Ng and Minister for Immigration and Citizenship
[2007] AATA 1463
•25 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1463
ADMINISTRATIVE APPEALS TRIBUNAL ) No. V 200600386
) V 200600387 V 200601069
GENERAL ADMINISTRATIVE DIVISION ) Re JANICE SZE CHING NG
WENDY SZE TENG NG
KEVIN SZE LOONG NGApplicants
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal: G.D. Friedman, Senior Member Date:25 June 2007
Place:Melbourne
Decision: The Tribunal affirms the decisions under review. (sgd) G. D. Friedman
Senior Member
MIGRATION ‑ business skills visa ‑ cancellation - whether extreme hardship to secondary visa holders
Migration Act 1958 ss 134(5), 499
Aomatsu v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 139
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481
Re Harijono and Anor and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 882
Re Salim and Ors andMinisterfor Immigration and Multicultural and Indigenous Affairs [2002] AATA 899
Re Setiawan and Minister for Immigration and Multicultural Affairs [2002] AATA 260
Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 57 ALD 257
REASONS FOR DECISION
25 June 2007 G.D. Friedman, Senior Member
1. Janice, Wendy and Kevin Ng are Malaysian citizens who came to Australia as secondary visa holders when their father was granted a business skills visa. Their visas were cancelled when Mr Ng’s visa was cancelled for non-compliance.
2. The issue before the Tribunal is whether cancellation of the children’s visas would cause them extreme hardship.
WHAT IS EXTREME HARDSHIP?
3. Section 134(5) of the Migration Act 1958 provides in relation to a visa held by a person who is a member of the family unit of a person whose business visa has been cancelled:
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.
4. In Re Setiawan and Minister for Immigration and Multicultural Affairs [2002] AATA 260 the Tribunal noted that the meaning of 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.
5. In Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961 the Tribunal stated at [29]:
…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 [30] the Tribunal stated:
…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…
6. In Re Salim and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899 the Tribunal held at [46] and [47]:
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.
7. Disruption to studies, of itself, is not extreme hardship (Re Harijono and Anor and Ministerfor Immigration and Multicultural and Indigenous Affairs [2004] AATA 882).
SHOULD THE TRIBUNAL TAKE INTO ACCOUNT THE NEW POLICY RELATING TO EXTREME HARDSHIP?
8. The visas were cancelled on 12 April 2006. On 15 March 2007 the Minister issued a new Procedures Advice Manual (PAM3): Act - Visa cancellation: Business visas which sets out the procedures to be followed in the making of decisions under s 134 of the Act. PAM3 replaced Migration Series Instruction 133 (MSI-133) which was issued pursuant to s 499 of the Act. This section authorises the Minister to give written directions to decision-makers. MSI-133 did not define extreme hardship or provide guidelines as to its meaning.
9. Paragraph 15.2 of PAM3 refers to extreme hardship:
Under s 134(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 that will be a necessary and a direct consequence of the visa cancellation rather than a possibility or probability. For example, a student would need to demonstrate that as a direct consequence they could not eventually complete their studies on a Student or other visa.
‘Extreme hardship’ is not [a] defined term for business visa cancellation purposes. Under policy it means that the visa holder would face the utmost or highest degree of hardship if their visa were to be cancelled. The relevant hardship must be a necessary consequence of the cancellation of the visa, a mere possibility or probability would not be sufficient to constitute extreme hardship.
10. In Aomatsu vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 139 the full Federal Court considered the question of applications for a Skilled-Independent Migrant visa where the occupation on the application form was a skilled occupation specified in a Gazette Notice at the time of application but not at the time of assessment. The majority found that the scheme was intended to operate on the basis that the nominated skill occupation was one appearing in a Gazette Notice at the time the application was lodged.
11. Aomatsu may be of limited value because the context was a Gazette Notice, while the current application refers to Government policy. In reaching the correct and preferable decision the Tribunal is entitled to take into account Government policy which is not inconsistent with the provisions of the legislation unless there are cogent reasons for not doing so (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577). In Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 57 ALD 257 the majority of the full Federal Court held that the intention of the Minister, exhibited when he signed a general direction issued under s 499 of the Act, was inconsistent with the continuance of the previous policy from that time onwards.
12. In the present applications the Tribunal accepts that PAM3 is a document expressing Government policy issued under s 499 of the Act that provides guidelines for the operation of s 134(5) of the Act. The document is not inconsistent with the legislation and there are no cogent reasons for not applying it. Consequently the policy should be applied from 15 March 2007 (the date of its issue) and is applicable at the date of the Tribunal’s decision.
