Tenggara and Minister for Immigration and Multicultural Affairs

[2006] AATA 472

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 472

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2005/2

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Riky Mareta Tenggara

Applicant

And Minister for Immigration and Multicultural Affairs

Respondent

DECISION

Tribunal Mr A Sweidan, Senior Member

Date31 May 2006

PlacePerth

Decision The Tribunal affirms the decision under review.

............[Sgd. Mr A Sweidan].....................

Senior Member

CATCHWORDS

IMMIGRATION - Business Skills Visa cancelled - secondary visa holders - loss of career opportunities - threat to personal safety or subject to racism or discrimination - issue whether applicant would suffer extreme hardship if visa cancelled - cancellation of visa would be difficult emotionally but would not amount to extreme hardship - decision affirmed.

LEGISLATION

Migration Act 1958 sections 134(4) and 134(5)

CASE LAW

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

Setiawan v Minister for Immigration Multicultural and Indigenous Affairs [2002] AATA 260

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

REASONS FOR DECISION

31 May 2006 Mr A Sweidan, Senior Member    

BACKGROUND

1.      On 9 August 2001 the applicant’s father, Mr Fendy Tenggara, was granted a Business Skills Visa to enter Australia.  As a member of his father’s family unit the applicant also was granted a Business Skills Visa.

2.      The applicant entered Australia for the first time on the visa on 18 August 2001.

3.      On 10 December 2004 the applicant’s father’s Business Skills Visa was cancelled due to non-compliance with the conditions thereof.

4.      Previously, by letter dated 5 August 2004 a delegate of the respondent notified the applicant of the respondent’s intention to cancel his visa (by reason of his father’s non-compliance with the conditions of his Business Skills Visa) and invited him to comment on the proposed cancellation by 13 September 2004.  No response was received from the applicant.

5. On 10 December 2004 the respondent, by a delegate, notified the applicant that his visa had been cancelled under s134 of the Migration Act 1958 (“the Act”).

6.      The applicant has sought a review of the decision to cancel his visa.

LEGISLATION AND POLICY

7. Section 134(4) of the Act provides that the Minister must cancel a Business Skills Visa held by another person who is a member of the family unit of the holder of the cancelled Business Skills Visa if that person would not have held the Business Skills Visa but for that membership.

8. Section 134(5) of the Act directs that the Minister must not cancel the other person’s visa if the cancellation of that visa would result in extreme hardship.

9. Section 136 of the Act provides that applications can be made to the Tribunal for review of a decision made by the Minister under s 134(4).

ISSUE FOR DECISION BY THE TRIBUNAL

10. The issue before the Tribunal is whether cancellation of the applicant’s visa would cause him “extreme hardship” within the meaning of s 134(5) of the Act. This is what is contended by the applicant.

HEARING

11.     The hearing of the applicant’s application took place on 3 April 2006.  The applicant was self-represented and the respondent was represented by Mr Gerrard of the Australian Government Solicitor.

12. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (“the T Documents”). In addition the applicant had filed two documents, one headed “Witness Statement” and the other headed “Additional Statement” which were received by the Tribunal as Exhibits “A” and “B” respectively.

13.     The applicant gave evidence and was cross-examined by the respondent’s representative.  I also asked the applicant some questions.  The applicant’s evidence was broadly consistent with that contained in Exhibits “A” and “B”.

14.     In essence, the applicant claimed that he would suffer extreme hardship for the following reasons:

14.1 He is in the final semester of his studies in Information Technology at Edith Cowan University (“ECU”) and if his visa is cancelled he would have to go back to Indonesia and apply for a student visa to return to Australia to continue his study.  However, the applicant acknowledged that he will have completed his degree studies by the end of the current semester which he said is due to end in June 2006 although he could not inform the Tribunal of the exact date.

14.2In Indonesia persons of ethnic Chinese origin and Christians are treated unfairly and are discriminated against.  The example he gave was that they “have to pay more for taxes”.

14.3When he was in high school he was often threatened and on occasions robbed.

14.4His earning capacity in Indonesia will be lower than it would be in Australia, and there are less opportunities for employment.

