Lang and Anor and Minister for Immigration and Citizenship
[2007] AATA 1403
•6 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1403
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200600277
GENERAL ADMINISTRATIVE DIVISION ) Re SIU PO LANG and JOANNE KUEN CHEUNG Applicants
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Senior Member R W Dunne Date6 June 2007
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – business skills visas – cancellation of visa of first applicant’s husband and second applicant’s father – consequential cancellation of secondary visas of first applicant and second applicant – extreme hardship to first applicant and second applicant – consideration of first applicant’s nursing qualifications and job opportunities – prospects and cultural differences between Australia and Hong Kong – episodes of depression by first applicant – decision affirmed
Migration Act 1958 ss 134, 136
Re Lim and Anor and Minister for Immigration and Multicultural Affairs [2007] AATA 1036
Re Chen and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1023
Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961
Re Lee and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 973Re Salim and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899
REASONS FOR DECISION
6 June 2007 Senior Member R W Dunne 1. These are applications by Siu Po Lang (“first applicant”) and Joanne Kuen Cheung (“second applicant”) under s 136 of the Migration Act 1958 (“Act”) for review of a decision by a delegate of the Minister for Immigration and Multicultural Affairs made on 25 July 2006. The delegate’s decision, made under s 134(1) of the Act in respect of the first applicant’s former husband and the second applicant’s father (“primary visa holder”), was to cancel his Business Skills visa. The applicants’ visas were cancelled under s 134(4) of the Act because the delegate was not satisfied that the applicants would suffer extreme hardship, within the meaning of s 134(5) of the Act. The applicants were secondary visa holders of a sub-class 128 (Senior Executive) visa. At the time of cancellation, sub-class 128 visas were classified as Business Skills (Migrant) (Class AD) visas under item 1104(4) of Part 1 to Schedule 1 to the Migration Regulations 1994 as they appeared at 28 February 2003.
2. Both Ms Lang and Ms Cheung were born in China, the former on 21 November 1959 and the latter on 15 November 1986. Like the primary visa holder, they are both citizens of Hong Kong. On 28 March 2003, the Australian Consulate- General in Hong Kong approved the application for a sub-class 128 (Senior Executive) visa by the primary visa holder. Identical visas were granted to the first applicant and the second applicant on the basis that they were members of the primary visa holder’s family unit. When the primary visa holder failed to satisfy the requirements of s 134(1), he was given notice by the delegate on 24 March 2006 of the intention to cancel his Business Skills visa. On the same day, similar notices were given to the first applicant and the second applicant. Acting pursuant to s 134(1), the delegate cancelled the primary visa holder’s visa on 25 July 2006. Again, on the same day the delegate, not being satisfied that cancellation of the visas of the first applicant and the second applicant would result in extreme hardship to them, cancelled their visas pursuant to s 134(4) of the Act.
3. At the hearing, the second applicant was not present. However, Mr Hans Van Arend, Migration Agent, appeared on behalf of both the first applicant and the second applicant and Mr Paul d’Assumpcao appeared on behalf of the respondent. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit R1), together with the following exhibits tendered during the hearing:
(a) application and notes for registration with the Nursing Council of Hong Kong for nurses trained outside Hong Kong (Exhibit R2);
(b)nursing vacancies in Hong Kong extracted from the internet, posted January and February 2007 (Exhibit A1);
(c) 2005/2006 scholarship account from Dartmouth College (Exhibit A2);
(d) Alice Springs Hospital job offer dated February 2007 (Exhibit A3); and
(e)photocopy of the first applicant’s Hong Kong passport issued on 8 March 2001 (Exhibit A4).
issue for the tribunal
4. Both the first applicant and, it is understood, the second applicant do not dispute that the primary visa holder’s Business Skills visa was lawfully cancelled by the respondent. The only issue is whether the consequential cancellation of the visas of the first applicant and the second applicant would result in extreme hardship to them.
legislation
5. The following provisions of the Act relevantly apply in this matter:
“134(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.
