Soegijono and Minister for Immigration and Citizenship
[2008] AATA 244
•28 March 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 244
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1997
GENERAL ADMINISTRATIVE DIVISION ) Re AMELIA SOEGIJONO Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Mr D Connolly AM, Member Date28 March 2008
PlaceSydney
Decision The decision under review is affirmed.
..................[sgd]............................
Mr D Connolly AM
Member
CATCHWORDS
IMMIGRATION – business skills visas – cancellation of applicant’s mother’s primary business skills visa – subsequent cancellation of applicant’s secondary business skills visa – whether cancellation would result in extreme hardship – meaning of extreme hardship – subjective test – decision under review affirmed
Migration Act 1958 – sections 134, 135
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Re Prawiro and Minister for Immigration and Multicultural and Indigenous Affairs (2003) 38 AAR 203
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
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 Setiawan and Minister for Immigration and Multicultural Affairs [2002] AATA 260
Re Salim and Minister for Immigration and Multicultural and Indigenous Affairs (2002) 36 AAR 42
REASONS FOR DECISION
28 March 2008 Mr D Connolly AM, Member DECISION UNDER REVIEW
1. The applicant, Ms Amelia Soegijono, applied for review of a decision to cancel her business skills visa under section 134 of the Migration Act 1958 (“the Act”).
2. Ms Yinny Risye Nio was granted approval in December 2003 for a business skills (business owner) visa covering herself, her spouse and three of her five children.
3. Ms Soegijono, one of Ms Nio’s two daughters, held a business skills visa as a family member. Her date of arrival in Australia on that visa was 17 December 2003.
4. On 1 May 2007 Ms Nio’s visa was cancelled pursuant to section 134 of the Act. The delegate of the Respondent also decided to cancel the visas held by the applicant and other family members.
5. The decision to cancel the applicant’s visa was made by the delegate having received and given consideration to representations that the cancellation would result in the applicant suffering extreme hardship.
6. The applicant was the only member of the family unit to apply for review of the decision.
RELEVANT LEGISLATION AND POLICY
7. Section 134 of the Act states in respect to the cancellation of business visas:
134 Cancellation of business visas
(1) Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australia visa, an investment‑linked visa or a family member’s 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.
…
(7) If the Minister cancels a business visa under this section, the Minister must include in the notice given to its holder:
(a) the Minister’s reason for the cancellation; and
(b) a statement to the effect that the holder may, within 28 days after receiving the notice, apply to the Administrative Appeals Tribunal for review of the cancellation.
…
(9) The Minister must not cancel a business visa under subsection (1), (3A) or (4) unless a notice under section 135 was given to its holder within the period of 3 years commencing:
(a) if its holder was in Australia when he or she was first granted a business visa—on the day on which that first visa was granted; or
(b) if its holder was not in Australia when he or she was first granted a business visa—on the day on which its holder first entered Australia after that first visa was granted.
(10) In this section:
business visa means:
(a) a visa included in a class of visas, being a class that:
(i) has the words “Business Skills” in its title; and
(ii) is prescribed for the purposes of this paragraph; or
…
family member’s visa means a business visa held by a person:
(a) who is or was a member of the family unit of another person who held a business visa; and
(b) who would not have held the business visa if he or she had never been a member of the family unit of the other person.
…
8. Section 135 of the Act provides:
135 Representations concerning cancellation of business visa
(1) Before cancelling a visa under subsection 134(1), (3A) or (4), the Minister must give its holder a written notice:
(a) stating that the Minister proposes to cancel the visa; and
(b) inviting its holder to make representations to the Minister concerning the proposed cancellation within:
(i) if the notice is given in Australia—28 days after the notice is given; or
(ii) if the notice is given outside Australia—70 days after the notice is given.
(2) The holder may make such representations to the Minister within the time specified in the notice.
(3) The Minister must give due consideration to any representations.
