Park and Anor and Minister for Immigration and Multicultural and Indigenous Affairs

[2003] AATA 1167

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1167

ADMINISTRATIVE APPEALS TRIBUNAL      )          Nos.   N2003/413 and

)N2003/414

GENERAL ADMINISTRATIVE DIVISION		)
Re		SEONG HUN PARK AND JEONG HUN PARK

Applicants

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member M D Allen 

Date20 November 2003

PlaceSydney

Decision The decisions under review are affirmed.

(Sgd)  M D Allen

..............................................

Senior Member

CATCHWORDS

IMMIGRATION -  Business Skills Visa – cancellation of primary visa – whether cancellation of secondary visas would result in extreme hardship.

Migration Act 1958 - sections 134(4) and (5)

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

Re Setiawan and Minister for Immigration and Multicultural Affairs [2002] AATA 260 distinguished.

REASONS FOR DECISION

20 November 2003  Senior Member M D Allen

1.      The Applicants pursuant to applications lodged with the Tribunal on 6 December 2001 sought review of a decision by the Respondent made 5 November 2001 to cancel their Business Skills Visas.

2.      The Applicants held their visas by virtue of the fact that their father Chan Woo Park, a South Korean national was granted a Business Skills Visa on 16 July 1998.  That visa was cancelled on 5 November 2001 and as a result the Applicants’ visas being issued as subsidiary visas to their father’s Business Skills Visa were also cancelled.

3.      The relevant legislation is found in subsections 134(4) and (5) of the Migration Act 1958 which subsections 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..”

4.      Originally, the Applicant’s applications were the subject of a decision delivered on 26 November 2002.  That decision was appealed to the Federal Court and by consent, the Tribunal’s decision was set aside and the matter remitted to the Tribunal for re-hearing.

5.      On 23 September 2003, the matter came on for hearing before me in Sydney.  At that hearing, the transcript of the original proceedings was taken in as Exhibit S1 and the Statement of Jeong Hun Park dated 28 June 2002 which had been tendered in the original proceedings became Exhibit A3.  Neither Applicants gave further evidence.

6.      Although the Applicants’ parents originally sought a review of the decision to cancel their visas, those applications for a review were not proceeded with and in cross-examination, Mr Jeong Hun Park conceded that his parents now live in South Korea.

7.      Both Applicants arrived in Australia from South Korea in 1995.  At that time, Jeong Hun Park was aged 15 and his brother Seong was aged 14.  Both then attended an English school and having completed the English language course, attended Epping Boys High School.

8.      Jeong Hun Park completed his Higher Education Certificate at the end of year 1999 and then enrolled in an IT Diploma Course at a College of Technical and Further Education.  He expects to complete the IT course at the end of 2003.  He states that he then hopes to obtain entry to a university to undertake further studies in IT.

9.      In the original proceedings, Mr Jeong Hun Park was questioned as to what would happen to his education should he be forced to return to South Korea.  He stated that his Australian qualifications would not be recognised and he would have to complete the Korean equivalent of the Higher School Certificate, in other words, he would have to start again from scratch so far as secondary and tertiary education is concerned.

10.     Cross-examined upon this, it appears that Mr Jeong Hun Park had made inquiries regarding his Australian qualifications by telephone only.  No formal ruling from any Korean institution of learning was produced either in the original proceedings or before me today.

11.     Apart from his studies, Mr Jeong Hun Park has also worked as a cook for a short period, in between periods of studies..  In October 2002, he was living with a friend in a house at Harris Park in Sydney’s western suburbs.  His group of friends include people of both Asian and European backgrounds.

12.     Cross-examined, Mr Jeong Hun Park stated that he had in year 2000 spent 43 days in South Korea.  He also visited South Korea in year 2001 and in total has spent 53 days in South Korea since first arriving in Australia.

13.     Seong Hun Park returned to South Korea for four weeks in 2001.  Currently, he is studying for the degree of Batchelor of Business at the Wodonga Campus of La Trobe University and expects to finish that degree at the end of the 2004 academic year.  He then hopes to obtain professional qualifications as an accountant.

14.     Common to both Applicants is that they have adjusted to life in Australia and now feel alienated from Korean society.

15.     The Applicants say that if they were to return to Korea, their academic qualifications would not be recognised.  In addition, they would not be regarded as real Koreans because of their time out of the country, nor would they have the contacts to advance their prospects in life.

16.     Both Applicants state that having assimilated into Australian society, they expected to remain here and they have no continuing association with South Korea, so that to force them to return would be to require an adjustment, which would cause extreme hardship.

17.     No evidence of any emotional attachments was given by Jeong Hun Park, but Seong in his evidence stated he had a girlfriend at the same campus of La Trobe University and that if he was required to leave Australia, it would be very hard as he was in love with her and wished to continue the relationship.

