Park and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1219 (26 November 2002)

Last Updated: 2 December 2002

DECISION AND REASONS FOR DECISION [2002] AATA 1219

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1858

) No N2001/1859

GENERAL ADMINISTRATIVE DIVISION )

Re SEONG HUN PARK AND JEONG HUN PARK

Applicant

And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member

Date 26 November 2002

Place Sydney

Decision The decisions under review are affirmed.

..............................................

Senior Member

CATCHWORDS

BUSINESS MIGRATION - secondary business skills visa held by son of primary visa-holder - cancellation of primary visa - whether cancellation of secondary visa would result in extreme hardship to son - cancellation of secondary visa does not require visa-holder to leave Australia - no extreme hardship

Australian Citizenship Act 1948 s 13

Migration Act 1958 s 134(4)-(8)

Freeman v The Secretary, Department of Social; Security (1988) 19 FCR 342

Griffiths and Migration Agents Registration Authority, Re [2001] AATA 240

Huang and Minister for Immigration and Multicultural and Indigenous Affairs, Re [2002] AATA 656

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

Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257

Purnama and Minister for Immigration and Multicultural Affairs, Re [2002] AATA 237

Salim and Minister for Immigration and Multicultural Affairs, Re [2002] AATA 899

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

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

Wong and Minister for Immigration and Multicultural Affairs, Re [2002] AATA 54

REASONS FOR DECISION

26 November 2002 Mr M J Sassella, Senior Member

THE APPLICATIONS

1. The applicants are Seong Hun Park ("Seong"), who brought application number N2001/1858, and Jeong Hun Park ("Jeong"), who brought application number N2001/1859. The applicants are brothers who are present in Australia on business skills visas. They were granted these visas as dependants of Mr Chan Woo Park, their father. Mr Chan Woo Park was the holder of the primary business skills visa. He and his wife, Hyun Sook Oh, who held another secondary visa, saw their visas cancelled by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the respondent") on 5 November 2001 (ex TD1/T4). The applicants have each applied to the Administrative Appeals Tribunal ("the tribunal") for review of the decisions to cancel their visas, cancellations flowing from the cancellation of the primary visa held by their father.

LEGAL PRINCIPLES

2. Section 134 of the Migration Act 1958 ("the Act") deals with secondary visa holders such as the applicants, whose visas depend on the grant of a business skills visa. Section 134, relevantly, reads:

(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 by giving written notice to that person.

(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.

(7) If the Minister cancels a business visa under this section, the Minister must include in the notice given to its holder:

(a) the Minister's reason for the cancellation; and

(b) a statement to the effect that the holder may, within 28 days after receiving the notice, apply to the Administrative Appeals Tribunal for review of the cancellation.

(8) A cancellation under this section has effect on and from:

(a) if the person applies to the Administrative Appeals Tribunal for a review of the decision to cancel the visa--the 28th day after the day on which the Administrative Appeals Tribunal gives its decision on that review; or

(b) if:

(i) the person's visa was cancelled under subsection (4); and

(ii) the relevant person to whom paragraph (4)(a) applied has applied to the Administrative Appeals Tribunal for a review of the decision to cancel that person's visa;

the 28th day after the day on which the Administrative Appeals Tribunal gives its decision on that review; or

(c) the 28th day after the day on which the notice of cancellation is given to the holder of the cancelled visa;

whichever is the latest.

3. The basic effect of s 134(4) and (5) is that the applicants' visas have been cancelled unless the tribunal can find in relation to either applicant that the cancellation of his visa would result in extreme hardship to him.

THE HEARING

4. The tribunal convened a hearing in this matter in Sydney on 9 October 2002. Mr B Goldsmith of Goldsmiths, solicitors, appeared for the applicants. Mr G Cranwell of the Australian Government Solicitor's office appeared for the respondent. The applicants gave oral evidence. The tribunal received into evidence the following documents:

Exhibit TD1 - Section 37 Statement and associated documents (exhibits T1 - T16) provided by the respondent in application N2001/1858.

