Lee v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 973
•17 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 973
ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION N 2003/1396
Re: PEY JIUN LEE
Applicant
And: MINISTER for IMMIGRATION and MULTICULTURAL and INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: P.J. Lindsay, Senior Member
Date: 17 September 2004
Place: Sydney
Decision:The decision under review dated 4 August 2003 is set aside and the matter is remitted to the respondent for further consideration in accordance with the reasons for decision herein.
. . . . . . . . . . . . . . . . . . . . . . . .
P. J. Lindsay, Senior Member
© Commonwealth of Australia (2004)
CATCHWORDS
migration – business skills visas – cancellation of visa of applicant’s father – consequential cancellation of applicant’s secondary visa –‑ whether cancellation would result in extreme hardship to applicant – consideration of applicant’s health, educational status and prospects in malaysia - decision set aside
Migration Act 1958 ss.134, 136
Migration Regulations 1994 Schedule 4, item 4004
Kim v Minister of Immigration and Multicultural and Indigenous Affairs (2004) 38 AAR 304
Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481
Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961
Re Salim and Minister for Immigration and Multicultural and Indigenous Affairs (2002) 36 AAR 43
Re Setiawan and Minister for Immigration and Multicultural Affairs [2002] AATA 260
REASONS FOR DECISION
P.J. Lindsay, Senior Member
1. This is an application by Pey Jiun Lee under s.136 of the Migration Act 1958 (the Act) for review of a decision by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to cancel her business skills visa.
2. Ms Lee was born on 23 January 1981 in Malaysia and she is a citizen of that country. On 1 March 2000, the Australian High Commission in Kuala Lumpur approved the application for a subclass 127 Business Owner visa by her father Teck Ong Lee. Identical visas were granted to Mr Lee’s three dependent children, the applicant, and her brothers Haw Kuan Lee and Haw Ming Lee. Ms Lee’s visa had been granted on the basis that she was a member of Teck Ong Lee’s family unit.
3. Acting pursuant to s.134(1) of the Act, a delegate of the respondent cancelled Mr Lee’s visa on 4 August 2003. On the same day, the delegate, not being satisfied that cancellation of the applicant’s visa would result in extreme hardship to her, cancelled her visa pursuant to s.134(4) of the Act.
4. The provisions in s.134 of the Act that are directly relevant to this application are set out below:
(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.
…
(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.
5. At the hearing Ms Lee was represented by Mr D Prince, solicitor, and Ms S Goodman, solicitor, represented the Minister. The tribunal had before it the documents lodged under s.37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered during the hearing.
6. The applicant does not dispute that her father’s business skills visa was lawfully cancelled. The only issue is whether the consequential cancellation of the applicant’s visa will result in extreme hardship to her.
7. Section 134(5) of the Act was considered by Kiefel J in Kim v Minister of Immigration and Multicultural and Indigenous Affairs (2004) 38 AAR 304. The following passage from the judgment is relevant here:
It is submitted that the qualification ‘extreme’ has been used by the Tribunal as a level of proof to be met, and not as a qualification of the degree of hardship, as the subsection requires. In so doing it required greater certainty be shown than the subsection did. There is substance in the applicant’s contentions. The subsection requires that a causal outcome is able to be predicted. The words ‘would result’ do not however require more than the civil standard of proof. The word ‘extreme’ qualifies only the hardship which may be seen as a consequence of the cancellation of the visa. (at 313)
8. There are two enquiries to be made: whether on the balance of probabilities cancellation of the applicant’s visa will result in certain outcomes and whether those outcomes may be characterised as ‘extreme hardship’ to the applicant. As to the second enquiry, Mr Prince submitted that a subjective test must be applied and he cited Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481. Foster J’s approach to the test, as applied in construing certain regulations affecting permanent entry permits under the Migration Regulations 1993, was as follows:
... 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 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 … (at 487)
9. In the context of s.134(5) of the Act, on a number of occasions the tribunal has adopted the test from Man Ki Kim : for example, Re Wang and the Minister for Immigration and Multicultural Affairs [2000] AATA 961 and Re Salim and the Minister for Immigration and Multicultural and Indigenous Affairs (2002) 36 AAR 43.