18.     The test for what amounts to extreme hardship was set out by Deputy President Wright QC in his authoritative decision of ReChoi and Minister forImmigration and Multicultural and Indigenous Affairs [2003] AATA 297 starting at para 50 namely:-

“50. The Minister must not cancel a family member's business visa if the cancellation would result in extreme hardship to that person. The concept of extreme hardship has been very usefully discussed in two recent decisions of the AAT. In Salim and Minister for Immigration and Multicultural and Indigenous Affairs (2002) AATA 899 (8 October 2002), Deputy President the Hon R N J Purvis QC said, at paragraphs 12 to 14 of his decision:

‘11. The issue for determination by the Tribunal, as earlier stated, is as to whether the cancellation of the visa granted to one or more of the Applicants would result in extreme hardship being experienced by her or him.

12. The meaning to be ascribed to 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. "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 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 varying degrees of burden one less than another, but each meriting the description...’

13. 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 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...’

14. 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. In Ashok Kumar v Minister for Immigration and Ethnic Affairs (1997) 50 ALD 488 the Federal Court referred to Man Ki Kim [supra] where it was stated at ALD 487 that "the proper application of [a provision of the migration (1993) regulations which contained within it the words extreme hardship] requires a focused consideration of the situation of the Applicant" at the relevant date. The relevant date in the present applications is the date of the hearing.’

51. This passage was referred to by Senior Member Sassella with approval and endorsement in Park and Minister for Immigration and Multicultural and Indigenous Affairs (2002) AATA 1219 (26 November 2002).

52. Although it is rarely useful to compare the facts of one case with another, particularly when the subjective impact of a particular course of conduct is the subject of the exercise, the following words of Deputy President Purvis in Salim are also most useful:

‘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.

45. Each of the Applicants will experience emotional hardship if required to leave Australia, they having spent a part of their formative years in this country, having received a part or whole of their secondary education and tertiary education at Australian schools and universities and having consequently formed a bonding with those with whom they came in contact whilst holding their visas. There is evidence as to each of them being held in high regard by their peers, social friends and academic acquaintances.

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.’"

19.     The Applicants’ solicitor sought to distinguish the cases cited in Re Choi (supra) and directed attention to the earlier decision of Deputy President Purvis QC in Re Setiawan and Minister for Immigration and Multicultural Affairs [2002] AATA 260.

20.     In Re Setiawan (supra), the learned Deputy President held that extreme hardship would be caused to a subsidiary visa holder if forced to return to Indonesia as she would be unable to complete the tertiary course she was undertaking in Australia and would be unable to complete an equivalent course in Indonesia.

21.     I do not consider that it is useful to compare the factual situation in any one matter to another.  Re Setiawan (supra) is simply an example of the fact that each case depends upon its own particular facts, c/f the decision of the same Deputy President in Re Salim and Minister for Immigration and Multicultural and IndigenousAffairs [2002] AATA 899. What is of relevance is the attempt to abstract some principle from the decided cases and I believe that this is exactly what Deputy President Wright QC did in Re Choi (supra).

22.     I accept that to cancel the visas of the two Applicants will cause some hardship to them.

23.     On the other hand, so far as their studies are concerned, they may be able to apply for student visas from South Korea.  If Mr Jeong Hun Park is due to complete his course at the end of the 2003 academic year, then no doubt a delay in requiring his leaving Australia can be put in place by the Respondent.

24.     So far as the Applicants’ inability to obtain credits for subjects completed in Australia is concerned, I have no firm evidence one way or the other, but accept it would be difficult to undertake tertiary studies in South Korea after an absence of some eight years.  As stated however, they may be able to return to Australia on student visas.

25.     The Applicants’ parents are living in South Korea and both Applicants have made return visits, Jeong in 2000 and 2001 and Seong in 2001.  They would be returning to a country where they have their immediate family and where they speak the language even if at this time imperfectly.

26.     Mr Seong Hun Park has referred to an emotional attachment, but the young lady is simply described as a “girlfriend” and fellow student.  There is no evidence before me of any mutual acknowledgment of long term commitment and both parties are still young.

27.     It is indeed unfortunate that the Applicants have been put in their current position by events outside their control.  Were sympathy a touchstone of my decision, I would be favourably inclined towards the Applicants but I must make my decision according to legal principles.

28.     I accept that the Applicants will experience difficulties in relocating to South Korea but this is no more than the normal migration experience.  In their case, they have the advantage of immediate family, language and knowledge of a culture in which they were imbued until their early teenage years.  The hardship experienced by each of them is however not of such a degree as to qualify as extreme and thus the decisions under review are affirmed.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of:

Senior Member M D Allen

Signed:         (K. Wong)           .......................................................................................
  Associate

Date of Hearing  23 September 2003
Date of Decision  20 November 2003
Solicitor for the Applicant          Mr B Goldsmith, Goldsmiths Lawyers
Solicitor for the Respondent     Mr A Markus, Australian Government Solicitors