Exhibit TD2 - Section 37 Statement and associated documents (exhibits T1 - T16) provided by the respondent in application N2001/1859.

Exhibit A1 - Applicant's statement of facts and contentions in application N2001/1858 dated 28 June 2002.

Exhibit A2 - Applicant's statement of facts and contentions in application N2001/1859 dated 28 June 2002.

Exhibit A3- Statement by Jeong Hun Park dated 28 June 2002.

Exhibit R1 - Respondent's statement of facts and contentions dated 20August 2002.

Exhibit AH1 - Facsimile dated 10 October 2002 from the respondent's representative to the tribunal.

Exhibit AH2 - Letter dated 11 October 2002 from the applicant's representative to the tribunal.

THE EVIDENCE

5. Seong was born in Korea on 21 October 1981 (ex TD1/T2). Jeong was born in Korea on 15 January 1980 (ex TD2/T2).

6. The applicants entered Australia on 19 November 1995 as holders of temporary residence visas (ex A1, A2). The applicants were aged 14 (Seong) and 15 (Jeong) at that time.

7. The applicants were granted what they described as permanent residence visas in July 1998 (ex A1, A2). These appear from ex TD1/T4 to have been business skills visas operative from 16 July 1998 until 16 July 2003. Mr Cranwell attempted to have Seong accept that he had a business skills visa and not a permanent residence visa. Seong insisted that he had a permanent residence visa.

jeong

8. Jeong gave oral evidence at the hearing. He said he has been in Australia continuously since 1995 except for a month away in January 2001. This was not accurate. In cross-examination Jeong agreed that he left Australia for three nights on 16 July 1998. He had gone to New Zealand because his visa had expired and he had to be outside Australia to obtain a new visa. In 2001 he had actually been away from Australia for 43 days. He had also gone to Korea on 21 July 2001 for 10 days on a business trip. He said that he had forgotten to refer to this business trip when initially answering the question.

9. He studied years 9 to 11 at Epping Boys' High School (Sydney) from soon after arrival. Before going there he had six months at an English language school. He completed his HSC at a TAFE college.

10. At the time of the hearing Jeong was engaged in an information technology ("IT") course at a TAFE college. He has spent some time at the TAFE college. He studied IT there for a year and engaged in practical work in an Internet café at Strathfield. He then studied cooking for a year before returning to IT study in 2002 in a course running for two years. He wishes to go on to achieve a bachelor's degree at university and then find work in the IT industry. He wants a career in Australia.

11. Jeong said that if he returned to Korea he would be unable to resume his current studies there. He would have to complete the Korean HSC equivalent and start a course afresh there. His studies to the present time would be wasted. In cross-examination Jeong explained that his information was based on a phone call to Korean authorities in which he sought information. He had no documents to verify the information. He had made no application to a Korean educational institution.

12. Jeong said that he was unaware that there might be any difficulty staying in Australia until his parents experienced their visa problems.

13. Jeong said that he has no more than one or two friends in Korea and as relationships they are not very current. In the month he spent in Korea in 2001 Jeong was not accepted by other Koreans. He was seen as an Australian. Jeong said that his social life is exclusively focussed on Australia. He described Korea as a strict and closed society where an individual can easily be "shut out". Jeong said that he would be "broken hearted" if required to leave Australia.

14. In cross-examination it was clarified that Jeong recommenced his studies at TAFE in 2002 after receiving the letter telling him of the cancellation of his visa. That letter was dated 5 November 2001 (ex TD2/T3).

15. It was put to Jeong that he would have known that his current visa was always due to expire on 15 July 2003. Jeong responded that he had not realised that and that he had, in any case, applied for Australian citizenship in July 2001. Mr Cranwell asked whether Jeong had sought an alternative visa, eg a student visa. Jeong had not. Jeong had not inquired about extending his permanent resident visa in the event that he is denied a certificate of citizenship.

seong

16. Seong gave oral evidence. He lives in Wodonga. After arriving in Australia he completed a year at the English language school before going to Epping Boys' High. He completed years 9 to 12 at Epping. He completed his HSC at Epping in 2000. He commenced study at Latrobe University, Wodonga campus, in 2001. His course ends in 2004. He is studying accountancy.

