Setyawan and Minister for Immigration and Multicultural and Indig Enous Affairs

[2003] AATA 377

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 377

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  N2002/1079

GENERAL ADMINISTRATIVE DIVISION )

Re ANGELA SETYAWAN

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms G. Ettinger, Senior Member

Date15 April 2003

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL   )         No N2002/1079
  )  
GENERAL ADMINISTRATIVE DIVISION     )

Re:     ANGELA SETYAWAN

Applicant

And:     MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFAIRS

Respondent

DECISION

Tribunal              Ms G. Ettinger, Senior Member

Date  15 April 2003

Place                   Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.

(Sgd)          Ms G. Ettinger

.............................

Senior Member

CATCHWORDS

IMMIGRATION – Cancellation of Business Skills Visa – Applicant’s visa cancelled as a result of cancellation of father’s visa – Whether extreme hardship – Readjustment to life in Indonesia will involve some hardship, but not extreme.

Migration Act 1958 – s134

Wang v Minister for Immigration and Multicultural Affairs [2000] AATA 961
Setiawan v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 260
Salim & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899
Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481

REASONS FOR DECISION

Ms G. Ettinger, Senior Member

1.      At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.        The said transcript is annexed hereunto and is provided to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Ms G. Ettinger, Senior Member

Signed:         Nathaniel Wills
          ....................................................................................……………………………….

Associate

Date of Hearing  15 April 2003

Date of Decision  15 April 2003

Solicitor for Applicant                   Applicant  was self-represented

Solicitor for Respondent              Ms S. Goodman, Blake Dawson Waldron

REASONS FOR DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2002/1079
By MS G. ETTINGER, Senior Member
SETYAWAN and MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS
SYDNEY, TUESDAY, 15 APRIL 2003

MS ETTINGER: The application before the Tribunal is that of Ms Angela Setyawan, the applicant, seeking review of a decision by a Delegate of the Minister for Immigration, Multicultural and Indigenous Affairs, the respondent, made on 8 July 2002 cancelling the applicant's Business Skills Visa pursuant to section 134 subsection (4) of the Migration Act 1958 which I'll refer to as the Act. The visa was issued to the applicant as a member of the family unit of her father Mr Budi Setyawan, 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 on 8 July 2002 pursuant to section 134 subsection (1) of the Act. It is noted that Mr Setyawan did not appeal the decision. However, as a consequence of the cancellation of the father's Business Skills Visa the respondent was then by statute required to cancel the secondary visa of the applicant. The latter cancellation was subject to the provisions of section 134 subsection (4) and subsection (5) of the Act.

The applicant was given notice of the intention of the respondent to cancel her visa on 8 March 2002, that letter is at T5 in the documents before the Tribunal.  The notice stated:

It has come to my attention that there may be grounds for cancelling your Business Skills Visa under section 134 of the Migration Act 1958 (the Act).

On 8 March 2002 Mr Budi Setyawan was sent a notice of intention to cancel under section 134 of the Act.  As you were granted a visa because Mr Budi Setyawan was granted a visa, your visa must be cancelled unless you would suffer extreme hardship for you as a result of having your visa cancelled.

The Act gives you the opportunity to comment on these grounds for cancellation and to give reasons why your visa should not be cancelled.

The reasons Ms Setyawan gave were not accepted and when the matter came to hearing, Ms Setyawan represented herself. She was accompanied by a friend. The respondent was represented by Ms Goodman, solicitor of Blake Dawson Waldon Lawyers. The documents lodged by the respondent with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence as exhibit R1. A document recording Ms Setyawan's travel movements in and out of Australia from 1996 to the present was admitted into evidence as exhibit R2.

Ms Setyawan tendered two documents; an original police report from Indonesia and a translation of it recording an incident in which Ms Setyawan was involved which she described to the Tribunal.  Those documents were exhibit A1 before the Tribunal and a report of a psychologist, Ms D. Muller was exhibit A2.  Ms Setyawan gave oral evidence on oath before the Tribunal.

Now, I move to the issues before the Tribunal. Those are: the respondent cancelled the Business Skills Visa of Mr Budi Setyawan, the Business Skills Visa holder and father of the applicant pursuant to section 134 subsection (1) of the Act. As a secondary visa holder the applicant's visa was cancelled pursuant to section 134(1) of the Act. Section 134 subsection (5) of the Act provides that:

The Minister must not cancel a Business Visa under section 134 subsection (4) of the Act, if the cancellation of that visa would result in extreme hardship for the secondary visa holders. 