…
(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 or was 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.
(6)The Minister is taken not to have cancelled a person’s business visa under subsection (4) if the Administrative Appeals Tribunal has set aside the decision of the Minister to cancel the business visa of the relevant person to whom paragraph (4)(a) applied.
…
(8) A cancellation under this section has effect on and from:
(a)if the person applies to the Administrative Appeals Tribunal for a review of the decision to cancel the visa—the 28th day after the day on which the Administrative Appeals Tribunal gives its decision on that review; or
(b) if:
(i) the person’s visa was cancelled under subsection (4); and
(ii)the relevant person to whom paragraph (4)(a) applied has applied to the Administrative Appeals Tribunal for a review of the decision to cancel that person’s visa;
the 28th day after the day on which the Administrative Appeals Tribunal gives its decision on that review; or
(c)the 28th day after the day on which the notice of cancellation is given to the holder of the cancelled visa;
whichever is the latest.”
background and evidence
6. The first applicant was married to the primary visa holder when he applied for a Business Skills visa on 5 July 2002. Following the approval of his visa, the primary visa holder came to Australia in approximately April 2003, but then returned to Hong Kong whilst the first applicant and the second applicant were still there. The first applicant and the second applicant then came to Australia in June 2003 for a short holiday, returning to Hong Kong in July 2003. It appears from the first applicant’s passport (Exhibit A4) that she may have come to Australia again for short visits in September 2003, January 2004, March 2004 and April 2004. Then, in May 2004 the first applicant returned to Australia permanently, after gaining acceptance at the University of South Australia to study nursing, leaving the second applicant to complete her studies at an International Boarding School in Hong Kong. The primary visa holder was to follow the first applicant after he had finished some business in Hong Kong, but this did not eventuate and he did not settle in Australia. He and the first applicant separated and, it is understood, have subsequently divorced.
7. The second applicant came to Australia in 2005, but moved to the United States shortly afterwards to take up a part scholarship at Dartmouth College in New Hampshire. Since she has been in Australia, the first applicant has received no financial support from the primary visa holder. The second applicant has received little support, which meant that the first applicant also had to provide for her maintenance. The first applicant studied full-time at the University and worked as an aged-care worker to pay for her fees and living expenses and the second applicant’s college fees and living expenses in the United States. The first applicant completed her University studies in December 2006 and gained a Bachelor of Nursing degree to enable her to become registered as a nurse.
8. It was the first applicant’s evidence that she would suffer extreme hardship if she had to leave Australia and return to either Hong Kong or China. She had no present means of support in Hong Kong – no accommodation, no friends and no family. She was unsure whether she could become registered as a nurse in Hong Kong and believed that it would be necessary for her to take examinations there before she could become registered. She also had a language difficulty, in that she could not speak Cantonese. If she returned to China, nursing wages there were low and she could not afford to live there and continue maintaining the second applicant in the United States. She would also have difficulty living in Hong Kong, where general living expenses (in particular, apartment accommodation costs) were high. She said nurses were presently fighting for jobs in China and that, once they reached the age of 45 years, were required to retire.
9. The first applicant had received a job offer for a 2 year temporary nursing position at the Alice Springs Hospital (Exhibit A3). Her employment would be confirmed once she had been granted a visa to remain in Australia. She was not sure whether, if she had to leave Australia, she could be sponsored by the Hospital to obtain an appropriate visa and return to take up the temporary nursing position. The first applicant had suffered from depression in the past, which started when she separated from the primary visa holder, and this had continued when she learnt that her Business Skills visa had been cancelled. However, she said that she had not suffered from depression for the past 10 months. She had become settled in Australia, after a long process, and wanted to remain here. If she was forced to leave Australia, she was concerned that her depression would return. If she had to return to Hong Kong or China, she would have to gain employment and find accommodation for herself and the second applicant, who would be returning from the United States in 2009. Being presently 20 years of age, the second applicant was financially dependent on the first applicant, and she was not aware that the second applicant received support from any other source. Her Dartmouth College scholarship was worth approximately US$37,000 and the first applicant’s contribution to the scholarship was US$7,500. If the second applicant was forced to give up her scholarship, in the absence of support from the first applicant, she would be unable to gain admission to a university in China.