(4) If:
(a) the time specified in the notice ends after the end of the period referred to in subsection 134(9); and
(b) at the end of the period of 90 days commencing at the time specified in the notice, the Minister has not made a decision on whether to proceed with the cancellation;
the Minister is not to proceed with the cancellation.
(5) If the Minister decides not to proceed with the cancellation, the Minister must give its holder written notice to that effect.
9. On 15 March 2007, PAM3: Act - Visa cancellation - Business visas (“the policy”), which provides the policy and processes for monitoring and cancelling business visas under sections 134 to 137 of the Act, was issued. (The policy has subsequently been re-issued with minor amendments but for the purposes of this decision the amendments are not relevant.) As an instrument of policy it is a relevant consideration in the decision-making process: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577. The policy states at paragraph 2.4:
Under s 134(4), if the main visa holder’s visa is cancelled under s134(1) or s 134(3A), officers must also cancel the family member’s visa (defined in s 134(10)) – ie the business visas held by persons who are or were members of the family unit of the person whose visa was cancelled – unless the cancellation would result in extreme hardship to that person – see section 15.2 Extreme hardship.
10. At paragraph 15.2 the policy states:
Under s134(5), officers must not cancel the visa of a family unit member if it would result in extreme hardship to that person.
Under policy, ‘would result’ means that the hardship will be a necessary and a direct consequence of the visa cancellation rather than a possibility or probability….
‘Extreme hardship’ is not defined for business visa cancellation purposes. Under policy it means that the visa holder would face the utmost or highest degree of hardship if their visa were to be cancelled. The relevant hardship must be a necessary consequence of the cancellation of the visa, a mere possibility or probability would not be sufficient to constitute extreme hardship”.
EVIDENCE BEFORE THE TRIBUNAL
11. The Tribunal had available to it the documents supplied pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
12. In addition, the following documents were lodged on behalf of the applicant:
- Statement of Facts and Contentions dated 16 October 2007 (with attachments)
- Psychological assessment report by Troy Speirs, clinical psychologist, dated 28 December 2007
- Article titled “The psychological impact of joblessness” by Ruth Ganley, Labour Market and Parenting Branch, Department of Family and Community Services, Australian Social Policy 2002-03
- Information concerning nominations in several categories of Australia’s Top Photographers Awards 2008
CONSIDERATION
13. The applicant, Ms Soegijono, is an Indonesian citizen who has lived in Australia since late 1999 or early 2000 when her parents brought her to Sydney from Singapore. She has lived outside Indonesia since the age of 11. She completed her Victorian Certificate of Education with a TER score of 97.75 and received awards for outstanding academic achievement. She studied at the KvB Institute of Technology, Sydney and the RMIT University in Melbourne successfully completing with distinction her Bachelor of Arts in Photography. From August 2004 to January 2005 she had a study exchange scholarship at the Parsons School of Design in New York. On her return the applicant established her own business Captured Art Production registered under her mother’s company Seagull Professional Pty Ltd (“Seagull”). She has recently been nominated in several categories for a photographic award.
14. The applicant’s Statement of Facts and Contentions dated 16 October 2007 raised issues on which the Tribunal was requested to make determinations. These issues involved claimed administrative error and lack of procedural fairness by the Department which seriously disadvantaged the applicant, and claims of extreme hardship if the applicant is required to return to Indonesia.
15. The applicant drew attention to the fact that the Notice of Intention to Cancel (NOIC) issued on 22 November 2006 ought to have given the applicant 28 days to respond, in accordance with subsection 135(b)(i) of the Act. However, the NOIC allowed the applicant until 31 January 2007 to respond. The applicant contended that there was no discretion to allow for a period other than the 28 days in this case. On the basis that the deadline to respond should have been 20 December 2006, it was contended that the effect of subsections 135(4)(a) and (b) of the Act was to prevent the Minister from cancelling the Applicant’s visa after 17 March 2007.
