Re Harijono and Anor and Minister for Immigration and Multicultural and Indigenous Affairs

[2004] AATA 882

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 882

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1443

GENERAL ADMINISTRATIVE DIVISION		)
Re		RATNA HARIJONO

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

No N2003/1444

Re YANI HARIYONO

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date23 August 2004

PlaceSydney

Decision The decisions under review are affirmed.

[Sgd] Mr S. Webb, Member

CATCHWORDS

MIGRATION - business visa - primary visa cancelled - secondary visa holders - fear of racial vilification - disruption to studies - not extreme hardship - decisions affirmed

Migration Act 1958 ss 134, 135

Migration Regulation 1994 reg 2.55

Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481

Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961

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

REASONS FOR DECISION

23 August 2004 Mr S. Webb, Member         

1.      The Applicant sisters, Ms Ratna Harijono (“Ratna”) and Ms Yani Hariyono (“Yani”), are seeking review of the decision of a delegate of the Respondent, Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) to cancel their secondary business visas pursuant to cancellation of the primary business visa held by their mother, Ms Jauw Hui Lie (“the primary visa holder”).  The sisters are Indonesian nationals of Chinese descent who fear racial vilification if they are forced to return to Indonesia and are seeking to avoid disruption to their tertiary studies in Australia.

2.      The matter came on for hearing in Sydney on 10 May 2004 and 26 July 2004.  The Applicant sisters gave oral evidence at the hearing and were represented by Mr R. Nair, counsel.  The Minister was represented by Ms J. Maurer, Australian Government Solicitor.  Materials were tendered and labelled as exhibits at the hearing.

3.      During the hearing Ms Maurer was directed to file and serve evidence of the contact details for the primary visa holder retained by the Minister’s Department.  Documents were duly filed and served on 26 July 2004.  By agreement of the parties no written submissions addressing that evidence were filed as pertinent issues were the subject of oral submissions during the hearing.

factual context

4.      The following material facts are not in dispute between the parties.

5.      Ratna (date of birth: 7 February 1980) lived with her parents and attended school in Surakarta until the age of 18, completing her secondary studies in 1998.  She arrived in Australia on 3 July 1998 for the purpose of study.  She completed the University of New South Wales Foundation Year in October 1999 and enrolled in an undergraduate commerce degree at the University of Sydney in 2000. 

6.      Yani (date of birth: 13 June 1982) lived with her parents and attended school in Surakarta, Indonesia until the age of 10.  Thereafter she studied in Singapore under the care of a guardian and visited her parents in Surakarta.  Yani first arrived in Australia in April 2000 for the purpose of study.  She completed the University of New South Wales Foundation Year in November 2000 and enrolled in an undergraduate degree at that University in 2001.

7.      The Applicant sisters are of the Roman Catholic faith.

8.      In May 1998 there were riots in Jakarta and Surakarta in which people of Chinese descent and Christians were vilified and subjected to violence.  Ratna witnessed rioting in Surakarta.

9.      The primary visa holder was granted a Business Skills Migration Class subclass 127 visa on 27 April 2000.  That visa covered the Applicant sisters and their father Mr Tanto Harijono.  It was a condition of grant that the Applicant sisters were not in Australia at the time of the decision and did not travel to Australia before the primary visa holder.  For that reason the Applicant sisters departed Australia on 19 April 2000 and returned on 1 May 2000.

10.     In January 2002, Yani enrolled in a Diploma of Business course at Martin College in Sydney and successfully completed that course on 18 December 2002.  In January 2003 she enrolled in a Bachelor of Business Degree at Griffith University.

11.     On 30 April 2003 notices of intention to cancel the business visa were sent to the primary visa holder and the Applicant sisters.  Those notices were sent via email to a migration agent, Mr A. Chew, who was acting for the primary visa holder and the Applicant sisters.  Representations were made on behalf of the primary visa holder within the requisite 28 day period. 

12.     On 13 June 2003 Ratna was awarded a Bachelor of Commerce degree from the University of Sydney.  On 12 December 2003 she accepted an offer of admission into a Graduate Diploma in Commerce course at the University of Sydney.

13.     On 8 August 2003 the business visa of the primary visa holder was cancelled.  The Applicant sisters’ visas were cancelled in consequence on that date.

14.     On 5 September 2003 the Applicant sisters applied for review of the decision to cancel their visas.

15.     At the current date Yani has one semester remaining to complete her Bachelor of Business Degree.

legal principles

16.     These applications are under the Migration Act 1958 (“the Act”). 

17.     Under the Act, if the business visa of a primary visa holder is cancelled then any secondary business visas held by family members must also be cancelled by giving written notice to that person (s.134(4)) unless the cancellation would result in “extreme hardship” to that person (s.134(5)).

18.     The meaning of the term “extreme hardship” has been considered by previous Courts and tribunals (see Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481 at 487; Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961 at paragraph 34; Re Salim and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899 at paragraphs 44 to 47).