10. It was submitted by the applicant that cancellation of her visa and return to Malaysia will result in extreme hardship in the form of:
-depression;
-inability to complete her Australian tertiary education, now in its final stage, either in Australia or in Malaysia;
-if unable to complete her degree she will not be able to live with her father with whom she has a poor relationship and will have to support herself, most likely in unskilled employment, and face an uncertain economic future in Malaysia which is economically depressed;
-If unable to complete her degree she will feel she has let her late mother down by not meeting her wishes;
-she will not be able to sponsor her younger brother to attend university in Australia.
Ms Lee’s health and Returning to live in Malaysia
11. Ms Lee said in oral evidence that she wants to become an interior designer and work in Australia. In her affidavit, affirmed on 30 April 2004 (exhibit A2), she said she came to Australia in February 2001 and began a four year Bachelor’s degree at Royal Melbourne Institute of Technology. RMIT has confirmed that the applicant is enrolled in that course for both semesters in 2004, and that it was expected that she will complete all the practical and academic requirements of the degree at the end of the second semester in November 2004 (annexure to exhibit A2). Ms Lee lives in a two-bedroom unit in Carlton that she co-owns with her father. It was purchased on mortgage in around 1999 or 2000 and her father pays the interest, unit block fees and rates. Ms Lee does not work and relies on the $900 a month in rent from a flat-mate to pay the electricity and water charges, as well to buy her books and pay for course materials. She manages to save enough from this income to pay for her travel to Malaysia every six months during semester breaks.
12. The applicant’s affidavit states that she has suffered from continuing pain in her upper abdomen for the last three years. Acute pain caused her to attend Monash Medical Centre in early March 2004 and she consulted Dr M Flower four times in March and April 2004 for these problems. Anti-ulcer medication controlled the pain. Dr Flower provided the applicant’s solicitors with a report dated 20 April 2004 (exhibit A2) stating that Ms Lee suffers from gastritis or gastric ulcer, or alternatively non-ulcer dyspepsia. Dr Flower noted that each of these conditions may be exacerbated by emotional stress.
13. In late 1996, while Ms Lee was in year 10 at high school, her mother developed bladder cancer and later was admitted to hospital for treatment in around February 1997. Ms Lee had a very close relationship with her mother and she visited her in hospital almost every day until she died on 1 August 1997. She said her school marks fell away at this time, though they improved by year 12. Ms Lee said that when she worries, she gets depressed, and she will lose her appetite and develop a stomach upset and indigestion. Following her mother’s death, she attended counselling at her high school, and found the advice was helpful. Ms Lee’s affidavit reads:
My two brother [sic] and I were always the focus of my mother’s life. Her greatest wish was for the educational and occupational success of her children. … It has been my greatest goal in my life that I want to fulfil this dying wish of my mother i.e. to complete my tertiary education and have a proper job after that. Furthermore, my mother repeatedly told me to take good care of my younger brother, making sure that he could lead the normal life as others, even until the last moment before she died. I believe this is the only last thing I could do for my mother.
…
I suffered from depression right from the time when my mother was very sick, for a period of 2 to 3 years. Losing my mother is the greatest blow in my life. I was very depressed. I seriously thought of killing myself for a couple of times. I did not do it because I believe my younger brother, who was only 11 at the time, needed more care and love than me.
In answer to Ms Goodman, the applicant said she has not had thoughts of suicide in recently, even though she has been anxious and depressed.
14. Her father re-married in February 2001. She does not have a good relationship with her father or stepmother. When she returns to Malaysia during university breaks, she stays in her old room at the family home but finds it uncomfortable. She stays some of the time with her grandparents. She visits her extended family and will stay with some of them. Her older brother lives at home and her younger brother attends boarding school in Malaysia.
15. Dr Christopher Lennings, clinical psychologist, interviewed Ms Lee on 1 December 2003 in relation to the cancellation of her visa and again by telephone on 13 March 2004. In his report dated 13 March 2004 (exhibit A1) Dr Lennings noted that there have not been any significant incidents in Ms Lee’s medical history and specifically, she has not suffered a head injury or received treatment for psychological problems. Her closest relationships are with her younger brother and her grandparents. She experienced a frank depression and deep grief when her mother died five years ago. He reported that the applicant’s dysthymic state with episodes of depression from time to time, subsisted for about two years but did not lead to suicidal ideation. Ms Lee received counselling from her school but was not given anti-depression medication. Dr Lennings thought that she made a good recovery from the depression. Dr Lennings recorded that Ms Lee would feel she has let her mother down if she does not complete her education and find successful employment.
