Pang and Ors and Minister for Immigration and Multicultural and I Ndigenous Affairs

[2003] AATA 1056

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1056

ADMINISTRATIVE APPEALS TRIBUNAL      )            Nos.   N2001/1920;

)N2002/986 – 988

)  and

GENERAL ADMINISTRATIVE DIVISION        )  N2002/989 – 990

Re SHU FOON PANG;
MING FUNG CHING;
DEBBY PANG;
JANE PANG;
CANDY PANG and
ROCKY PANG 

Applicant

And MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member M D Allen

Date20 October 2003

PlaceSydney

Decision

In the matter of N2001/1920 - Shu Foon Pang and Minister for Immigration and Multicultural and Indigenous Affairs (“MIMIA”), the decision under review is affirmed.

In the matter of N2002/986 - Ming Fung Ching and MIMIA, the decision under review is set aside and the Tribunal substitutes in lieu thereof its decision, namely that the visa granted to the Applicant Ming Fung Ching, not to be cancelled.

In the matter of N2002/987 - Debby Pang and MIMIA, the decision under review is set aside and the Tribunal substitutes in lieu thereof its decision namely that the visa granted to the Applicant Debby Pang, not to be cancelled.

In the matter of N2002/988, Jane Pang and MIMIA, the decision under review is set aside and the Tribunal substitutes in lieu thereof its decision namely that the visa granted to the Applicant Jane Pang, not to be cancelled.

In the matter of N2002/989, Candy Pang and MIMIA, the decision under review is set aside and the Tribunal substitutes in lieu thereof its decision namely that the visa granted to the Applicant Candy Pang, not to be cancelled.

In the matter of N2002/990, Rocky Pang and MIMIA, the decision under review is set aside and the Tribunal substitutes in lieu thereof its decision namely that the visa granted to the Applicant Rocky Pang, not to be cancelled.

(Sgd)  M D Allen  Senior Member

CATCHWORDS

IMMIGRATION - cancellation of business skills visa and subsidiary visas – did the primary applicant have interest in an eligible business - what constituted an extreme hardship in the case of the secondary visa holders

Migration Act 1958 - s 134

Hope v Bathurst City Council (1980) 144 CLR 1

Stone v Commissioner of Taxation [2003] FCAFC 145

Re Chao Hsien Hsu and Ors and Minister for Immigration & Multicultural & Indigenous Affairs [2003] AATA 620

Re Choi and Minister for Immigration & Multicultural & Indigenous Affairs [2003] AATA 297

Re Setiawan and Minister for Immigration & Multicultural & Indigenous Affairs [2002] AATA 260

Re Haman and Others and Minister for Immigration & Multicultural & Indigenous Affairs [2002] AATA 1113

REASONS FOR DECISION

20 October  2003 Senior Member M D Allen

1.      On 31 October 2001 a Delegate of the Respondent cancelled the Business Skills Visa (subclass 127) previously issued to the principal Applicant, Mr Shu Foon Pang (or more correctly Mr Pang Shu Foon).

2.      As a consequence of that cancellation, the secondary visas issued to Mr Pang's wife and children were also cancelled. The secondary visa holders are the following, namely Mr Pang's wife, Ming Fung Ching and children - Debby Pang, Ching Yin (Jane) Pang, Candy Pang and Rocky Pang.

3.      All matters came on for hearing before me at Sydney on 2 and 3 September 2003. Mr Pang being assisted by an interpreter in the Cantonese language and Miss Debby Pang presenting the case for herself, her mother and her siblings.

4. The Business Skills Visa of Mr Pang was cancelled pursuant to s 134 of the Migration Act 1958. That section reads inter alia:

" (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.

(2) The Minister must not cancel a business visa under subsection (1) if the Minister is satisfied that its holder:

(a) has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and

(b) has made a genuine effort to utilise his or her skills in actively participating at a senior level in the day-to-day management of that business; and

(c) intends to continue to make such genuine efforts.

