Re Setiawan and Minister for Immigration and Multicultural Affairs

[2002] AATA 260

DECISION AND REASONS FOR DECISION [2002] AATA 260

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/1563

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      YURIKA ANGGRAENI SETIAWAN       
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS          
  Respondent

DECISION

Tribunal       The Hon. R N J Purvis Q.C., Deputy President

Date18 April 2002 

PlaceSydney

Decision      The Tribunal sets aside the decision under review and remits the matter to the Respondent for further consideration in accordance with the Tribunal's reasons for decision.  
  ..............................................
  The Hon. R N J Purvis Q.C.
  Deputy President
CATCHWORDS
IMMIGRATION – business skills (migrant) (class AD) visa – cancellation of Applicant's father's primary business skills visa – cancellation of Applicant's visa as secondary visa holder – extreme hardship – meaning of extreme hardship – subjective test

Migration Act 1958 – section 134

Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481
Siwei Wang v Minister for Immigration and Multicultural Affairs [2000] AATA 961
Ashok Kumar v Minister for Immigration and Ethnic Affairs (1997) 50 ALD 488

REASONS FOR DECISION

The Hon. R N J Purvis Q.C., Deputy President            

the application

1. This is an application made by Ms Yurika Anggraeni Setiawan ("the Applicant") seeking review of a decision by a delegate of the Minister for Immigration and Multicultural Affairs ("the Respondent") made on 5 October 2000, cancelling the Applicant's business visa pursuant to section 134(4) of the Migration Act 1958 ("the Act"). The visa so issued to the Applicant was as a "member of the family unit" of her father, he having at one time satisfied the relevant requirements referrable to the establishment of an eligible business in Australia. The Primary Business Skills Visa of the father was cancelled pursuant to section 134(1) of the Act, the Respondent then by statute being required to cancel the secondary visa of the Applicant. The later cancellation however, is subject to the provisions of subsections 134(4) and (5) of the Act.

2. The Applicant was given notice of the intention of the Respondent to cancel her visa but after considering submissions made by her and on her behalf the reviewable decision was made.
   the hearing

3. At the hearing of this application the Applicant appeared on her own behalf, the Respondent was represented by Mr Paul Hardman, solicitor of Clayton Utz Lawyers.

4. The documents lodged by the Respondent with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and were marked T1 to T22. Other written material was also tendered as exhibits and marked accordingly, namely:
   Exhibit No  Description                   Date         
   A        Applicant's letter      30 January 2001     
   B        Letter from Jeanette Ramos (TAFE teacher)     19 November 2001 

5. Respondent's Movement Records of Applicant            

6. Affidavit of Belinda Jayne Abey     7 September 2001  

7. Letter from Applicant to the Tribunal       19 December 2001 

Oral evidence was given by the Applicant upon which she was cross-examined.
the issues

1. As they are stated by the Respondent the issues before the Tribunal are:

   Given that:

• on 5 October 2000 the Respondent cancelled the Business Skills Visa of Rahmat Setiawan, the visa holder and father of the Applicant pursuant to section 134(1) of the Act;

• as a secondary visa holder the Applicant's visa was cancelled pursuant to subsection 134(1) of the Act on 5 October 2000; and

• subsection 134(5) of the Act provides that the Minister must not cancel a business visa under subsection 134(4) if the cancellation of that visa would result in extreme hardship to the secondary visa holder;

  then the issue for determination by the Tribunal is:

• whether the cancellation of the Applicant's visa would result in her experiencing extreme hardship.

the relevant legislative provisions

1. The relevant legislative provision are:

   "SECT 134 Cancellation of business visas
   (1) Subject to subsection (2) and to section 135, the Minister may cancel a business visa … by written notice given to its holder, if the Minister is satisfied that its holder:

   (a) has not obtained a substantial ownership interest in an eligible business in Australia; or
   (b) is not utilising his or her skills in actively participating at a senior level in         the day-to-day management of that business; or
   (c) does not intend to continue to:

   (i) hold a substantial ownership interest in; and
   (ii) utilise his or her skills in actively participating at a senior level in the day-to-day management of;

   an eligible business in Australia.

   …
   (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."

2. Thus the issue for determination by the Tribunal, as earlier stated, is as to whether the cancellation of the visa granted to the Applicant would result in extreme hardship being experienced by her.  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 p 487 it was stated:

   "…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 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 on 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..."

