Zheng and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Zheng and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2465 (3 August 2022)
AppID:Zheng and Minister for Immigration, Citizenship and Multicultural Affairs

MatterType: Migration
Division:GENERAL DIVISION
File Number: 2021/6122
Re:Boqu Zheng

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member M East
Date:3 August 2022
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent, dated 10 August 2021, to cancel the Applicant’s Business Talent (Permanent) (Class EA) (Subclass 132) visa, is affirmed.
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Member M East
CATCHWORDS
IMMIGRATION – cancellation of business visa – the applicant was a dependent on the primary visa holder – whether the applicant would suffer any extreme hardship if the visa is cancelled – whether not finishing a degree is an extreme hardship – adjustment disorder with mixed anxiety and depressed mood – insufficient medical evidence – reviewable decision affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 134, 134(4), 134(5), 135, 135(2), 136
Migration Regulations 1994 – reg 4 PIC 4013(1A)
CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 69 – Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications (18 April 2016)
Department of Home Affairs (Cth), Procedural Advice Manuel 3: Division 3 – Business visa cancellation (1 July 2020) – para 18.2
REASONS FOR DECISION
Member M East
3 August 2022
INTRODUCTION

Mr Zheng seeks review of a decision of a delegate of the Respondent, dated 10 August 2021, to cancel his Business Talent (Permanent) (Class EA) (Subclass 132) visa (the Visa) under s 134(4) of the Migration Act 1958 (the Act) (the Reviewable Decision).
Mr Zheng’s application for review of the Reviewable Decision is made in accordance with s 136 of the Act, which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of a decision under s 134(4) of the Act.
The application was heard by the Tribunal on 14 June 2022. Mr Zheng was represented by Mr Raymond Barry, a migration agent and the Respondent was represented by Mr Ashley Burgess of Sparke Helmore Lawyers.
With the help of an interpreter, Mr Zheng and his mother Ms Guangli Huang gave oral evidence at the hearing. Ms Sally Yu and Dr Mark Debowski also gave oral evidence. Mr Zheng, Ms Yu and Dr Debowski were cross-examined by Mr Burgess.
BACKGROUND
Mr Zheng is a Chinese citizen who was granted the Visa on 30 July 2018 on the basis that he was the member of the same family unit as his mother who was also granted her visa at the same time.[1]
[1] Exhibit R1, 49-60.
The Department of Home Affairs (the Department) notified Mr Zheng on 20 January 2021 of their intention to consider cancellation of his Visa and issued him with a Notice of Intention to Consider Cancellation on the basis that his mother’s visa was also subject to cancellation.[2]
[2] Ibid.
Despite being invited to do so, Mr Zheng did not provide any reasons as to why the cancellation would result in extreme hardship pursuant to s 135(2) of the Act.
On 10 August 2021, Mr Zheng was notified of his Visa cancellation.[3]
[3] Ibid.
On 1 September 2021, Mr Zheng applied to the Tribunal for review of the cancellation decision.[4]
[4] Ibid 4.
ISSUES
The issue for determination before the Tribunal is whether there are grounds for cancellation of Mr Zheng’s Visa, having regard to s 134(4) of the Act; and whether the Visa cancellation would result in extreme hardship to Mr Zheng, such that the Visa cannot be cancelled under s 134(5) of the Act.
Mr Barry, on behalf of his client, Mr Zheng, claims that his client is suffering ‘severe hardship, in that his current life in Australia is very much in jeopardy and his future studies are very much in jeopardy. And his options of studying in China are remote and that’s where we stand at the moment’.[5]
[5] Transcript, 5.
As correctly submitted by Mr Burgess, the primary visa holder, Mr Zheng’s mother, has not sought review of the decision to cancel her visa. Therefore, pursuant to s 134(4) of the Act Mr Zheng’s visa must be cancelled. This is subject to the qualification in s 134(5) of the Act which provides the visa must not be cancelled if it would result in ‘extreme hardship’ to the dependent visa holder.
The only issue therefore for my consideration, is whether Mr Zheng’s circumstances fall within the ambit of what is contemplated by the phrase ‘extreme hardship’.
MATERIAL BEFORE THE TRIBUNAL
The Tribunal had the following material before it:
·Applicant's Statement of Facts Issues and Contentions, dated 19 October 2021 (Exhibit A1);
·Letter from the Applicant’s mother, Ms Guangli Huang, dated 8 October 2021 (Exhibit A2);
·Statement of Results from Canning College for Semester 1 & 2, 2016 and 2017; Sem 2, 2018 (Exhibit A3);
·Extracts of academic results from ECU for 2019-2021 (Exhibit A4);
·Letter from Edith Cowan University, dated 20 October 2021 (Exhibit A5);
·Confirmation of Enrolment (Exhibit A6);
·Business license sealed on 17 June 2021 (Exhibit A7);
·Report of Hendrik Janong, dated 17 September 2021 (Exhibit A8);
·Australian Securities & Investments Commission (ASIC) search for Edge Holdings No 6 Pty Ltd (Exhibit A9);
·Statement of the Applicant’s mother, Ms Guangli Huang, dated 9 October 2020 (Exhibit A10);
·Letter from WA Chaozhou Business Association, dated 6 October 2021 signed by Dr Mark Debowski and Suili Yu (Exhibit A11);
·Letter from Stewart Smith of WAAPA, dated 18 October 2021 (Exhibit A12);
·Admission regulations for study of Music at Central Conservatory of Music 2021 (Exhibit A13);
·Letter from the Applicant with original translated version, dated 15 February 2022 (Exhibit A14);
·Letter from Zhu Feng, regarding confidential information, dated 12 November 2021 (Exhibit A15);
·Letter from the Applicant, dated 13 November 2021 (Exhibit A16);
·Report of Hendrik Janong, dated 12 February 2022 and 4 November 2021 (Exhibit A17);
·Statement of Ian Yen, school guardian, dated 28 September 2021 (Exhibit A18);
·Statement of Wu Chaosheng, dated 15 November 2021 (Exhibit A19);
