Woelandari and Minister for Immigration and Multicultural Affairs
[2006] AATA 1055
•7 December 2006
`
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1055
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2005/205
GENERAL ADMINISTRATIVE DIVISION ) Re KAMALA LOEKMINI WOELANDARI Applicant
And
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
DECISION
Tribunal Mr A Sweidan, Senior Member Date7 December 2006
PlacePerth
Decision The Tribunal sets aside the decision under review and directs that the applicant’s visa not be cancelled. ......... (Sgd. Mr A Sweidan)...........
Senior Member
CATCHWORDS
Business Skills Permanent Residence Visa - cancellation - extreme hardship - what constitutes
LEGISLATION
Migration Act 1958 (C’th) s 134(5)
CASES
Wang v Minister for Immigration, Multicultural and Indigenous Affairs [2000] AATA 961
Salim & Ors v Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 899
Chen v Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 1023
Choi v Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 297
Huang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 656
Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 973
Purnomo and Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 859
Ongko v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 69
Gunawan v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 505
Man Ki Kim v MIEA 37 ALD 481
Pey Jiun Lee v MIMA [2004] AATA 973
Miaomiao Cai v MIMA [2006] AATA 212
Kim v MIMA [2004] FCA 31
REASONS FOR DECISION
7 December 2006 Mr A Sweidan, Senior Member Background
1. The applicant applies pursuant to s136 of the Migration Act 1958 (“the Act”) to set aside the cancellation by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the respondent”), of the applicant’s business skills permanent residency visa. The applicant’s visa was cancelled pursuant to section 134(4) of the Migration Act 1958 by notice dated 6 May 2005.
2. The applicant contends that cancellation of her visa would cause her extreme hardship and that the visa should not be cancelled having regard to the provisions of s134(5) of the Act.
Facts
3. The undisputed facts as set out in the applicant’s Statement of Facts and Contentions and confirmed in her evidence are as follows:
4. The applicant was born in Indonesia on 8 August 1979. She is the daughter of Rinny Saleh Binol (“Mrs Binol”). The applicant’s mother and her biological father separated before she was born. She has no knowledge of his identity or whereabouts.
5. On 19 August 1984 Mrs Binol married Razad Binol. Mrs Binol subsequently had two daughters by Mr Binol, Kamina Rukmini Binol (born 16 April 1985) and Rumina Rukmina Binol (born 21 January 1989). From the time of her mother’s marriage to Mr Binol, the applicant lived in the household of Mr and Mrs Binol.
6. While the applicant resided in her step-father’s household, the relationship between Mr Binol and the applicant involved physical and mental abuse.
7. The primary caregiver for the applicant while she lived in Indonesia was her nanny, known to the applicant as “Emeh”. The applicant’s primary affective relationship was with Emeh. Emeh died in October 2000.
8. The applicant attended primary school in Indonesia.
9. The applicant first made entry into Australia in or about August 1991.
10. In the period from August 1991 until February 1992, the applicant attended Intensive English College at Darling Harbour, Sydney.
11. In the period from 1992 to 1997, the applicant attended secondary schooling at Ravenswood School for Girls in Gordon, Sydney. She attended Ravenswood School as a boarder and formed strong relationships with the teachers at the school and her fellow students.
12. The applicant gained her High School Certificate in New South Wales in 1998.
13. She moved to Western Australia with her family in 1998 and enrolled at Murdoch University in a Bachelor of Arts, in the Asian studies program. She remained at Murdoch University until 2001 when she withdrew from that course.
14. In January 2002, Mrs Binol was granted a business skills permanent residency visa. As a member of Mrs Binol’s family unit, the applicant was also granted a business skills permanent residency visa.
15. In August 2002 the applicant enrolled for an Advanced Diploma in psychotherapy at the Gregory Institute of Transactional Analysis. This qualification is a vocational qualification, which will enable the applicant to practice as a psychotherapeutic counsellor. Subject to the cancellation of the applicant’s visa being set aside, it is the intention of the applicant to complete the course and practice as a counsellor. The course involves completion of 15 modules. The applicant has completed approximately 12 modules. Completion of the Transactional Analysis course also requires:
(a)completion of 750 hours of practical work and 150 hours of supervised work; and
(b)completion of a course of personal psychotherapeutic counselling.
The effectiveness of the course is substantially dependent upon the personal relationships established between the student and the relevant teachers during the course.
16. The applicant’s course of personal psychotherapeutic counselling is directed towards remedying the psychological injuries deriving from her family circumstances, particularly the abusive relationship with her step-father.
17. The applicant currently supports herself by working part time as a relief boarding house supervisor at St Hilda’s Anglican School for Girls and by part time waitressing.
18. In the 13 years during which the applicant has resided in Australia, she has had only limited contact with Indonesia and, on occasions when she has returned, she did so primarily to visit Emeh and frequently felt isolated from her family and acquaintances in Indonesia.
19. The visa of Mrs Binol was cancelled by the respondent pursuant to section 134 of the Act by notice dated 6 May 2005. Pursuant to section 134(4) of the Act, the respondent also cancelled the applicant’s visa by notice to her dated 6 May 2005.
Extreme Hardship
20. On behalf of the applicant it is contended that:
If the applicant is required to return to Indonesia,
(a)she would be unable to support herself and would be obliged to return to her step-father’s household;
(b)it will cause the applicant substantial psychological damage through the return to an abusive family situation. It will expose her to the risk of a significant depressive episode; and
(c)prevent her from continuing to address personal issues associated with her upbringing, through the course of therapy in which she presently participates.
21. In addition, if the cancellation of the applicant’s visa is not set aside:
(a)The applicant will suffer extreme social dislocation on her return to Indonesia because she is highly socialised into Australian society and substantially isolated from Indonesian society having:
(i)no significant remaining social relationships in Indonesia; and
(ii)spent the bulk of her entire life and almost all the past 13 years in Australia.