16. Dr Lennings noted that the applicant denies the presence of vegetative features of depression, such as sleep disturbance, appetite disturbance or poor energy levels. However, she worries and has ruminative thinking about her mother and younger brother but not on an obsessional level and she is able to control it. At interview she denied symptoms of anxiety or psychosis. Dr Lennings concluded that she was currently in good psychological health. To assess her personality and psychopathology, Dr Lennings administered the Personality Assessment Inventory. He found her score supported his clinical finding that she suffered from no specific psychopathology. From time to time, however, Ms Lee would experience a deterioration in mood dependent on the degree of environmental stress being experienced. Dr Lennings summed up as follows:
Her major issues revolve around the tension in her family relationships. Compared to the general population Ms Lee presents as having reasonable psychological health. However, her prior history of depression and her ongoing vulnerability to anxiety suggest that faced with severe stressors, a further period of depression is probable. … The life course of depression is that once diagnosed, a person is likely to experience further episodes of depression. Return to Malaysia will clearly act as a severe aversive event and likely trigger a further episode of depression. …
In my opinion Ms Lee is in a difficult situation and will experience extreme hardship if returned to Malaysia. It seems clear that return to Malaysia will produce significant disadvantage for her. Her educational and occupational aspirations will be severely curtailed, realistically it is hard to see how she can progress in her chosen field given the nationalist flavour of the ‘positive discrimination’ policies currently in place in Malaysia. Even if she was to return to Malaysia, her relationship with her family is very poor and Ms Lee would have to become independent and support herself as the breakdown in her relationship with her father and step-mother appears long standing.
17. In cross-examination Dr Lennings said that from experience in his field in Australia, the applicant should expect to receive very few credits for her Australian studies were she to apply to complete her degree in Malaysia. His experience with Malaysian students in Australia and patients in clinical practice informed him about Malaysia’s affirmative action policy. He understood that university places for ethnic Chinese were rationed. The combination of being unable to complete her degree, her poor relationship with her father and step-mother, and her inability to find suitable employment in Malaysia, in Dr Lennings’ view would result in her experiencing a significant depressive episode on return to Malaysia. He was unable, however, to say whether it would develop into a prolonged depressive state. Dr Lennings acknowledged that generally it is possible to receive appropriate treatment for depression, through medication and counselling. In support of his statement that a return to Malaysia would cause Ms Lee extreme hardship, Dr Lennings said having to go back to that country and being unable to complete her studies would create problems for her self-esteem.
18. Describing what she expects will happen if her application to the tribunal is unsuccessful and she returns to Malaysia, Ms Lee’s affidavit says:
33. As I would not be able to attend university I would have to try to find work to support myself financially. The problem will be that I will not have a university qualification. Without qualifications I do not know what type of work I could do.
34. I will feel extremely upset and depressed if I have to return to Malaysia. Firstly I would have let my mother down. Secondly I could not find myself a proper job which I can financially support myself in Malaysia, without a degree. Thirdly, I find it hard to cope with my family status, which means I would have to stay somewhere else, and would have to start all over again. …
36. Fourthly, as I mentioned to Dr Lennings, most of my friends have already travelled to some other countries including Australia, for studying and working purposes, I would have lost my friends in both Malaysia and Australia. Although Malaysia is the country that I was brought up in, but there are so many changes happened in the past few years. I can no longer find this country as my home country.
19. However, Ms Lee said in cross-examination that she remains in contact with some of her school friends living in Malaysia. Moreover, she feels confident that she could make new friends as well. She is pessimistic about her prospects for obtaining satisfactory employment in Malaysia.
Findings and consideration
20. Section 134(8) of the Act provides that the cancellation of a visa held by an applicant in Ms Lee’s position will take effect on the 28th day after an adverse decision by the tribunal on review.