10. In cross-examination by Mr d’Assumpcao, the first applicant’s evidence was that she had searched the website for nursing opportunities in Hong Kong (Exhibit A1). However, because of the language barrier and her belief that she would have to sit for further examinations, she had not applied for nursing positions in Hong Kong. She had previously lived there for 3 years, where she had become used to shopping, daily life and public transport. However, she did not socialise and found living there was culturally different to her life in China. She had learnt to speak English in Australia, which was also spoken in Hong Kong. However, the elderly patients she would be required to nurse would only speak Cantonese and this would be an obvious difficulty for her. Her current income as an aged-care worker was approximately $20,000 per annum. She shared a one bedroom apartment and, out of her income, she paid the second applicant’s scholarship contribution (US$7,500) and her apartment rental contribution of $45 per week. She said she did not have many other expenses, she bought few books for her studies and her University fees were minimal. She said she received no support from her relatives in the United States. She had made many friends in Australia and belonged to a spiritual organisation called Subud, which she joined soon after her arrival in Adelaide. Subud was an international spiritual association of people of all religions, as well as people with no formal religious affiliations. Subud was banned in China and, as the only members of the organisation in Hong Kong were men, it would not be possible for her to pursue her religion there. The first applicant and the second applicant had a very close relationship. The second applicant had been taught English at the International Boarding School in Hong Kong, before applying for a scholarship in the United States. When she completed her studies, she would not be able to remain there. It was always planned that the second applicant would join the first applicant in Australia. Like her mother, the second applicant did not speak Cantonese and had no family there, she had no contact with her father and had been told that he had returned to mainland China.
11. To summarise her evidence, in the statement attached to her application for review to this Tribunal, the first applicant said (Exhibit R1, T1 at page 6):
“I have no home, no possessions in China. In Australia I have my home, my car, my belongings, my studies, my work, my job opportunities, my friends, my life and my dreams. If my visa is cancelled I will lose all this and will suffer extreme hardship to begin al [sic] over again.”
Then, in the first applicant’s statutory declaration (Exhibit R1, T20 at page 80), she said:
“19 I am suffering sleepless nights not only about my residency in Australia but also my future in my proposed profession as a nurse – which was always my dream to become.
20 The cancellation of my visa will destroy my future, deprive my dependant child of her mothers [sic] support to finish her studies and cause me to suffer extreme emotional stress and hardship.”
consideration
12. In the case of both the first applicant and the second applicant, it is common ground that the issue is whether the cancellation of their Business Skills visas would result in “extreme hardship” to them within the meaning of s 135(5) of the Act.
13. What constitutes “extreme hardship” has been considered by Courts and Tribunals on many occasions. The recent decision of Member Dr Gordon Hughes in Re Lim and Anor and Minister for Immigration and Multicultural Affairs [2007] AATA 1036 is most instructive. At paragraphs 61-66 he said:
“61. In Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481 at 487, Foster J considered the meaning of extreme hardship and said:
...it is, in my opinion, important to approach the phrase ‘extreme hardship’ in a broad way. Clearly, it imports a high degree, perhaps a very high degree of hardship, but it must be applied in the context of the facts of the particular case. ‘Hardship’ is in itself a relative term. What may be a ‘hardship’ to a sensitive person, or one in a particularly vulnerable situation, may be no great burden at all to a person of more stoical disposition or in a more protected situation. Similarly, the word ‘extreme’ must be evaluated against the facts of the particular case. Such an evaluation cannot, consistently with the duties imposed upon the decision-maker by the Act, be approached in a dismissive or perfunctory fashion. A full and proper consideration of the person allegedly suffering the hardship or prejudice must be undertaken...
