Oking and Minister for Immigration and Citizenship

[2007] AATA 2030

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2030

ADMINISTRATIVE APPEALS TRIBUNAL      )           No 2007/1975

)           No 2007/1977

GENERAL ADMINISTRATIVE DIVISION

)          No 2007/1979

Re

ANTHONY OKING

ARNOLD WILLIAM OKING and

CAROLINE OKING

Applicants

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly

Date11 December 2007

PlaceSydney

Decision

Proceeding 2007/1975

The reviewable decision is affirmed.

Proceeding 2007/1977

The reviewable decision is affirmed.

Proceeding 2007/1979

The reviewable decision is affirmed.

......................[sgd]........................

Senior Member, Mrs Josephine Kelly

CATCHWORDS

IMMIGRATION – subclass 127 business visa – primary visa holder not conducting eligible business - primary visa holder’s visa cancelled – applicants' secondary visas also cancelled – whether applicants would suffer extreme hardship – financial, personal, educational and employment circumstances considered - decisions under review affirmed

Migration Act 1958 (Cth) s 134

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

Re Wang v MIMA [2000] AATA 961

REASONS FOR DECISION

11 December 2007	Senior Member, Mrs Josephine Kelly
INTRODUCTION

1. Arnold, Anthony and Carolyn Oking are the children of Ms Susilawati Lieo who held a subclass 127 business visa. Ms Lieo was the primary visa holder and her children and her husband were secondary visa holders. The primary visa and secondary visas were granted on 24 March 2003. Ms Lieo’s primary visa was cancelled on 3 July 2006 because it was determined that she was not conducting an eligible business. Each of the children has applied under s 136 of the Migration Act 1958 (“the Act”) for review of the delegate's consequential decisions also dated 3 July 2006to cancel each of their secondary visas pursuant to s 134(4) of the Act. Such a visa must not be cancelled if the cancellation would result in extreme hardship to the person: s 134(5) of the Act.

THE ISSUE

2. The only issue in each case is whether the child will suffer extreme hardship within the meaning of s 134(5) of the Act.

3.      No issue arose in relation to the service  of the notice of intention to cancel the visa.   

ARNOLD WILLIAM OKING

4.      Mr Arnold William Oking was born in 1987. He first arrived in Australia from Indonesia as a student in July 1999 when he was 12 years old.   He was granted the subclass 127 visa on 24 March 2003.

5.      Following is a summary of the evidence relevant to the question of extreme hardship.

6.      Mr Arnold Oking has studied in Australia since he was 12 years old, first at a language college, then at Randwick Boys High School, Waverley College and finally Taylors College.  He studied for the Higher School Certificate in 2005 and obtained a Diploma of Business and Commerce at Insearch University of Technology Sydney in 2006.  He started a business degree in 2007 at the University of Technology Sydney.  His mother has been covering the costs of his tuition fees in Australia.

7.      He also works 24 hours a week. If his visa were cancelled he believes it would be difficult to get a student visa, and if he did, that would only permit him to work 20 hours a week.  He conceded that he has not inquired in Indonesia whether he can be given credit for the studies he has completed. 

8.      He asserted that if he studied in Indonesia he would have to start from scratch and live in Jakarta where living expenses are high and he could not earn very much.  His parents are facing financial difficulties and he would not be able to continue his studies if his visa was cancelled.   His father's screen printing business is in Bandung.   He said that he and his siblings all have a disagreement with their father who makes him go to the office when he is on holidays in Indonesia.  He said that their father never agreed that they should study in Australia.  If he returns to Indonesia he will have to go into his father's business rather than do what he wants to do.  He has only returned to Indonesia at the request of his mother.

9.      Since 1999 he has returned to Indonesia for periods varying from a few weeks to two months.  He says that he is more comfortable conversing in English than in Indonesian and has problems understanding his parents and relatives in Indonesia.   When he is in Indonesia he stays with his parents and communicates in Indonesian.  

10.     Mr Arnold Oking wants to stay in Australia.  He says that he has developed strong cultural and social bonds here and would find it hard to adjust to a new environment in Indonesia, where he has few friends.

Consideration

11.     I have taken into account Foster J's consideration of "extreme hardship" in Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481 and Deputy President MacMahon's consideration in Re Wang v MIMA [2000] AATA 961.

12.     I am not persuaded that the cancellation of the visa would cause extreme hardship to Mr Arnold Oking.  I am not persuaded that he will be unable to obtain a student visa and remain in Australia, or that he would be unable to pursue his studies in Indonesia or be credited there for his studies in Australia.   He has apparently not made any inquiries about getting a student visa.

13.     I would also observe that a reduction of four hours work a week, if he had a student visa, would not result in extreme hardship.   Mr Arnold Oking did not provide any financial records to show his current earnings, expenses or the extent of the financial assistance provided by is mother.

