Purnomo and Anor and Minister for Immigration and Multicultural and Indigenous Affairs
[2004] AATA 859
•18 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 859
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2003/1230
GENERAL ADMINISTRATIVE DIVISION ) N2003/1232 Re Rony Budi Purnomo
Roby Budi Santoso
Applicants
And
Minister for Immigration and Multicultural and Indigenous Affairs
Respondent
DECISION
Tribunal Ms N Isenberg, Member Date18 August 2004
PlaceSydney
Decision The Administrative Appeals Tribunal affirms the decision under review.
[Sgd] Ms N Isenberg, Member
CATCHWORDS
IMMIGRATION – business skills visa cancelled – secondary visa holders – loss of career opportunities – loss of ties to Australia – threat to personal safety or subject to racism or discrimination – loss of opportunity to care for the house in Pagewood – issue whether Applicants would suffer extreme hardship if their visas are cancelled – cancellation of visas would be difficult financially and emotionally and unfortunate but would not amount to extreme hardship – decision affirmed
LEGISLATION
Migration Act 1958 ss134(4) and ss134(5)
CASE LAW
Salim and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899
Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481
Park and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1167
Choi and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 297
Ongko and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 69
Gunawan and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 505
REASONS FOR DECISION
18 August 2004 Ms N Isenberg, Member BACKGROUND
1. The Applicants’ father, Mr Budi Tio, was granted a Business Skills (subclass 127) visa on 3 April 2000. Secondary visas were granted to the Applicants on 3 April 2000. Each had previously been granted a Student (subclass 560) visa on 4 June 1999 and 11 July 1995 respectively.
2. On 27 February 2003, notices of intention to cancel the Applicants’ visas were sent to each of the Applicants and to Mr Tio. (T7, pp.27-34).
3. On 5 March 2003, a delegate of the Respondent received a response to the notice of intention to cancel the visa from Mr Santoso, addressing issues arising in relation to the principal visa and noting that he, Mr Santoso, was “currently employed full time with Transfield Services Australia” and that he was “with [his] father in partnership of Small Business”. (T8, p.37)
4. On 17 April 2003, Mr Santoso sent the Respondent a “letter of response” to the notice of intention to cancel his father’s visa on behalf of his father (T9, pp.39-40) and on 12 and 29 May 2003 further responses were provided (T10, pp.41-67 and T10, pp.67-90)
5. The Applicants’ visas were cancelled on 3 July 2003. (T14, pp.114-115) The delegate referred in the decisions to there having been no claims made that the cancellation of the visas would result in extreme hardship to the Applicants.
6. On 30 July 2003 and 8 August 2003 respectively, the Applicants and Mr Tio separately sought review, by this Tribunal, of the decisions to cancel their visas. (T1, pp.11, 18)
7. On 4 December 2003 the Applicants’ and Mr Tio’s applications for review were dismissed under s.42A(2) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) for failure to appear in person or to appear by a representative at a directions hearing.
8. On 9 February 2004 the Applicants and Mr Tio applied for re-instatement of their applications for review and on 30 April 2004 the Applicants’ original applications for review were re-instated, but not that of their father. These applications are the subject of the present proceedings.
LEGISLATION
9. The relevant legislation in this matter is the Migration Act 1958, and in particular section 134. That section, so far as is relevant, provides as follows:
“134 Cancellation of business visas
…
(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. “
ISSUE BEFORE THE TRIBUNAL
10. As I explained to the Applicants at the outset of the hearing, the issue before the Tribunal is whether cancellation of their visas would cause them “extreme hardship” within the meaning of s.134(5) of the Act.
APPEARANCES
11. A hearing was held on 12 July 2004 at which the Applicants spoke to me by telephone from Indonesia. The line was very poor and at times their evidence was inaudible. Different lines were tried, as was an alternative phone number. The Applicants were frequently asked to repeat their answers.
12. The Respondent was represented by Mr A Crockett of the Australian Government Solicitor. The Applicants were self-represented.
EVIDENCE: Documents
13. I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which I took into evidence. In addition, the Applicants had filed a bundle of documents which they described as their Statement of Facts and Contentions.