In addition to what I have already said, I consider that the application of the word ‘extreme’ must also be approached with caution. Obviously there are varying degrees of hardship which may be suffered by any particular individual. ‘Trivial’, ‘minor’, ‘moderate’ are adjectives which spring to mind as conveying such varying degrees. Clearly enough, ‘extreme’ hardship must find itself at the very high end of the scale. This does not mean, however, that in any given case, ‘extreme hardship’ means, in effect, a particular point on a continuum of hardship. It obviously connotes an area within which an ascertainable burden of hardship may fall and properly merit the description ‘extreme’. Within that area there may be varying degrees of burden, one less than another, but each meriting the description...
62. In Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961, Deputy President McMahon also considered the term extreme hardship and stated at para 30:
...the deliberate choice of the word ‘extreme’ by Parliament, requires one to understand what was meant by the use of that particular degree of hardship. There are many meanings of the word ‘extreme’ offered in the Macquarie Dictionary. Some of the more helpful suggestions are ‘of a character or kind farthest removed from the ordinary or average’, ‘utmost or exceedingly great in degree’, ‘farthest, utmost or very far in any direction’, ‘going to the utmost lengths, or exceeding the bounds of moderation’, ‘the utmost or highest degree, or a very high degree’. 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. Furthermore, that hardship must result from the cancellation.
63. In Re Wang, the Tribunal also stated at para 31 that ...the hardship must be a necessary concomitant of the cancellation. A mere possibility or even a probability would not be sufficient.
64. In Re Chen and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1023, the Tribunal found that while visa cancellation would cause disappointment and some distress, it did not amount to extreme hardship.
65. There have been number of cases considered by the Tribunal where the Tribunal has found that applicants in similar circumstances to Mr Mulya would not suffer extreme hardship if their visas were cancelled: see Re Chen and Ors and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 628; Re Salim and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899; Re Chen and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1023 and Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961.
66. In Re Salim at para 46, the Tribunal observed that the hardship of relocation by an educated person to a life outside Australia would undoubtedly cause difficulties for the individual but this hardship is one within the contemplation of the legislature when it chose to insert the word 'extreme' as to qualify the hardship. Similarly, in Re Then and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 18 at paras 12 and 13, the Tribunal considered that some short term problems for the applicant's career, although upsetting and disturbing, did not in the circumstances of that case amount to extreme hardship. In Re Aziz and Minister for Immigration and Multicultural Affairs [2006] AATA 301 at para 18, the Tribunal observed that:
the fact that the applicant has a full-time job in Australia, has all his assets in Australia and does not own anything in Malaysia is incapable, without more, of constituting ‘extreme hardship’ for the purpose of s 134(5) of the Act.”
14. In Re Lim, Member Dr Hughes held that the cancellation of the visa of the applicant (Mr Mulya), in circumstances that would disrupt his tertiary education in Australia and result in a degree of “culture shock”, given that he had been living in Australia for 5 years at the time, was not “extreme hardship”. In Re Chen and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1023, the applicant said that, if his visa was cancelled, he would not be able to complete his degree program in the foreseeable future and, on his return to Taiwan, he would be obliged to serve a 2 year military service period which would interrupt his studies and prevent him from completing his degree if he were to regain an Australian visa. Member Ms N Bell was not satisfied that the hardship asserted by the applicant was a hardship that would necessarily follow cancellation of his visa and was not “extreme”. In Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961, where the facts were similar to those of the first applicant, Ms Wang’s business visa was cancelled. She asserted that she would suffer extreme hardship because (amongst other things) she had no home to return to in China, she had little prospects of obtaining employment, she had no contact or friends in China and the maintenance that she received from her ex-husband would be reduced. She was presently in full-time employment in Australia and had a network of friends here to whom she could look for emotional support. Deputy President B J McMahon found it difficult to see even a moderate degree of hardship in Ms Wang’s particular fears and that extreme hardship could not be shown. However, in Re Lee and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 973, again on facts similar to those of the first applicant, Senior Member P J Lindsay set aside the decision under review and remitted the matter for further consideration. At paragraph 36, Senior Member Lindsay said:
“36. …It is envisaged by the scheme of the business visa legislation, that such privileges must be given up if the primary visa is cancelled and hence the visas of the secondary holders. Nevertheless the legislation provides that extreme hardship to secondary visa holders will justify not invalidating their visas as the automatic consequence of cancelling the primary visa. I am satisfied that having Ms Lee discontinue her study at this very late stage of the course, without her possessing financial resources to finish the degree in Australia, assuming the grant of a student visa, or an alternative degree, either in Malaysia or elsewhere, should not be characterised merely as an inconvenience or detriment (cf Re Wang at [29]). I regard having her participation in the course suspended, at the very last minute, in circumstances where she would not be able to complete the degree in which she has invested over 31/2 years of work and have nothing to show for it, would amount to extreme hardship.”
