Then and Minister for Immigration and Multicultural and Indigenous Affairs

[2006] AATA 18

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 18

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2005/16

GENERAL ADMINISTRATIVE DIVISION		)
Re		SANTY THEN

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal M.A. Griffin, Member

Date13 January 2006

PlaceSydney

Decision The Tribunal affirms the decision under review.

[Sgd] M.A. Griffin, Member

CATCHWORDS

IMMIGRATION - business skills visa - cancellation of father’s primary visa - cancellation will not cause extreme hardship for secondary visa holder - decision affirmed

Migration Act 1958 subsections 134(4), 134(5)

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

REASONS FOR DECISION

13 January 2006 M.A. Griffin, Member          

1.      Ms Santy Then seeks review to this Tribunal of the decision, made by a delegate of the Respondent Minister, to cancel her Business Skills Visa.

2.      At the hearing of her application, Ms Then represented herself. Ms McNamara, of Philips Fox Solicitors, appeared on behalf of the Respondent.

Background

3.      Ms Then’s father entered Australia as a primary business skills visa holder. Ms Then, as a dependant member of her father’s family unit, was a secondary visa holder.

4.      On 10 December 2004, Ms Then’s father’s primary business skills visa was cancelled because he had not obtained substantial ownership in an eligible business and was not involved in the day-to-day management of that business at a senior level. Under subsections 134(4) and 134(5) of the Migration Act 1958 (“the Act”), when a primary visa is cancelled, the secondary visa must also be cancelled unless that secondary visa holder would suffer extreme hardship as a result of the cancellation.

Issue

5. The issue for the Tribunal to decide is whether or not cancellation of Ms Then’s secondary business visa would cause her extreme hardship pursuant to subsection 134(5) of the Act.

Evidence

6.      In written submissions and in oral evidence, Ms Then set out the matters which she claims will amount to extreme hardship for her as a direct result of the cancellation of her visa.  She also produced documentary evidence of the racial, cultural and economic factors which she claims will negatively affect her should she be required to return to live in Indonesia.  Ms Then produced documents from her employer and friends relating to her circumstances in Australia.

7.      Ms Then told the Tribunal that she “practically grew up” in Australia, having arrived here as a student at the age of 16 years and 8 months. She said that she originally came to Australia on her own, on a student visa, and subsequently her parents came and she became a secondary visa holder to her father’s primary business skills visa. She said her parents returned to live in Indonesia where her father has operated, and continues to run, a jewellery store in Jakarta. Ms Then has one brother; he is a student in Perth and is also seeking, in a separate application, review of the decision to cancel his secondary visa.

8.      Ms Then said she has an extended family of aunts and uncles in Jakarta.  However, she said that most of her cousins, like her, presently reside outside Indonesia.  She said they, like her, had left Indonesia because they are of Chinese ethnicity and do not want to live in Indonesia.

9.      Ms Then holds a bachelor of Economics degree from the University of Western Australia.  Since graduation she has been employed firstly as a Data Analyst and then as an Accountant in an Information Technology (IT) company.  She said that her employment prospects will be very poor in Indonesia and in support of this statement referred to the negative experiences of university friends who have returned to Indonesia.  However, in cross-examination, Ms Then conceded that those university friends did not have accountancy or IT training or experience.

10.     In Salim v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899, DP Purvis said, at paragraph 44:

“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.  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 that would undoubtedly or almost certainly result from the cancellation that is to be seen as constituting extreme hardship.

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.  There is evidence as to each of them being held in high regard by their peers, social friends and academic acquaintances.

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.”

11.     I accept that having to leave Australia will cause hardship for Ms Then. However I am not satisfied that it will amount to extreme hardship.  She has lived in Australia for quite some time and has friends and family here, whom it will be difficult for her to leave. However she grew up in Indonesia, she has returned there regularly for holidays and has the advantages of immediate family, extended family, language skills and knowledge of the culture.

12.     Ms Then claims she will have difficulty obtaining employment in Indonesia. She has an Economics degree with an accounting specialisation.  She works as an accountant for a significant IT company.  Her father is the proprietor of a successful business enterprise in Indonesia.  She is a highly educated, confident and articulate person. She lived in Indonesia until the age of almost 17, has since returned regularly for holidays, speaks the language and has family there.  Her training and experience in business is substantial.  I accept that leaving Australia will cause some short term problems for her career but I am not satisfied that the effects will amount to extreme hardship for someone of her level of training and experience.

13.     Ms Then claims to fear physical harm and negative discrimination in Indonesia because of her Chinese ethnicity and religion.  She refers to negative childhood experiences with native Indonesians, including the violence of the 1998 riots. I accept that racial and religious discrimination with occasional violence exists in Indonesia.  I accept that it can be upsetting and disturbing.  However I am not satisfied on the available evidence that Ms Then is at any particular risk of harm or that ethnic Chinese people or Christians in general face discrimination at a level that amounts to extreme hardship.

14.     I accept that Ms Then will experience difficulties if her visa is cancelled and if she is required to leave Australia, but in all the circumstances, I find that these difficulties are not of such a degree as to amount to extreme hardship.

decision

15.     The Tribunal affirms the decisions under review.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of M.A. Griffin

Signed: A. Krilis  Associate

Date/s of Hearing  19 December 2005
Date of Decision  13 January 2006
Representative for the Applicant    Self - Represented
Solicitor for the Respondent          Ms Kate McNamara