WOULD JANICE SUFFER EXTREME HARDSHIP IF HER VISA IS CANCELLED?
13. Janice stated that she arrived in Australia in 2001 on a student visa and studied Year 11 at Methodist Ladies’ College, after which she completed a Foundation Studies Program at Trinity College. In 2002 she was granted a business skills visa and permanent residence as a dependant of her father. She commenced a Bachelor of Arts degree at the University of Melbourne, and after completing the first year she transferred to Bond University in 2004, where she completed a Bachelor of Laws degree in 2006. Janice stated that she commenced a Master of Laws degree at the University of New South Wales, and hopes to complete the course in July 2007.
14. In relation to her current situation, Janice said that since arriving in Australia she has assimilated into the Australian way of life and has adapted culturally and socially, and stated that most of her friends live in Australia. She said she returns to Malaysia each year for holidays, but has lost touch with many of her Malaysian friends, and many family members are now living in Australia.
15. Janice said that even if she is able to complete her master’s degree she would be disadvantaged by cancellation of her visa because she would be unable to fulfil the requirements to practise law in Malaysia. She referred to a letter dated 9 May 2007 from the Director of the Legal Profession Qualifying Board, Malaysia (Exhibit A9) which stated that the Board does not accept Foundation Courses as a qualification for seeking admission as a legal practitioner in Malaysia. Janice said that she would be forced to apply for a student visa to undertake Articles of Clerkship (or equivalent practical legal education course) in Australia to gain admission as a barrister and solicitor. These courses generally commence early in the year, so she would have to wait until 2008 and would be one year behind her peers. She said that these factors, together with the financial implications of cancellation and her concerns about racial discrimination against persons of Chinese background, amount to extreme hardship.
16. The Tribunal takes into account that Janice has lived in Australia for six years, has formed a wide network of friends, is committed to the Australian way of life and has completed her law degree and almost completed her master’s degree in law. Undoubtedly Janice would experience emotional and practical difficulties if forced to leave her friends in Australia and re-locate to Malaysia. However, her parents, two younger siblings and extended family live in Malaysia and have the financial and other resources to support and assist her with accommodation and adjustment to the Malaysian way of life.
17. From the materials provided, there is some uncertainty whether Janice would be able to practise law in law in Malaysia without further study. Her plans to practise law in Australia would be disrupted if she is required to return to Malaysia and apply for a student visa to study in Australia in 2008 as a full fee-paying student at a practical legal education course or as an articled clerk. The Tribunal takes into account Janice’s evidence about her fears of racial discrimination as a person of Chinese background in Malaysia, although there is no material before the Tribunal to suggest that her safety and well-being would be under particular threat if she returned. There is no evidence before the Tribunal to suggest that as the holder of a master’s degree in law from an Australian university she would be unable to obtain suitable employment in Malaysia in another field.
18. For these reasons the Tribunal finds that cancellation would cause hardship and disruption to Janice’s life. However in all the circumstances the Tribunal finds that cancellation of Janice’s visa would not result in extreme hardship to her.
WOULD WENDY SUFFER EXTREME HARDSHIP IF HER VISA IS CANCELLED?
19. Wendy told the Tribunal that she came to Australia in similar circumstances to Janice, although she remained at Methodist Ladies’ College to complete Year 12. She said that after completing a Diploma of Business (Commerce) at Monash University she enrolled in a Bachelor of Commerce degree and expects to complete her course in June 2007. She explained that she is working part-time for a chartered accounting firm and that she would be unable to continue, or to apply for a full-time position with this or other firms, if her visa is cancelled and she loses permanent resident status. Wendy provided acknowledgments from a number of accounting firms (Exhibit A8) for applications she has made for 2008 graduate positions in Australia.
20. Wendy said that she has assimilated into the Australian way of life and feels that she has adapted to Australia socially and culturally, with most of her friends now living in Australia. She lives with Kevin and provides support to him. She said that she has been in a relationship with a Malaysian student for two years, and if her visa is cancelled she would be forced to return to Malaysia, which may cause the relationship to end. She also stated that her career prospects would suffer because there are fewer job opportunities than in Australia, and even if she applied from Malaysia to return to Australia she would miss the chance to apply for graduate positions that are advertised in about March each year.
21. In relation to the possibility of living in Malaysia, Wendy stated that she was concerned about problems of racism and crime and would be apprehensive about returning to live in that country, particularly as she has not resided there for a number of years and has lost contact with many of her friends. She said that, for these reasons, she would suffer extreme hardship if her visa was cancelled.
