Jang and Minister for Immigration and Citizenship

[2007] AATA 1937

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1937

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2006/2525

GENERAL ADMINISTRATIVE DIVISION		)
Re		DONG IG JANG

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member

Date12 November 2007

PlaceSydney

Decision The decision under review is affirmed.  

....................[Sgd]......................

Ms Robin Hunt
  Senior Member

CATCHWORDS

IMMIGRATION – cancellation of business skills visa – automatic cancellation of secondary visa holder’s visa – applicant is son of former primary visa holder -– applicant studying in Australia – extreme hardship claim considered – inability to complete studies in Australia - compulsory military service on return to South Korea -  finding that cancellation will not cause extreme hardship - decision affirmed

Migration Act 1958 subsections 134(4), 134(5)

Migration Series Instruction 133 (MSI-133)

Procedures Advice Manual (PAM3)

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

Lee and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 973

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

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Re Wang v Minister for Immigration and Multicultural Affairs [2000] AATA 961

REASONS FOR DECISION

12 November 2007 Robin Hunt            

SUMMARY

1.      Dong Ig Jang, the applicant, wishes to remain in Australia to further his studies. Mr Jang’s subclass 128 (Senior Executive) visa was cancelled automatically on 15 November 2006 in consequence of the cancellation of his father’s subclass 128 (Senior Executive) visa. In order for the applicant to obtain reinstatement of his visa, he must show he will suffer extreme hardship as a result of cancellation of his visa. After hearing the applicant and his mother, Sun Yeong Cha, and considering all the material before me, I have decided that the decision to cancel the applicant’s visa was appropriate and that it should be affirmed.

BACKGROUND

2.      According to the respondent’s documents before me, the applicant’s father, Sa Yong Jang, Dong Ig Jang and two other family members were granted subclass 128 (Senior Executive) visas on 11 August 2003. The applicant’s mother, Sun Yeong Cha, and her two children, one of whom is the applicant, were granted secondary visas as dependant members of Sa Yong Jang’s family unit. Sa Yong Jang, subsequently entered Australia as the primary visa holder of a subclass 128 (Senior Executive) visa. The applicant was already studying in Australia and had been the holder of a student visa. The applicant’s mother had been living in Australia as the applicant’s guardian. Their respective student and guardian visas, which were temporary visas, were replaced by the subclass 128 (Senior Executive) visas, which entitled them to permanent residency in Australia.

3. Sa Yong Jang’s visa was cancelled, pursuant to section 134(1) of the Migration Act 1958 (the Act), when a delegate of the respondent decided he had not met required tests of business for a subclass 128 (Senior Executive) visa holder. This meant that, on 15 November 2006, the applicant’s subclass 128 (Senior Executive) visa also was cancelled pursuant to section 134(4) of the Act. Under subsections 134(4) and 134(5), when a primary visa is cancelled, any secondary visa is cancelled unless that secondary visa holder would suffer extreme hardship as a result of the cancellation. The applicant is claiming he will be caused extreme hardship.

4.      All the members of Sa Yong Jang’s family initially applied to the Tribunal for review of the cancellation decisions which affected them. However, Sa Yong Jang and the applicant’s brother later withdrew their review applications. I heard the applications of Dong Ig Jang and his mother, Sun Yeong Cha, together. For my reasons for decision in Ms Cha’s case, see matter number N2006/2524.

ISSUE

5.      The issue for me to decide in the present case is whether cancellation of the applicant’s secondary business visa would cause him extreme hardship according to subsection 134(5) of the Act.

CONSIDERATION OF THE EVIDENCE

6.      Dong Ig Jang claims that, if he has to leave Australia, he will suffer in readjusting to the Korean lifestyle as well as in having to undertake compulsory military service for two years in Korea. He also claims he will suffer a severe setback to achieving his educational objectives. He gave further oral evidence about matters which will cause him hardship in consequence of the cancellation of his visa. 