16. The applicant’s agent also raised concerns about the lack of procedural fairness surrounding the decision to cancel the visa of the applicant’s mother and the applicant herself. The NOIC was received six days prior to the date given by which the applicant’s mother was to lodge her 24 month Survey of Business Skills Migrant. Having received the information requested about Mrs Nio’s business activities and the applicant’s claims concerning hardship the applicant asserted that the decision maker did not adequately explore or request amplification of claims to ensure that the delegate was fully informed and so that Mrs Nio and her daughter could be given every opportunity to plead their case and provide further evidence of extreme hardship before a decision was taken. It was also contended that there was a failure to give sufficient guidance to the applicant on the basis on which the Department would decide her claim of extreme hardship.
17. The respondent contends that the failure to strictly comply with the subsection 135(1) requirement, by giving Ms Soegijono more than 28 days to respond to the NOIC, did not invalidate the NOIC and referred to a list of decisions made by this Tribunal that supported this contention. One of the decisions relied upon by the respondent was that of Senior Member Allen in Re Prawiro and Minister for Immigration and Multicultural and Indigenous Affairs (2003) 38 AAR 203. In that decision Senior Member Allen considered a similar argument to that advanced by the applicant in this matter. In forming the opinion that “no legislative purpose can be discerned that requires the conclusion that a notice given under s 135(1) will only be valid if it nominates exactly a 28-day period rather than a period that is longer than 28 days” Senior Member Allen made relied on the decision of the High Court in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355.
18. The respondent denied that the applicant had been denied natural justice, but asserted that, in any event, the Tribunal’s de novo enquiry allowed it to make good any errors it may find in the manner in which the Department handled the NOIC. The respondent drew attention to the fact that the Act gave the applicant an opportunity to make representations on “extreme hardship”. In November 2006 the applicant was on notice that extreme hardship was an issue, but even if there were breaches of natural justice, as claimed, in the way the matter was managed by the Department, this does not prevent the Tribunal from reviewing and addressing any instances where the applicant was denied natural justice prior to the original decision being made and determining the issue of whether the cancellation of the visa granted to the applicant would result in extreme hardship being experienced by her.
19. The Tribunal asked the applicant whether she was aware that her visa may not be continued, she replied that she started the business in January 2007 with the help of a friend, by then she had received the NOIC so the possibility was in her mind and she was aware that she could loose her visa. Her then agent advised that it was unlikely her visa would be cancelled. The respondent noted that as the applicant had received nothing from the Department which would have supported that conclusion, she was on notice of the possibility that her visa would be cancelled.
20. Having regard to the parties’ submissions and previous decisions of the Tribunal, in particular, that of Senior Member Allen in Prawiro [supra] I conclude that the NOIC is not invalid by reason of it having allowed a greater amount of time for the applicant to respond than was provided in subsection 135(1)(b)(i) of the Act. In respect to the claims concerning a denial of natural justice, I note that the Department’s error allowed the applicant more time than usual to provide representations and that the applicant was represented (by a different agent to the one representing her in these proceedings) and was possibly not well advised, for which the respondent is not accountable. I accept the respondent’s contention that “any errors in the delegates (sic) decision can be cured by the Tribunal”.
21. I now turn to the issue of whether the applicant’s visa should not have been cancelled because cancellation of the visa would result in extreme hardship.
22. The applicant, Ms Soegijono, claimed that she will suffer “extreme hardship” if she has to return to Indonesia as a result of the cancellation of her business visa. Her submission to the delegate said words to the effect that she:
- wanted to be closer to her parents and siblings
- had fallen in love with Australia
- feels Australia is home
- speaks more English than Indonesian
23. The applicant told the Tribunal that she had lived so long in Australia that she felt basically Australian.
24. The applicant stated that her current business is with Seagull the company registered by her parents in 2002. She started as a sales representative and in April 2006 opened her photography business and, as co-director, established Captured Art Production in January 2007. Now, she said, things were starting to happen. In 2006/7 she had 4 clients and earned over $A10,000. This year there were 22 clients and she earned over $A80,000. At end of the first year the turnover was invested in advertising. Ms Soegijono explained that the wedding photography business is different to general commercial photography, with long lead times. She stated that the business initially spread through word of mouth as many friends are now getting married and need a good photographer.