14. The Applicants gave evidence and were cross-examined on behalf of the Respondent. I also asked them questions. Their evidence was broadly consistent with that in their Statement of Facts and Contentions. Because of the communication difficulties outlined above, the Applicants’ ‘Statement of Facts and Contentions’ has been largely incorporated into this decision as their evidence.
EVIDENCE AND SUBMISSIONS
15. In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.
16. The Applicants’ submissions in their Statement of Facts and Contentions and in their oral evidence raises four main areas for consideration in relation to the question of whether they would suffer extreme hardship if their visas are cancelled, and these are addressed below.
Loss of career opportunities
17. Mr Santoso obtained a Bachelor of Engineering degree in 2000 and a Master of Computer Science in 2001 from UNSW.
18. He lived in Sydney until 20 December 2003. In January 2004 he attempted to return to Australia but this was unsuccessful as his visa had been cancelled and, at that time, he did not have an application for review before the Tribunal.
19. As a student he worked part time in Coles at Broadway. Upon graduation he worked as a graduate engineer with Transfield Services from 2002 until 2003. In addition he was working part time with TPG Internet Services.
20. He gave evidence that one of the main reasons he would experience extreme hardship if his visa is cancelled is because of his interest in a software joint venture, BM Computer Solutions Pty Ltd. The company was set up in August 2003 at a time when he knew his visa was at risk of cancellation. He is the ‘President and Manager’ of the business, Halim Mintareja is the ‘main technical person’, and Ken Murray (Director of Sydney Ports Corporation) and John Bowe (President of Australian Taxi Industry Association and Director of NSW Taxi Council) are investors and directors of the company.
21. The software assists in the provision of information to owners of taxis in the management of vehicles and drivers. To date two systems have been installed covering about 30 vehicles. He said that although there are a lot of potential clients he envisages the business will ‘crumble’ if he is not here. He needs to protect the interest of his investors. In cross-examination he conceded that as to installation, training and maintenance, those ongoing roles could be undertaken by Mr Mintareja.
22. He said his skills are hardly needed in Indonesia because economic conditions are ‘really bad’. He said he has poor career prospects in Indonesia and if his visa is cancelled, his dreams and plans for his future career will disappear.
23. I also had before me very supportive letters of reference, from Mr John L. Bowe and Mr Ken Murray, attached to Mr Santoso’s statement.
24. In cross-examination he said he had been exploring business opportunities in Indonesia. There was also the possibility of assisting in one of his father’s businesses.
25. The Respondent submitted that I should find that while the cancellation of Mr Santoso’s visa may cause some short term problems for his career, the effects would not amount to extreme hardship for someone of his training and experience.
26. Mr Purnomo studied at the UNSW and completed his degree in Science Information System in mid 2003.
27. He wrote in his statement that in Australia there are great opportunities in the IT field, especially in Sydney. Indonesia, on the other hand, is poor in technology and infrastructure, and the job market is very limited. He thought only large companies would need his skills and these companies were primarily based in Djakarta, about 1½ hours by plane from his home. He has not explored job opportunities and does not propose to do so until after the present Indonesian election.
28. He said there would be ‘no advantages for me’ to return to Indonesia.
29. He thought he could work for his father but his skills would not be required in his father’s business.
30. The Respondent submitted that Mr Purmono’s plans for the future employment are embryonic at best and that I should not be satisfied that leaving Australia is going to have any effect on his employment opportunities, let alone cause him extreme hardship.
Loss of ties to Australia
31. Mr Santoso lived in Indonesia until the age of about 18.
32. He said he hadn’t been in Indonesia for a long time, although apparently he has spent extensive periods of time in Indonesia since that time.
33. He said that in the seven years he lived in Sydney he was independent of his parents although he was in regular contact with his family in Indonesia.
34. He made a lot of friends in Australia and feels he has adapted to the Australian way of life.
35. Mr Santoso lives in Indonesia with his parents and brother in a three bedroom house. He has a girlfriend of two years, who is also Chinese Indonesian. He said he speaks Indonesian and acknowledged that he is familiar with the Indonesian way of life and ‘how things work’.