17. Seong said that he had been unaware of any potential visa problems. He thought his permanent residence visa meant that he could stay in Australia forever.

18. Seong said he has many friends in Australia. It would be "frightening" if he had to return to live in Korea. He does not know what he would do in Korea. He remembers little about Korea. He had some friends in Korea when he was young but he has not retained these links. He agreed with Mr Cranwell that his parents and family are in Korea, although he has had no contact with his wider Korean family. His brother is the only family member he has in Australia.

19. Based on comments from friends and on newspaper items Seong said that if he returned to Korea it would be impossible for him to enter a Korean university. Seong told Mr Cranwell that he had not made inquiries of Korean universities. Seong said he is not good in speaking the Korean language. He does not know much of Korean culture. Seong said that he has had a girlfriend for 1½ years. She is at the same university campus as Seong. He sees her every day. He said it would be very hard if he could not continue this relationship.

20. In cross-examination Seong agreed that the visa he has requires renewal every five or 10 years. He was surprised to discover that his current visa was to expire in July 2003. Seong said he had taken no steps to obtain a new visa. He was "not aware of all this". Apparently his father had advised Seong to obtain citizenship

21. Seong said that he had visited Korea once only in June 2001. That was for 27 days. He saw only his parents and grandparents and no one else. He also spent the three days in New Zealand in 1998 necessary to renew his visa.

SUBMISSIONS

mr goldsmith

22. Mr Goldsmith submitted that the applicants would experience severe hardship if they were forced to return to Korea. They would experience a severe disruption which would amount to extreme hardship. Their social and personal lives would be affected. They have no current friends in Korea and, while their parents are in Korea, that would not replace the need for friends. Seong has a loving relationship in Australia with his girlfriend.

23. Mr Goldsmith submitted that it could not be found that Jeong enrolled in the TAFE course after receiving the cancellation letter as a device to avoid the cancellation of his visa because this was not squarely put to him by Mr Cranwell.

24. Mr Goldsmith submitted that it was understandable that the applicants had not applied for other forms of visa. They understood they had a permanent residence visa. Mr Goldsmith submitted that the applicants appear to have a good chance to obtain citizenship. They appear to fulfil the requirements for a grant of a certificate of citizenship in s 13 of the Australian Citizenship Act 1948. There was, he said, no reason for them to think that July 2003 would be a problem date for them.

25. Mr Goldsmith referred the tribunal to several authorities. The first was Re Setiawan and Minister for Immigration and Multicultural Affairs [2002] AATA 260. The facts in that case were somewhat similar to those in the instant application. The applicant was born in 1982. She came to Australia in 1997 at age 15 on the basis of her father's business skills visa. She completed secondary school here and enrolled in a TAFE course. Her visa was cancelled in October 2000 when her father's primary visa was cancelled. Her parents returned to Indonesia but the applicant remained in Australia with her brother. The grounds raised to suggest extreme hardship in her case were:

* If she returned to Indonesia she would have to recommence her tertiary education. She would not be able to graduate in the TAFE course.

* Indonesia offered no equivalent course to the TAFE course in food technology pursued by the applicant.

* She would have to repeat high school in Indonesia to attain entry into Indonesian tertiary education.

* She would have no job to return to in Indonesia if allowed to graduate here but then sent home.

* She had spent her most "memorable" time in Australia.

* She had lost contact with most of her friends in Indonesia. She had a network of friends in Australia.

* Since racial tension in Indonesia in 1997 she has hated returning there for holidays, going only to see her parents.

26. At the hearing the picture was a little different. Indonesia did offer a course in microbiology but she would need to qualify in additional subjects there to graduate there. She would need to be accepted as a Bachelor student in Indonesia. There would be higher fees than in Australia and she would have to pay to do subjects not needed to obtain her diploma. She would not be able to study in Indonesia and work part-time at the same time.