19.     It is well established in the case law that the hardship must be a necessary consequence of the visa cancellation, “mere possibility or probability would not be sufficient” (Re Salim (above) at paragraph 14).

issues

20.     There is no application for review of the decision to cancel the business visa of the primary visa holder before the Tribunal.  The merit of that decision is not a live issue and was not agitated in these proceedings.  I make no findings in relation to that decision.

21.     It follows that the only issues for determination by this Tribunal are whether either of the Applicant sisters would suffer extreme hardship as a result of the cancellation of their business visa.

summary findings

22.     The notices of intention to cancel the Applicant sisters’ business visas on 30 April 2003 were valid.  They were given by email to Mr Chew who was authorised to act and receive communications on behalf of the primary visa holder. 

23.     Ratna suffers from anxiety that does not constitute a psychiatric disorder.  Her anxiety is at least in part attributable to rioting she witnessed in Surakarta in May 1998.  She is apprehensive about the way in which she may be treated as a Chinese Christian if forced to return to Indonesia.  However, it is far from certain that she would experience any such difficulties as a result of the cancellation of her business visa.

24.     Both Ratna and Yani would experience disruption to their studies if the decision to cancel their business visas is affirmed.

25.     Ratna and Yani have family in Surakarta who would support them if they are required to return.  Both speak Bahasa Indonesian. 

26.     I am satisfied on the evidence before me that neither Ratna nor Yani would experience “extreme hardship” as a result of cancellation of their business visas.

decision

27.     It follows that in each application the decision under review is affirmed.

reasons for the decision

28.     Making these decisions I have carefully considered all of the evidence, the submissions of the parties, the relevant case law and legislation.

notices

29.     The notices of intention to cancel the business visa that had been granted to the primary visa holder and the Applicant sisters were valid and effective.  In submissions for the Applicant sisters, Mr Nair contended that the notices were not valid because the primary visa holder was not in Australia on the date of issue, in consequence of which she should have been provided with 70 days in which to make representations.  I do not accept that submission.

30.     The evidence is that the notices were transmitted by email from a delegate of the Minister to Mr Chew, the authorised migration agent of the primary visa holder, on 30 April 2003.  Mr Chew was properly authorised to receive communications, documents or notifications relating to the primary visa holder’s business visa, including communications by email.  The primary visa holder lodged a document with the Minister’s Department to that effect on or about 11 July 2002.

31.     Under the Act the Minister must not cancel a person’s business visa unless a notice of intention to cancel the visa has been given under s.135 of the Act within a three year period commencing, in this case, on the day on which the person first entered Australia after the grant of the visa. The primary visa holder and the Applicant sisters first entered Australia on 1 May 2000 under the business visa. It follows that the last day on which the Minister could issue notice of intention to cancel that visa was 30 April 2003. It was on that day that the notices of intention to cancel the business visa were given by email to Mr Chew.

32.     S.135 provides that the visa holder is to be given 70 days in which to make representations if “the notice is given outside Australia”. The section is silent on the location of the visa holder. It is necessary to carefully consider the meaning of the word “given” under the Act. Regulation 2.55 of the Migration Regulations 1994 (“the Regulations”) applies and, relevantly, provides:

“(8)If the Minister gives a document to a person by transmitting it by… email …, the person is taken to have received the document at the end of the day on which the document was transmitted.”

33.     It follows that the notices in question, being properly given by email transmission to Mr Chew who was authorised to receive such documents or notifications on behalf of the primary visa holder, are taken to have been received by the primary visa holder at the end of the day on which they were transmitted.  That day was 30 April 2003.  The fact that the primary visa holder authorised the Minister’s Department to send “communication, documents and notifications” to her agent in Australia renders her actual whereabouts on 30 April 2003 immaterial for present purposes.

34.     Essentially, the notices were given in Australia to the agent of the primary visa holder who was properly authorised to receive notifications on her behalf. Applying s.135(1)(b)(i), it follows that the primary visa holder was entitled to make representations within the period of 28 days after the notice was given. It is not in dispute that representations were made within that period. There is no error in the notice of intention to cancel her business visa that would render the subsequent cancellation of that visa invalid.

extreme hardship – ratna

35.     Essentially, Mr Nair advanced three contentions on Ratna’s behalf.  It was submitted that disruption of her studies, time wasted developing a business with her mother and discrimination in Indonesia if forced to return would result from cancellation of her business visa and would cause her to suffer extreme hardship.  I do not agree.

36.     I accept that Ratna would experience some disruption to her studies if the decision to cancel her business visa is affirmed.  I note, however, that she has not fully investigated her options either in relation to applying for a student visa or continuing her post graduate studies in a University in Indonesia.  I also note that Ratna enrolled in her present course of study in December 2003 in the knowledge that her business visa had been cancelled in August 2003. 