36. Mr Santoso wished to note that he had never taken advantage of Australian social security benefits and that he had a ‘clean record’ with the Australian Government.
Mr Purnomo
37. Mr Purnomo said that in his recollection he has only been back to Indonesia twice for school holidays. However, it appears that he has regularly returned there for extended periods since 2000.
38. The last time he left Australia was on 10 June 2004, leaving at that time as he did not know he could stay pending resolution of his application for review.
39. While based in Australia he had regular contact with his family and lived in the family home in Indonesia when he visited. He presently resides in the family home. His extended family lives nearby.
40. He is familiar with the Indonesian way of life.
41. He said he regarded Sydney as a place where he could be confident of his future. If his visa were to be cancelled, he said he will ‘suffer mental and psychological problem’ as he did not think he could adapt to life in Indonesia again. However he agreed that he has not experienced heath problems since his return.
42. If he has to go back, he said he would ‘have to start everything from the beginning’ and that his time studying and living in Australia would have been ‘wasted’.
Threat to personal safety from riots, and racism or discrimination
43. Mr Santoso said it was very hard to live in Indonesia because of the racism, economic conditions and insecurity.
44. As the unemployment rate in Indonesia is extremely high this contributes to a high criminal rate. Much of that crime is directed towards Chinese Indonesians.
45. Mr Santoso told me that there is ‘daily racism’ in Indonesia towards those of Chinese decent. In Surabaya, where he lives, there are few Chinese Indonesians.
46. He must carry his proof of Indonesian citizenship at all times, and produce it every time he has dealings with the government; for example in obtaining a driver’s licence or passport, which occurs every three years.
47. He had not personally experienced riots but he had been punched once about a year ago on the way to the markets. He did not know the assailant nor why he was attacked.
48. He is uncertain as to the future for Chinese Indonesians in Indonesia. He stated that unlike Indonesia, in Australia there is no racism and discrimination.
49. Mr Purnomo said that Australia has much better conditions in terms of health, education, politics, law and security matters and that everyone has a right to those things.
50. In Indonesia there are riots ‘nearly every day in some parts’, especially in Jakarta and Surabaya. In 1997 there had been riots in Djakarta against Chinese Indonesians but he has had no personal experience of this. There are riots in other parts of the country. He though the same could happen in Surabaya. He considered Indonesia ‘a risky place’, although he personally had not been targeted. He thought ‘anything could happen’, especially with the present elections.
51. 95% of Indonesians are Muslims while he and his family are ethnic Chinese. He thought there was discrimination against ethnic Chinese in obtaining university places and jobs.
52. If he has to live in Indonesia there is no guarantee that he can live life as he did in Australia. He said he felt much safer and more secure in Australia because of its political stability.
53. The Respondent submitted that there is no basis on which the Tribunal could infer that the Applicants would personally face any harm, or be the subject of racism or discrimination such that they could be said to suffer extreme hardship in Indonesia.
Loss of opportunity to care for the house in Pagewood
54. According to the Certificate of Title in respect of the property, the house at 1 Monash Gardens, Pagewood is owned by the Applicants and their parents; each as joint tenants. The house is unencumbered.
55. The Applicants lived there for more than three years since it was bought by their family in 2000. They expressed concern over who will maintain it if their visas are cancelled.
56. Mr Santoso said he had contributed $50,000 towards the purchase of the house in Pagewood. He owes his parents another $50,000 for his share.
57. He was concerned as to who would do day to day maintenance such as pay the bills and tend the garden. He was concerned that even if he could get someone to look after the house there would still be difficulties with payment arrangements. He conceded in cross-examination that he was an experienced user of the internet, and could use funds transfer.
58. Mr Purnomo said that he had not made any contribution to the purchase of the house, although he is a joint tenant. When he left Australia in June 2004 a friend came to live in the house and he collects the mail and pays the bills. He agreed there was no real impediment to renting it out and having it managed. He said however that someone needed to deal with it personally.
