Wong and Minister for Immigration and Citizenship
[2007] AATA 2073
•19 December 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2073
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200600311, 312 & 313
GENERAL ADMINISTRATIVE DIVISION ) Re ALAN YING HOWE WONG
WILLIAM YIEN WEE WONG
TERESA YIEN JOO WONGApplicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Mr S Penglis, Senior Member Date19 December 2007
PlacePerth
Decision Pursuant to s 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal affirms the decisions under review.
..........(Sgd. S Penglis)......................
Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – business skills visa – cancellation of visa of applicants’ father – consequential cancellation of applicants’ secondary visas – applicants completed secondary schooling but had not commenced tertiary studies – “extreme hardship” to applicants not established – turns on its own facts.
LEGISLATION
Migration Act 158 – S 134(5)
CASES
Chen and the Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 1023
Ng and the Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 1276
Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481
Salim and Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899
Siwei Wang v Minister for Immigration and Multicultural Affairs [2000] AATA 961
REASONS FOR DECISION
19 December 2007 Mr S Penglis, Senior Member BACKGROUND
1. On 13 September 2006 a delegate of the respondent made decisions cancelling the Business Skills visa of the applicants’ father and the secondary visas of each of the applicants.
2. By reason of s 134 of the Migration Act 158 (“the Act”), upon their father’s Business Skills visa being cancelled, the applicants’ secondary visas must also be cancelled unless “the cancellation of that visa would result in extreme hardship”: s 134(5) of the Act.
3. The question for determination by the Tribunal in respect of each of the applicants is therefore whether the cancellation of the applicants visas “would result in extreme hardship” within the meaning of s 134(5) of the Act.
THE FACTS
4. The material facts were not the subject of any serious dispute before the Tribunal.
5. On 28 April 2003 the applicants’ father was granted a sub-class 127 Business Skills visas, as were each of the applicants on the basis of their dependence on their father.
6. The applicants’ father first arrived in Australia on 11 June 2003 and, on or about 13 June 2003, incorporated a company known as Beststar (WA) Pty Ltd with a view of conducting a timber importing business.
7. On or about 12 June 2003 the applicants’ parents contracted to purchase a property in Canningvale, Western Australia, the purchase of which property settled on or about 18 August 2003.
8. In or about November 2003, the first named applicant (Alan) and the third named applicant (Teresa) relocated to Perth and have resided in Perth since that time.
9. In or about April 2004 the second named applicant (William) relocated to Perth and has resided in Perth since that time.
10. The applicants’ Statement of Facts and Contentions accurately summarises the relevant facts in respect to each of the three applicants as follows:
“4.6 The relevant facts in relation to Alan are as follows …
(1)Alan was born on 24 February 1988 and is now 19 years old.
(2)Alan first settled in Australia in or about November 2003. At the time he was 15 years old.
(3)Prior to coming to Australia, Alan studied at a private Chinese secondary school in Sibu, Malaysia, namely Sekolah Menengah Catholic (or Catholic High School), and had completed Form 3 which was the equivalent to the Australian Year 10.
(4)In 2004, Alan commenced studying at Melville Senior High School.
(5)In 2005, Alan commenced studying Year 11 at Willetton Senior High School.
(6)He thereafter completed his Tertiary Entrance Examinations (“TEE”) in 2006.
(7)Alan intends to enrol in a double major course in Management and Human resource Management in Murdoch University to commence in the second semester of 2007.
(8)Alan returned temporarily to Malaysia in December 2006 to serve his national service which he has now completed.
(9)Since November 2003, Alan has only returned to Malaysia for approximately a month at a time during Chinese New Year.
(10)Alan has made close friends in Australia and whilst he has kept in contact with his friends in Malaysia, he is not as close to them as he used to be.
4.7The relevant facts in relation to Teresa are as follows …
(1)Teresa was born on 30 March 1989 and is now 18 years old.
(2)Teresa settled in Australia in or about November 2003. Since that time, she has only returned to Malaysia for about 1 month each year during Chinese New Year.
(3)Prior to settling in Australia, Teresa studied up to Form 2 (the equivalent of Year 8) at the Catholic High School in Sibu, Malaysia.
(4)In 204, Teresa commenced studying at the International English Centre before completing Year 9 at Melville Senior High School.
(5)Teresa has since completed Year 11 and is currently studying Year 12 at Willetton Senior High School.