3. As was noted by the Tribunal in Siwei Wang v Minister for Immigration and Multicultural Affairs [2000] AATA 961 at paragraph 28, "Hardship" from the point of view of the person allegedly experiencing it "must be judged subjectively", and further at paragraph 29 "Clearly …hardship involves more than inconvenience or detriment. Affectation must be to a considerable degree before it can properly be called hardship". At paragraph 30 the Tribunal considered the significance that should be ascribed to the word "extreme" as used in the statue. The Tribunal 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 many meanings of the word "extreme" offered in the Macquarie Dictionary. 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 not only to be hardship and not only undue hardship, but extreme hardship."

4. 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.

5. In Ashok Kumar v Minister for Immigration and Ethnic Affairs (1997) 50 ALD 488 it was said 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 application is as at the date of the hearing.
   the relevant facts

6. The Applicant was born in Indonesia on 31 January 1982.  She arrived in Australia with her family on 9 October 1997 on a Business Skills (Migrant) (Class AD) Visa, since which time she has completed her secondary education and is now studying at Sydney TAFE seeking to graduate with a diploma in food technology.

7. On 7 June 2000 the Respondent issued a notice of intention to cancel the business skills visa of the Applicant due to the failure of her father to comply with the conditions of his visa. The secondary visa held by the Applicant was in fact cancelled on 6 October 2000 consequent upon the primary visa held by her father also being cancelled on that date, the latter by reason of the Respondent being satisfied that the father had failed to satisfy the relevant criteria required by section 134 of the Act.

8. The Applicant's father and mother returned to Indonesia leaving the Applicant and her brother in Australia.  The brother is engaged in an engineering degree course at Sydney University.  The Applicant and her brother are together residing in a property owned by her parents at Maroubra, a suburb of Sydney.  Apart from her earnings as a casual waitress, the Applicant has been financially supported by her parents, who have also funded the costs of airline tickets used by her in travel to and from Indonesia.

9. In support of her application to remain in Australia, the Applicant in a letter of 30 January 2001 said (Exhibit A):

   "…
   Now, I am studying Food technology at Sydney TAFE. In a year time, I will be graduation with diploma in Food technology. But if I were to go back for good, I had to start my tertiary education all over again.  Furthermore, they don't have a course in food technology and since I did not high school in Indonesia, I would have to repeat my high school before being accepted in university. If I were to graduate here, I wouldn't have a job back at my country. Moreover, I had much settle down in Australia then [sic] in Indonesia as I had spent my most memorable time here…"

10. The disadvantages the Applicant claimed she would experience on cancellation of her visa were said by her in January 2001 to be:

    "…

(a)  I had lost contact with most of my friends in Indonesia since I spend most of my childhood here in Australia.

(b)  I have a network of friends in Australia with whom I can look to for emotional support.

(c)  There isn't course majoring in food technology back in my country.

(d)  Since I did not finish my high school in Indonesia, I would have to repeat my high school again if I were to continue my tertiary education.

(e)  Since the racial tension in Indonesia back in 1997, I had always hated to go back for holiday if not for my parents.

…"

1. The hearing of this application commenced on the 27 September 2001 at which time the Applicant gave evidence to the effect that she was then in the final year of her two-year food technology course, the same concluding in December 2001.  She was confident she would sit for her final exams in December 2001 "at the latest".  On graduation the Applicant hoped to obtain a position as a laboratory assistant engaged in food testing and control of food products.  She said she needed to complete her course and gain her diploma before she could obtain employment in Indonesia.

2. With the above evidenced situation in mind, the Tribunal in September 2001 adjourned the further hearing of the Application to a date in January 2002 in order that the Applicant could complete her studies and obtain her qualification preparatory to returning to Indonesia.

3. The latter however was not to be. As appears from a letter under hand of the acting head teacher, food and chemistry TAFE Sydney Institute, the Applicant (Exhibit B):

   "…should successfully complete all requirements at the end of November 2001 except for one module 6189L Food and Hygiene Microbiology, which she hopes to enrol in and finish by Semester 2, 2002…"

4. The Applicant said that the Microbiology course would commence in May 2002 and last over a period of 18 weeks.

5. The Applicant had seemingly not been aware of the one outstanding subject when she gave her evidence in September 2001. She passed the exams for which she sat in November 2001.