37.     It is clear that Ratna does not want to return to Indonesia and fears for her safety if she is required to do so.  Her fears of sectarian violence and discrimination on the basis of her ethnicity and religious beliefs appear to be founded in her experience of rioting in 1998.  I accept that she is apprehensive and experiences anxiety but note the report of Dr R. Wilcox, General and Forensic Psychiatrist, that “her anxiety is not severe enough to result in a disorder”.  I accept Ratna’s concern, as reported by Dr Wilcox, “that it is only a matter of time before further unrest develops” is a concern that causes her anxiety.  However, there is no evidence before me on which to conclude that the possible “unrest” about which she is concerned is imminent or that there is any certainty or even a probability that she will suffer from the violence and discrimination she fears if her visa is cancelled.  Dr Wilcox is of the opinion that:

“[Ratna] is unable to relax when she returns to the country of her birth…if she returned to Indonesia I believe that she would experience significant hardship and the adjustment would be difficult for her…forcing [Ratna] to return to live in Indonesia would cause her extreme anxiety and hardship.”

38.     I accept that adjusting to life in Indonesia may be difficult for Ratna.  She may find her living conditions to be more restrictive than those to which she has become accustomed during her time in Australia.  She may need to exercise greater care to protect her personal security.  However, she will be in the home of her family and among friends with whom she grew up and has maintained contact during the period of her studies in Australia.  It is inevitable that she will face difficulties and some hardships adjusting to life in Surakarta.  It is possible that she will suffer an increase in anxiety if she is forced to return.  However, she will be returning to a town she knows well where she will not suffer any language difficulties and will be supported, emotionally and financially, by her family.

39.     I accept that Ratna assisted her mother in business-related activities in Australia.  However, the “waste” of that time as a result of cancellation of the business visa does not lead to any apparent hardship.  I accept, however, that the circumstances may be disappointing.  Nonetheless, the primary business visa was cancelled because the primary visa holder failed to comply with the requirements of that visa.  It is clear that Ratna’s disappointment may also relate to the primary visa holder’s decision not to apply for review of the decision to cancel her business visa. 

40.     In consideration of all of the evidence concerning Ratna I am satisfied that any hardship or difficulties she may experience as a result of cancellation of her visa cannot be described as extreme.  That being so, I affirm the decision to cancel her business visa on 8 August 2003.

extreme hardship – yani

41.     In Yani’s case, three grounds of extreme hardship were submitted.  It was contended that disruption to her studies, returning to an alien culture and severe psychological stress would result from cancellation of her visa and would constitute extreme hardship.  I do not agree.

42.     It is clear that Yani would experience some disruption to her studies if her visa is cancelled.  She has one semester remaining before completing a Bachelor of Business Degree.  I accept that the units of study she requires to complete that degree are only offered in the second semester each year.  It follows that if she is required to return to Indonesia and from there apply for a student visa a delay of one year in her studies may result.  She may also be required to pay overseas student fees.  I accept that those matters are difficulties that would flow from cancellation of her visa.  The question is whether they constitute extreme hardship.

43.     As with Ratna, it is clear that Yani does not want to return to Indonesia.  In her case, however, she left Indonesia to study in Singapore at the age of 10.  I accept that Yani does not have many friends in her home town and does not possess a detailed knowledge of the town or its culture, as may be expected from a person who grew up there.  I note however, that she will not experience significant language difficulties and will be returning to the home of her family, who will provide financial and emotional support.  While she may not have many friends in Surakarta, she will have contact with her extended family.  Even so, I have no doubt that the adjustment will be difficult for her.  She may have less freedom than she has in her life as a student in Australia.  She may need to attend more carefully to matters of personal security.  She may experience hostility as a result of her ethnicity and religious beliefs, even though I note Yani’s evidence that she does not attend church regularly.  It may be that she is returning to a culture that is different than “the more tolerant, more open, more cosmopolitan and much safer cultural milieu within which she has resided and grown up since the age of 10 years, in Singapore and Australia”.  That I accept.  However, I do not accept that Yani will suffer “severe psychological distress” nor do I accept that she will suffer “serious harm” as a result of cancellation of her visa.  There is no evidence before me to support such a conclusion.

44.     Cancellation of Yani’s visa may result in difficulties that are unfortunate, disruptive and inconvenient.  I am satisfied, considering all of the evidence in relation to Yani, that those difficulties cannot properly be described as extreme hardship in the circumstances.  For that reason I affirm the decision to cancel her business visa on 8 August 2003.

conclusion

45.     The notices of intention to cancel the Applicant sisters’ secondary business visas conform to the statutory requirements.  There is no certainty or, on the evidence before me, even a probability as opposed to a possibility that either Applicant sister will suffer extreme hardship as a result of cancellation of their secondary business visas.   That being so, the decisions to cancel their visas on 8 August 2003 are affirmed.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:         A. Krilis  Associate

Date/s of Hearing  10 May 2004, 26 July 2004
Date of Decision  23 August 2004
Counsel for the Applicant         Mr R. Nair 
Solicitor for the Respondent     Ms J. Maurer