(6)Teresa is due to sit her TEEs at the end of this year.
(7)Teresa has made many close friends from school.
4.8The relevant facts in relation to William are as follows …
(1)William was born on 28 February 1991. He is currently 16 years old.
(2)William first arrived and settled in Australia in or about April 2004 shortly after commencing Form 1 at the Catholic Senior High School in Sibu. Since that time, William has only returned to Malaysia for about a month each year to celebrate Chinese New Year.
(3)Upon arriving in Australia, William started studying at the International English Centre and is now currently studying Year 11 at Willetton Senior High School.
(4)William has made many close friends in Australia on whom he relies for emotional support, moreso than he does on his parents.”
11. The applicants’ submissions were conveniently summarised in the applicants’ Statement of Facts and Contentions as follows:
“4.9The applicants submit that the extreme hardship which each of the Secondary Applicants would suffer stems from the following:
(1)Each of the Secondary Applicants have made close friends in Australia from whom they obtain emotional support;
(2) They have no close friends left in Malaysia;
(3)Alan would face a bleak future in Malaysia in that he would not be able to enter university in Malaysia and the completion of his high school studies in Australia would not be recognised;
(4)William and Teresa would be required to start high school again as none of their studies in Australia would be recognised and further, they would not be eligible to enter university in Malaysia.
4.10It is submitted that this hardship would not only be a mere possibility, but would be a consequence of the cancellation of the secondary applicants’ visas.
4.11In this regard, we refer to the letter from Sekolah Menengah Catholic dated 28 March 2007 in relation to the Primary Applicant’s attempt to re-enrol William and Teresa in that school. In that letter, the Principal of the school states:
‘The Board rejected your proposal to enrol your daughter: Teresa Yien Joo Wong directly into senior three classes due to the reason that the educational system in Australia is very different from Malaysia. Language of instruction is entirely different. In addition, Senior Three courses are a college entrance level equivalent to Taiwanese high School. Teresa only completed Junior 3 with us before she left for Australian high school. We can only place her back into Senior 1 class even though she is older than her class mates. Teresa needs to make up many classes and she needs to demonstrate the language proficiency in Malay and Chinese as well.
The Board reached the same decision for your younger son: William Yien Wee Wong. We can only enrol William into Junior 2 class due to same reasons mentioned in Teresa’s case.”
4.12.As stated by Teresa at paragraph 29 of her Witness Statement:
“It is likely that I would have to start high school again from Form 1. This would cause me to feel very unhappy, alone, embarrassed and even suicidal. I cannot imagine what it would be like for an 18 year old girl to study Form 1 or Form 2. People will look down on me. People in Malaysia also tend to compare the results of students a lot and this will affect my self esteem. I also will not have good relationships with my classmates due to the age difference and the differences in interests.
Returning to Malaysia would certainly ruin my aspirations of becoming an accountant with me having to study another six years at high school and then 4 years at university (assuming I could even get into university).”
4.13 In his Witness Statement, William states at paragraphs 39ff:
“I believe that if I have to return to Malaysia, I would have to start high school again in Form 1 as I only have a Primary School Certificate.
“I have not completed any of the Malaysian Lower School or Upper School Certificates.
“It would be extremely embarrassing for me to have to start at Form 1 again at the age of 16 or 17 years old when all my classmates would likely be around 13 years old …”
4.14Further, the Applicants submit that, if their visas were cancelled, not only would William and Teresa have to re-enrol in high school, each of the Secondary Applicants would have little or no prospect of entering university in Malaysia.
4.15This is because their studies either in Australia nor their previous studies in Malaysia in Sekolah Menengah Catholic are recognised for entry into the Malaysian university system and therefore, they are likely to face a bleak future in terms of career and employment.
4.16On the other hand, if their visas were not cancelled, Alan would be able to complete his university studies in Australia and Teresa and William would both be able to complete their high school studies and thereafter university studies in Australia.
4.17In Setiawan, the applicant in that case was completing her second semester of the final year of her TAFE course. The Tribunal noted that at paragraphs 27-29:
‘The consequences of cancellation of [the applicant’s] visa in the present matter would be that the Applicant could not complete her diploma course in Australia, would be required to enrol as a Bachelor student in Indonesia, pay an admission fee as well as tuition fees and study two to three courses additional to the micro-biology course, the same not being necessary for her to obtain the relevant credit in her diploma course.