21. On the basis of the evidence of the applicant and Dr Lennings, I am satisfied that Ms Lee has a vulnerability to suffering from depression but has no current, specific psychological problems. The respondent submitted that having to leave Australia will not necessarily cause the applicant to suffer a depressive episode. If she experienced depression, it would largely be due to her pre-disposition to depression. Further, it was submitted that any depression suffered through a feeling of having let her mother down, was the outcome of her relationship with her mother, rather than the cancellation. Thus it was submitted that there is no causal connection between cancellation of the visa and having a depressive episode.
22. I accept the statement in Dr Lennings’ report “A return to Malaysia, involving as it does having to confront her background of strained family relationships and her sense of academic and occupational failure that would follow such a return clearly represents such a significant stressor.” Dr Lennings’ evidence was that “the sheer enormity of all the issues confronting her” in Malaysia, would precipitate a major depression in someone who is pre-disposed to depression but who is not currently suffering from psychological problems. He explained that her inability to complete her university course in Australia would cause a savage loss of self-esteem and become the major stressor for her. I reject the respondent’s submission because I am satisfied to the requisite standard (Kim) that depression in this individual will be the probable result of cancelling the visa and forced return to Malaysia.
23. As for whether depression and facing up to the exigencies of her future life in Malaysia are manifestations of extreme hardship to Ms Lee, I note that it is Dr Lennings’ opinion that she is likely to experience very significant and severe problems in adjusting to her position in Malaysia. He was unable to say how long it would be before the predicted depression would resolve, since it would depend on the kind of treatment received, her environment and the duration of the stressors. But he noted that the condition could be treated and that Ms Lee had demonstrated resilience in the past in dealing with depression. In the worst case, where her family life and social relationships are not harmonious and she is forced into a state of financial dependence on her father, he thought the depression might be prolonged but would resolve into a lower grade dysthymia provided her anti-depressant treatment was suitable and that she could recover from it.
24. Approached as a matter of statistics, and I infer probability, Dr Lennings said that depending on the environment and appropriate treatment, she should make a recovery from a depressive episode. He referred to her resilience: her achievement at school and university and overcoming the earlier depressive episode. I accept this evidence and am mindful that Ms Lee was eventually able to cope with her previous depression, grief and emotions in the aftermath of her mother’s death through the counselling provided by her school. In addition, I note the applicant’s evidence that her closest relationships are with her grandmother and younger brother, both of whom are in Malaysia. She has an extended family there and friends with whom she has maintained contact on her bi-annual visits home. Her father’s evidence was that he would provide accommodation for her at home, as he does for her older brother, although he would like her to become self-supporting. The applicant said that she has her personal belongings in her bedroom at home. Although her father’s evidence was that his business has fared better in previous years, he draws an income from it. I find that, notwithstanding the poor relationship she has with her stepmother, her family and social environment in Malaysia could not be described as malevolent. Thus, as Dr Lennings opined, the applicant’s mechanisms and resources for coping with the depression should enable her to recover.
25. Taking into account the nature and duration of the applicant’s depression that I accept she is likely to suffer as a result of the visa cancellation, I am not satisfied that it will be a manifestation of extreme hardship. It is probable that she will develop a miserable mood and find things unpleasant and perhaps distressful. But the evidence is that her depressive condition can be treated. In the past she has improved and her emotional state has resolved.
26. I find that there is no causal connection between the abdominal pain and the cancellation. The evidence of Dr Flower does not posit a connection between the pain and the cancellation. Moreover the symptomatology and Dr Flower’s noting that there was a good response to medications could not allow the condition to be characterised as ‘hardship’, as plainly the affectation is not to a “considerable degree” (Re Wang at [29]). Finally, I do not accept that in the circumstances of this case, the applicant’s having to work in an unskilled job could constitute extreme hardship.
Ms Lee’s tertiary studies in Australia
27. Ms Lee said that she participates in the Higher Education Contribution Scheme. She has deferred her entire tuition fee and at April 2004 her unpaid HECS debt was $9,893 (annexure to exhibit A2). She said she would be unable to afford to pay $8,000, her estimate of a semester’s tuition fee for a full fee paying student. She said that she had not looked into whether she could get a student loan or other assistance to pay the fees. Her father said that he could not afford to pay tuition fees for his daughter to complete her degree. If his daughter had to return to live in Malaysia, he would welcome her back and she could live at home until she was ready to live elsewhere. His evidence was that if the Carlton unit were sold, his share of any profit would be used to re-pay his mortgage in Malaysia.