27. The tribunal made the following comments, both general and specific:

"7. Thus the issue for determination by the Tribunal, as earlier stated, is as to whether the cancellation of the visa granted to the Applicant would result in extreme hardship being experienced by her. 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. At p 487 it was 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 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 on 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...'

"8. As was noted by the Tribunal in Siwei Wang v Minister for Immigration and Multicultural Affairs [2000] AATA 961 at paragraph 28, 'Hardship' from the point of view of the person allegedly experiencing it ''must be judged subjectively'', and further at paragraph 29 'Clearly ...hardship involves more than inconvenience or detriment. Affectation must be to a considerable degree before it can properly be called hardship'. At paragraph 30 the Tribunal considered the significance that should be ascribed to the word 'extreme' as used in the statue. The Tribunal said:

'...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 not only to be hardship and not only undue hardship, but extreme hardship.'

"9. The relevant hardship must be a necessary consequence of the cancellation of the visa, a mere possibility or probability would not be sufficient. There must be shown not only hardship of an extreme kind but hardship which would follow the cancellation. One is to look at the consequences to the Applicant that would result from the cancellation.

"10. In Ashok Kumar v Minister for Immigration and Ethnic Affairs (1997) 50 ALD 488 it was said that 'the proper application of [a provision of the Migration (1993) Regulations, which contained within it the words "extreme hardship"] requires a focused consideration of the situation of the Applicant "at the relevant date'. The relevant date in the present application is as at the date of the hearing.

...

"27. The criteria that the Tribunal is required to consider entail factors peculiar 'to the person allegedly suffering the hardship'. It is to be a subjective assessment. The 'extreme' extent of the hardship 'must be evaluated against the facts of the particular case', and must be consequent upon the visa being cancelled. The consequences of cancellation of the 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 tuition fees and study two to three courses additional to the microbiology course, the same not being necessary for her to obtain the relevant credit in her diploma course.

"28. The consequences to the Applicant that would result from the cancellation of her 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.

"29. Whilst the facts as they now are did not exist as at the date of the original decision, and indeed the passage of time has significantly altered the facts relevant to any hardship that might be experienced by the Applicant, 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.

"30. For the above reasons the Tribunal sets aside the decision under review and remits the matter to the Respondent for further consideration. "

28. Paragraph 28 of the decision of Deputy President Purvis provides significant support for the applicants here. As in Setiawan (above), it was suggested that the applicants would be unable to complete their studies if they lose their visas and entry into a Korean university would appear to be as unsatisfactory a proposition for them as it was for Ms Setiawan.

29. In Re Huang and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 656 the applicant was one of the children of a business skills visa-holder whose visa had been cancelled. The issue of any extreme hardship he might face if forced to leave Australia was considered by Senior Member Muller (as he then was). In paragraph 20 he said, "Chih-Hao Huang has lived permanently in Australia since 23 November 1994. He has not lived in Taiwan since 1990. He has lost contact with Taiwan. He is in the final stages of university studies in Australia. The Tribunal accepts that if his visa is cancelled he will experience extreme hardship." This is another authority offering support for the position of the applicants.

30. Mr Goldsmith cited Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961 and sought to distinguish it. The applicant was the ex-wife of the holder of the primary business skills visa when that primary visa was cancelled in 1998. They were married when the visa was initially granted in 1997. At the time of the hearing the applicant had spent only 26 of the previous 44 months in Australia. Her roots were in Shenzhen, a large city in the Peoples Republic of China near Hong Kong. She told the tribunal that she had lost contact with friends she had there in 1997, stating that in 1998 she had written to some of them but received no responses. In questioning, however, she agreed that she had met with old friends when back in China. The factors put forward as indicating extreme hardship if she had to return to China were:

* Her mother was not expected to live much longer. She had lost contact with her father. She had no siblings.

* She is compelled to live in Shenzhen when in China. She could not move to be with her grandmother in Shanghai.

