Taiwan. The Pans (Aust) Pty Ltd owns 2 abattoirs in Australia and always wants to expand their export market into Taiwan. The co-operation of the 2 companies will expand Australian export and will bring relevant benefits to Australia in terms of employment, international links and market competitiveness, etc.
In addition to the above business arrangement, Mr Hsu is also looking for abattoirs to work with. The plan is that his new Australian company will send goats to the abattoirs for processing and the finished products will be exported and marketed by Mr Hsu’s own company.
All in all, it is evident that despite the business turbulence happened in 1999 Mr Hsu is now back on his feet and has re-started a business that will be beneficial to Australia in many aspects.
Other Factors
From June 1999 Mrs Hsu and all children of the family have settled permanently in Australia. The eldest child (Julie) started in Year 4 with the Hurstville Public School and had successfully completed her primary studies in 2001. She is now studying in Year 8 at the Penshurst Girls High.
The 2nd child (Alex) started in Year 1 with the Hurstville Public School and is now studying in Year 4 at that school.
The youngest child (Denise) started from Kindergarten with the Hurstville Public School and is now studying in Year 1 at that school.
All kids have adapted to the Australian educational system and the family has become members of the Australian community. It would be a big attack to the small children if they were forced to leave the country because of some reasons beyond the control of their parents.
Mr and Mrs Hsu request that the Notice of Intention to Cancel their visas be cancelled accordingly.
Thank you for your attention to this matter.
Yours faithfully
S & L Consulting Pty Limited
SL (signature)
Stephen Lee”.
Perhaps the most significant aspect of the letter by Stephen Lee is that it makes no mention whatever of the fact that the Husband could not leave Taiwan because of the ban referred to at such length, and so often, and in so contradictory a fashion. That letter also refers (by way of another example) to an agreement between the Wife and The Pans (Aust) Pty Ltd as to the sale of goat meat; there was no mention whatever at the hearing of such an agreement or to any such company. It states moreover that Twin Stars was the Husband’s company; in his evidence he consistently denied that he had any involvement in it and whether as a shareholder or as a director, I have referred to a few only of the more flagrant inconsistencies between the Lee letter and the Statement of Issues and as between the Lee letter and the evidence. I should in fairness note that (as was the case with the fax from Mr. Henry referred to earlier in these reasons) the Lee letter (written presumably on instructions), was not put in cross-examination to either Applicant and was not referred to by either representative. That said, it forms part of the T documents in evidence before me and cannot be ignored. Equally of course I cannot ignore the inconsistencies between it and the Statement of Issues referable to the Husband and which, as Mr. Henry said, could be regarded as his Statement of Facts and Contentions.
83. I would describe the evidence of the Husband as largely untruthful and of the Wife as untruthful in part. It was untruthful in particular as to the alleged daily telephone management meetings in relation to Nagaella before the visas were issued. I note in particular that the activities of the Wife since she came to Australia in June 1999 consisted in the main of looking after the Children and studying; it cannot be accepted (to the limited extent that this may be relevant) certain of the that she has been engaged in activities which could be characterised as those of a business-woman.
84. The evidence does indicate, in stark terms, that Nagaella having collapsed in May 1999, the Husband who after all held the primary visa, has made no efforts whatever, since its grant nearly five years ago, to comply with section 134(1) of the Act. The Respondent was entitled, having regard also to subsections (2) and (3) of section 134 of the Act to cancel the primary visa. There is ample evidence moreover that the Taiwanese tax problem could have been resolved without difficulty by the simple expedient of paying it or procuring that payment of it was guaranteed. Sums much greater than $70,000.00 have been exported from Taiwan. To say that it, the tax debt, will be paid only if the Applicants are allowed to stay in Australia, is to say the least, disingenuous. Moreover, the absence of any reference to the ban in either the Lee letter or in the relevant Statement of Issues would tend to suggest that it may never have been a real problem at any relevant time.
85. The Wife did not deny that her return to Taiwan could not constitute hardship and that she would adapt very readily, because Taiwan is where her close family, to whom she is devoted, reside.
86. Mr Henry contended that for the Children to return to Taiwan would constitute extreme hardship. Exhibit A1 was prepared long after the visas were cancelled, and as I have said, refers to consultations which occurred after the visas were cancelled. Its relevance is distinctly dubious. But I need not decide this specific question because the evidence, even with Exhibit A1, does not by any stretch of the imagination demonstrate extreme hardship. We are here concerned with three clever and hardworking Children; they came to Australia knowing little or no English and have become proficient in it. They are doing well at school. For them to relocate to Taiwan, where their father resides and where they have a devoted family and where they speak the language, albeit no longer perfectly, could not even remotely be described as extreme hardship. There might be ground to be made up in Mandarin but then this would not be at all beyond them. The evidence as to schools being nicer in Australia and school hours being too long in Taiwan is surely not something to which I need specifically refer. A return to Taiwan would not be nearly as difficult as the initial move from Taiwan, bearing in mind that at that time the Children were largely ignorant of English but they are not ignorant of Mandarin.
PART E – THE LAW AND INCLUDING CASE LAW
87. Mr Henry placed great emphasis (and more than once) on the fact that the opening words of section 134(1) utilises the words, “the Minister may….”. According to Mr Henry, these words vest me with the discretion to do as I think fit. The answer to this contention is simply that the word “may” in this context is not significant in the manner specified by Mr Henry; I must come to the “correct and preferable decision” in accordance with the applicable law, and having regard in particular to the relevant legislation and the evidence before me.
88. Mr Henry contended that there is nothing in section 134(1) which requires a visa holder to acquire a substantial ownership interest in an eligible business in Australia after the visa is issued. Put in other words, a relevant acquisition prior to the grant of the visa would suffice. Mr Henry pointed specifically to the fact that section 134(1)(a) utilises the past tense. In this regard, he is, in my view, correct. Had Nagaella not collapsed and had the Husband come to Australia and managed it in the manner required by the Act, the acquisition of the interest prior to the grant of the visa would in my view have been sufficient. However, and notwithstanding that paragraph (a) of the section uses the past tense, paragraph (b) uses the present tense, and paragraph (c) employs the future tense. The evidence makes it clear that the Applicant has not complied with section 134 of the Act and indeed has made no attempt to do so. For the sake of completeness, I note that Twin Stars could never (apart from other relevant considerations) have constituted an eligible business simply because the Husband never had an interest in it. His evidence was that he could not have an interest because of the ban; as to why the two are connected is not clear to me, unless the Husband was seeking to protect Twin Stars against his own creditors, but even this is doubtful given that the tax debt was owed by the courier company and not by him.
89. Mr Henry referred me to the decision of Deputy President Hotop in Haman and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1113 (29 October 2002). In a lengthy decision, Deputy President Hotop found that a business skills visa should not be cancelled where the visa holder was prevented from carrying on his eligible business because he was serving a lengthy gaol sentence. Mr Henry sought to draw an analogy between the position of Haman and that of the Husband. There is in my view no valid analogy and Haman’s case (supra) is entirely distinguishable on its facts. On the evidence before me, the Husband could have come to Australia at any time since the grant of the primary visa. The ban (if there was a ban) was as I have noted easily capable of being discharged either through payment or the provision of guarantees. There was more than sufficient money for this purpose The Wife has and has had available capital monies more than sufficient for this purpose for some 18 months.
90. Deputy President Hotop in clause 70 of his decision gave consideration to the Convention therein referred to in the following terms:-
“70. It is appropriate that the Tribunal, in determining whether cancellation of Mr Haman's Business Skills visa is the correct or preferable decision, regard the best interests of Mr Haman's children as "a primary consideration", in accordance with Article 3.1 of the United Nations Convention on the Rights of the Child which was ratified by the Commonwealth Executive on 17 December 1990 and which entered into force for Australia on 16 January 1991. The Tribunal notes that, because the provisions of that Convention have not been incorporated into Australian municipal law by statute, it is not legally obliged to act in accordance with those provisions (including Art 3.1), but that, by reason of the Commonwealth Executive's ratification of that Convention, there is a "legitimate expectation" that Commonwealth administrative decision makers (including the Tribunal) will act in accordance with its provisions (see, generally, Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273). Accordingly, the Tribunal will have regard to the best interests of Mr Haman's children as a primary consideration in determining this matter.”
I do not express a view as to whether in these particular circumstances and having regard to the clear terms of section 134, the interests of the children should be taken into consideration as primary in the manner suggested by that decision. The Act provides (in section 134 (5)) that a secondary visa must not be cancelled where this would cause extreme hardship. However and in any event the facts in this case are clearly distinguishable from those in Haman’s case. The effect of that decision was to ensure the preservation of the family unit. The best interests of the Children in this case would prima facie be served by their (and their mother) being reunited with their father to whom, according to the evidence before me, they are devoted. Julie said that she missed him and the Wife spoke of all three Children maintaining regular and (according to her daily) contact. Nor can it be validly contended that the Children would suffer extreme hardship by returning to Taiwan bearing in mind also that (apart from the fact that they would be going back to their country of origin and where they speak the language even if not at this time quite perfectly) in Taiwan they have a devoted family and consisting not only of their father but also their grandparents and the Wife’s brothers, and in the case of one of them, his family. The evidence before me indicates some degree of hardship, perhaps more aptly described as inconvenience and dislocation arising from the move back and the necessary acclimatisation to conditions and schools in Taiwan, but it does not even remotely establish extreme hardship as required by the Act.
91. In Chen and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 477 (19 June 2002), I referred to the decision of Deputy President Handley in Wong’s case; clause 11 of my decision in Chen reads as follows:-
“11. After the visa was cancelled in November 2001, the Applicant decided, so she said, to see what happened and it is for this reason that no further transactions were entered into. If there were a business in the ordinary sense (and I refer in this context to a going concern where there is continuity in the sense referred to by Mason J in Hope v Bathurst City Council (1980) 144 CLR 1 cited in Re Tang and Minister for Immigration and Multicultural Affairs (supra), one would not have expected it to cease so abruptly. In Wong and the Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 54, Deputy President Handley noted that the correct approach in respect of a cancellation is to determine the correct or preferable decision at the time that the decision to cancel was made. It is relevant, in the view of the Tribunal, that four transactions were entered into between notice of intention to cancel and cancellation; after the last of the four transactions, all activities simply ceased. All of this is indicative of the absence of a going concern with continuity. Moreover, all four transactions involved sales to Taiwan at precisely the same mark-up in accordance with documentation of doubtful provenance, and such that it must occasion doubt as to those transactions themselves.”
92. As to the concept of extreme hardship I can usefully refer to clauses 50, 51 and 52 of Deputy President Wright’s decision in Choi and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 297 (31 March 2003) reading as follows:
“50. The Minister must not cancel a family member's business visa if the cancellation would result in extreme hardship to that person. The concept of extreme hardship has been very usefully discussed in two recent decisions of the AAT. In Salim and Minister for Immigration and Multicultural and Indigenous Affairs (2002) AATA 899 (8 October 2002), Deputy President the Hon R N J Purvis QC said, at paragraphs 12 to 14 of his decision:
‘11. The issue for determination by the Tribunal, as earlier stated, is as to whether the cancellation of the visa granted to one or more of the Applicants would result in extreme hardship being experienced by her or him.
12. 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 at 487:
‘...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 merit the description ‘extreme’. Within that area there may be varying degrees of burden one less than another, but each meriting the description...’
13. As was noted by the Tribunal in Siwei Wang v Minister for Immigration and Multicultural Affairs [2000] AATA 961 and in Setiawan v Minister for Immigration and Multicultural Affairs [2002] AATA 260, hardship from the point of view of the person allegedly experiencing it must be judged subjectively. It involves more than inconvenience or detriment. Affectation must be to a considerable degree before it can properly be called hardship. At paragraph 30 in Wang [supra] the Tribunal considered the significance that should be ascribed to the word ‘extreme"’ as used in the statute and said:
‘...The meaning of words will always be taken from the context in which they appear. However, the deliberate choice of the word "extreme" by Parliament, requires one to understand what was meant by the use of that particular degree of hardship. There are meanings of the word ‘extreme’.... Some of the more helpful suggestions are ‘of a character or kind farthest removed from the ordinary or average’, ‘utmost or exceedingly great in degree’, ‘farthest, utmost or very far in any direction’, ‘going to the utmost lengths or exceeding the bounds of moderation’, ‘the utmost or highest degree or a very high degree. The use of the word ‘extreme’ can be contrasted with the use of the 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...’
14. 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. In Ashok Kumar v Minister for Immigration and Ethnic Affairs (1997) 50 ALD 488 the Federal Court referred to Man Ki Kim [supra] where it was stated at ALD 487 that ‘the proper application of [a provision of the migration (1993) regulations which contained within it the words extreme hardship] requires a focused consideration of the situation of the Applicant’ at the relevant date. The relevant date in the present applications is the date of the hearing.’
51. This passage was referred to by Senior Member Sassella with approval and endorsement in Park and Minister for Immigration and Multicultural and Indigenous Affairs (2002) AATA 1219 (26 November 2002).
52. Although it is rarely useful to compare the facts of one case with another, particularly when the subjective impact of a particular course of conduct is the subject of the exercise, the following words of Deputy President Purvis in Salim are also most useful:
‘44. As has already been noted in these reasons it is the hardship that will most certainly occur as a consequence or result of the cancellation that is relevant and it is for the decision maker to be satisfied that this hardship will be extreme before the legislative cancellation can be avoided. It is not the need to leave Australia that evidences the hardship, for this is the contemplated legislative result of the cancellation. It is the subjective consequences to the secondary visa holder that would undoubtedly or almost certainly result from the cancellation that is to be seen as constituting extreme hardship.
45. Each of the Applicants will experience emotional hardship if required to leave Australia, they having spent a part of their formative years in this country, having received a part or whole of their secondary education and tertiary education at Australian schools and universities and having consequently formed a bonding with those with whom they came in contact whilst holding their visas. There is evidence as to each of them being held in high regard by their peers, social friends and academic acquaintances.
46. However, it would be strange or unusual and unexpected if three relatively young, intelligent and capable persons had not in the years developed such relationships. It will be hard to leave these people. It will be hard to readjust to a life outside Australia and the university environment. But this hardship is one within the contemplation of the legislature when it chose to insert the word ‘extreme’ as to qualify the hardship. And it must be "extreme" to the particular individual.
47. The Tribunal does not consider that the hardship that will undoubtedly be experienced by each one of the Applicants is exceptional, unexpected or of such a nature as to qualify for the description of exceedingly great in degree. Unfortunate yes, emotional yes, financial yes to a degree. But not extreme.”
There is (as I have indicated) no basis upon which I can find extreme hardship. As the cases indicate, the term “extreme” must be given a meaning and so as to connote something more than ordinary hardship. The evidence as to the Wife’s stress and her taking an anti-depressant does not appear to me to be relevant in this context.
93. It was put to the Husband that the taking up of residence in Australia by the Wife in June 1999 together with the children but without the Husband was done in order to enable them to obtain Australian citizenship. (I have referred to this aspect previously in these reasons). On the evidence before me, I am inclined to think that this contention may have considerable merit but with one proviso and that is that social security (and its desirability and availability in Australia) appears to have been an additional consideration. .
94. This case ran for two days. Where interpreters are involved, proceedings are usually lengthier than they would otherwise be. Nevertheless, when closely analysed, this case in its bare essentials involves a family who applied for business visas at a time when there was an eligible business in Australia, although not one to which the Husband had devoted much or indeed any care or attention. The business collapsed (and the company owning it went into liquidation) before they could take up residence in Australia. It was possible and even likely that the Husband (whose dealings with Tax departments have generally been unhappy), decided, and perhaps understandably enough, that to go to Australia when he had no business left, and where he had two apparently substantial businesses to run in Taiwan, was not the preferred course. This could have been the prime motivating factor at least until February 2002, and being the most likely time (despite other evidence as to a different collapse time) when the courier company collapsed. Why then did he not come to Australia at that time? Here too the solution may lie in the fact that he still had the meat business albeit reduced in size and scope, and where there was nothing left in Australia. By that time Twin Stars in which he said he had no interest had sold both the farm and the abattoir. It is however unnecessary for me to speculate as to why the Husband made no attempt to comply with section 134 of the Act, having regard to the fact that the evidence indicates in stark terms that he has not done so. As I have indicated, the “ban” (if there was a ban) was in reality a shadow ban because it was so easy to remove. That the Husband did not do so was his decision and probably taken in conjunction with the Wife. In these circumstances and on the basis that citizenship in Australia is desirable, the Wife and children came to Australia and applied for citizenship at the earliest possible moment. The Wife applied for social security in the same way and started receiving it soon after arrival in Australia. Australia’s generous social security system is not a secret. Put in summary terms; the decision cancelling the primary visa was in the circumstances inevitable and eminently correct; the cancellation of the secondary visas must follow unless extreme hardship can be demonstrated and it has not.
95. The rationale which underlies the business migration system is that skilled business people come into this country in order to run enterprises in which they have a substantial interest and which might be expected to provide employment opportunities for persons resident in Australia. What occurred in stark contrast is that the Wife and children came to Australia alone and became dependents of this country soon after their arrival; it is conceivable that this too was intended at the time of their departure from Taiwan. It is in this context that the Husband's evidence that the Australian government was not paying her enough was to say the least unfortunate.
96. Mr Henry during the course of the hearing agreed that Chen’s case (supra) was correctly decided by me but contended that it is distinguishable on its facts. This may be so at least to some extent, but on reflection I consider that it has factors in common with and is in a number of respects reminiscent of Chen’s case.
97. Mr Henry referred me to a number of provisions in the Migration Series Instructions number 133. In particular, he referred me to the fact that clause 7.5.3 provides that where there is doubt, the benefit of that doubt should be given to the Applicants. I do not think that this is a case where there is doubt.
98. It follows then that this is a case where the decisions under review should be and are affirmed.
I certify that the 98 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Block, Deputy President.
Signed: (Sgd) Kwai-Ling Wong .......................................................................................
AssociateDate/s of Hearing 19 February 2003 and 16 June 2003
Date of Decision 30 June 2003
Representative for the Applicant Mr S HenrySolicitors for the Respondent Mr G Cranwell (first day) and Ms L Watson (second day)
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