Phoon and Minister for Immigration and Multicultural Affairs

[2006] AATA 496

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 496

ADMINISTRATIVE APPEALS TRIBUNAL          № V2006/196

GENERAL ADMINISTRATIVE  DIVISION

Re:            VEI KWOK PHOON

Applicant

And:MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal:       Dr Gordon Hughes, Member

Date:7 June 2006

Place:Melbourne

Decision:The Tribunal declines to grant the extension of time sought by the applicant.

(sgd) Gordon Hughes
  Member

MIGRATION – application for extension of time in relation to secondary visa – primary visa cancelled – applicant claims “extreme hardship” – loss of job in Australia and the need to relocate to Malaysia does not constitute “extreme hardship” for a well educated young man

Migration Act 1958 ss 134(1), 134(4), 134(5)

Migration Regulations 1994 regs 2.55(3)(c)(ii), 2.55(7)

Hunter Valley Development Pty Ltd v Cohen (1984) 7 ALD 315

Re Sam Mercorella Pty and Australian Apple and Pear Corp (1987) 12 ALD 520

Re Sawley and Secretary, Department of Housing and Construction (1987) 14 ALD 479

Re Aziz and Minister for Immigration and Multicultural Affairs [2006] AATA 301

Re Santy Then and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 18

Re Salim and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899

REASONS FOR DECISION

7 June 2006  Dr Gordon Hughes, Member

1.      This application was heard by the Tribunal on 8 May 2006.  The applicant represented himself.  The respondent was represented by Mr Michael Brereton.

2. On 9 March 2005, Mr Ah Kow Phoon was sent a Notice of Intention to Cancel his subclass 128 "Business Skills" visa on the grounds that he had not satisfied the Minister that he had complied with the requirements of s 134 of the Migration Act1958 (the Act).

3.      The cancellation of Mr Ah Kow Phoon's visa was the subject of proceedings before this Tribunal on 12 April 2006.  A decision is still pending in that matter.

4.      The applicant in these proceedings, Vei Kwok Phoon, is the son of Ah Kow Phoon and held his business visa by virtue of being a family member.

5. Sub-section 134(4) of the Act provides:

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.

6. Sub-section 134(5) of the Act provides:

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.

7.      When Mr Ah Kow Phoon received a Notice of Intention to Cancel his business visa on 9 March 2005, the applicant received a similar notice from the respondent.  The notice was addressed to the applicant's residence at Spring Street, Melbourne.

8.      The Notice of Intention to Cancel addressed to the applicant included the following:

The Act gives you the opportunity to comment on [the] grounds for cancellation and to give reasons why your visa(s) should not be cancelled.  Your representation should say why you think the cancellation of any visas held by you … would result in extreme hardship. …

Please forward your representations … by 15 April 2005.

9.      On 14 April 2005 the applicant responded that he believed that cancellation of his visa would cause him significant difficulty.  He advised that following his graduation, at the end of 2003, he had applied simultaneously for jobs in both Australia and Malaysia.  He said he accepted a posting in the Malaysian office of an international corporation, Norman Disney and Young, hoping it was a way for him to ultimately obtain an internal transfer to an office within Australia.

10. On 23 June 2005, the same day that Mr Ah Kow Phoon's visa was cancelled, the respondent wrote to the applicant advising that as Mr Ah Kow Phoon's visa had been cancelled under s 134 of the Act, the applicant's visa must also be cancelled. The letter from the respondent stated that full consideration had been given to the representations made by the applicant in his letter of 14 April 2005; but these did not satisfy the requirement to demonstrate "extreme hardship". The letter informed the applicant that under s 136 of the Act, he could apply to the Tribunal for a review of the decision to cancel the visa within 28 days. The letter was again sent to the applicant's residence at Spring Street, Melbourne.

11.     The applicant did not respond until 13 March 2006.  The reasons for his application for review of the decision included the following:

I believe it is wrong for the Department of Immigration to cancel my visa.  I am currently employed in Australia, Melbourne, and the cancellation of my visa will render me loss of personal income/job.

12.     On 14 April 2006 the applicant wrote to the Tribunal, advising that he had been unaware that he was required to lodge an appeal separate from that lodged by his father following his visa cancellation on 23 June 2005.  He explained that he was now employed as a mechanical engineer by an Australian firm, Simpson Kotzman Pty Ltd.  He said that cancellation of his visa would have "devastating results on my personal and professional life" as his "dreams and plans for a future in Australia will be indefinitely postponed".

13.     The principal issue for this Tribunal to consider is whether the applicant should be granted an extension of time within which to lodge his application for review.  In considering this issue, the Tribunal is mindful that an extension will not usually be granted where the applicant's case has an obvious weakness: Re Sam Mercorella Pty Ltd v Australian and Pear Corp (1987) 12 ALD 520; Re Sawley and Secretary, Department of Housing and Construction (1987) 14 ALD 479. The applicant has the onus of establishing that it would be fair and equitable to grant an extension of time, and the Tribunal is further mindful of the need to consider not only the individual merits of this particular application but also the question of fairness as between the applicant and other persons in like positions: Hunter Valley Development Pty Ltd v Cohen (1984) 7 ALD 315.