7.      The applicant furnished a written statement and gave oral evidence about his activities in Australia since he first entered as a student on 29 July 2001. Dong Ig Jang set out that he was born in Korea on 16 January 1986 and entered Australia as a student. He gave oral evidence that when he came to Australia he first studied English. His facts and contentions state that he completed an intensive language course at Holmes Language College on 23 December 2001. The applicant then commenced in year 9 at Newington College in 2002. He was granted the now cancelled permanent visa on 11 August 2003 and went on to commence year 11 at Killara High in 2004.

8.      The applicant told the Tribunal that he had trouble studying in English at first but now he was better at learning in English than he was in Korean. He said he was “fine“ with speaking in the Korean language but would have trouble writing essays in Korean as he had lost vocabulary. He gave further evidence that currently he was living in accommodation in Pitt Street, Sydney, near his TAFE college.

9.      Dong Ig Jang completed Year 12 at Killara High School in September 2005. He told the Tribunal that when he graduated from high school in 2005 he did not have the Higher School Certificate (HSC). He gave evidence that he was not a good student and found it hard to study well in year 12. After high school graduation, he took a break from study for 1 ½ years to “sort himself out” and worked at an internet cafe. He had worked there part time when still studying and later worked there full time. He then decided to go to TAFE in order to qualify for entry to the University of NSW (UNSW) to do a commerce course. He gave further evidence that he would need to do well in the TAFE course and obtain credits to achieve entry to his preferred course at university.

10.     In his facts and contentions document, the applicant set out that he commenced business and advertising studies at Ultimo TAFE in February 2007. The respondent’s documents show that the notice of intention to consider cancellation of visa issued on 9 August 2006 and his visa was cancelled on 15 November 2006. These events occurred before the applicant commenced the TAFE course. The applicant gave evidence that, nevertheless, he was not aware that his visa might be cancelled when he applied to TAFE. He said he became aware of the cancellation around the time he applied for the present review of the cancellation decision, on 12 December 2006.

11.     The applicant said he had been thinking about his future after school and had investigated entering university. Around July 2006, he discussed with staff at the University of NSW (UNSW) how he might qualify for entry to a commerce degree course. They had suggested he do the TAFE course. He found when he tried to enrol at TAFE that the deadline for enrolments for the second half of 2006 had already passed and he had to wait until 2007 to enrol. Dong Ig Jang gave evidence to the effect that he needed to obtain a credit average in the TAFE course in 2007 to be able to enter the UNSW course in 2008. He felt he had performed well in his TAFE course, although there would be no formal assessment until December 2007. According to his written statement, his course at TAFE was due to end in December 2007.

12.     Dong Ig Jang further said he would be unable to obtain a credit average in the TAFE course in 2007 and enter the UNSW course in 2008 if the cancellation of his visa was affirmed. This was because he will have to leave Australia within 28 days of the decision. He believed he would not have sufficient time to obtain an offshore student visa to enable him to return to Australia to complete his TAFE course and that would mean he would fail the course.  This also meant he would not have sufficient credits to enrol in the UNSW course he proposed.

13.      In response to questions about how he would fare in Korea and whether he could do a similar university commerce course in that country, the applicant explained he would have difficulties. He would experience delays because he was not yet up to university standard, was not enrolled in any recognised course in Korea and had to do military service. The applicant pointed out he would be recorded as having failed his TAFE course because he would be unable to complete it once he had to leave Australia. When he returned to Korea, he would be required to do two years military service.  Sometimes military service could be postponed by being enrolled in a recognised course but he was not so enrolled. Already he was behind other Korean students, not having been schooled there, and he and would have to complete preliminary studies to qualify for university entry. This would take him at least one further year. He would be some years older than other students by the time he had done his military service and had caught up in Korean studies. He explained that there was a special entry exam which he would have to pass to be able to go to university as an older student. In order to study for the entry exam, he could go to a private coaching college. This was not necessary for all students but it would assist him to pass, bearing in mind his loss of writing skills in Korean and missed studies in Korea while he was in Australia.