6. From enquires she had made during a visit to Indonesia in January/February 2002, the Applicant ascertained that:

• a course in microbiology was there available but she would be required to  undertake two or three other subjects that were not necessary in order for her to graduate at Sydney TAFE;

• she would need to be accepted as a Bachelor student;

• it would be necessary for her to pay an admission fee of up to A$1500 and a semester fee amounting in all to about A$1000 beyond what she would be required to pay in Australia;

• she would be unable to obtain even part-time employment in Indonesia as the number of subjects she would be required to study would leave insufficient time; and

• she would be required to pay tuition fees for subjects she did not need in order to obtain her diploma.

1. As earlier mentioned the Applicant's parents have assisted her financially whilst she has been undertaking her diploma course.  She was unable to say with any degree of certainty whether they would further assist if she undertook the study in Indonesia.  On the basis of the evidence before it, the Tribunal is however satisfied that such financial assistance would be forthcoming. The parents, apart from their real estate interests in Australia, own property in Indonesia and according to the Applicant "are quite well off".
   submissions and decision

2. It was submitted on behalf of the Respondent that the Applicant being required to show that she would suffer extreme hardship by reason of cancellation of the visa, the facts and circumstances disclosed by the evidence whilst showing inconvenience and some hardship did not "on any analysis show extreme hardship".  The Tribunal's attention was drawn to the fact of the Applicant being able to undergo a course in Indonesia, which whilst resulting in some inconvenience and additional cost and the need to undergo additional courses could nevertheless be completed within a timeframe similar to that required in order for her to complete her course in Australia.  Attention was further drawn to the attempts that had been made to alleviate the Applicant's hardship and the opportunities afforded her to resolve her situation.

3. It is true, as was further submitted on behalf of the Respondent, that a number of the bassi upon which she initially sought relief were not relevant at the time the application came on for hearing. The Applicant had clearly not spent most of her childhood in Australia and even whilst living here had regularly returned to Indonesia.  Her parents reside in that country and even be there racial tension, this has not precluded her from travelling to and from her country of birth on a regular basis.

4. The Applicant is 20 years of age. She is presently living in Australia with her brother in a property owned by her parents. She has completed two years of a diploma course in food technology and has now one subject remaining in order to obtain her diploma.  Tuition in that subject does not commence until May 2002 and would extend over a period of approximately 18 weeks. The Tribunal was not informed as to when an examination, if any, might be held.  Nevertheless, in the event of the Applicant's visa being cancelled she would be required to return to Indonesia and not be able to complete her course in Australia.  On the assumption that she be accepted as a Bachelor student, she would be able to undergo a course of study, more extensive than would otherwise be required, in Indonesia, which seemingly would gain her the relevant credit to obtain her diploma.  However, enrolment in such a course in Indonesia would entail admission and tuition fees at a cost beyond what she would be required to pay for tuition only in Australia.

5. It would appear on the evidence that the Applicant has successfully completed the course  that she has been required to undertake to this date. The evidence of the acting head teacher at TAFE is that she "is a polite and capable student".

6. The criteria that the Tribunal is required to consider entail factors peculiar "to the person allegedly suffering the hardship". It is to be a subjective assessment.  The "extreme" extent of the hardship "must be evaluated against the facts of the particular case", and must be consequent upon the visa being cancelled.  The consequences of cancellation of the visa in the present matter would be that the Applicant could not complete her diploma course in Australia, would be required to enrol as a Bachelor student in Indonesia, pay an admission fee as well tuition fees and study two to three courses additional to the microbiology course, the same not being necessary for her to obtain the relevant credit in her diploma course. 

7. The consequences to the Applicant that would result from the cancellation of her visa would be, for this 20-year-old young lady, traumatic.  She would be unable to complete her course in this country and, assuming acceptance and admission, would be required to study subjects in Indonesia foreign to her present diploma requirements.

8. Whilst the facts as they now are did not exist as at the date of the original decision, and indeed the passage of time has significantly altered the facts relevant to any hardship that might be experienced by the Applicant, the Tribunal is satisfied that cancellation of her visa at this time would, so far as she is concerned, result in extreme hardship to her.

9. For the above reasons the Tribunal sets aside the decision under review and remits the matter to the Respondent for further consideration.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis Q.C., Deputy President

Signed: O. Caragianni            .....................................................................................
  Associate

Dates of Hearing  27 September 2001 and 15 January 2002
Date of Decision  18 April 2002
Applicant  self represented   
Solicitor for the Respondent    Paul Hardman