28. In the event that Ms Lee’s application is unsuccessful, she said she would return to Malaysia but would not be able to enter a university in that country because she has not completed the special examinations required for university admission. Ms Lee did not attend a Malay speaking government high school, instead her parents sent her to a private high school where the lessons were in Mandarin. She said they did so because the course was a year shorter and ethnic quotas make it hard for Chinese to gain entry into Malaysian universities so they did not perceive any disadvantage. Two cousins had completed their secondary education at Malay government high schools yet were refused entry into a Malaysian university. But a consequence of not attending a government high school was that she became ineligible to sit for the special set of examinations, the SPM, prepared by the Malaysian Education Board. She said that, without having completed those examinations, she would not be accepted by any university in Malaysia. She explained that only those students who have completed a six year qualification in Malay can sit for the SPM. To qualify for the SPM, she would have to return to high school for six years and learn her subjects in Malay.
29. An affidavit sworn on 3 May 2004 by Christopher Levingston (exhibit A6), a solicitor who is accredited by the Law Society of New South Wales as a specialist in immigration law and a registered migration agent, reads:
3. I have been asked to express an expert opinion … whether Ms Lee, would be likely to be granted a temporary visa, including a student visa should she return to Malaysia and apply for a visa in Malaysia.
4. This opinion assumes that the current proceedings would be unsuccessful and that Ms Lee would have her current visa cancelled.
5. I have also assumed that Ms Lee would apply for a subclass 573 Higher Education Sector visa in that she is currently undertaking a course of study. …
6. Criterion 573.223 requires, inter alia, that the Minister be satisfied that the Applicant is a genuine applicant for entry and stay as a student. Further, criterion 573.223(1) requires an applicant to meet the requirements of subclause (2) which in turn requires at criterion 573.223(2)(b) that the Minister be satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to: “(i) the stated intention of the applicant to comply with entry conditions subject to which the visa is granted; and (ii) any other relevant matter.” …
8. The fact of cancellation raises a presumption that Ms Lee would intend to return to Australia to continue her studies but with the ultimate objective that she would seek to change her status from a temporary visa holder to permanent visa holder. That presumption, though prima facie rebuttable, in fact could give rise to a finding that Ms Lee was not a genuine applicant for entry and stay as a student. …
11. In my opinion that the fact of Ms Lee having been a permanent resident whose visa was subsequently cancelled would be every unlikely to be granted a temporary visa including a visa subclass 573. The discretion imported by the words the Minister is satisfied gives very wide scope to the matters which may form part of the decision to refuse a visa.
30. In Mr Levingston’s opinion, Ms Lee could face a credibility problem in satisfying the Department that she is a genuine applicant for a student visa, which is a temporary visa, when she previously held a permanent visa. Her susceptibility to depression could also affect her chances of being granted a student visa because it could indicate a risk that she will not be able to depart from Australia at the end of the visa and that she might breach the visa’s conditions that require satisfactory attendance and performance in the course of study. Mr Levingston agreed in cross-examination, however, that it is possible she could be successful in being granted a student visa.
Findings and consideration
31. Mr Prince submitted that cancellation of the visa will lead to Ms Lee being unable to complete her degree either in Australia or in Malaysia. He relied on Mr Levingston’s evidence in submitting that she would not be granted a student visa. As well he referred to her existing HECS debt, which he submitted, if left unpaid, would present a separate obstacle to the grant of a subclass 573 visa. He noted the Public Interest criteria, specifically item 4004 in Schedule 4 to the Migration Regulations 1994 which states that the Minister may take into account “outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment.” He referred to the evidence of her cousins Ms Sin Sin Tan and Ms Ying Ying Tan whose experiences in the Malaysian education system informed the decision of her parents to educate her privately with a view to undertaking tertiary studies abroad. Her resultant lack of appropriate secondary school qualifications in the Malay language are an obstacle to her completing the degree in Malaysia. Finally, he observed that in other cases, the tribunal has found that an applicant’s inability to complete studies in Australia, especially where those studies are in their last stages, have been considered to constitute extreme hardship (for example, Re Setiawan and Minister for Immigration and Multicultural Affairs [2002] AATA 260).