14.5Because of discrimination against persons of ethnic Chinese origin in Indonesia, when he is in Indonesia he feels paranoid and nervous.

14.6In the riots of 1997 one of his uncles had his house and car burned.  The applicant acknowledged that since the 1997 riots there have been no major similar incidents although there have been minor ones.

15.     Under cross-examination the applicant acknowledged that his father has a successful business in Indonesia and that if he is obliged to return to Indonesia he would be able to stay with his family.

DECISION

16.     The Tribunal must determine whether cancellation of the applicant’s visa would cause him “extreme hardship”.  Whether or not extreme hardship in fact exists is to be determined on the individual circumstances of each case.

17.     In Salim and Minister for Immigration and Multicultural and Indigenous Affairs (2002) AATA 899 at paragraph 44 Deputy President Purvis also stated:

“It is not the need to leave Australia that evidences the hardship, for this is the contemplated legislative result of the cancellation.”

18.     Further Deputy President Purvis stated in Salim at paragraph 14:

“The relevant hardship must be a necessary consequence of the cancellation of the visa, and mere possibility or probability would not be sufficient.  It must be shown not only hardship of an extreme kind but hardship which would follow the cancellation.”

19.     Further, in Salim at paragraph 44 Deputy President Purvis said:

“As has already been noted in these reasons it is the hardship that will most certainly occur as a consequence or result of the cancellation that is relevant and it is for the decision maker to be satisfied that this hardship will be extreme before the legislative cancellation can be avoided.

…

Each of the Applicants will experience emotional hardship if required to leave Australia, they having spent a part of their formative years in this country, having received a part or whole of their secondary education and tertiary education at Australian schools and universities and having consequently formed a bonding with those with whom they came in contact whilst holding their visas.

…

However, it would be strange or unusual and unexpected if three relatively young, intelligent and capable persons had not in the years developed such relationships.  It will be hard to leave these people.  It will be hard to readjust to a life outside Australia and the university environment.  But this hardship is one within the contemplation of the legislature when it chose to insert the word ‘extreme’ as to qualify the hardship.  And it must be ‘extreme’ to the particular individual.

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.”

20.     As in the matter of Santy Then v Minister for Immigration Multicultural and Indigenous Affairs (2006) AATA 18 the applicant in this case claims to fear physical harm and negative discrimination in Indonesia because of his Chinese ethnicity and Christian religion. He refers to negative childhood experiences with native Indonesians.

21.     The Tribunal accepts that racial and religious discrimination with occasional violence against persons of Chinese ethnicity, and adherents of Christianity exists in Indonesia.  The Tribunal also accepts that this can be upsetting and disturbing.

22.     However, as in the Then matter the Tribunal is not satisfied on the available evidence that this applicant is at any particular risk of harm or that ethnic Chinese people or Christians in general face discrimination in Indonesia at a level that amounts to extreme hardship.

23.     The applicant referred the Tribunal to the decision in Setiawan v Minister for Immigration and Multicultural Affairs [2002] AATA 260. In that case the Tribunal found the cancellation of the applicant’s visa in circumstances where she would be unable to complete her course in Australia and would be required to study subjects in Indonesia foreign to her then present diploma requirements.

24.     In the Tribunal’s view the facts in Setiawan are distinguishable from those in this matter. The Tribunal has ascertained that the current semester at ECU ends on 23 June 2006 by which date the applicant will, on his own evidence have qualified for his degree.

25.     The Tribunal notes that if the decision under review is affirmed it will not take effect for 28 days following such affirmation, by which time the applicant will have completed his degree studies at ECU.

26.     Although the Tribunal accepts that the applicant will experience some difficulties if his visa is cancelled and if he is required to leave Australia in all the circumstances the Tribunal finds that these difficulties are not of such a degree as to amount to extreme hardship.

27.     The Tribunal affirms the decision under review as being the correct or preferable decision.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member

Signed:         .....................................................................................
  Associate

Date of Hearing  3 April 2006
Date of Decision  31 May 2006
Counsel for the Applicant         Unrepresented
Solicitor for the Applicant           
Counsel for the Respondent     Mr A Gerrard
Solicitor for the Respondent     Australian Government Solicitor