* Her mother was planning to sell her house to pay for medical treatment.

* She had no home to return to in China.

* She had little chance of obtaining work in Shenzhen.

* She had no contact with friends in Shenzhen.

* Her spousal maintenance situation consequent on her divorce would deteriorate if she returned to live in China.

* In Australia she had employment for five days a week and could afford to live in Australia on this money plus her maintenance. She had a healthier lifestyle in Australia and was contributing to the country as a taxpayer.

* She had a network of friends able to offer her emotional support in Australia.

31. The tribunal tended to discount some of these. At the time of the decision which, the tribunal said, was the relevant time for decision-making purposes, the applicant had a home to return to in China. The applicant had had earlier good employment experience in Shenzhen in middle level positions. In the meantime she had improved her English language skills. The tribunal considered that the applicant still had a mother and friends in Shenzhen and that she had contacted them on recent visits. The tribunal noted that any drop in the applicant's maintenance would reflect the lower cost of living in China. To that extent the applicant would be no worse off if she returned to China and did sustain a drop in her maintenance.

32. In his decision Deputy President McMahon quoted from Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481 as had the Deputy President in Setiawan (above). Deputy President McMahon then said:

"28. It is clear that hardship in subsection (5) must be judged subjectively. The use of the phrase 'to the person'' indicates this. What His Honour said in Man Ki Kim is relevant to that observation. The reference to Dell v Dalton above is by way of analogy. In that case, the Court of Appeal in effect held that a worst case scenario does not necessarily mean the worst case imaginable. What His Honour was saying in Man Ki Kim could be illustrated by taking the degree of hardship on a scale of one to ten. Extreme hardship does not necessarily have to rate a 10. Anything between nine and ten, for example, might still be called extreme.

"29. The word 'hardship' has received attention in various contexts. In Re Kabalan 113 ALR 330 Gummow J noted (unsurprisingly, as he put it) that each case must depend upon its own particular facts. I would respectfully add that the meaning of 'hardship' must depend upon the context in which one finds it. In relation to Landlord and Tenant Legislation, Asprey J defined it in FG O'Brien v Elliott [1965] NSWR 1473 at 1475 as 'a matter of appreciable detriment, whether financial, personal or otherwise'. This was not a definition that commended itself to a Full Court of the Family Court in Re Whitford 24 ALR 424. In the context of family law, their Honours considered that 'hardship' means something more burdensome that 'any appreciable detriment'. At 430, they offered the view that 'hardship' in the context with which they were concerned was 'akin to such concepts as hardness, severity, privation, that which is hard to bear or a substantial detriment'. Clearly, whatever view is taken, hardship involves more than inconvenience or detriment. Affectation must be to a considerable degree before it can properly be called hardship.

"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, 4th 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.

"31. The use of the word 'would' in subsection (5) indicates that the hardship must be a necessary concomitant of the cancellation. A mere possibility or even a probability would not be sufficient. Thus the bar is set doubly high. To avoid a cancellation, there must be shown not only hardship of an extreme kind, but hardship which will necessarily follow cancellation. Although no one can accurately predict the future, the legislation requires the decision maker to find that the adverse consequence will almost certainly happen. To demonstrate the constituent elements in subsection (5) is to undertake a particularly onerous task.

"32. Hardship is a condition that bears hard upon one. In the present case, it is clear that the applicant does not wish to leave Australia. That in itself cannot amount to hardship. The fact that the loss of a visa means that the applicant would need to leave Australia cannot of itself amount to hardship as this is the result contemplated by the statute upon cancellation. One must look at the consequences to the applicant that undoubtedly would result from the cancellation.

"33. In this case, it is difficult to see even a moderate degree of hardship in the particular fears of the applicant. There should be no financial or emotional hardship. There will be none of the hardship associated with returning to an unfamiliar country with which one has not had a connection for many years. There will not be the hardship of being without a place to live. There will not be the hardship of being without friends or family.