22. The Tribunal notes that Wendy has been in Australia for six years. There is no doubt that she enjoys living in Australia and has developed a network of friends, has been in a relationship for two years and has provided a support role for Kevin. Cancellation of her visa would cause disruption and inconvenience to her established lifestyle. She has almost completed her commerce degree, and has demonstrated a clear desire to obtain full-time employment with an Australian accounting firm rather than seek employment in Malaysia.
23. As with Janice, Wendy has strong family support in Malaysia. She has lived independently of her parents for several years. If her visa is cancelled her family has the financial means to assist her with accommodation in the family home and re-settlement in Malaysia. She would have an opportunity to apply for a visa to return to Australia for employment or to use her commerce qualifications to obtain employment in Malaysia. There is no evidence before the Tribunal to suggest that the accounting firms to which she has made application for 2008 graduate positions have refused her application because of possible changes to her immigration status. Wendy did not call evidence from her boyfriend and there is no material to persuade the Tribunal that the effect of cancellation of her visa on the relationship would result in extreme hardship to her.
24. For these reasons the Tribunal finds that cancellation would cause hardship and disruption to Wendy’s life. However in all the circumstances the Tribunal finds that cancellation of Wendy’s visa would not result in extreme hardship to her.
WOULD KEVIN SUFFER EXTREME HARDSHIP IF HIS VISA IS CANCELLED?
25. Kevin said that he is aged 18 years and came to Australia in 2006 to study Year 11 at Wesley College. He said that he is now in Year 12 and has integrated well with his school community. He said that he has adapted to life in Australia and lives with Wendy, from whom he receives support and encouragement. His father pays the school fees, a living allowance and air fares to and from Malaysia in the school holidays.
26. Kevin explained that cancellation of his visa would be extremely disruptive to his studies and he would suffer hardship if forced to return to Malaysia. He told the Tribunal that he would have to adapt to the Malaysian school system and the Malay language. He said that if he applied for a student visa in Malaysia to return to Australia he would have to re-commence Year 12 in 2008. He emphasised that he would be 20 years old on completion of his secondary education, which is significantly older than his peers, and this would have an adverse effect on any future application for university study in Australia.
27. Ms J. Caple, VCE Coordinator, Wesley College, told the Tribunal that Kevin is a conscientious student who is suffering stress and anxiety as a result of the prospect of a forced departure from Australia. She said that even if he applies for a student visa from Malaysia, the delay would prevent him from completing Year 12 in 2007, and the fees already paid would be forfeited. Ms Caple confirmed that in such a case he would be required to re-commence Year 12 in 2008.
28. The Tribunal accepts that Kevin has enjoyed living in Australia and has participated in his school’s activities. He was able to complete Year 11 studies at Wesley College in 2006. A delay of one year in completing Year 12 would be disruptive, and the necessity to repeat study already undertaken in 2007 would be inconvenient, particularly as he would be 20 years of age at the end of 2008. However the Tribunal notes that Kevin commenced Year 12 in 2007 about eight months after the cancellation of his visa, in the full knowledge that his studies may be interrupted if his appeal against the cancellation is unsuccessful. In addition the hearing of this application was scheduled for 29 and 30 November 2006, and at the request of Kevin’s father (before his father withdrew his application for review) the hearing was adjourned until after the 2006 December/January school holidays. There is no reason why Kevin could not apply for a student visa and return to Australia in 2008 to complete his secondary education. If he undertakes the same subjects he would have the advantage of one semester’s study in those subjects.
29. Kevin has been in Australia for a relatively short time. His parents and extended family live in Malaysia and have the resources to provide the necessary support if he chooses to live in Malaysia. The Tribunal is not aware of any impediment, including language skills, that would prevent him from completing his secondary education in Malaysia.
30. For these reasons the Tribunal finds that cancellation would cause hardship and disruption to Kevin’s life. However in all the circumstances the Tribunal finds that cancellation of Kevin’s visa would not result in extreme hardship to him.
DECISION
31. The Tribunal affirms the decisions under review.
I certify that the thirty-one [31] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
(sgd) Lydia Zozula
Associate
Dates of hearing: 19 April 2007 and 5 June 2007
Date of decision: 25 June 2007
Counsel for applicant: Mr G. Gilbert
Solicitor for applicant: Stamfords Lawyers
Advocate for respondent: Ms X. TeoSolicitor for respondent Clayton Utz
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