“The consequence to the Applicant that would result from the cancellation of the visa would be, for this 20 year old young lady, traumatic. She would be unable to complete her course in this country and, assuming acceptance and admission would be required to study subjects in Indonesia foreign to her present diploma requirements …
The Tribunal is satisfied that cancellation of her visa at this time would, so far as she is concerned, result in extreme hardship to her.’
4.18 In the present case:
(1)If Alan’s visa were cancelled, he would not be able to enter university in Malaysia at all;
(2)If William and Teresa’s visas were cancelled, they would have to repeat high school and despite doing so, would be unable to enrol in university.
4.19The Applicants submit that such a result would be traumatic for each of the Secondary Applicants.
4.20In Lee and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 973 (“Lee”), the Tribunal noted at paragraph 28:
‘In the event that Ms Lee’s application is unsuccessful, she says she would return to Malaysia but would not be able to enter a university in that country because she has not completed the special examinations required for university admission. Ms Lee did not attend a Malay speaking government high school, instead her parents sent her to a private high school where the lessons were in Mandarin. She said that they did so because the course was a year shorter and ethnic quotas made it hard fro Chinese to gain entry in Malaysian universities so they did not perceive any disadvantage … [A] consequence of not attending government high school was that she became ineligible to sit for the special set of examinations, the SPM, prepared by the Malaysian Education Board. She said that, without having completed those examinations, she would not be accepted by any university in Malaysia. She explained that only those students who have completed a six year qualification in Malaysia can sit for the SPM. To qualify for the SPM, she would have to return to high school for six years and learn her subjects in Malay …’
4.21 The Tribunal went on to state at paragraphs 34 and 36:
‘I accept Ms Lee’s evidence that her expectation of studying at university in Malaysia as negligible given her not sitting for the SPM examination …
‘I am satisfied that having Ms Lee discontinue her study at this very late stage of the course without her possessing financial resources to finish the degree in Australia assuming the grant of a student visa or an alternative degree, either in Malaysia or elsewhere should not be characterised merely as an inconvenience or detriment. I regard having her participation in the course suspended, at the very last minute, in circumstances where she would not be able to complete the degree in which she has invested over three and a half years of work and having nothing to show for it, would amount to extreme hardship.’
4.22We submit that the cases of Lee and Setiawan ought to be followed and the circumstances of Alan, Teresa and William are analogous to those experienced by the applicants in Lee and Setiawan.
4.23In particular, none of the Secondary Applicants have completed their high school studies in Malaysia in a government school to enable them to sit the SPM examinations.
4.24Further, Alan has made enquiries to enrol in private colleges in Malaysia but has not been accepted. Refer in this regard to letter from Centurion Business School to Alan dated 23 March 2007 which states:
‘We have received your application for the Human resources Management course in our college. We are glad you chose us to continue your studies, unfortunately your application wouldn’t be approved unless you have:
1. Finished Senior three or Form five in Malaysia;
2. Proof of Malay and Chinese courses results.’
4.25If their visas were canacelled, the Secondary Applicants would not be able to complete their tertiary studies in Malaysia. As a consequence, they would face difficulties with their future employment prospects.
4.26In light of the fact that they have a strong social support network in Austraila, and that if their visas were not cancelled they would be able to continue their studies in Australia, it is submitted that such a consequence would constitute extreme hardship.”
12. Similarly, the respondent’s submissions were conveniently summarised in the respondent’s Statement of Facts and Contentions as follows:
“76.Consideration of whether a secondary visa holder will suffer extreme hardship as a result of the cancellation decision necessarily requires an assessment of what constitutes extreme hardship for the purposes of s 134(5).
77.The meaning to be ascribed to 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. Foster J stated at [25] – [26]:
“… 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 eh 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. 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 on a continuum of hardship. It obviously connotes an area within which an ascertainable burden of hardship may fall and properly merit the description “extreme”.
78.Hardship must be judged subjectively. Clearly, hardship involves more than inconvenience or detriment. The effect suffered must be to a considerable degree before it can properly be called hardship (Siwei Wang v Minister for Immigration and Multicultural Affairs [2000] AATA 961).
79.In Siwei Wang (supra) Deputy President McMahon also considered the significance that should be ascribed to the word “extreme” as used in the statute”
“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 o that particular degree of hardship. 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 form 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”.