"34. The Migration Act and Regulations, taken as a whole, disclose a compromise which represents a balance between various competing interests. There is no reason to give a broad and generous construction to the concept of extreme hardship. To do so may detract from the force given in the balance of the legislative scheme to the other interests which are involved. It is not necessary in the present case, however, to extend the meaning of the phrase beyond its ordinary English meaning. In my view, the hardship, if any, which the applicant would suffer is nowhere near the extent of the hardship which would be required in order to fit the statutory description.

"35. Accordingly, the decision under review is affirmed."

33. The tribunal agrees with Mr Goldsmith that there are few points of factual similarity between the instant applications and the Wang case (above). In the present case the evidence suggests that the applicants spent time almost exclusively in Australia since 1995 and have not maintained Korean connections. Also, the applicant in the Wang case (above) was not engaged in tertiary study. That case is instructive, however, in its approach to interpretation of the legislation.

mr cranwell

34. Mr Cranwell, for the respondent, suggested that Mr Goldsmith had set the bar too low in describing what would amount to extreme hardship. He referred to paragraph 28 of the Wang (above) decision where the Deputy President adopted a scale of hardship running from 1 to 10, with 10 being the greatest extreme. He was prepared to allow as possibly extreme a hardship attracting a rating of 9 on that scale. He submitted that for a departure from Australia to involve extreme hardship it would have to involve something like a forcing of a married couple to live apart, or an immigrant to have live apart from children, or the loss of access to medical attention available in Australia. Mr Cranwell said that "extreme" is a very extreme word.

35. Mr Cranwell, on 16 October 2002, sent the tribunal a copy of the decision in Re Salim and Minister for Immigration and Multicultural Affairs [2002] AATA 899 which was published after the hearing in this case. This was another decision of Deputy President Purvis. The arguments of the children of the holder of the primary business skills visa were essentially social, based on the length of time they had spent in Australia. The learned Deputy President said in summary in that case:

"44. 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.

"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 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.

"46. However, it would be strange or unusual and unexpected if three relatively young, intelligent and capable persons had not in the years developed such relationships. It will be hard to leave these people. It will be hard to readjust to a life outside Australia and the university environment. But this hardship is one within the contemplation of the legislature when it chose to insert the word 'extreme' as to qualify the hardship. And it must be 'extreme' to the particular individual.

"47. The Tribunal does not consider that the hardship that will undoubtedly be experienced by each one of the Applicants is exceptional, unexpected or of such a nature as to qualify for the description of exceedingly great in degree. Unfortunate yes, emotional yes, financial yes to a degree. But not extreme.

"48. For these reasons the decisions under review are affirmed."

36. Mr Goldsmith wrote to the tribunal critical of the ongoing correspondence coming from Mr Cranwell but he did not make any submissions related to this decision.

37. Mr Cranwell submitted that the applicants knew that their visas were time limited and were based on their father's visa, which in turn was based on his fulfilment of his business obligations. He submitted that the applicants had no credible basis for their expressed belief that they would be able to live in Australia indefinitely. He suggested that only one brother had applied for citizenship.

38. Concerning the applicants' studies, Mr Cranwell submitted that there was never any guarantee that the applicants would be able to stay in Australia beyond July 2003 to finish their studies. In a communication to the tribunal after the hearing on 10 October 2002 (ex AH1) Mr Cranwell corrected this submission. The position is that the applicants could remain in Australia after the expiry of their business skills visas in July 2003 but they would not be able to re-enter Australia without a new visa if they left after their current visas expired. Mr Goldsmith wrote (ex AH2) agreeing with this proposition.

39. Mr Cranwell criticised Seong's evidence that suggested that he had not actually made inquiries about the situation for him in a Korean university. Mr Cranwell queried why the applicants had not provided more in the way of documentary evidence. He queried whether Jeong's evidence of a telephone call to Korea to check on his position regarding tertiary study there was sufficient. He suggested that the evidence currently before the tribunal was speculative.

40. Mr Cranwell pointed out that Jeong had enrolled in his current course only after he had been notified that his visa was under threat. It was submitted that this subsequent event could not be taken into account when assessing extreme hardship, that a decision-maker was required to consider the situation as at the date of the decision affecting the applicant. He cited several authorities for that proposition. In Re Purnama and Minister for Immigration and Multicultural Affairs [2002] AATA 237 the tribunal said at paragraph 27 that it was "reviewing the respondent's decision of 18 May 2001 to cancel the applicant's business skills visa" and that it was "considering whether the decision to cancel was the correct or preferable decision at the time it was made". The tribunal said that it would "make its decision having regard to all the evidence and its findings of fact as at the date that the decision to cancel was made". The tribunal cited the Federal Court decision in Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257, 264 as authority.

41. Re Wong and Minister for Immigration and Multicultural Affairs [2002] AATA 54 was also cited. In that case Deputy President Handley said:

"37. The Tribunal notes the preliminary point made by Mr Chami as to the evidence that the Tribunal should take into account in reviewing the Respondent's decision to cancel Ms Wong's business visa. The Tribunal acknowledges the approach adopted in Freeman (supra) that the jurisdiction of the Tribunal in respect of a cancellation is to determine the correct or preferable decision at the time that the decision to cancel was made. This approach has been followed in a number of cases, and was recently re-affirmed by Deputy President Forgie in Griffiths (supra) at paragraph 39, where the Deputy President said:

'Where the decision under consideration is a cancellation decision, the Tribunal must consider whether or not that decision was correctly made at the time it was made.'

"The Tribunal will therefore have regard to all relevant evidence to enable the making of findings of fact with respect to the decision made at the date of cancellation."

42. Mr Cranwell submitted that the appropriate visas for the applicants would be student visas. He conceded that they would have to leave Australia first before applying for such visas. He suggested that the applicants could not show that they would be unable to return to Australia if their current visas are cancelled. He again suggested that they could qualify for other types of visa.

43. Mr Cranwell submitted that, so far as any separation of the applicants from Australian friends was concerned, the circumstances were not all that extreme. He submitted that the political regime in South Korea is relatively congenial. He submitted that the applicants have a foundation for life in Korea based on their earlier living there. He noted that they have had periods of time back in Korea. He suggested that the applicants' parents and the rest of their family are in Korea. He submitted that the time spent in Australia had not been sufficient for them to have severed their Korean connections.

44. As regards the authorities quoted by Mr Goldsmith, Mr Cranwell said:

* Compared to the applicants in this case, the applicant in Setiawan (above) had enrolled in a course she could complete within the original visa period.

* The applicant in Setiawan (above) had evidence of the education consequences for her if she had to return to Indonesia. She had made inquiries on a visit to Indonesia in January/February 2002 (Setiawan (above), paragraph 21).

* The applicant in Setiawan (above) cited racial problems in Indonesia. There were no such difficulties in the current applications.

* The applicants in the present case, contrary to the applicant in Huang (above), have not lost contact with Korea and Koreans.

* Contrary to the position in Huang (above), the applicants here are not in their final stages of study.

45. In response to these submissions, Mr Goldsmith submitted as follows:

* The applicants' friends in Korea are friends in name only, not in substance.

* The Deputy President's reference in Wang (above) to an example of extreme hardship as 9 on a scale of 10 was an example only. A lower figure could also import extreme hardship.

* Mr Cranwell's examples of extreme hardship in the form of family separation or denial of access to medical treatment were not represented in such cases as Setiawan (above) and Huang (above). In those cases extreme hardship was accepted even though the dependants had visited their parents in the other country.

* It is not necessary to consider the situation as it was at the time of the decision to cancel the visas. In Setiawan (above) the tribunal considered the situation as at the time of the hearing. In any case, Jeong's evidence was that, as at the date of the cancellation, his chosen course was his planned career path.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

46. The tribunal finds that the father of the applicants was granted a business skills visa on 16 July 1998 (ex TD1/T4).

47. The tribunal finds that the respondent cancelled the applicants' father's business skills visa on 5 November 2001 (ex R1).