(b)The applicant will not be able to complete her course of studies because:
(i)no equivalent course is available in Indonesia;
(ii)the personal relationships established with her teachers will be broken; and
(iii)she will not be able to procure sufficient practical and supervised work in Indonesia to enable her to complete the course (if it were available) or to attain a level of a vocational competence necessary to practice.
(c)The applicant will effectively be prevented from pursuing her chosen vocation, transactional analysis based psychotherapy.
22. The applicant further asserts that the matters referred to in the previous paragraph are separate elements of hardship for the applicant consequent upon the cancellation of the visa and that they will also exacerbate the psychological injury, and the risk of a depressive episode, associated with the applicant’s return to her step-father’s household.
23. In these circumstances it is contended that cancellation of the applicant’s visa would cause her extreme hardship.
Evidence
24. The Tribunal heard evidence from the applicant and her witnesses Dr Maurine Phillips, Sherenne Foale and Jeanette Coleman.
25. The evidence essentially confirmed the matters referred to in paragraphs 4 to 18 above, with only minor discrepancies.
26. As well, evidence was tendered of a recent sexual assault experienced by the applicant and the adverse impact this has had on her mental condition, and the general fragility of her mental condition.
Legislation and Policy
27. Section 134(4) of 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.
28. 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.
29. 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).
Respondent’s Contentions
30. The respondent contends that the cancellation of the applicant’s visa will not result in extreme hardship.
31. Consideration of whether a secondary visa holder will suffer extreme hardship as a result of the cancellation of the visa requires an assessment of what constitutes extreme hardship for the purposes of s. 134(5). In Wang v Minister for Immigration, Multicultural and Indigenous Affairs [2000] AATA 961, Deputy President McMahon held that to enliven the prohibition against a Minister cancelling another’s business visa under s.134(5) there must not only be hardship or undue hardship but extreme hardship. Furthermore, in the previous cases, it was held that the term 'hardship' from the point of view of the person allegedly experiencing it must be judged subjectively.
32. The mere fact that a secondary visa holder would have to leave Australia does not amount to the form of extreme hardship contemplated by the legislation and extreme hardship involves more than inconvenience and detriment (Salim & Ors v Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 899). The respondent contends that the applicant has not provided any evidence of how she will suffer extreme hardship on the cancellation of her visa, as opposed to inconvenience and detriment.
33. The respondent points out that in her “Witness Statement” filed on 10 November 2005, the applicant stated that she does not want to return to Indonesia for reasons relating to:
(a)disruption of her study;
(b)reduced employment opportunities in Indonesia;
(c)extreme social dislocation on her return to Indonesia because she is highly socialised into Australian society and substantially isolated from Indonesian society, including the language barrier she faces in Indonesia; and
(d)substantial psychological damage that the applicant will suffer through the return to an abusive family situation. It will expose her to the risk of a significant depressive episode.
34. The respondent contends that:
(a)Being unable to complete a degree does not amount to extreme hardship under the Act (Chen v Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 1023; Choi v Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 297). While the Tribunal in Re Huang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 656 found that the cancellation of the visa of an applicant who was in his final stages of tertiary studies in Australia would result in extreme hardship, the present case is distinguishable as the applicant is not currently involved in tertiary study.
(b)The applicant has not outlined the specific difficulties she would face in finding employment in Indonesia in her chosen field.
(c)Since the grant of her visa, the applicant has not resided in Australia on a permanent basis to the exclusion of Indonesia, as evidenced by movement records. Hence, hardship resulting from a return to an unfamiliar country would not be encountered (Wang v Minister for Immigration, Multicultural and Indigenous Affairs [2000] AATA 961).
(d)Even though it may be difficult for the applicant to readjust to a life outside Australia, it does not amount to extreme hardship (Re Salim v Minister for Immigration and Multicultural Affairs [2002] AATA 899).
(e)While the respondent does not concede that the applicant would suffer depression as a result of the visa cancellation, the respondent contends that the likelihood of depression does not amount to a manifestation of extreme hardship (Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 973).
(f)The possible threat of violence against the applicant on returning back to Indonesia does not amount to extreme hardship (Purnomo and Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 859). The Tribunal in the previous case held that the test of extreme hardship requires evidence that the harm or hardship claimed will undoubtedly or almost certainly result from the cancellation (see Ongko v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 69, at paragraph 54; Re Salim v Minister for Immigration and Multicultural Affairs [2002] AATA 899, at paragraphs 14 and 44; Gunawan v Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 505, at paragraph 27).
Decision
35. The Tribunal is of the view that the applicant’s case is distinguishable on it’s facts from the cases cited by the respondent. The Tribunal notes in this regard the following comments by Foster J in Man Ki Kim v MIEA 37 ALD 481 where he said at page 487:
“… . Consistently with what Burchett J said in ‘Fuduche’, 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 the 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.”
36. The Tribunal has further had regard to the Tribunal decisions in Pey Jiun Lee v MIMA [2004] AATA 973 and Miaomiao Cai v MIMA [2006] AATA 212 where on similar facts the Tribunal found extreme hardship to have been established
37. The Tribunal finds that the applicant has shown, on the balance of probabilities (see Kim v MIMA [2004] FCA 31) that extreme hardship would result if her visa is cancelled. The Tribunal accordingly sets aside the decision under review.
I certify that the thirty seven (37) preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member
Signed: ........................(Ms R Riberi)...............................
AssociateDates of Hearing 3 August 2006 & 28 September 2006
Date of Decision 7 December 2006
Solicitor for the Applicant Ms SanLing ChanSolicitor for the Respondent Mr Arran Gerrard, Australian Government Solicitor
0
10
0