Yoanna and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 59

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 59

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2004/104

GENERAL ADMINISTRATIVE DIVISION		)
Re		LEBIE YOANNA

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Deputy President D G Jarvis

Date20 January 2005

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

D G Jarvis
  (Signed)
  Deputy President

CATCHWORDS

MIGRATION – Business Skills visa – cancellation of visa – member of family unit – meaning of “extreme hardship” – cancellation of visa will not result in extreme hardship to family member – decision under review affirmed.

Migration Act 1958, s 134(4) and (5)

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

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

Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 31

Re Salim & Ors and Minister for Immigration and Multicultural and Indigenous Affairs (2002) 36 AAR 42

REASONS FOR DECISION

20 January 2005   Deputy President D G Jarvis

1. Lebie Yoanna held a Business Skills visa as a member of the family unit of her father, Karif Tany. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs cancelled Mr Tany’s Business Skills visa on 19 August 2003 pursuant to s 134(1) of the Migration Act 1958 (the “Act”). Upon the cancellation of this visa, the delegate of the Minister also cancelled Ms Yoanna’s visa, as he was required to do by s 134(4) of the Act. However, this subsection is expressed to be subject to s 134(5), which provides that the Minister must not cancel the family unit member’s visa if the cancellation of the visa would result in extreme hardship to the relevant person.

2.      Both Ms Yoanna and Mr Tany lodged applications with this Tribunal for review of the delegate’s decisions.  The applications were heard at the same time. Ms Yoanna provided a witness statement and supplemented this with oral evidence given by telephone.  The parties’ final submissions were made in writing.  Submissions and further evidentiary material relevant to Ms Yoanna’s application were received from her counsel on 6 October and 5 November 2004, and submissions of counsel for the Minister were received on 15 October and 8 November 2004.

3.      In a separate decision handed down by me today, I affirmed the delegate’s decision to cancel Mr Tany’s Business Skills visa.  Accordingly, the only issue in the application lodged by Ms Yoanna is whether the cancellation of her visa will result in extreme hardship to her.

Background

4.      The following background facts were not in contention.  The applicant was born in Indonesia on 7 January 1982.  On 21 July 1997, Ms Yoanna’s father lodged an application for migration to Australia.  He included her in the migration application as a dependent child (exhibit A1, T18, page 245).  Ms Yoanna was granted a Business Skills visa on 23 December 1999 (exhibit A1, T13, page 384). 

5.      Ms Yoanna first came to Australia in 1998 to complete Year 11 at a college in Melbourne.  She later enrolled at Monash University, and from 2000 to 2002 undertook a Bachelor’s degree in music.  In 2003, Ms Yoanna commenced a master of business systems degree, but did not continue with that degree.  Instead, she transferred to an administrative course, and gave music lessons on a private basis.

6.      A letter dated 20 August 2002, the subject of which was described “Notice of intention to cancel”, was sent to Ms Yoanna by the Minister’s Department (exhibit A1, T41, page 401).  The letter advised her that there might be grounds for cancelling her visa, and noted that “(t)he Act gives you the opportunity to comment on the (relevant) grounds for cancellation and to give reasons why your visa(s) should not be cancelled”.  The letter went on:

“Your representation should say why you think the cancellation of any visas held by you and members of your family unit … would result in extreme hardship.”

The letter also requested that any written representations/submissions be provided to the Minister’s department by 27 September 2002.

7.      Ms Yoanna did not dispute receiving the letter referred to in the preceding paragraph, and there was no evidence that she made any written representation or submissions in response to the letter, either by the date stipulated in the letter or at any time prior to the eventual cancellation of her visa.

Evidence of Applicant

8.      The evidence provided by Ms Yoanna was not challenged, and I accept it.  In her written statement dated 30 April 2004, Ms Yoanna says:

“7.My ambition is to be a music teacher.  I play the piano.  I like children very much.  In order to pursue my ambition I need to complete a teaching qualifications I have made enquiries.  I could undertake a teaching degree at the Yamaha music school.  This is a four month course.  Alternatively, I could go back to university and undertake a teaching diploma.

8.If my visa is cancelled I would not be able to pursue my education in Australia.

9.I do not want to go back to Indonesia to live.  I have been living in Australia for nearly six years and consider myself to be an Australian.  I have settled in Australia very well.  I have a wide network of friends and a considerable amount of personal freedom.  It would be very oppressive for me to now return to Indonesia.

10.It would be much more difficult for me to pursue my ambition of being a music teacher in Indonesia.  Only the very wealthiest of families can afford music lessons for their children in Indonesia, so the opportunities would be vastly reduced.

11.I believe it would be very difficult for me to return to Indonesia.  I don’t think that I would fit in there any more.”

9.      In her oral evidence, Ms Yoanna said she had returned to Indonesia in February 2004, but intended to return to Australia at the end of 2004, depending on her permanent residency status, to pursue a master’s degree music at Monash University.

