Re Aziz and Minister for Immigration and Multicultural Affairs

[2006] AATA 301

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 301

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2005/399

GENERAL ADMINISTRATIVE DIVISION		)
Re		AMMAR ABDUL AZIZ

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

DECISION

Tribunal S Penglis, Senior Member

Date30 March 2006

PlacePerth

Decision The Tribunal dismisses the application to extend the time within which to lodge an application for review.

............(sgd S Penglis)................

Senior Member

CATCHWORDS

Immigration - Application to extend the time within which to lodge an application for a review - extreme hardship established - turns on its own facts

LEGISLATION

Migration Act 1958 (Cth;, Section 134(4), (5) and (8)

Administrative Appeal Tribunal Act 1975 (Cth), s 29 (7) - (10) and 42(A) (Z) and (8)

CASES

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

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

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

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

Minister for Health and Aged Care v Pharmacia & Upjohn Pty Ltd (2001) 65 ALD 76

REASONS FOR DECISION

30 March 2006 S Penglis, Senior Member

1.      The applicant seeks to have the Tribunal review the decision to cancel his visa.

Background

2.      The applicant is the son of Mr Abdul Aziz Bakri.  Mr Bakri was issued a business skills visa as a consequence of which the applicant was himself issued a (secondary) visa.

3.      By notice dated 4 November 2003, Mr Bakri was informed that his visa and those held by the members of his family including the applicant were to be cancelled pursuant to s 134 of the Migration Act 1958 (Act), with cancellation to be effective on 11 December 2003.

4.      Mr Bakri applied to the Tribunal for a review within the statutory period, as a consequence of which the cancellation of his visa and the visas held by his family members (including the applicant) shall not take effect until 28 days after the day on which the Tribunal gives its decision on the review (assuming that that decision is to affirm the respondent’s decision): section 134(8) of the Act.

5.      The applicant took no steps to themselves apply to the Tribunal for a review as “he relied on a review of the decision to cancel the visa of the primary visa holder”.

6. Mr Bakri’s application to the Tribunal was dismissed on 30 March 2006 pursuant to s 42A (2) of the Administrative Appeals Tribunal Act 1975 (“AAT Act“) as he did not appear, either in person or by representative, at the hearing of his application.

7.Thereafter

·Mr Bakri lodged an application to the Tribunal to reinstate his matter (pursuant to section 42A (8) of the AAT Act);

·the applicant (and two of his brothers) themselves applied to the Tribunal to review the respondent’s decision to cancel their visas.

8.      Because the applicant’s application was lodged well out of time, it was necessary for him to apply to the Tribunal to extend the time in which to bring his application.  That application was heard on 25 January 2006, along with similar applications by two of his brothers.

9. On the same day, the Tribunal heard Mr Bakri’s application pursuant to s42A (8) of the AAT Act. On the same day the Tribunal acceded to Mr Bakri’s application pursuant to s42A (8) of the AAT Act and reinstated his application.

10.     The Tribunal gave the applicant 21 days in which to provide his written submissions in support of his application to extend time.  The Tribunal made it clear that if no submissions were received, the Tribunal would determine the application without the benefit of any such submissions.  No written submissions have been received by the Tribunal.

Approach to Applications for Extension of Time  

11.     It is well settled that, when considering an application to extend time, if the applicant’s case has an obvious weakness, an extension will not usually be granted: Re Sam Mercorella Pty Ltd and Australian and Pear Corp (1987) 12 ALD 520; Re Sawley and Secretary, Department of Housing and Construction (1987) 14 ALD 479.

12.     Accordingly, whilst the Tribunal should not undertake a merits review of the decision – see Minister for Health and Aged Care v Pharmacia & Upjohn Pty Ltd (2001) 65 ALD 76 – if it is satisfied that the applicant’s case has an obvious weakness, as nothing has been raised with the Tribunal as to why it ought grant an extension of time notwithstanding, the Tribunal should dismiss the application for an extension of time.

Issues

13.     By subsections 134 (4) and (5) of the Act, where a primary visa is cancelled, the secondary visa must also be cancelled unless the secondary visa holder would suffer “extreme hardship” as a result of the cancellation. 

14.     The issue for the Tribunal to decide then is whether or not there is an arguable case that cancellation of the applicant’s secondary business visa would cause him “extreme hardship” pursuant to ss 134 (5) of the Act.

DECISION

15.The “extreme hardship” for which the applicant contends is as follows:

“I have a full time job in Australia, with all my assets in the country.  I do not own anything in Malaysia and moving there at this point will cause great difficulties”.

16.     In Salimv Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899, DP Purvis said (at paragraph 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.

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.”

17.     In Then and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 18, a case very similar to this one, the applicant was a secondary visa holder whose father’s primary business skills visa had been cancelled. In that case, the applicant gave evidence that she “practically grew up in Australia”, held a Bachelor of Economics degree from the University of Western Australia, and had been employed since graduation, (whereas the applicant’s employment prospects were said to be “very poor in Indonesia”). Member Griffin accepted “that having to leave Australia would cause hardship for Ms Then” including “some short term problems for her career” and that the same would be “upsetting and disturbing”, but concluded that these difficulties are not of such a degree as to amount to “extreme hardship”.

18.     In the same way, in this case, 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 of constituting “extreme hardship” for the purpose of s 134 (5) of the Act.

19.     The applicant’s case therefore suffers “from an obvious weakness” within the meaning of cases to which I referred.

20.     It therefore follows that the application for extension of time should be dismissed.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member
S Penglis

Signed:         (sgd EM Jordan)           .....................................................................................

Associate

Date/s of Hearing  25 January 2006
Date of Decision  30 March 2006
Counsel for the Applicant         Usamah Abdul Aziz
Solicitor for the Applicant          Applicant appeared in person
Counsel for the Respondent     Mr D Blades
Solicitor for the Respondent     Australian Government Solicitors