14.     I do not accept that not cancelling the visa would prevent his having to return to the family business.   He has retained links with his parents in Indonesia since 1999, visiting them regularly.   According to him, his mother has supported him financially since he has been in Australia, including throughout 2007 while he has been studying for his Bachelor's degree, in which he enrolled after the decision to cancel his visa was made and the application lodged in the  Tribunal.   If his father is so influential over his future, it is difficult to imagine that he could not prevent his wife's providing financial support to their son.

15.     Any hardship arising from his not completing his degree will be because of his decision to begin it, knowing that he may not retain the visa.

16.     I understand that Mr Arnold Oking would prefer to stay in Australia, but even if the cancellation of the visa has the effect that he has to return to Indonesia, I am not persuaded that that would result in extreme hardship to him.  

DECISION IN PROCEEDING 2007/1977

17.     The reviewable decision is affirmed.

ANTHONY OKING

18.     Mr Anthony Oking was born in Indonesia in 1984 and came to Australia as a student in June 1999 when he was 14 years old.  He was granted the subclass 127 visa on 24 March 2003. 

Consideration

19.     I make the following findings based on the evidence before the Tribunal.

20.       Mr Anthony Oking went to various schools in Sydney from the time he arrived in Australia until the end of 2001.  He returned to Indonesia for a year in 2002. In 2003 and 2004 he was working at a McDonald's restaurant in Kingsford.  He undertook one semester's study at the William Blue Hotel Management School in the second half of 2004.  In 2005 he worked at the Sydney Convention and Exhibition centre in catering.  He spent 2006 in Shanghai with his sister, Caroline, where they both studied Chinese.  He spent the first six months of 2007 in Indonesia, visiting Australia for a month in July 2007 when he attended a conference for this matter at this Tribunal. 

21.     He says that he wishes to finish his studies.    His evidence was unclear about how much longer he needed to study to obtain a hotel management qualification.

22.     I accept his evidence that he has a volatile relationship with his father, who wishes him to carry on the family business in Bandung.  A police report in the Indonesian language dated 7 June 2007 and an uncertified translation of an attack on Anthony Oking by his father supports this conclusion.   

23.     I also accept that his father does not value education and only allowed his children to come to Australia to be educated after social unrest in Indonesia in 1998.  Mr Anthony Oking emphasised that his mother has supported him financially when he has been in Australia.

24.     He gave evidence that there was a serious argument between his parents which caused him to temporarily discontinue his studies of hotel management and after discussion with his mother, he accompanied his sister to Shanghai in 2006.  I note that he stayed and worked in Australia during 2005 after he had stopped studying.    The evidence shows that his father visited Australia for about two weeks in May and November of that year.  On both occasions he landed and departed from Sydney, from which I infer he spent time here.  Anthony Oking gave no evidence about his father's visits at that time.

25.     Mr Anthony  Oking's evidence was that he returned to Indonesia in 2007, having been in China in 2006, because of the visa cancellation and downturn in the performance of his mother's business and the financial difficulty she had.  He attempted to tell his father that he intended to pursue his own life, but was left with the ultimatum that he follow his father into the business or he would stop financial support for him.  His mother did not assist him.  When he is in Indonesia he is not allowed to work as a waiter while living with his father, and he cannot afford to buy a house.   He also said that to study in Indonesia he would have to do high school there.

26.     His critical concern is that if he has the subclass 127 visa which gives him residency, he would pay $700 for a TAFE course per semester, whereas if he does not have that visa he would have to pay $6,000.  He cannot afford such fees and pay his living expenses.

27.     I do not accept Mr Anthony Oking's evidence about his father's control over him.  He said that his parents covered his expenses when he lives in Indonesia.  He came to Australia for almost a month in June/July 2007, he says, for a conference in this Tribunal that occurred on one day and lasted 30 minutes.   He again returned to Australia for the hearing.  I find it difficult to accept that a father who is as controlling as Mr Anthony Oking says he is, could not have prevented his son from coming to Australia for the purpose of trying to keep a visa which he says he needs in order to   to escape his father's control. Further, the hearing could have been conducted by telephone.

28.     I am not persuaded that Mr Anthony Oking has been prevented from studying in Australia by his father.  He apparently studied for only one semester in 2004 and then stayed in Australia and worked throughout 2005.  His evidence was that a TAFE course cost only $700. I find it difficult to understand why he did not take advantage of his opportunity and pursue any other course during the years 2003, through to 2005.    He submitted no academic record from his time at the William Blue Hotel Management School.    On the evidence, he had ample opportunity in the years 2003 to 2004  to undertake TAFE courses while he was being supported by his mother and before the argument he said occurred between his parents which he said resulted in his ceasing his study at end of 2004. 

29.     My doubts about his intention to pursue studies are reinforced by the notes made during an interview with his mother in December 2002.  It was recorded that "Anthony enrolled an informations [sic] IT Education Centre until Jan 2003 and will then enrol in a diploma course after".  There was no evidence that he undertook either course. Rather the evidence was that he worked during that period.   I am not persuaded that Anthony Oking does wish to undertake further studies in Australia.

30.     I have taken into account Foster J's consideration of "extreme hardship" in Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481 and Deputy President MacMahon's consideration in Re Wang v MIMA [2000] AATA 961. For the above reasons, I am not persuaded that the cancellation of the visa would result in extreme hardship to Anthony Oking.

DECISION IN PROCEEDING 2007/1975

31.     The reviewable decision is affirmed.

CAROLINE OKING

32.     Ms Caroline Oking came to Australia from Indonesia in 1998 on a student visa and attended an English language school in Sydney. 

33.     In 1999 she attended South Sydney high School.  In 2000 she undertook a Diploma in Design and from 2001 to June 2004 undertook a Bachelor of Design degree.  She worked in Sydney in 2005 and spent 2006 and part of 2007 in Shanghai studying Chinese.  She said her mother paid her expenses while there although it was very cheap in China.

34.     She says that she wants to stay in Australia where she can work and be independent. She  also says that she has social and cultural bonds with Australia and does not like the life in Indonesia.  In particular Ms Oking referred to the conservative way of life, racial tension and corruption there.

35.     She says that she will not get on with her father who wants her to enter into an arranged marriage.  She described how he locked her in her room when she refused to meet a man with whom her father wanted her to build up a relationship.   At the hearing I understood Ms Oking to say that her father wanted her to marry a conservative man who wants her to stay at home and be a housewife.  She also stated that her father is thinking of retiring and "wanted us, his children to return to Indonesia to take over the family business despite we opt to pursue our own career goals and not to be involved into his business [sic]".

36.     She denied that she went to China to help her family's business by learning Mandarin. Rather, she said that she studied Chinese because she saw that Australian companies are consigning their printing jobs to Chinese printers.  She also argued that design is culture specific and that she has an Australian approach to design and in order to work in Indonesia she would have to re-establish her understanding of how Indonesians think. Further, she has lost her Indonesian language ability and contact with its culture.  She also said that she would have to undertake high school examinations in Indonesia to re-train in a tertiary institute.

37.     In support of her case Ms Oking provided several documents.  Her general practitioner wrote a referral to a psychologist dated 20 July 2007.  The referral stated that she had:

presented with distress, anxiety excessive worry insomnia with episodes of teariness for several weeks relating to issues to immigration and relationship issues disagreement with her father . (planning for an arranged marriage for her …).   

A questionnaire apparently filled out by Ms Oking on 23 July 2007 about her mental health was included.   

38.     An official pharmacy receipt for Temaze tablets dated 18 July 2007 was also tendered.  Ms Oking said that she saw the psychologist who did not really help her.   She said that she returned to China and sought the help of a psychiatrist there.

39.     Ms Oking also tendered a document dated 30 July 2007 signed by her aunt.  Her aunt said that she is the sister of the Ms Oking's father and I have been consistently concerned by the oppressions resulted from my brother's attitude towards handling over his children and family affairs.   She said that there were conflicts between the Oking children and their father causing persistent discomfort and unhappiness and hurting each other, Her aunt’s attempt to resolve the relentless trauma in the family had been unsuccessful. As her aunt put it: Now that they are all grown up and I think it would be good for them to get away and be able to pursue their own independent life.

Consideration

40.     I found Ms Oking's evidence exaggerated.  She has returned to Indonesia frequently since 1998, for periods up to a couple of months.  Her parents live there.  She speaks Indonesian when she is there and speaks to her brothers and to others who share the flat in Sydney in a mixture of English and Indonesian.  I do not accept that she has lost her language or cultural links with Indonesia.

41.     Despite her father's controlling behaviour, Ms Oking was able to study and then work in Australia until 2006 and then go to China with her brother to study Chinese in Shanghai.   She was able to travel to Australia for a period of about three weeks in July for a thirty minute conference in this Tribunal and again in September 2007 for the hearing.   If her father was able to control her behaviour to the extent she says, I do not accept that she would have the freedom to have undertaken that travel.  

42.     I also do not accept that her study in Shanghai was to further her career prospects in Australia; rather it was in the interests of her family's business in Indonesia.

43.     I have taken into account Foster J's consideration of "extreme hardship" in Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481 and Deputy President MacMahon's consideration in Re Wang v MIMA [2000] AATA 961. I do not consider that the matters Ms Oking raised establish that that the cancellation of the visa would result in extreme hardship to her.

DECISION IN PROCEEDING 2007/1979      

44.     The reviewable decision is affirmed.

I certify that the preceding 44 paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly.

Signed: Steven Mulipola

Associate

Date of hearing:  12 and 17 September 2007

Date of decision:  11 December 2007

Advocate for Applicants:                Self-Represented

Solicitor for Respondent:               DLA Phillips Fox