15. The first applicant has obtained her nursing degree and, on her evidence, has become a registered nurse. She is familiar with Hong Kong, but is not comfortable with the Hong Kong culture. She has no family or friends in Hong Kong but, although she has lived in Australia for the last 4 years without family, she has developed friendships here. The second applicant has remained overseas, apart from holiday visits to the first applicant, since she first came to Australia. She is now 20 years of age and, if she were to complete her studies within the expected time frame, she would not arrive in Australia until 2009. Apart from her mother, she has almost no connection with Australia and the only evidence of her extreme hardship would be if she had to return to Hong Kong, along with the first applicant.
16. Mr d’Assumpcao submitted that, on the evidence, the first applicant had made little effort to seek out the opportunity for nursing registration in Hong Kong. Moreover, little assistance could be gained (from an analysis of Exhibit A1) of possible job opportunities in the medical and nursing professions in Hong Kong. As to the first applicant’s involvement in Subud, even if that organisation is proscribed in China, it was apparently permitted in Hong Kong and there appeared no reason why the first applicant could not explore opportunities to practice her religion there upon taking up residence.
17. The first applicant has asserted the reasons why the cancellation of her Business Skills visa would result in extreme hardship to her. However, as was observed by Deputy President McMahon in Re Wang, the use of the word “would” indicates that the hardship must be a necessary concomitant of the cancellation. Only a possibility or even a probability would not be sufficient. Whilst each case must be judged on its own merits, the decisions in Re Lim, Re Chen and Re Wang, referred to in paragraph 14 of these reasons, are consistent with the Tribunal’s conclusion that follows in the next paragraph. The finding of “extreme hardship” by Senior Member Lindsay in Re Lee (also referred to in paragraph 14 of these reason) was based largely upon Ms Lee having to discontinue her study at a late stage in her course because of her visa cancellation, a factor that was not present in the case of the first applicant, who had completed her studies and gained her degree to enable her to become registered as a nurse.
18. It is conceivable that the first applicant will suffer a degree of social dislocation if her visa is cancelled, and her nursing career might be temporarily disrupted. However, this is not “extreme hardship”. The applicants might find it hard to readjust to life again in Hong Kong or China. However, this hardship is one within the contemplation of the legislature when it chose to insert the word “extreme” to qualify the hardship, and it must be “extreme” to the applicants (Re Salim and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899 at paragraph 46). The Tribunal understands the situation in which the applicants find themselves and has sympathy for them. However, the Tribunal cannot be satisfied that the hardship asserted by the applicants is a “hardship which will necessarily follow cancellation” (Re Wang).
19. For the above reasons, the Tribunal is of the view that the cancellation of the visas of both the first applicant and the second applicant would not result in extreme hardship to them.
decision
20. The decision under review is affirmed.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: .....................................................................................
AssociateDate of Hearing 13 February 2007
Date of Decision 6 June 2007
Representative for the Applicant Mr H Van Arend
Solicitor for the Applicant Libby Hogarth & Associates
Representative for the Respondent Mr P d'Assumpcao
Solicitor for the Respondent AGS
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