80In Salim and Ors v Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 899 deputy President Purvis stated at [44] – [47]:
“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 or whole 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.
81.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 or detriment (Salim & Ors v MIMIA [2002] AATA 899).
82.The respondent contends that the secondary applicants have not provided any evidence of how they will suffer extreme hardship on the cancellation of their visas, as opposed to inconvenience or detriment.
83.The secondary applicants appear largely to rely on the disruption to their studies. In the case of Alan Wong, the alleged hardship is expressed in relation to tertiary study which he has not yet commenced.
84.The respondent contends that being unable to complete studies does not amount to extreme hardship under the Act (Chen v MIMIA [2003] AATA 1023). Furthermore, the secondary applicants can apply for student visas to allow them to complete their studies.
85.Since the grant of their visas the secondary applicants have not resided in Australia on a permanent basis to the exclusion of Malaysia. Each has regularly returned to Malaysia for lengthy visits since 2003. As such, 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).
86.It is the respondent’s contention that the secondary applicants would not suffer any hardship let alone hardship which could be described as extreme.”
FINDINGS
13. The authorities referred to by the parties establish the following:
(a)the relevant hardship must be a necessary consequence of the cancellation of the visa, a mere possibility or probability is not sufficient;
(b)any hardship from the point of view of the person allegedly experiencing it must be judged subjectively;
(c)hardship involves more than inconvenience or detriment: affectation must be to a considerable degree before it can properly be called hardship;
(d)the use of the word ‘extreme’ by Parliament connotes a particular degree of hardship, namely of the highest degree;
(e)in order to determine the matter, a full and proper consideration of the person allegedly suffering the hardship or prejudice must be undertaken.
Alan
14. When Alan first settled in Australia he was 15 years of age. He is now 19. He completed his tertiary entrance examinations in 2006 and intended to enrol in a double major course in management and human resource management in Murdoch University, commencing in the second semester of 2007. He returned temporarily to Malaysia in December 2006 to serve his National Service and, in addition returned annually to Malaysia for approximately a month at a time during Chinese New Year.
15. Alan has made close friends in Australia and, whilst he has kept in touch with his friends in Malaysia, he is not as close to them as he used to be.
16. That, however, does not constitute extreme hardship.
17. It was submitted that Alan would face a bleak future in Malaysia as he would not be able to enter into University in Malaysia as the completion of his high school studies in Australia would not be recognised. In this regard Alan and the other applicants relied upon the decision of this Tribunal in Lee and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 973. In that case, Senior Member Lindsay held that the secondary visa holder had established that she would suffer “extreme hardship” if her visa was cancelled in circumstances where, had the applicant’s application been unsuccessful, she would have had to return to Malaysia and been unable to enter a university there because she had not completed the special examinations required for university admission. This was contrasted to the fact that the applicant was only a matter of weeks from completing a four year course of study in Australia. Moreover, the Tribunal found, on the evidence before it, that even if the applicant were subsequently to be granted a study visa and re-enter Australia, she would not quality for any Australian Government’s assistance and would not be able to pay herself the tuition fees or the associated costs being a foreign student in Australia. The Tribunal therefore concluded (para 36)
“I am satisfied that having Ms Lee discontinue her study at this very late stage of the course, without her possessing financial resources to finish the degree in Australia, assuming the grant of a student visa, or an alternative degree, either in Malaysia or elsewhere, should not be characterised merely as an inconvenience or detriment… I regard having her participation in the course suspended, at the very last minute, in circumstances where she would not be able to complete the degree in which she has invested over 3½ years of work and have nothing to show for it, would amount to extreme hardship”.
18. Alan’s position is clearly distinguishable from the position of the applicant in Lee’s case. In particular
(a)at the time of the hearing, he had not commenced his tertiary study; and
(b)there was no evidence to the effect that if he re-entered Australia pursuant to a student visa he would not have the financial resources to complete his tertiary studies.
19. I accept that the cancellation of his business visa would cause Alan disappointment, disruption and inconvenience, but I do not regard this consequence as ‘extreme hardship’ or anything approaching it.
20. I note that such a conclusion is consistent with the findings of the Tribunal in Re Chen and the Minister for Immigration, Multicultural and Indigenous Affairs [2003] AATA 1023 and the findings of the Tribunal in Ng and the Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 1276.
William and Teresa
21. As in Alan’s case, the fact that William and Teresa would have to leave the many close friends they have made in Australia and return to Malaysia where they have family, but no close friends, does not constitute ‘extreme hardship’.
22. It was submitted that if William and Teresa’s visas were cancelled, they would have to repeat high school in Malaysia and, despite doing so, would be unable to enrol in university.
23. Again, the submission overlooks the possibility of them re-entering Australia on student visas and to undertake their tertiary studies.
24. In this regard the Tribunal notes that written submissions were received on behalf of the parties subsequent to the hearing of the matter concerning the ability of the applicants to apply for student visas in the event that the respondent’s decisions to cancel their business visas were upheld.
25. The submissions on behalf of the applicants in this regard were as follows:
“3.1 In paragraph 7 of the Respondent’s Submissions, the Respondent states the restriction under section 48 of the Migration Act 1958 (Cth) (“Act”) does not apply to a person who has had a visa cancelled under section 134(4) of the Act during the 28-day period following the Tribunal’s decision to affirm the decision under review as the person will continue to hold their business skills visa during that period.
3.2 The Respondent goes on to state that there are consequently no restrictions on the visa classes for which the person can apply, concluding that:
“It would be open to the secondary applicants to apply for substantive visas whilst still onshore provided such applications were made prior to the expiration of the 28 day period following a decision of the tribunal to affirm the decisions under review.”
3.3 With respect, the Applicants submit that whilst it is correct that the section 48 bar will not apply so as to prevent the Secondary Applicants from applying for another substantive visa (if the Tribunal upholds the cancellation of their permanent visas), there are restrictions elsewhere contained in the Migration Regulations 1994 (Cth) (“Regulations”) which has a bearing as to whether the Secondary Applicants can in fact apply for and be granted further substantive visas onshore.
3.4 It is submitted that it would not, in fact, be possible for the Secondary Applicants to apply for student visas onshore during the 28-day period if their visa cancellations were upheld.
3.5 In this regard, the Applicants refer to the criteria for the grant of a Subclass 573 Higher Education Sector student visa but note that the provisions for other student visa subclasses are virtually identical.
3.6 In relation to student visa applications, an applicant must hold certain “qualifying visas” in order to make an onshore application.
3.7 Subclause 573.211(1) of Schedule 2 to the Regulations provides:
“If the application is made in Australia, the applicant meets the requirements of subclause (2), (3), (4), (5) or (6).”
3.8 Subclause (2) sets out the “qualifying visas” that an applicant must hold. However, all of them are temporary visas. The Secondary Applicants would not hold any of those visas so as to enable them to meet the criterion in that subclause.
3.9 Neither would the Applicants be able to meet any of the requirements in subclause (3), (4), (5) or (6) as:
subclause (3) requires an applicant who does not at the time of application hold a substantive visa:
to have held one of the five visas specified in that subclause (none of which would have been held by the Secondary Applicants);
to make the application within 28 days of that last substantive visa ceasing; and
to satisfy criterion 3005;
subclauses (4), (5) and (6) all require onshore applicants to currently hold a student visa.
3.10 Accordingly, whilst the Secondary Applicants will not be subject to the section 48 bar, the requirements of criteria applicable to student visa applications under the Regulations would in effect prevent them from making an onshore application for student visas during the 28-day period.
3.11 Further, we submit that, if the Applicants were to apply for student visas offshore, there is the likelihood that their applications would be refused per the expert evidence led in the case of Lee and the Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 973.
3.12 Clause 573.223 will require the Secondary Applicants to meet the following criteria:
“(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because the applicant meets the requirements of subclause (2).
(2) An applicant meets the requirements of the subclause if:
(a)for an applicant who is not a person designated under regulation 2.07AO;
(i) …; and
(ii)the Minister is satisfied that the applicant is a genuine student for entry and stay as a student having regard to:
(A)the stated intention of the applicant to comply with any conditions subject to which the visa is granted:
(B)any other relevant matter;”
3.13 It is submitted that the effect of clause 573.223 is that the Respondent retains a wide discretion to refuse an application for a student visa if the Respondent or his delegate is not satisfied that the applicant is a genuine applicant for entry and stay as a student because of “any other relevant matter”. The cancellation of the Secondary Applicants’ permanent business skills visa may well be a matter taken into consideration by the Respondent or his delegate.
3.14 In Lee’s case, the Tribunal states at paragraph 34:
“I find on the balance of probabilities that cancellation will result in her [i.e. the review applicant] having to leave Australia on the cusp of completing a relatively long, four year degree and then have to run the risk of being granted a student visa to return to Australia to meet the requirements then in place for completing the degree.”
3.15 In Cai and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 212, the Tribunal stated at paragraph 16:
“The cancellation of a permanent visa obviously is a relevant matter in the exercise of the discretion imported by the criterion [in clause 573.223]. The seeking of a temporary visa immediately after having to leave Australia due to the cancellation of a permanent visa is not a sound basis for an application. I have taken these considerations into account in evaluating Ms Cai’s likely future prospects.”
3.16 Whilst it may be open to the Applicants, if their visas were cancelled, to return to Malaysia to apply for student visas, there is a real risk (as accepted by the Tribunal in Lee and Cai) that their applications will be refused.”
26. In response, on behalf of the respondent it was submitted as follows:
“7.Where a person has a visa cancelled under subsection 134 (4), until that cancellation has effect, the person continues to hold that visa. During the time between cancellation and the cancellation taking effect the person does not have a section 48 bar and consequently there are no restrictions on the visa classes for which they can apply.
8.Accordingly, it would be open to the secondary applicants to apply for substantive visas while still on shore provided such applications were made prior to the expiration of the 28 day period following the decision of the Tribunal to affirm the decisions under review.”.
27. The Tribunal accepts the respondent’s submissions as accurately representing the position as it exists under the Act. Moreover, the Tribunal receives and accepts the respondent’s submissions on the basis that it is reflective of the position that the respondent will adopt in the event that the Tribunal upholds the review decisions and the applicants subsequently apply for fresh visas within the 28 day period after the Tribunal’s decision is pronounced and before the applicants leave the country.
28. As for the reference in the applicants’ written submissions to the expert evidence in Lee:
(a)the expert evidence adduced in Lee’s case was not the subject of any findings by the Tribunal and thus there are no findings which can be applied in this;
(b)evidence before the Tribunal in one matter does not constitute evidence in an entirely unrelated matter;
(c)no expert evidence was adduced before the Tribunal in this case.
29. The Tribunal does not therefore conclude that “there is the likelihood that (the applicants’) applications would be refused”.
CONCLUSIONS
30. For the reasons given, the evidence before the Tribunal does rise in any respect beyond inconvenience, distress and disadvantage to the applicants as a result of having to leave friends made in Australia and return to Malaysia where the applicants’ immediate and extended family live and where they have spent one month each year since moving to Australia. Each of the applicants is being financially supported by their parents. They are young and will no doubt adapt quickly to their new place of residence, with old friendships being rekindled and new friendships being struck. If they wish to pursue tertiary studies in Australia, it is open to the applicants to apply for student visas to enable them to do so. Other than to express confidence that those applications would be dealt with on their merits in the ordinary course, the Tribunal is not in a position to make any findings with respect to the likely outcome of those applications. The Tribunal finds that the applicants’ inability to pursue tertiary studies in Malaysia, when tertiary studies have not been commenced in Australia, does not to constitute “extreme hardship” for the purpose the Act, a position which is fortified by the possibility of re-entering Australia pursuant to a student visas should such visas be sought by the applicants and granted by the respondent.
31. The Tribunal wishes to make it clear, however, that even if the evidence had been (which it was not) that the applicants would not be eligible for student visas given all the circumstances, having regard to the age of the applicants, the fact that they are each still financially dependent on their parents, the fact that their parents and extended family reside in Malaysia and the fact that none of them have commenced a course of tertiary education, the Tribunal still would not have concluded that any hardship to be experienced by the applicants as a result of the cancellation of their visas would have been “extreme hardship” within the meaning of the Act.
32. It therefore follows that each of the reviewable decisions ought be affirmed.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Penglis, Senior Member
Signed: ......................(Sgd. R Riberi)..................................
AssociateDate of Hearing 18 June 2007
Date of Decision 19 December 2007
Counsel for the Applicant Mr L Ong
Solicitor for the Applicant Munro Doig
Counsel for the Respondent Mr A Gerrard
Solicitor for the Respondent Australian Government Solicitor
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