32. In his written submissions Mr Prince asserted that “the Applicant is likely to be condemned to unskilled employment and an uncertain economic future” because her father would not be able to provide her with financial support indefinitely. He also submitted that cancellation of the applicant’s visa would cause her extreme hardship because she would be distressed by not being able to sponsor her younger brother for skilled migration or skilled onshore permanent residence.
33. For the respondent it was submitted that the option of applying for a student visa remained open to the applicant. The respondent’s major submission was that s.134(5) must be interpreted in a way that is consistent with s.134(4) and the business visa legislation. As the visa is a privilege granted to the secondary visa holders, pre-existing social and psychological vulnerabilities cannot be said to come within the scope of extreme hardship. The loss of any privileges that she enjoyed as a secondary visa holder, including her entitlement to participate in the HECS, ought not therefore be taken into account in determining whether she will suffer extreme hardship. The following passage from Re Salim was cited “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.” (at [44]) It was argued that the applicant’s claims that she will not be able to complete her degree in Australia were not established and ought not be taken into account by the tribunal. Ineligibility to study at university in Malaysia was a consequence of her parents’ decision taken many years ago regarding her secondary schooling and is not a consequence of visa cancellation.
34. If the instant application fails, Ms Lee must depart from Australia within 28 days of the tribunal’s decision or she will become an unlawful non-citizen. There appears not to be any grounds open to the applicant to request the Minister to grant a bridging E visa, and in any event, Mr Prince submitted that such a visa would not permit the applicant to study. At this juncture, therefore, Ms Lee faces having to leave the country in mid October 2004 when she would be a matter of weeks from completing a four year course of study. I find on the balance of probabilities that cancellation will result in her having to leave Australia on the cusp of completing a relatively long, four year degree and then have to run the risk of being granted a student visa to return to Australia to meet the requirements then in place for completing the degree. I accept Ms Lee’s evidence that her expectation of studying at university in Malaysia is negligible given her not sitting for the SPM examinations.
35. Is that outcome a manifestation of extreme hardship? This requires a consideration of the evidence in the context of Ms Lee’s personal situation (Man Ki Kim). Certainly Ms Lee would have the opportunity to apply to re-enter Australia on a student visa. At its highest Mr Levingston’s evidence on this point, was that it was possible that the overseas post would not exercise the discretion in her favour because she previously held a permanent visa. Ms Lee claims, however, even if she were granted the visa she would not be able to pay the tuition fee or the associated costs in being a foreign student in Australia. I accept her father’s evidence that while the unit in Carlton is in both their names, he put all the money into the unit and paid the mortgage interest. He considers any profit to be his and would be used to re-pay his debts in Malaysia. A student loan appears not to be an option as it was her understanding that an international student would be ineligible for such assistance. Her father’s evidence regarding his capacity to pay for an overseas education was that “ … there would be no prospect at all of me being able to fund my daughter’s education in another Western country such as the United states, Canada or New Zealand.” (Exhibit A3). In oral evidence he said that a deterioration in his business meant he was unable to pay the tuition fee for her course in Australia.
36. I acknowledge the respondent’s submission that the applicant’s visa was not granted to her so that she could attend university in Australia and that her entitlement to participate in the HECS is a privilege. 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 3½ years of work and have nothing to show for it, would amount to extreme hardship.
37. The applicant submitted that she would feel that she has let her mother down by not living up to her wish that the applicant complete her degree. I do not accept that this outcome, if a result of cancellation of the visa, could be considered to amount to extreme hardship. Similarly, I do not accept the submissions that the applicant’s inability to sponsor her younger brother to attend university in Australia would result in extreme hardship to her.
38. The decision under review dated 4 August 2003 is set aside and the matter is remitted to the respondent for further consideration.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member:
Signed: .....................................................................................
AssociateDates of Hearing 5 May, 8 June 2004
Date of Decision 17 September 2004
Solicitor for applicant D PrinceSolicitor for respondent S Goodman
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