25. If it was necessary to return to Indonesia the applicant said that she would have to start all over again in unfamiliar territory as she has lived overseas since she was 11 years of age and she speaks little Bahasa. The applicant said that she had returned to Indonesia only once in 2007 for her brother’s wedding and remained there for only a week.
26. Ms Soegijono said that as Indonesia was a developing country she would not be paid what she is worth. She is financially independent but in Indonesia would have to depend on her family for support. The applicant said that she has been nominated for an Australian Photographer of the Year award which is a great achievement. She believes that her future in Australia is bright, whereas Indonesia is full of corruption and bribery and it is very hard to start all over again in a different commercial system. Others whom she knows have done similar courses in Australia found on returning to Indonesia that it was difficult to find suitable work, earned less ($400 per month) and were dependent on their parents to survive. Ms Soegijono said that it had taken her three years to start up her business in Australia but it would probably take 30 years to do the same in Indonesia. She said that she didn’t have the capital to start up afresh over there as she would need a mansion and a big banner to be recognised in Indonesia. Her family came from a small village and haven’t contacts in large cities. She said that returnees trying on their own without connections find it very difficult.
27. The applicant stressed that it was not possible to run her Australian business from Indonesia because the client relationships depend upon trust. Clients expect her to be available when they want her and they sometimes require frequent meetings. They pay a deposit and a wedding shoot may take a year in planning. It would not be possible to run the business from Indonesia and visit Australia occasionally. Her parents invested $30,000 in technical equipment for the business and this would be lost if the business was forced to close.
28. The business model Ms Soegijono operates is based upon a group of photographers, make up artists and graphic designers. She told the Tribunal that she has the most technical and business experience. These people are engaged as sub-contractors and work on a part time basis for her when there are jobs but also have other sources of income. This arrangement means that the applicant does not carry any contractual obligations to her staff such as holiday pay and long service leave. Most of these sub-contractors are her student friends and many of her growing clientele also came from the ranks of the friends who are now getting married. The sub-contractors rely on her to create opportunities to share with them. As the business is young none are full time and she acts as Managing Director and facilitator. The applicant quotes for contracts and receives a commission on the subcontractors’ work which is being used to finance advertising.
29. The applicant was asked whether she would try to obtain a new visa and return to Australia. Her agent, Mr Hitchcock, replied that if she applied she would fail because photography was not on the list of required occupations and business skills. In addition, her business hasn’t been going long enough, nor generating sufficient revenue to qualify. She could possibly apply under the employer option scheme but that would require several more years of training in the industry for approved employer sponsored cases where the sponsor is also the owner of the business. Her prospects of obtaining a suitable visa were very limited indeed. The applicant stated that although her brother was a permanent resident he was unable to sponsor her and she couldn’t pass the points test. Her agent said that it was only necessary to apply for a new visa if the applicant cannot remain legally in Australia under her present visa. The only remaining avenue for her, if the Tribunal did not provide a remedy, would be to apply for Ministerial intervention under section 351 of Act.
30. The applicant concluded her evidence by saying that her special creative talent has been recognised with a six months scholarship for study in USA and she had been nominated for a Photographer of the Year award in Australia. In Indonesia, she stated, there is no professional photographic industry, no awards and the business is run by the big studios. In Australia it is possible to gain recognition as an excellent photographer in a short time, whereas in Indonesia it could take her many years to achieve the same level of recognition. Her business was at a crucial stage and she can’t afford to leave for more than three months because no one can take her place as she had access to potential clients; holds the business together and has the vision to succeed. She asserted that she is an asset to Australia, where she is recognised as one of the top 100 photographers, and questioned why should her visa be cancelled?
31. The Tribunal invited the applicant to more specifically address the issue of “extreme hardship”. She repeated her earlier claim that it could take her 30 years to achieve in Indonesia what she had done in three in Australia. She had received the NOIC about five months after starting her business and on the basis of advice from her then migration agent was confident she could remain in Australia.