·Statement of Guangli Huang, dated 9 November 2021 (Exhibit A20);
·Letter from Happy Tone, dated 28 September 2021 (Exhibit A21);
·Letter from Sally Yu, dated 10 June 2022 (Exhibit A22);
·Applicant’s response to the Respondent’s Statements of Facts, Issues & Contentions, dated 16 February 2022 (Exhibit A23);
·Section 37 "T-Documents" consisting of T1-T10, pages 1-82 (Exhibit R1); and
·Respondent's Statement of Facts, Issues & Contentions dated 19 January 2022 (Exhibit R2).
LEGISLATIVE FRAMEWORK
Section 134 of the Act provides that:
134 Cancellation of business visas
(1)Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australia visa, an investment‑linked visa or a family member’s visa) if the Minister is satisfied that its holder:
(a)has not obtained a substantial ownership interest in an eligible business in Australia; or
(b)is not utilising his or her skills in actively participating at a senior level in the day‑to‑day management of that business; or
(c)does not intend to continue to:
(i) hold a substantial ownership interest in; and
(ii) utilise his or her skills in actively participating at a senior level in the day‑to‑day management of;
an eligible business in Australia.
…
(4)Subject to subsection (5) and to section 135, if:
(a)the Minister cancels a person’s business visa under subsection (1) or (3A); and
(b)a business visa is held by another person who is or was a member of the family unit of the holder of the cancelled visa; and
(c)the other person would not have held that business visa if he or she had never been a member of the family unit of the holder of the cancelled visa;
the Minister must cancel the other person’s business permit or business visa.
(5)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.
(6)The Minister is taken not to have cancelled a person’s business visa under subsection (4) if the Administrative Appeals Tribunal has set aside the decision of the Minister to cancel the business visa of the relevant person to whom paragraph (4)(a) applied.
…
(Original emphasis.)
CONSIDERATION
ORAL EVIDENCE
The Applicant, Mr Zheng
In his examination in chief, Mr Zheng stated as follows:[6]
The incident has greatly impacted me. As a result I couldn’t complete my exams, I couldn’t attend my concert. I actually delayed my performance at the concert by two to three months. I also went to see a psychologist. The incident itself influenced my life greatly and I don’t think the psychologist is helping me very much, and I decide to not see the psychologist anymore.
[6] Ibid 13.
Mr Zheng explained that he is a student at the highly prestigious Western Australian Academy of Performing Arts (WAAPA), Edith Cowan University studying for a Bachelor of Music. He came to Australia as a student seven years ago. He claims that if he had to return to China to do more study, he would have to repeat high school. This effectively means he would be repeating the past seven years of his high school and tertiary study. Understandably he is upset about this prospect.
Mr Zheng also said that he feels ‘uncomfortable every day and my diet and my sleep were also affected. It also affects my piano teaching’.[7]
[7] Ibid 14.
Mr Zheng confirmed that his parents are able to support him.[8]
[8] Ibid 16.
Mr Burgess cross-examined Mr Zheng and asked him whether he had considered applying for a student visa to finish his studies in Australia.[9]
[9] Ibid 17.
Mr Barry objected to this question stating that Mr Zheng would not be granted a student visa. When I asked him how he knew that he responded by saying that based on his ‘umpteen years of experience with the immigration department both in it and as a migration agent’.[10]
[10] Ibid 18.
What followed was an exchange between Mr Barry and myself about Mr Zheng’s eligibility for a student visa.
I do not accept that Mr Barry’s experience in the migration sphere makes his opinion conclusive as to whether Mr Zheng would be granted a student visa. In any case, the point is moot. The issue is whether Mr Zheng is eligible to apply for another student visa offshore and I make a finding that he is eligible to do so.
I make the observation that Mr Zheng is a quietly spoken, credible witness. He answered all the questions in a polite manner and impressed me with his demeanour.
Sally Yu
Ms Yu has helped to look after Mr Zheng since he came to Australia when he was 15 years old. She said that he had struggled in China and did not like school and his parents made the decision to send him to school here in Australia.
Ms Yu said she has been very concerned about Mr Zheng’s mental state lately based on the experience she has had with her own daughter.[11]
[11] Ibid 22.
Dr Mark Debowski
Dr Debowski is Ms Yu’s husband and has also cared for Mr Zheng while he has been living in Australia. He also expressed his concern about Mr Zheng’s mental state.
Mr Burgess confirmed in cross-examination that Dr Debowski did not have any medical qualifications.
Ms Guangli Huang
Ms Huang, Mr Zheng’s mother gave evidence by telephone from China.
Ms Huang explained that she was unable to migrate to Australia, despite being granted her visa because she was prohibited from leaving China. She said it was due to a decline in international relations between China and Australia which led to the Chinese government not allowing people from the high-tech industry to migrate to Australia.[12]
[12] Ibid 31.
Ms Huang went on further:[13]
Cancellation of the visa would have a great impact on his life and his mental state is not very well at the moment. He is really talented in music and teachers in Australia also show the same opinion about his talent in music. I really hope that the immigration department could keep the 132 visa for him because I believe he can make contribution to Australia through his music talent.
[13] Ibid 32.
As noted above, several pieces of evidence were submitted on behalf of Mr Zheng, attesting to his great talent and his good character.