10.     In cross-examination Ms Yoanna said that in order to teach music she needed a master’s degree and a diploma of education.  She further said that she had heard that Indonesian universities do not offer a master’s degree in music, but she had not checked this herself.  She said that universities in Indonesia do not have diplomas of education; they have the Yamaha school, and after attending that school people then teach.  She admitted that she had returned to Indonesia once or twice a year for the first two years she was in Australia, but after the year 2000, she had only returned to Indonesia once a year.  She said she had gone back in school holidays because she has relatives in Indonesia, but she had a lot of friends in Australia.

Applicant’s Contentions

11.     It was contended on behalf of Ms Yoanna that cancellation of her visa would produce the following consequences:

·     inability to continue her studies in Australia unless she obtains a student visa and pays overseas student fees; and

·     loss of her Australian permanent resident status.

In her counsel’s written submissions it was further contended that, on counsel’s assessment of her point score (which assessment produced a total of 110 points compared with the pass mark of 120 points), Ms Yoanna was not eligible to apply for permanent residency in her own right under the skilled visa programme.

12.     It was further contended that Ms Yoanna desired to make her life in Australia, and had completed her tertiary education here and her friends are here.  It was further contended that cancellation of her permanent resident’s visa would mean that she would not be able to pursue her plans, and that would cause extreme hardship.

Consideration

13. The expression “extreme hardship” is not defined by the Act. In Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481 at 487, Foster J said:

“… 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 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.

…

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”.  Within that area there may be varying degrees of burden, one less than another, but each meriting the description … .”

14.     In Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961, Deputy President McMahon said at [28] that the hardship referred to in s 134(5) must be judged subjectively. He then pointed out the relevance of the adjective “extreme” in the following passage (at [30]).

“Although words cannot be substituted for other words appearing in a statute, it is permissible to resort to a dictionary in order to establish the ordinary English meaning of the words used in the statute.  The cases supporting this approach are gathered and discussed in “Statutory Interpretation in Australia” by Pearce and Geddes, 4^th edition at paragraph 3.15.  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 of 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 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.  Furthermore, that hardship must result from the cancellation.”

15.     In Kim v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 31, Kiefel J pointed out at [33] that while the subsection requires that a causal outcome is able to be predicted, the words “would result” do not require more than the civil standard of proof, and the word “extreme” qualifies only the hardship which may be seen as a consequence of the cancellation of the visa. Her Honour said that the Tribunal’s decision in Wang (supra) is incorrect to the extent that it appears to suggest that the qualification “extreme” suggests a level of proof, and not a qualification of the degree of hardship.  I make it clear that I do not interpret the word “extreme” in the former way.  The suggestion referred to by Kiefel J comes from a later passage in Wang, and not the passage I have quoted above.

16.     The concept of “extreme hardship” was also considered in Re Salim & Ors and Minister for Immigration and Multicultural and Indigenous Affairs (2002) 36 AAR 42. In that matter Deputy President Purvis said (at [44] and following) as follows:

“44.… 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.

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

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 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.”

17. Deputy President Purvis said (at [14]) that the time when the effect of the visa cancellation on the person concerned is to be considered is the date of the hearing. As s 134(5) uses the expression “would result”, I think that it is permissible also to consider relevant events up to and including the date of this decision. I refer in this regard to paragraphs 31 and 32 of my decision in Mr Tany’s matter, which I have delivered today. No further information as to Ms Yoanna’s position has been provided to me since 5 November 2004, when information as to Mr Tany’s acquisition of shares in an Australian company was provided at my request following the conclusion of the hearing. I assume therefore that no further material facts have arisen between the date of the hearing and the date of this decision.

18. I am not reasonably satisfied that the facts relied upon by Ms Yoanna constitute extreme hardship within the meaning of s 134(5) of the Act. It may well be that, as Ms Luu-Nguyen for the Minister contended, Ms Yoanna may be able to obtain a student visa which will entitle her to remain in Australia to study. Further, there is no evidence that she has failed to obtain permanent residency in her own right, as was foreshadowed in her counsel’s further submission.

19. In any event, it is not clear from the evidence before me that Ms Yoanna will necessarily be unable to teach music in Indonesia if she is unable to complete her studies in Australia. Even if this were the case, I consider that this would not amount to “extreme hardship” for the purposes of s 134(5) of the Act.

20.     Whilst it is clear that Ms Yoanna would much prefer to remain in Australia and pursue her career here, she did not come to Australia until her secondary education was largely completed.  She still has family in Indonesia, and there would be no difficulties in her assimilating into the Indonesian community.  I consider that the analysis of Deputy President Purvis in Salim, to which I referred to in paragraph 16 above, is substantially applicable to the facts of this matter, and I agree with his analysis.

Decision

21.     For the above reasons, I affirm the decision under review.

I certify that the 21 preceding paragraphs are a
true copy of the reasons for the decision herein
of Deputy President D G Jarvis

Signed:         ....................................................................................
           N. Quirke  Associate

Date/s of Hearing  23 and 24 September 2004
Date of Decision  20 January 2005
Counsel for the Applicant         Ms J McGrath
Solicitor for the Applicant          McDonald Steed McGrath
Counsel for the Respondent     Ms Luu-Nguyen
Solicitor for the Respondent    Australian Government Solicitor