…

(10) In this section:

eligible business means a business that the Minister reasonably believes is resulting or will result in one or more of the following:

(a) the development of business links with the international market;

(b) the creation or maintenance of employment in Australia;

(c) the export of Australian goods or services;

(d) the production of goods or the provision of services that would otherwise be imported into Australia;

(e) the introduction of new or improved technology to Australia;

(f) an increase in commercial activity and competitiveness within sectors of the Australian economy.

…"

5.      This Tribunal has consistently ruled that the date for considering whether the decision to cancel a Business Skills Visa was the correct or preferable decision is the actual date of the cancellation see Re Wong and Minister for Immigration & Multicultural & Indigenous Affairs [2002] AATA 54. That is not to say however that later events cannot be considered so as to ascertain the true state of affairs as at the date of cancellation.

6.      As stated above, Mr Pang was granted a Business Skills Visa on 24 June 1998. He entered Australia on 16 July 1998. Accompanying him were his wife and four children. Mr Pang only remained in Australia until 22 July 1998 (see Exhibit R2) and then returned to Hong Kong.

7.      In his statement (Exhibit A1) Mr Pang says:

"I was planning to live in Australia with my family, however Asia economy crisis started to happen at the end of the year 1997 and impacted my business in Hong Kong badly. The operation was affected badly and I wish to take things under control before I move to Australia. I didn't sense that it was a crisis that leads to a huge recession in Asia economy I though it was a short-term problem in business that could be overcome by hardworking and wouldn't take long. Therefore my family went to Australia first and I stay behind in Hong Kong wishing to re-join that family very soon."

8.      Cross-examined, Mr Pang conceded that up to 30 October 2001, he had spent a total of 67 days only in Australia.

9.      Although he should have been advised of the requirement to notify the Department of Immigration and Multicultural and Indigenous Affairs (“the DIMIA”) of any change of address in Australia within 28 days of such change, Mr Pang did not do so. On 28 June 2001, the Department of Immigration forwarded to Mr Pang at the last address notified to it a Notice of Intention to cancel his Business Skills Visa.

10.     As I understand the evidence of Mr Pang and Ms Debby Pang, Ms Pang’s mother became aware of the existence of the letter from the DIMIA when they were notified by a former neighbour of the family from the time when the family was residing at the address provided to the Department. Upon receipt of the letter, Ms Debby Pang contacted her father in Hong Kong.

11.     Subsequent to being notified of the intention to cancel his visa, the Applicant appointed his daughter Debby as his agent to act on his behalf. Ms Debby Pang, who was born on 4 October 1980, was at this time a student at Macquarie University (see T12).  

12. Document T11 in the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 is a file note by an officer of the DIMIA dated 9 August 2001. It reads:

"Pa's daughter Debby phoned to enquire what they are suppose to do as they are a 36 mths and they have had no correspondence [sic] from the department. I asked her for her current address and updated the database, then I advised her that a case officer would contact her about her obligations, either today or tomorrow."

13.     Exhibit R2 reveals that Mr Pang arrived in Australia from Hong Kong on 9 August 2001.

14.     On 10 August 2001 Mr Pang and Miss Debby Pang purchased a shelf company which was incorporated under the name of S.F. Pang Trading Pty Ltd (see T13).

15.     During the month of October 2001, SF Pang Trading Pty Ltd shipped approximately 40 metric tons of recycled aluminium in two containers to Mainland China. The purchase monies being provided directly by the Hong Kong Company taking delivery.

16.     S.F. Pang Trading Pty Ltd has not engaged in any other business activity, nor has Mr Pang engaged in any other business activity in Australia.

17. On these facts, it is clear that Mr Pang has not in terms of s 134 Migration Act 1958 obtained a substantial interest in an eligible business in Australia as S.F. Pang Trading Pty Ltd cannot meet the definition of eligible business in ss 134(10).