59. The Respondent submitted that there is no evidence that the Applicants would suffer extreme hardship from having a person in Australia care for the maintenance of the family’s house, renting it out through an agent or selling the property by agent.
DISCUSSION AND FINDINGS
60. I must decide whether cancellation of the Applicants visas would cause them “extreme hardship”. Whether or not extreme hardship exists is a matter to be determined on the individual circumstances of each case.
61. The cancellation of the Applicants visas means that they would be obliged to leave Australia. Both have, in fact, already done so, returning to Indonesia.
62. Deputy President Purvis stated in Salim and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899 at paragraph 44:
“It is not the need to leave Australia that evidences the hardship, for this is the contemplated legislative result of the cancellation”.
63. While both Applicants have lived in Australia for a number of years and would prefer to live in Australia, any hardship resulting from their required departure is not the type of hardship envisaged by the legislation.
64. The Tribunal has previously outlined some general guiding principles as to what may constitute extreme hardship. The leading statement of principle is that of Deputy President Purvis in Salim (supra) (based on the Federal Court’s decision in Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481, at 487; see also Park and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1167 and Choi and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 297) at paragraph 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.”
65. As stated in Salim (supra) at paragraph 14, causation is also necessary:
“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”
66. The test of extreme hardship requires evidence that the harm or hardship claimed will “undoubtedly or almost certainly result from the cancellation”: see Ongko and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 69, at paragraph 54; Salim (supra), at paragraphs 14 and 44; Gunawan and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 505, at paragraph 27.
67. The Applicants have obtained tertiary qualifications in Australia and own property here and Mr Santoso has a business. They have friends here and prefer the lifestyle here.
68. On the other hand, they both grew up in Indonesia, and have returned there regularly. They have immediate and extended family there and Mr Santoso has a relatively long-standing girlfriend. They live in the family home in Indonesia, and could work in their father’s business. They have language skills and knowledge of Indonesian culture.
69. I accept that both would prefer to live in Australia and have strong aspirations about a future here.
70. I accept that it would be more convenient for Mr Santoso to run his business from Australia, but there was also evidence that the day to day running could be managed by another person. Mr Purnomo has yet to obtain employment in his vocation.
71. In relation to the family home at Pagewood, there was evidence that there is a person living there who attends to some matters for the family. There is no impediment, on the available evidence, to the property being rented or sold by an agent. Mr Santoso, and probably also Mr Purnomo, on their evidence, have sufficient IT skills to attend to financial aspects of the management by means of the internet.
72. Both provided evidence of their concerns about political instability in Indonesia. There was some evidence of rioting which may have been directed to Indonesians of Chinese descent. Neither Applicant had personally experienced such violence, although Mr Santoso had once been attacked by an unknown person, for reasons unknown. Mr Purnomo thought that there was some discrimination against Chinese Indonesians for jobs. Mr Santoso gave evidence of being continually required to prove his Indonesian citizenship.
73. I accept that the Applicants may have a perception that they are regarded as inferior in Indonesia because they belong to an ethnic minority. However I do not regard the evidence of a riot some distance away some years ago as adequate to suggest that the Applicants ‘undoubtedly or almost certainly’ will be singled out, or with their community singled out, for treatment of a kind which might bring about ‘extreme hardship’. Further, there was no evidence that the attack on Mr Santoso was racially motivated nor that job opportunities will be lost to them on the basis of their ethnicity, given their evidence about the difficulties in obtaining employment in Indonesia generally, and in particular in their specialist fields.
74. To paraphrase the Deputy President in Salim (supra), in my view, the result of the cancellation may create a hardship which is unfortunate, emotional and financial, but not extreme.
75. I therefore find that any hardship which the Applicants would face if the visas are cancelled is not sufficiently “extreme” within the meaning of s.134(5) of the Act to avoid the mandatory requirement under s.135(4) of the Act that their visas be cancelled.
DECISION
76. The Administrative Appeals Tribunal affirms the decision under review.
I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member
Signed: A. Krilis Associate
Date of Decision 18 August 2004
Representative for the Applicants Self Represented
Solicitor for the Respondent Andrew Crockett
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