32. Her five siblings had studied in Australia. Her younger sister’s visa was cancelled although she is a qualified chef. Now her sister works for her parents’ company doing clerical work. Ms Soegijono said that her sister has few friends in Indonesia and needs emotional support.
33. The applicant’s agent referred his client for tests to establish the potential psychological, social and emotional impact on her of cancellation of her visa and loss of her business. He submitted an assessment report from HUM Psychology (Headz Up Ministries Psychological Services) prepared by Troy Speirs, clinical psychologist, which stated that the applicant had completed the 12–item General Health Questionnaire that measures the presence of general psychiatric morbidity in the weeks prior to test completion. The results indicated “that Ms Soegijono has no significant level of symptomatology consistent with general psychiatric vulnerability or illness”. Ms Soegijono also completed the 42-item Depression, Anxiety, Stress Scale. Mr Speirs reported “no significant level of depressive symptoms [were] indicated”. The applicant’s agent noted that a person does not have to have an illness or be depressed to suffer extreme hardship and some people handle it better than others.
34. The Tribunal asked the agent to expand on the claim that no other visas would be available to the applicant if she returned to Indonesia. He responded that the Employer Nomination scheme would be refused because the applicant only engages sub-contractors, the drawings from the business were well below accepted salary levels and there was no prospect of accepted salaries being paid in the near future.
35. The applicant concluded her evidence saying that her parents had built her up to be a strong woman so when troubles come she can face extreme hardship on occasions and her Christian values give her strength.
36. The Minister’s delegate, in the record of decision of 1 May 2007, gave the following reasons as to why the applicant’s submission was not considered to contain evidence of extreme hardship which would be suffered as a result of the visa cancellation as follows:
·Ms Soegijono may be eligible to apply for an alternative visa if she chooses to work in Australia;
·No evidence has been provided to support claims, that she will be unemployed and unsuited to adapting to life in Indonesia;
·I do not consider that any of the claims raised above warrant a claim of ‘extreme hardship’. Whilst in Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) the Federal Court states that the term extreme hardship must be approached in a broad sense, it goes on to note that “extreme hardship must find itself at the very high end of the scale”. In view of the above I do not consider that cancellation of Ms Soegijono’s visa would result in her suffering extreme hardship. When considering the term ‘extreme hardship’ in a broad sense, I do not believe there to be any substantial evidence to demonstrate that any subsequent relocation to Indonesia as a result of visa cancellation, to result in hardship of an ‘extreme’ nature.
37. The respondent submitted that the issue before the Tribunal was not whether the applicant adds value to Australia, or about her talents or her desire to strive and set up business. There should be no question in the Tribunal’s mind that she is a driven woman and very talented. The question for the Tribunal is whether the cancellation of her business visa would result in extreme hardship.
38. The respondent noted that the applicant’s evidence was not that she couldn’t get a job or start a business in Indonesia, but that she wouldn’t be paid what she was worth as Indonesians don’t appreciate photography as a skilled profession. Consequently, she wouldn’t be recognised as she has been in Australia. In addition, her evidence was not that she couldn’t have a career in Indonesia but that it would be more difficult, take longer and not be as financially rewarding.
39. The Tribunal accepts that the applicant is indeed talented and has received a nomination for a prestigious award. However, with this background a person in her field should be capable of succeeding wherever she resides. While accepting that she will face great disappointment, the results of her psychological tests suggest that she has the strength of character to persist in her endeavours and she has her family in Indonesia to assist her reintegrate.
40. The Tribunal accepts that without her at the helm the business would not continue beyond a few months. While the loss of their part time jobs would be a major setback to the individuals concerned, as young graduates they would have the skills and ability to make other arrangements. The Tribunal also accepts that the opportunity cost losses to the applicant would be genuine and that she may have to sell her capital equipment or repatriate it to Indonesia, but the Tribunal does not give these issues significant weight in its decision as they are part and parcel of the problems facing all small business from time to time.