The issue for determination by the Tribunal is then whether the cancellation of the applicant's visa would result in her experiencing extreme hardship. 

I move then to the evidence and submissions of Ms Setyawan, Ms Setyawan whose date of birth of 10 April 1981 gave evidence on oath.  She told me she was born in Indonesia and is of Chinese ethnic origin.  She moved to Australia to attend school in Year 11 in 1998 having completed the equivalent of Year 10 in Indonesia.  After completing school Ms Setyawan attended McLean College for two years from where she graduated with a Diploma in advertising.

This was followed by a Bachelor of Arts in Media and Communications from Southern Cross University which Ms Setyawan completed at the end of 2002.  Ms Setyawan told me that she wishes to continue her life in Australia and has been looking for work in her chosen field with an emphasis on creative work, such as graphic design.

She could not remember the names of prospective employers to whom she had applied but knew the name of one of the contacts from an employment agency.  She had been looking on the net she said, and she told me she had not yet been successful in finding employment since university finished at the end of 2002, apart from a month selling American Express Credit Cards for independent contractors. She said that she was unable to do that type of work.

The applicant also said that she intended to apply to do a Masters Degree at the University of New South Wales in Media but had not yet done so.

Ms Setyawan's evidence was that she had a strong dislike and fear of local Indonesians because of their racial dislike of ethnic Chinese.  She recounted an incident which took place in December 2000 while stopped at a traffic light some 15 minutes from her home in which a person or persons broke the left back window of her car and robbed her of her money and telephone.

The police report, exhibit A1, indicated one person was involved and the time as 1900 which is 7:00 pm, while the applicant gave evidence of it being mid-night. Perhaps the police report did not record the data correctly or perhaps the applicant meant it was mid-night by the time she had stopped, telephoned her mother and then returned home.  I don't think that is very important but in any case, I accept the incident caused her distress.  Ms Setyawan said she feared the persons might rape her but agreed she had not been physically attacked.

I notice that Ms Setyawan has a close immediate family consisting of her father, mother and older brother. There are also two grandparents, one relating to each side of the family and 12 families of aunts and uncles, as well as some 20 cousins. They all live in Indonesia, many in Jakarta, the applicant's home town.  Her evidence was that she did not see them often and that her family had issues of conflict with one family in particular with whom they were as a consequence not in touch.

Ms Setyawan travelled to Indonesia to visit her family for some weeks approximately once a year from 1996 until the incident in December 2000.  She has not visited since that time although her parents visit her in Australia.  Ms Setyawan told the Tribunal that she did not keep up with her school friends in Indonesia although on the evening of the attack on her in the car she had been to a friend's party.  She said that she was driving alone because her driver had not been available.  She told me that she did not yet drive in Australia because she does not yet have a licence but that her father will buy a car for her later on.

At the moment the applicant is supported by her parents although she said in her submissions that her father who is a construction contractor and is now 60 years old will not be able to support her indefinitely.  She said that her brother in Australia with whom she shares a house and who is 26 and who works in data entry, could support her.  She agreed however, that she could live with her parents if she were required to return to Indonesia and that she could continue studies there and find employment.

However, Ms Setyawan's main submissions and concerns were she would suffer extreme hardship if she had to return to Indonesia because she had a fear of racially motivated attacks, difficulty in adjusting to the way of life in Indonesia after living in Australia, the unfamiliar changes in Indonesia since the economic downturn, lack of friends, future financial difficulties and her preference for the better educational and employment opportunities in Australia.

I move then to the respondent's submissions. Ms Goodman referred to Wang v Minister for Immigration and Multicultural Affairs [2000] AATA 961 in making the respondent's closing submissions. She accepted on behalf of the respondent that there would be some hardship suffered by the applicant if the decision to cancel her Business Visa were affirmed by the Tribunal, in particular as Ms Setyawan has been in Australia for some five years, has studied here, is planning to do a Masters and has fears regarding racial tension.

Ms Goodman also acknowledged on behalf of the respondent that she would suffer some adjustment problems if she had to return.  She submitted however, that is Ms Goodman, that there was no evidence of any extreme hardship as contemplated by the Act in that there was no financial hardship shown.  It was clear from the evidence she submitted that Ms Setyawan was still and would be supported by her family if she returned, and that she could and would live with them.

Ms Goodman submitted that it would be possible for Ms Setyawan to study and to find work in Indonesia.  Her initial degree was now completed and she was well placed to do so, Ms Goodman submitted.  Ms Goodman submitted that Ms Setyawan had a close immediate family who visited. She also submitted that the applicant was of an age sufficiently young to be able to make new friends easily.

Ms Goodman also referred to the psychologist's report who reported Ms Setyawan would experience some anxiety but did not indicate she could not adjust if she returned.  Ms Goodman submitted that the applicant had maintained contact and connection with Indonesia in that she had visited regularly over the past five years and that her parents visited her in Australia.  Ms Goodman closed her submissions by saying that the scope of the Act was to provide for a high hurdle in specifying extreme hardship and that the decision under review should be affirmed.

I now move to the conclusions and in coming to a conclusion regarding whether Ms Setyawan would suffer extreme hardship within the terms of the legislation if she is required to return to Indonesia because the Tribunal affirms the decision to cancel her visa which was cancelled as a result of father's Business Skills Visa being cancelled, I took into account the evidence, both written and oral, the submissions of the parties and the case law and legislation.

As mentioned earlier, the relevant legislation is the Migration Act 1958, in particular section 134. The cases of Wang v Minister for Immigration and Multicultural Affairs (as above), Setiawan v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 260, as well as the cases of Salim & Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899 and Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481 are all important cases which have decided matters relevant to this one and I'm guided by them.

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 (as above).  At 487 the court said:

.... 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 be 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 upon 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.

The court continued:

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 ...

As was noted in Wang and in Setiawan, hardship from the point of view of the person allegedly experiencing it must be judged subjectively.  It involves more than inconvenience or detriment.  Affectation must be to a considerable degree before it can properly be called hardship.

At paragraph 30 in Wang the Tribunal considered the significance that should be ascribed to the word extreme as used in the statute and 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 to be not only hardship and not only undue hardship, but extreme hardship.

So as you can see the relevant hardship must be a necessary consequence of the cancellation of the visa, a mere possibility or probability would not be sufficient.

So I am mindful, as has already been noted in these reasons, that some hardship will occur as a consequence if Ms Setyawan's visa cancellation is upheld, but I must 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, Ms Setyawan that would result from the cancellation that is to be seen as constituting extreme hardship.

Without reciting her evidence in full I am mindful that Ms Setyawan has expressed a great desire to remain in Australia and this has been her expectation.  I accept that the applicant finds Australian society a happier place than Indonesia.  I accept also that if I have to affirm the decision to cancel her visa she will suffer some emotional pain.  However, I am not satisfied from the evidence that Ms Setyawan has given and the submissions she has made that extreme hardship will result if she returns to Indonesia.

I have noted in particular Ms Setyawan's concerns about racial tensions in Indonesia and find that while a dislike of the situation may be real, it has not been an impediment to her father carrying on his business and that she would be able to live with her family and adapt to her previous way of life if she returns.

I have noted Ms Setyawan's description of the attack on her car by a person or persons and whilst it was no doubt very frightening particularly in the context of racial tensions in Indonesia, I find that it was more likely from the actual outcome to have been motivated by robbery rather than personal assault.   Such break-ins into cars occur equally in Sydney, particularly in the dark.  Ms Setyawan said she was driving because the family driver was not available. She may if she is afraid, travel with him in future.  A fear of further such incidents does not in my view go to extreme hardship within the terms of the legislation.

What I do accept is that Ms Setyawan has been in Australia for five years and feels comfortable living here.  However, Ms Setyawan has completed a good education and there is no evidence she cannot continue that in her chosen field in Indonesia.  Ms Setyawan has no employment in Australia which she has to leave and she will have opportunities back in Indonesia.  The applicant's parents support her at present and will continue to provide housing and support for some time into the future at least. 

It would be unusual and unexpected if a young and intelligent person had not in the years in Australia developed relationships and friendships.  It will be hard to leave those people.  I have noted Ms Muller's view (exhibit A2) that there is a strong likelihood that the applicant would experience heightened anxiety and marked adjustment difficulties if she is unsuccessful in her application.  However, I accept the respondent's submissions that the applicant is young and can establish a social life in Indonesia and make new friends.

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.  I agree with Deputy President Purvis when in Salim v Minister for Immigration and Multicultural and Indigenous Affairs (as above) he said in conclusion:

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.

Accordingly, applying the law here means that Ms Setyawan's application before the tribunal is not successful.

DECISION

The tribunal affirms the decision to cancel Ms Angela Setyawan's Business Skills Visa as a secondary visa holder, which has resulted from the cancellation of the Business Skills Visa of her father, Mr Budi Setyawan.

I wish you all the best.  Thank you both very much.