Tjenderasa and Minister for Immigration and Citizenship

[2007] AATA 1642

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1642

ADMINISTRATIVE APPEALS TRIBUNAL      )         No.  V 200601232

)

GENERAL  ADMINISTRATIVE   DIVISION		)
Re		BETHA CATHERINE TJENDERASA

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal: G.D. Friedman, Senior Member

Date:7 August 2007

Place:Melbourne

Decision: The Tribunal affirms the decision under review.  

(sgd) G.D. Friedman

Senior Member

MIGRATION ‑ business skills visa ‑ cancellation - whether extreme hardship to secondary visa holder   

Migration Act 1958 s 134(5), 499

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481

Re Salim and Ors andMinisterfor Immigration and Multicultural and Indigenous Affairs [2002] AATA 899

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

Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 57 ALD 257

REASONS FOR DECISION

7 August 2007   G.D. Friedman, Senior Member

1.        Betha Tjenderasa was born in 1982 and is an Indonesian citizen who came to Australia in 2003 as a secondary visa holder when her father was granted a business skills visa.  Her visa was cancelled when Mr Tjenderasa’s visa was cancelled for non-compliance.

2.        The issue before the Tribunal is whether cancellation of Ms Tjenderasa’s visa would cause her extreme hardship.  With the consent of the parties the Tribunal reviewed the decision by considering material lodged with the Tribunal and without holding a hearing.  

WHAT IS EXTREME HARDSHIP?

3. Section 134(5) of the Migration Act 1958 (the Act) provides in relation to a visa held by a person who is a member of the family unit of a person whose business visa has been cancelled:

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.

4.        In Re Setiawan and Minister for Immigration and Multicultural Affairs [2002] AATA 260 the Tribunal noted that the meaning of 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 page 487:

...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.

5.        In Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961 the Tribunal stated at [29]:

…Clearly, whatever view is taken, hardship involves more than inconvenience or detriment.  Affectation must be to a considerable degree before it can properly be called hardship.

At [30] the Tribunal stated:

…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.

6.        In Re Salim and Ors and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899 the Tribunal held at [46] and [47]:

46.   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.

47. 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.

7.        On 15 March 2007 the Minister issued a new Procedures Advice Manual (PAM3) which sets out the procedures to be followed in the making of decisions under s 134 of the Act.  PAM3 replaced Migration Series Instruction 133 (MSI-133) and was issued pursuant to s 499 of the Act which authorises the Minister to give written directions to decision-makers. The Tribunal accepts that PAM3 is a relevant consideration in its decision-making process (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577) and is the correct policy to be applied at the time of the Tribunal’s decision (Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 57 ALD 257).

8.        Paragraph 15.2 of PAM3 states:

Under policy, ‘would result’ means that the hardship that will be a necessary and a direct consequence of the visa cancellation rather than a possibility or probability.  For example, a student would need to demonstrate that as a direct consequence they could not eventually complete their studies on a Student or other visa.

‘Extreme hardship’ is not [a] defined term 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.

WOULD MS TJENDERASA SUFFER EXTREME HARDSHIP IF HER VISA IS CANCELLED?

9.        In a written statement Ms Tjenderasa said that cancellation of her visa would result in extreme hardship to her.  She told the Tribunal that on 17 December 2005 she married an Australian permanent resident and would be separated for a number of months if she is forced to make an offshore application for a spouse visa.  This would cause hardship because her spouse would be unable to accompany her as he would lose his permanent position as a network engineer in the information technology industry.

10.      Ms Tjenderasa said that an enforced separation would place a strain on her marriage and would delay their plans to start a family and settle permanently in Australia.  She emphasised that cancellation of her visa would result in the loss of her current position as a retail buyer and would be detrimental to her career aspirations in the fashion industry.  Ms Tjenderasa stated that she would feel unsafe if forced to return to Indonesia temporarily because of discrimination against persons of ethnic Chinese background, and the increase in crime and general political unrest.

11.      In additional material provided to the Tribunal Ms Tjenderasa’s legal representative stated that she has now applied onshore for a spouse visa, and that her application is likely to be approved when the Tribunal has finalised its decision.

12.      The Tribunal accepts that Ms Tjenderasa is committed to the Australian way of life, is married to an Australian permanent resident and intends to reside permanently in Australia.  She plans to develop a career in the fashion industry and does not wish to be separated from her husband for an extended period while seeking a spouse visa.

13.      Undoubtedly Ms Tjenderasa would experience emotional and practical difficulties if forced to leave Australia and re-locate to Indonesia even for a relatively short period.  Such a move would be inconvenient and disruptive, particularly as she does not wish to delay her plans to start a family in Australia.  The Tribunal understands that her husband does not wish to jeopardise his employment situation by accompanying her to Indonesia.  However, if Ms Tjenderasa returns to Indonesia she would be in a strong position to apply for an Australian spouse visa, and there is no evidence that processing of any application would be delayed unnecessarily. 

14.      Ms Tjenderasa has expressed concerns about possible discrimination and fears for her personal safety in Indonesia.  However there is no objective material before the Tribunal that would support these concerns.  There is no evidence that the loss of her current employment as a retail buyer would result in extreme hardship, or that she would be unable to secure a similar position on her return to Australia and follow her career aspirations in the fashion industry.

15.      For these reasons the Tribunal finds that if Ms Tjenderasa is forced to return to Indonesia she may suffer some hardship, but that this would not amount to extreme hardship.  The material lodged with the Tribunal suggests that her onshore application for a spouse visa is likely to be processed quickly and that she would not be required to leave Australia, so there is less likelihood of any hardship.  Therefore the Tribunal finds that cancellation of Ms Tjenderasa’s visa would not result in extreme hardship to her.

DECISION

16.      The Tribunal affirms the decision under review.

I certify that the sixteen [16] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd)        Lydia Zozula

Associate

Date of hearing:   Not applicable: decision on the papers
Date of decision:  7 August 2007
Solicitor for applicant:                  Fragomen Australia

Solicitor for respondent:              DLA Phillips Fox