41. The Tribunal considered as somewhat disingenuous the respondent’s claims that upon her return to Indonesia the applicant may be able to apply for another visa classification and return to Australia, or elsewhere, where her talents would be appreciated; and that the matter be left in the hands of future decision makers who would no doubt see her previous Australian experience as an advantage.
42. The Tribunal gave this matter some weight in its decision and accepted the agent’s claim that at present there appears to be no classification to which she could readily apply as her qualifications as a photographer are not included in the current schedule of acceptable occupations. When asked, the respondent did not offer any possible alternative visa classification.
43. The Tribunal accepts, and has given weight to, the fact that even if she could obtain a visa to make periodic visits to Australia for business purposes, it would not be a satisfactory way of conducting a business which requires a high degree of regular client contact.
44. On the basis of the applicant’s evidence, although it accepts that her lifestyle will be severely disrupted, as will her Australian business, which will cause her emotional hardship and that at least for a time she may have to depend upon the assistance of her family, the Tribunal is not satisfied that the applicant would be unable to obtain appropriate employment in Indonesia, especially as she claims to have friends who own the largest photographic agency in the country. Her main concern appears to be that she will not be paid what she believes she is worth because Indonesia is a developing country and does not rate photography highly as a profession.
45. The Tribunal acknowledges that the applicant will suffer hardship as a result of her visa being cancelled, but the Tribunal must be satisfied that this hardship would be “extreme” before setting aside a decision to cancel a visa.
46. The respondent’s Statement of Facts and Contentions set out case law regarding extreme hardship. Previous cases have set a high bar.
47. The Federal Court in Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481 at 487 ascribed to “extreme hardship” the following meaning:
… 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 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 in a continuum of hardship. It obviously connotes an area within which an ascertainable burden of hardship may fall and properly 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 …
48. The Tribunal has also taken note of previous Tribunal decisions, namely, ReWang and Minister for Immigration and Multicultural Affairs [2000] AATA 961 and ReSetiawan and Minister for Immigration and Multicultural Affairs [2002] AATA 260, which found that hardship must be judged subjectively, that is, from the point of view of the person allegedly experiencing it. Deputy President McMahon stated at paragraph 29 in Wang [supra] that “hardship involves more than inconvenience or detriment. Affectation must be to a considerable degree before it can properly be called hardship”.
49. At paragraph 30 in Wang [supra] the Deputy President McMahon 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 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…
50. The relevant hardship must be a necessary consequence of the cancellation of the visa, a mere possibility or probability would not be sufficient.
51. The Tribunal must look at the consequences to the applicant that would result from the cancellation. In Kim [supra] at 487 Foster J stated that “the proper application of [a clause of the Migration Regulations 1993 which contained within the words extreme hardship] requires a focussed consideration of the situation of the applicant” at the relevant date being, in this case, the date of the hearing.
52. As Deputy President Purvis QC said in Re Salim and Minister for Immigration and Multicultural and Indigenous Affairs (2002) 36 AAR 42 at paragraph 46:
… 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.
53. While the Tribunal appreciates that the cancellation of her visa is a matter of genuine concern to the applicant and that after her notable achievements in Australia and America she has high ambitions to succeed, the circumstances surrounding her return to Indonesia do not, in the opinion of the Tribunal, amount to “extreme hardship” in accordance with subsections 134(4) and (5) of the Act and as the law stands the Tribunal must affirm the decision. The Tribunal expresses its hope that should the applicant seek ministerial intervention in her case that her application will be treated favourably.
DECISION
54. The decision under review is affirmed.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Mr D Connolly AM, Member
Signed: ...........[sgd].....................................................................
AssociateDates of Hearing 15 February 2008
Date of Decision 28 March 2008
Appearance for the Applicant Mr Neil Hitchcock
Solicitor for the Respondent Mr Etuati, Clayton Utz
1
6
0