I wish to make it clear that I do not have any concerns about Mr Zheng’s character, his contribution to Australian society and his musical talent. By all accounts, he is an extremely talented young man who has worked and studied hard whilst being away from his family. His contribution to Australia should he stay here is without doubt.
FINDINGS
There are two bases upon which Mr Zheng claims cancellation of his visa would result in severe hardship:
1.Firstly, that he would be unable to complete his Bachelor of Music by 2023; and
2.Secondly, his mental health would suffer.
I will deal with each of these in turn.
Mr Zheng’s submission is that if he is forced to return to China the study he has completed here in Australia would not give him credit towards entering an equivalent degree in China resulting in him having to repeat several years of study.
I note that there is insufficient evidence of the education system in China to satisfy me of this barrier to his study. The Tribunal was provided with a translated document for the ‘Admission Regulations for Undergraduate Study at Central Conservatory of Music 2021’ (Conservatory) which states that enrolment will be ‘based on the students’ professional scores and academic scores of The National College Entrance Examination, and in accordance with the principle of fairness, justice and openness’.[14]
[14] Exhibit A13.
Whilst I accept that further testing would be required in China to gain entrance to the Conservatory, there is insufficient evidence for me to be satisfied that Mr Zheng would be required to repeat the study already completed in Australia at high school and tertiary level.
However, even if I did find that to be the case, I accept the Respondent’s submission that Mr Zheng is eligible to apply for a student visa offshore. As noted earlier, I do not accept Mr Barry’s submission based on his experience in the migration sphere that Mr Zheng’s application for a student visa would be refused. There is simply no basis factually or legally for that submission.
With respect to Mr Zheng’s mental health, I note the reports from Mr Janong, clinical psychologist, dated 17 September 2021, 4 November 2021 and 12 February 2022[15] in which he diagnoses Mr Zheng with an ‘adjustment disorder with mixed anxiety and depressed mood.’
[15] Exhibits A8; A17.
In his oral evidence Mr Zheng said that he stopped seeing Mr Janong because he did not feel that he was making any progress with him.[16]
[16] Transcript, 20.
As correctly submitted by Mr Burgess, the Tribunal was not provided with any current medical evidence from Mr Janong after the report of 12 February 2022. In that report he states that Mr Zheng feels ‘slightly better’ although still gets anxious and depressed sometimes when he thinks about his Visa issues. As also submitted by Mr Burgess, adjustment disorders are by their nature, a temporary condition.
The Tribunal was not provided with sufficient evidence to make a finding that the Visa cancellation would result in mental distress for Mr Zheng or that it would continue if he returns to China.
At the end of the hearing Mr Barry made a new submission that Mr Zheng would face a ‘three-year embargo’ on applying for a new visa if he were overseas. Mr Barry said it was one of the Public Interest Criterions. As he was unable to give any more details, I gave him leave to submit further submissions with a corresponding right for the Respondent to provide submissions in reply.[17]
[17] Ibid 37.
In his submissions provided to the Tribunal on 22 June 2022, Mr Barry went beyond the scope of what he was given leave to file further submissions on, in effect, re-iterating and expanding on his submissions provided at the hearing.
Mr Barry attempted to adduce further evidence on the political relationship between China and Australia in recent years.
Mr Barry did briefly address PIC 4013(1A) of sch 4 to the Migration Regulations 1994 (Cth) only to say that Mr Zheng was not caught by it. Mr Barry also referred to Direction No. 69 – Assessing the Genuine Temporary Entrant Criterion for Student Visa and Student Guardian Visa Applications (18 April 2016) relating to the temporary entrant criterion for Student visa applications in assessing whether the Minister is satisfied an applicant intends to genuinely stay in Australia temporarily.
Mr Burgess, on behalf of the Respondent, in responding to Mr Barry’s submissions on 23 June 2022, stated the following:
The applicant’s representative has now filed submissions conceding that no PIC bar applies to the applicant. The submissions then go on to attempt to introduce further evidence regarding Sino-Australian relations which was not elicited as evidence at the hearing. To the extent that the submissions now attempt to provide more evidence which was not previously before the Tribunal, the Respondent objects to those parts of the submissions being considered. The respondent has previously provided written and oral submissions to the Tribunal regarding the applicant’s assertions that he would not be a genuine temporary entrant and therefore not eligible for a student visa. The respondent maintains his reliance on those submissions.
I agree with Mr Burgess’s submission regarding the further evidence seeking to be introduced on international relations. In any event, it is not in dispute that the primary visa applicant’s visa was cancelled and that she is not seeking review of that decision. The merits or otherwise of that cancellation are not in dispute. What is in dispute is whether the cancellation would result in ‘extreme hardship’. That is the only question.
What is Extreme Hardship
The phrase ‘extreme hardship’ is not defined by the legislation but was considered by His Honour Foster J in Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481. At [25] he stated:
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.
Department of Home Affairs: Procedural Advice Manuel 3 – Division 3 – Business visa cancellation (1 July 2020) (PAM3) also provides some guidance on this point. The Tribunal is mindful that the PAM3 is not binding but should generally be applied unless there are cogent reasons not to do so.[18]
[18] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 640.