18.     In particular the one off shipment of two containers of recycled aluminium cannot create a business. As was pointed out by Mason J (as he then was) in  Hope v Bathurst City Council (1980) 144 CLR 1 to carry on a business requires that there be a commercial enterprise in the nature of a going concern, that is, activities engaged in for the purpose of profit on a continuous and repetitive basis c/f the Full Court of the Federal Court in Stone v Commissioner of Taxation [2003] FCAFC 145 at para 74:

"Whether a person is carrying on a business will depend upon a number of factors and no single factor will be determinative in a particular case. Thus, it will be relevant to determine whether a relevant activity is carried on in a businesslike way and in accordance with commercial principles. If they insistent in the activity coupled with repetition and continuities, that it will be indicative of a business an important factor is whether the relevant activity has a purpose of profit making? However, the fact that the activity does not actually produce a profit is not decisive…"

19.     As there has been no business activity by Mr Pang in Australia he cannot be said to have complied with the test in para 134(1)(b) Migration Act 1958 namely that of actively participating at a senior level in the day to day management of an eligible business in Australia.

20.     The facts are quite clear. Upon the grant of his Business Skills Visa, Mr Pang brought his family to Australia. He then returned to Hong Kong as his existing business in Hong Kong was experiencing financial difficulties. Eventually, that business was placed in liquidation and Mr Pang personally was declared bankrupt.

21.     At no time prior to August 2001 was there any business activity carried out by Mr Pang in Australia. Upon the receipt of the notification of intention to cancel his Business Skills Visa, he made a belated attempt to comply with his visa conditions by purchasing a shelf company, which then made one shipment of scrap aluminium to China using funds provided by the ultimate purchaser of the scrap. That company has carried out no other activity at all or by Mr Pang in Australia. Ms Debby Pang's evidence was that the annual returns of the company have not been lodged with the Australian Securities and Investment Commission.

22. In these circumstances, it is abundantly clear that both as at 31 October 2001 and as at today's date, the Applicant has not complied with the conditions of his Business Skills Visa and that the only proper decision in his case is that the decision to cancel his Business Skills Visa pursuant to s 134 Migration Act be affirmed. 

23.     Different considerations apply in regard to the subsidiary visas.

24.     Subsections 134(4) and (5) Migration Act read:

"(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."

25.     The meaning of the term "extreme hardship" has been discussed in several decisions of this Tribunal, these decisions were referred to by Deputy President Block in Re Chao Hsien Hsu & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2003] AATA 620. In particular the following points are made namely:

"12. The meaning to be ascribed to 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. '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 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 in 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 a varying degree of burden one less than another, but meriting the description….'

As was noted by the Tribunal in Siwei Wang v Minister for Immigration and Multicultural Affairs [2000]  AATA 961 and in Setiawan v Minister for Immigration and Multicultural Affairs [2002] AATA 260, hardship from the point of view of the person allegedly experiencing it must be judged subjectively. It involves more than inconvenience or detriment. Affectation must be to a considerable degree before it can properly be called hardship. At paragraph 30 in Wang [supra] the Tribunal considered the significance that should be ascribed to the word 'extreme" as used in the statute and said:

'…The meaning of words will always be taken from the context in which they appear. However, 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 meanings of the word 'extreme'… 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 a 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…'  

The relevant hardship must be a necessary consequence of the cancellation of the visa, a mere possibility or probability would not be sufficient. There must be shown not only hardship of an extreme kind but hardship which would follow the cancellation. One is to look at the consequences to the Applicant that would result from the cancellation… "

26.     In Re Setiawan and Minister for Immigration and Multicultural Affairs [2002] AATA 260 at para 27 Deputy President Purvis, QC pointed out:

"The criteria that the Tribunal is required to consider entail factors peculiar 'to the person allegedly suffering the hardship'. It is to be a subjective assessment.  The 'extreme' extent of the hardship 'must be evaluated against the facts of the particular case', and must be consequent upon the visa being cancelled. "

27.     Compare Deputy President Wright, QC in Re Choi and Minister for Immigration and Multicultural Affairs [2003] AATA 297 at para 44 and 47 namely:

“44. As has already been noted in these reasons it is the hardship that will most certainly occur as a consequence or result of the cancellation that is relevant and it is for the decision maker to be satisfied that this hardship will be extreme before the legislative cancellation can be avoided. 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.

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.”

28.     So far as Ms Debby Pang is concerned, she is now aged nearly 23 years (DOB 4/10/1980). After secondary education at Cherrybrook Technical High School, she is attending Macquarie University and is in her penultimate semester of Degrees in Business and Accounting. She will complete her double degree in either February 2004 or at the end of the first semester of the 2004 academic year. All going to plan, she will have at the end of the current semester, one subject only to complete and expects to be able to complete this subject during the vacation at the end of semester 2 in 2003.

29.     Ms Debby Pang's evidence was that there is no equivalent course offered at any Hong Kong university and her parents could not afford to pay her fees in Australia as a foreign student or to support her here. She would also be required to study additional subjects not required for her Australian degrees and there would be a considerable increase in fees, namely to the extent of around $A17,000.00.

30.     Although not cross-examined on this part of her statement (Exhibit A7), Ms Debby Pang also refers to the hardship involved in leaving her friends and her "boyfriend".. She did not expand upon any emotional involvement in her evidence.

31.     Ms Debby Pang has now been in Australia for some seven years and has completed secondary education here and has all but completed a double university degree. In Re Setiawan supra, Deputy President Purvis QC said of the Applicant in that case:

"28. The consequences to the Applicant that would result from the cancellation of her visa would be, for this 20-year-old young lady, traumatic.  She would be unable to complete her course in this country and, assuming acceptance and admission, would be required to study subjects in Indonesia foreign to her present diploma requirements.

29. Whilst the facts as they now are did not exist as at the date of the original decision, and indeed the passage of time has significantly altered the facts relevant to any hardship that might be experienced by the Applicant, the Tribunal is satisfied that cancellation of her visa at this time would, so far as she is concerned, result in extreme hardship to her. "

32.     Those remarks apply equally to Ms Debby Pang. I consider that to cancel her visa at this stage would be to inflict extreme hardship upon her and therefore set aside that decision.

33.     The cases of Ching Yin Jane Pang (known as Jane) and Candy Pang (Candy) can be dealt with together. At the outset however, I refer to the remarks of Deputy President Hotop in Re Haman and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1113 at para 70 namely:

"It is appropriate that the Tribunal, in determining whether cancellation of Mr Haman’s Business Skills visa is the correct or preferable decision, regard the best interests of Mr Haman’s children as “a primary consideration”, in accordance with Article 3.1 of the United Nations Convention on the Rights of the Child which was ratified by the Commonwealth Executive on 17 December 1990 and which entered into force for Australia on 16 January 1991. The Tribunal notes that, because the provisions of that Convention have not been incorporated into Australian municipal law by statute, it is not legally obliged to act in accordance with those provisions (including Art 3.1), but that, by reason of the Commonwealth Executive’s ratification of that Convention, there is a “legitimate expectation” that Commonwealth administrative decision makers (including the Tribunal) will act in accordance with its provisions (see, generally, Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273). Accordingly, the Tribunal will have regard to the best interests of Mr Haman’s children as a primary consideration in determining this matter."

34. If Deputy President Hotop intended to say that the interests of the children should affect the decision to cancel the primary visa or not, then given the clear terms of s 134, I regard his remarks as misconceived. The remarks are however opposite in consideration of the subsidiary visas.

35.     Jane is currently aged 16 years (DOB 20/11/1986) and is in year 11 at Cherrybrook Technology High School. She hopes to matriculate and study Business and Finance at Macquarie University. Candy is aged 15 years and is in year 10 at Cherrybrook High School. Both seem to have adapted well to school life in Australia and have a circle of friends and take part in sport and other activities. Candy has a part time job in order to help support the family.

36.     A major factor affecting all the children is that the medium of education in Hong Kong apart from some very expensive private schools, which the family could not afford, is in Cantonese. Although the children speak to their mother in Cantonese, they have lost the skill in written Cantonese. In addition, an important subject of study in Hong Kong schools is Putonghua (Mandarin) as the official language of the Peoples' Republic of China and of this language they have no knowledge.

37.     Neither Jane nor Candy has the necessary skill in Cantonese to cope with secondary education in that language, in particular they have no knowledge of the higher form of language required for secondary study. Apart from the fact that the secondary curricular is different - especially as regards language, history and geography, to advance beyond mid secondary level is by examination and neither Jane or Candy would pass such an examination due to their lack of fluency in Cantonese. Neither would they have the requisite knowledge of Chinese literature.

38.     Candy Pang was totally realistic regarding her future if returned to Hong Kong. She says she would be unable to qualify for further secondary education and would have to compete with others for a menial job. Even a job such as a sales woman would be beyond her as she has limited skills in written Cantonese.

39.     More importantly, she said that she has adapted to Australia and now finds she cannot get along with people from Hong Kong.

40.     Having heard and seen both Jane and Candy give evidence, I was impressed by both of them as bright and articulate young ladies who have a great deal to offer to this country. Candy in particular struck me as no different from any other young Australian girl of her age and education except that she is particularly outgoing and intelligent. To send her and her sister back to Hong Kong where their expectations of education and employment are negligible, together with consideration of their adaptation to Australian life and consequent " culture shock" in having to adapt to life in Hong Kong, to cancel their visas would be to destroy their futures and thus cause them extreme hardship.

41.     The youngest child Rocky, born 10/08/1992, did not give evidence in these proceedings. As stated by Ms Debby Pang, he left Hong Kong just before his sixth birthday. He has no knowledge of written Cantonese and his language skills in Cantonese would be below children of his age, so that he would struggle at school. As with his sisters, he has assimilated to Australia and its way of life.

42.     Although not in the same category as his sisters, I consider that to require Rocky to return to Hong Kong and recommence education in the Hong Kong system would cause him extreme hardship. This is added to by the apparent fact that upon return to Hong Kong the family would be living in straightened circumstances. At present, Mr Pang is in reduced circumstances due to his bankruptcy and is living with his mother in a one bedroom aged persons unit in Kowloon. His evidence was that if returned to Hong Kong, the family would have to be accommodated there as well..

43.     Exhibit A4 is a statement on behalf of Rocky by his sister Ms Debby Pang. In that statement again she makes the point that Rocky has adapted to Australia, speaks fluent English but only has a basic knowledge of Cantonese and no background in Mandarin. I consider that to return Rocky to Hong Kong would cause him extreme hardship.

44.     Different considerations apply to the children's mother Ching Ming Fung, the wife of Mr Pang. Currently, she is in receipt of Social Security benefits in Australia but if she returned to Hong Kong, she would not be entitled to any Social Security for 12 months. This may be regarded as hardship but it is not to my mind extreme hardship.

45.     However having regard to the remarks by Deputy President Hotop in Re Haman supra, I consider that I can take the best interests of the children into account in deciding whether the best or preferable decision is to affirm the cancellation of their mother's visa. Added to this is an inference that it would cause extreme hardship to the mother personally to find herself, returned to Hong Kong while her children or at least the elder of them remain here. In that regard, although not stated in evidence, I would infer having regard to the dynamics of the family as they appeared before me and in particular what I observed of them during the hearing, that the youngest child Rocky would accompany his mother. As an aside, I would say that all members of the family exhibited a very real affection to each other.

46.     I am satisfied that to cancel the visas of the children and of their mother would cause to each of them personally extreme hardship, therefore the decision to cancel their visas are set aside.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of:

Senior Member M D Allen

Signed:         (Steve Griffiths)                  .......................................................................................
  Associate

Date of Hearing  2 and 3 September 2003
Date of Decision  20 October 2003
Representative for the Applicants  Self-represented

Solicitor for the Respondent     Mr G Peek, Australian Government Solicitors