48. The tribunal finds that on 4 July 2001 a delegate of the respondent informed each applicant in writing of the respondent's intention to cancel their business skills visas (ex TD1/T3; ex TD2/T3). Each applicant was given until 8 August 2001 to comment on the grounds of cancellation and state why his visa should not be cancelled.

49. The tribunal finds that a delegate of the respondent, in accordance with s 134(4) and (7) of the Act, gave each applicant written notice of the cancellation of their visas on 5 November 2001 (ex TD1/T3; ex TD2/T3). The effects of s 134(8) were explained to each applicant. These were that the cancellation would take effect from whichever was the later of (i) the 28^th day after an applicant was taken to have received the letter dated 5 November 2001, or (ii) the 28^th day after any adverse decision on the applicant's application by the tribunal. Should the tribunal set aside a cancellation the visa is taken not to have been cancelled.

50. Based on the advice in ex AH1 and AH2, the tribunal finds that the effect of the particular visas held by the applicants is that they can remain as permanent residents in Australia even if either or both visas are cancelled. The effect of a cancellation under clause 127.5 of schedule 2 of the Migration Regulations 1994 is that the cancellation applies only to the effect of the visa which is stated to be a permit to "travel to and enter Australia for a period of 5 years from the date of the grant". Thus, if the visa of an applicant is cancelled and that applicant leaves Australia, he will not be able to re-enter Australia without a new visa.

51. The tribunal finds that the only outstanding issue for determination by the tribunal is whether either applicant will experience extreme hardship if his business skills visa is cancelled with effect from 28 days after the date of this decision, ie 24 December 2002.

52. The tribunal makes, on the basis of the preponderance of earlier authority, the subsidiary finding that the extreme hardship of either applicant is to be assessed by reference to the situation as it was on the date of the respondent's decision to cancel the visas, ie on 5 November 2001.

53. In relation to both applicants the tribunal finds that cancellation of the current visas, with the effect described above in paragraph 50, would not result in extreme hardship to either applicant. The emphasis of both in their evidence was on their desire to remain in Australia because of their educational commitments and the friends they have here. They were adamant that Korea held little attraction for them (see paragraphs 13 and 18 above).

54. The only hardship that flows from cancellation of the visas is that the applicants cannot leave and re-enter Australia without obtaining some new form of visa to permit re-entry. This might involve hardship in that it could preclude them from seeing their parents who are in Korea. This was not, however, presented in evidence as a source of hardship. The tribunal does not regard it as "extreme" hardship in any event. This is because the applicants will not be forced to leave Australia and can investigate at their leisure their options in this regard. Jeong has already applied for a certificate of citizenship. The tribunal would hope that the respondent's delegates expedite consideration of that application when this decision is handed down. Seong may wish to follow suit or he may prefer to consider visa options.

55. The tribunal has not seen a need to consider closely the authorities canvassed earlier in these reasons. This is because of the peculiar facts in the current applications and the advice received by the tribunal that the applicants will not have to leave Australia if their current visas are cancelled. This latter consideration was not referred to in the earlier decisions.

CONCLUSION

56. The tribunal has found that the applicants will be permitted to remain in Australia even if their current visas are cancelled. The tribunal has also found that cancellation of the current visas will impede the freedom of the applicants to leave Australia and re-enter. However, such an impediment was not presented to the tribunal as a source of extreme hardship to either applicant. The tribunal considers that the applicants will be able to fulfil their primary aims in remaining in Australia and will have ample opportunity to consider options if they decide to leave Australia at any time, or for any period, in the future.

DECISION

57. The decisions under review are affirmed.

I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member

Signed: .....................................................................................

Associate

Date of hearing 9 October 2002

Date of decision 26 November 2002

Counsel for the applicant Mr B Goldsmith

Solicitor for the applicant Goldsmiths

Counsel for the respondent Mr G Cranwell

Solicitor for the respondent Australian Government Solicitor