14.     Dong Ig Jang conceded that his brother had been able to postpone military service while he did a course in Korea. However, his brother had been able to enrol in a course designed to qualify him as an interpreter in the Korean services. The applicant implied that he would not be able to follow suit. He gave evidence to the effect that it was sometimes possible to obtain an exemption where enrolled in a course but it was unlikely that he could obtain an exemption as he would merely be undertaking private tuition. He could not expect to enter university without undertaking private tuition first. All in all, this would mean at least three years of delay before he could hope to do a university course in Korea.

FINDINGS

15.     I accept the submissions on behalf of the applicant that if his visa is cancelled he will have to leave Australia within 28 days. He might apply for a bridging visa but, even if one is granted, it is unlikely that he will have sufficient time to obtain an offshore student visa to return to Australia in order to complete his TAFE course. As a result, I accept that he may be unable to pass the course.  This may well mean that he cannot enrol in a course at the UNSW as he planned. Dong Ig Jang is doubtless suffering stress and anxiety as a result of the prospect of a forced departure from Australia. Even if he applies for a student visa from Korea, the delay would prevent him from completing the TAFE course in 2007.

16.     I also accept that, if the applicant returns to Korea he will have great difficulty in returning to Australia on a student visa to undertake further study, if he has not completed his TAFE course. As well, I acknowledge that Dong Ig Jang will have difficulty in undertaking further tertiary study in Korea after being away for some vital years. He has been in Australia since July 2001 which means he has not completed the equivalent of the HSC in Korea. He would need to undertake further study in Korea such as private tuition for a period, possibly for a year as he claims, in order to be able to sit the HSC-equivalent exam in Korea. It is understandable that the applicant doubts whether he would obtain sufficiently high results because he is out of touch with Korea and has acclimatised to Australian society and language. I accept his evidence that this will work against his academic progress in Korea.

17.     In addition, I accept the applicant’s evidence that he may be required to undertake military service.  There is nothing before me to contradict Dong Ig Jang’s oral evidence that conscription is compulsory in Korea and I accept his explanation about his brother’s being able to postpone such service. The applicant was a witness who gave his evidence in an open and honest way and I have no difficulty in believing that he fears he will be required to undertake two years military service that soon after returning to Korea. He may be unable to participate in a course of study in Korea which permits him to postpone military service. He further explained that his brother was not so concerned about doing military service as the applicant is. It may well be true that the applicant’s education will be set back for some years or that he may never resume tertiary studies because of the difficulties that he will face upon return to Korea. This may cause him employment difficulties or restrict his options in employment as well. All of these circumstances involve a degree of hardship to the applicant but are the likely consequence to any student whose studies are terminated prematurely due to cancellation of a visa.

Will the applicant suffer “extreme hardship” if his visa is cancelled?

18.     I accept Mr Jang’s evidence that he had decided to undertake a tertiary commerce course before he was aware his visa was under threat of cancellation although notification had been sent earlier. Mr Jang presented as a truthful witness and the record shows the address to which the respondent’s notices were sent was that of the immigration agent who was handling the migration matters for Mr Jang and his parents.

19.     It is of course unfortunate that Mr Jang’s education in Australia since 2001 cannot continue as he planned. He has lived in Australia for six years and no doubt has friends and contacts here. However, he is not without resources in Korea. He grew up in Korea until he left in 2001, aged 15. He conceded that he had returned to Korea occasionally for holidays and his father and brother continue to live there. There is no doubt in my mind that having to leave Australia will cause hardship for Mr Jang. However, on balance, I am not satisfied that this will amount to extreme hardship. 

20.     The term, “extreme hardship” in subsection 134(5) is not defined in the Act or regulations. As the applicant’s counsel pointed out, the former policy guideline, Migration Series Instruction 133 (MSI-133), did not define the term or provide any guidelines as to its meaning but a new instruction has issued which is somewhat different.

21.     On 15 March 2007 the Minister issued a new Procedures Advice Manual (PAM3) which sets out the procedures to be followed in making decisions under section 134 of the Act. PAM3 replaced MSI-133 and issued pursuant to section 499 of the Act, which authorizes the Minister to give written directions to decision-makers. PAM3, as an instrument of policy, is a relevant consideration in the decision-making process. See Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577). Paragraph 15.2 of the PAM guideline sets out as to “extreme hardship”, (emphasis added):

Under s134(5), officers must not cancel the visa of a family unit member if it would result in extreme hardship to that person.

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

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

22.     The applicant’s Counsel put to me that the new PAM3 guideline made it clear that extreme hardship could result from being unable to complete a course in Australia. This is the situation which the applicant claims faces him. I am not convinced that the guideline has changed the emphasis that should be given to interrupted studies in Australia. To my way of thinking, the guideline makes it clear that the student will suffer extreme hardship only if he or she will never be able to complete their studies. The guideline uses the word “eventually” and is not suggesting that delays and difficulties such as those likely to be experienced by the applicant amount to “extreme hardship”.

23.     The Federal Court considered the phrase “extreme hardship” in Man Ki Kim v Minister for Immigration and Ethnic Affairs(1995) 37 ALD 481. At page 487, Justice Foster considered the meaning of extreme hardship and said it must be at the very high end of the scale. The Macquarie Dictionary defines extreme firstly as “of a character or kind farthest removed from the ordinary or average”. The dictionary gives a second meaning of “utmost or exceedingly great in degree”.  I consider that the applicant’s situation is little different in degree from any other student whose studies are interrupted. If he is unable to complete the TAFE course, the applicant will suffer hardship, particularly as the academic year for 2007 has almost passed.  However, he has not shown that he can never complete his studies on a student or other visa as the policy guidelines suggest. In my view, it is entirely possible that he can continue his “studies” in the future even if he has not fulfilled all the requirements for his present TAFE course.  His tertiary studies will be delayed but not inevitably prevented.

24.     The Tribunal has often considered cases involving students who are part way through their studies in Australia when their visas are cancelled through no fault of their own but as secondary visa holders linked to a cancelled primary visa holder. These cases almost invariably involve some hardship for a student whose future plans are suddenly thrown into chaos. For example, in Salim v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899, Deputy President Purvis referred to “… emotional hardship if required to leave Australia, … 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.” However, the Deputy President concluded such hardship was within the contemplation of the legislature when it inserted the word “extreme” to qualify hardship. In another example, In Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961, Deputy President McMahon stated at [29] that “hardship involves more than inconvenience or detriment. Affectation must be to a considerable degree”.

25.     In my view, the new guidelines have not made a great difference to the interpretation of the words “extreme hardship”. The phrase should not be interpreted in an overly generous manner.  Broadly, any student in Australia who is forced to discontinue studies part way due to cancellation of a visa might say they could not eventually complete those particular studies on a student or other visa. The applicant may be unable to complete his current TAFE course if he has to leave Australia before December 2007 but there was never any certainty that he would complete the course satisfactorily. The applicant presented no evidence as to his progress or of the opinions of his tutors about the standard he was achieving. As well, even if he achieved credits in his TAFE course, the applicant was not assured of entering the course he aspired to at the UNSW. Various factors affect university entry.

26.     I have taken all the above considerations into account in reviewing the cancellation decision. After weighing the degree of hardship the applicant would suffer, I have decided that, despite consequent difficulties to the applicant, the cancellation will not result in extreme hardship to him. This means the cancellation decision under review should be affirmed.

decision

27.     The Tribunal affirms the decision under review.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Robin Hunt

Signed: [Talaishia Collis]
  Associate

Date/s of Hearing  22 August 2007 
Date of Decision  12 November 2007
Counsel for the Applicant         Mr N Poynder
Solicitor for the Applicant          Mr M Kah – Kah Lawyers
Counsel for the Respondent     Ms B McNeil – Clayton Utz