14.     The Tribunal considers that the applicant received effective notification of the cancellation of his visa on 23 June 2005.  The letter informing him of the cancellation contained a clear description of the time limits within which application should be made to this Tribunal if he wished to challenge the cancellation.  Communications from the applicant to the respondent prior to 23 June 2005 had used the residential address at Spring Street, Melbourne and no notification had been provided to the respondent of a change of address.  Regulation 2.55(3)(c)(ii) of the Migration Regulations 1994 provides that a notice of proposed cancellation or cancellation of a visa can be despatched by prepaid post to the recipient's last residential address known to the Minister.  Regulation 2.55(7) deems such a document to be received by the recipient 7 working days after despatch.

15.     The applicant explained that at the time that the Notice of Cancellation was sent on 23 June 2005, he was working in Malaysia and the letter never came to his attention.  The letter was not forwarded on to him by his father who shared the same Melbourne residential address.  The Tribunal does not consider that such an oversight by the applicant in itself represents a sufficient justification for failing to respond to the Notice of Cancellation.  One would have thought that, knowing as he did that a Notice of Intention to Cancel the visa had been issued on 9 March 2005, the applicant would have kept the respondent fully apprised of his whereabouts for the purpose of receiving all subsequent communications.

16. Regardless of the above conclusion, the Tribunal does not consider that the applicant has an arguable case that cancellation of his secondary business visa would cause him "extreme hardship" for the purposes of s 134(5) of the Act. In essence, the applicant's case is that cancellation will cause him "hardship" in the sense that he would lose his job in Australia and would be faced with the prospect of finding new work in Malaysia. He has no assets in Malaysia and believes his prospects of finding suitable work would be jeopardised as a consequence of the sudden truncation of his job in Melbourne.

17.     Subsequent to the hearing before the Tribunal on 8 May 2006, the applicant forwarded a supplementary submission to the Tribunal.  He stated that cancellation of his visa would cause him particular hardship because it would "obliterate" his efforts to pursue a career in Australia and could have the effect of rendering him unemployable as a mechanical engineer.  Engineering practices in Malaysia were very primitive compared to Australia, he said, and accordingly job opportunities were nowhere near as attractive as in Australia.  He had moved to Melbourne to pursue his higher education in 1998 and was culturally adjusted to life in Australia.  He also asserted that the political situation in Malaysia, being a Muslim country, did not favour a non-Muslim with a Chinese ethnic background.

18.     Whilst the Tribunal accepts that cancellation of the applicant's visa would be inconvenient, would represent a disruption to the applicant's personal life and might be a potential setback to his career aspirations, such consequences are not in the nature of "extreme hardship" for the purposes of the Act.  The applicant is an intelligent and articulate young man who is qualified to work as a mechanical engineer and who has been successful in obtaining suitable employment in the past.  If he is required to return to Malaysia, he may or may not experience a period of unemployment, or unsuitable employment, whilst he seeks to re-establish himself professionally but he has, it would appear, every opportunity to ultimately succeed in business in Malaysia.  There is no evidence that he would face any personal hardship other than the frustration of being unable to pursue his career in Australia.

19.     In Re Salim and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899 at paragraph 46, the Tribunal observed that the hardship of relocation by an educated person to a life outside Australia would undoubtedly cause difficulties for the individual but "this hardship is one within the contemplation of the legislature when it chose to insert the word 'extreme' as to qualify the hardship". Similarly, in ReSanty Then and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 18 at paragraphs 12 and 13, the Tribunal considered that "some short term problems" for the applicant's career, although "upsetting and disturbing", did not in the circumstances of that case amount to 'extreme hardship'. In ReAziz and Minister for Immigration and Multicultural Affairs [2006] AATA 301 at paragraph 18, the Tribunal observed that "the fact that the applicant has a full‑time job in Australia, has all his assets in Australia and does not own anything in Malaysia is incapable, without more, of constituting "extreme hardship" for the purpose of s 134(5) of the Act".

20. While each case must be judged on its own merits, the aforementioned decisions are consistent with the Tribunal's conclusion in this instance that the applicant does not have an arguable case that cancellation of his secondary business visa would cause "extreme hardship" pursuant to s 134(5) of the Act.

21.     For the above reasons, the Tribunal declines to grant the applicant an extension of time.

I certify that the twenty‑one [21] preceding paragraphs are a true copy of the reasons for the decision herein of:

Dr Gordon Hughes, Member

(sgd)     Catherine Lake

Clerk

Date of Hearing:  8 May 2006

Date of Decision:  7 June 2006
Solicitor for the applicant:          Nil ‑ Self-represented
Solicitor for the respondent:       Mr M. Brereton, Australian Government Solicitors