The PAM3 at paragraph 18.2 states that:
Under policy, ‘would result’ means that the hardship 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.
Firstly, I am not satisfied that it is a necessary and direct consequence of the Visa cancellation that Mr Zheng would not be able to complete his studies. As has been discussed at length, there is no practical barrier to Mr Zheng going offshore and applying for a student visa to finish his studies in Australia. Furthermore, there is insufficient evidence for me to make a finding that Mr Zheng would be unable to obtain credit for studies already undertaken if he were to transfer to a university in China.
Secondly, I am still not satisfied that being unable to complete this particular degree at WAAPA would satisfy the threshold of being an ‘extreme hardship’. It would be disappointing and frustrating, but this does not equate to what the legislation requires.
Thirdly, Mr Zheng has provided some evidence that he suffers from an adjustment disorder. The medical evidence in relation to this was sparse and by his own admission, Mr Zheng said he stopped consulting Mr Janong because he did not find him helpful. There is insufficient specialist medical evidence for me to make a finding that he presently suffers from an adjustment disorder and/or that returning to China would make it worse in such a way that would satisfy the extreme hardship test.
I have no reason to doubt the evidence of Dr Debowski and Ms Yu and accept their concerns for Mr Zheng’s welfare. Unfortunately, however, this is not enough for me to make a finding that Mr Zheng suffers from an illness of such severity that returning to China would constitute an extreme hardship.
CONCLUSION
In summary therefore I make the following findings:
1.The grounds for cancellation in s 134(4) of the Act are satisfied.
2.I am not satisfied that cancellation of Mr Zheng’s Visa would result in extreme hardship such that the Visa must not be cancelled under s 134(5) of the Act.
3.The correct and preferable decision is to affirm the decision under review.
4.Therefore, the Visa cancellation remains.
DECISION
The Reviewable Decision is affirmed.

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Member M East

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Associate
Dated: 3 August 2022

Date of hearing: 14 June 2022

Advocate for the Applicant: Raymond Barry, Migration Agent

Counsel for the Respondent: Ashley Burgess

Solicitors for the Respondent: Sparke Helmore Lawyers

[2022] AATA 2465

3 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Date of hearing:	14 June 2022
Advocate for the Applicant:	Raymond Barry, Migration Agent
Counsel for the Respondent:	Ashley Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers