Rusli and Minister for Immigration and Multicultural and Indigeno us Affairs [2003] AATA 1219 (4 December 2003)

Last Updated: 4 December 2003

DECISION AND REASONS FOR DECISION [2003] AATA 1219

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/362

GENERAL ADMINISTRATIVE DIVISION

Re: LILIANA RUSLI

Applicant

And: MINISTER FOR IMMIGRATION

AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal: G.D. Friedman, Member

Date: 4 December 2003

Place: Melbourne

Decision: The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

MemberMIGRATION - business skills visa - cancellation - member of family unit of visaholder - whether extreme hardship

Migration Act 1958 s134(5)

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

Re Chen and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 628

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

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

42

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

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

REASONS FOR DECISION

4 December 2003 G.D. Friedman, Member

1. This is an application by Liliana Rusli (the applicant) for review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the respondent) dated 11 March 2003 to cancel the business skills visa. Her visa was cancelled because she is a member of the family unit of her father, Wiriwan Rusli, whose business skills visa was cancelled by the respondent on the same date.

2. At the hearing on 28 November 2003 Mr J. Gibson of counsel, instructed by Lai and Hamilton, solicitors, represented the applicant and Ms V. Priskich, a solicitor with Blake Dawson Waldron, represented the respondent. An interpreter in the Indonesian language assisted the Tribunal.

3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T60), together with seven exhibits (Exhibits A1-A7) lodged by the applicant.

BACKGROUND

4. The applicant was born in Indonesia on 19 November 1975. She arrived in Australia in December 1999 with her parents and three siblings, as the holder of a business skills visa, on the basis of proposed business activities to be carried out by her father. On 5 November 2002 the Department of Immigration and Multicultural and Indigenous Affairs sent a written notice of intention to cancel the visas held by Mr Rusli and his family, including the applicant.

5. On 11 March 2003 the respondent cancelled the visas held by Mr Rusli and his family. On 7 April 2003 Mr Rusli and the applicant lodged applications to the Tribunal seeking review of the decision. On 10 September 2003 the applicant purchased a one-third share of an oriental grocery business called Chaddy Mart Pty Ltd (the business). On 26 September 2003 the Tribunal dismissed Mr Rusli's application.

6. The issue before the Tribunal is whether cancellation of the applicant's visa would result in extreme hardship to her.

EVIDENCE

7. In a statutory declaration dated 23 September 2003 (Exhibit A1), the applicant stated that since arriving in Australia she had obtained a Master's degree in Business Systems from Monash University (2000 to 2001), in addition to her Bachelor's degree in Business Administration from Parahyangan University in Indonesia (1999). She said that she commenced employment as a bookkeeper with a company called Justry Kasman Pty Ltd in September 2001. In November 2002 the applicant joined the business as an employee, where her duties included assisting with the development of the business and with the daily operations of the stores, located at Chadstone and Burwood.

8. She stated that in 2002 she and her father had negotiated to buy shares in the business, but uncertainty arising from the impending cancellation of the business visas persuaded them not to continue with the proposal at that time. However, she said that her work with the business and its success had convinced her to proceed with the purchase. On 10 September 2003 she signed an agreement with the other two directors (Exhibit A5) to buy an ordinary share for $100,000, and she became an equal shareholder and director of the business.

9. The applicant stated that her position with the business is very challenging, as she set up the computer system and is responsible for staff, ordering of stock, display of goods and monitoring of creditors. She said that she is fearful of returning to Indonesia because of the uncertainties facing a 28 year-old female in finding worthwhile employment, in addition to the difficulties of establishing her own business. She expressed the view that Australia has given her an opportunity to realise her potential as an individual, and she no longer lives in the shadow of her family. The applicant stated that she could anticipate undergoing trauma if forced to return.

10. The applicant described her activities in the Catholic Church and stated that she has many friends in Australia. She stated that she loves having the freedom to express her religious beliefs as well as showing emotion, and said that these freedoms are not available in Indonesia. She noted that four years in Australia have enabled her to grow into a mature woman who operates a business and is an independent and successful person. She stated that she would suffer great hardship if forced to return to Indonesia.

11. In oral evidence the applicant stated that her father provided the funds for her investment in the business, and she draws an annual salary. She said that she grew up in Bandung, Indonesia, and her parents, extended family and friends live there. She told the Tribunal that she was a practising Catholic before arriving in Australia, but Indonesia is a Muslim country and the situation for followers of other religions is insecure. The applicant stated that she feels comfortable in Australia among her friends, and has less pressure than she experienced when living with her parents. She also said that in Indonesia her Chinese background would disadvantage her.

12. Under cross-examination the applicant agreed that she has returned to Indonesia three times for holidays since her arrival in Australia, and that she stayed with her parents on each occasion and attended the Catholic Church there. She also said that her father did not proceed with his application for review of the cancellation of his visa because he wished to concentrate on his business interests in Indonesia. She confirmed that her father is supporting her business venture by the loan of $100,000, which she must repay, but she assured the Tribunal that she would not seek his assistance if she was forced to return to Indonesia. The applicant expressed doubt that her tertiary qualifications or her experience in business would be of significance in Indonesia, in the absence of an extensive network of relevant persons or organisations. She said that her brother is expected to return to Indonesia at the conclusion of his studies to work in their father's business.

13. In a statutory declaration dated 23 September 2003 signed jointly with Mr F. Djung (Exhibit A2), a Ms A. Kartawidjaia said that she and her husband are the other directors of the business, and that they persuaded the applicant to become a director after meeting her through a mutual friend. She described the applicant as a kind and active member of the Catholic Church, and a very independent and capable person who enjoys business. Ms Kartawidjaia stated that she believed that the applicant would have considerable difficulty in adjusting to life outside Australia, and would not have similar business opportunities in Indonesia.

14. In oral evidence Ms Kartawidjaia said that she and her husband would also suffer hardship if the applicant was forced to leave Australia, as they may have to sell the business. She said that the applicant's status, as a 28 year-old single woman of Chinese background, would cause difficulties in starting a business or finding employment in Indonesia. In cross examination Ms Kartawidjaia agreed that she was aware at the time the applicant became a director of the business that the applicant`s visa had been cancelled, but she wanted to help the applicant as well as utilise the applicant's expertise in information technology.

15. The applicant produced a number of letters of support (Exhibit A4) from friends, former colleagues and members of her Church. The writers described her as honest, hard-working, capable, community-minded and an asset to Australia.

CONSIDERATION OF THE ISSUES

16. Section 134(5) of the Migration Act 1958 Act (the Act) provides in relation to a visa held by a person who is a member of the family unit of a person whose business visa has been cancelled:

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.

17. Mr Gibson referred the Tribunal to Re Setiawan and Minister for Immigration and Multicultural Affairs [2002] AATA 260 in which the Tribunal noted that the meaning of 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 page 487:

....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...A full and proper consideration of the person allegedly suffering the hardship or prejudice must be undertaken...

...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...

18. Mr Gibson noted that in the applicant's four years in Australia she has formed a wide network of friends, is committed to the Australian way of life and has contributed to the community through her business skills and her involvement with the Catholic Church. He said that she has become a self-reliant and independent person. Mr Gibson submitted that cancellation of the visa would have a serious effect on the applicant at a personal level, as she would be required to re-establish her life in a changed environment, which includes a difficult family situation. He said that the opportunities presented by her involvement with the business would not exist in Indonesia. Mr Gibson referred to the applicant's status as a single 28 year-old female Christian, of Chinese background, in a Muslim country. Mr Gibson submitted that these matters should be viewed together and the question should be determined as a unique combination of factors. He submitted that in the circumstances of this case the applicant would suffer an ascertainable burden of hardship that would constitute extreme hardship under the Act if her visa was cancelled.

19. Ms Priskich referred the Tribunal to Re Wang and Minister for Immigration and Multicultural Affairs [2000] AATA 961 in which the Tribunal stated at paragraph 29:

...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.

At paragraph 30 the Tribunal stated:

...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...

20. Ms Priskich also referred to Re Salim and Minister for Immigration, Multicultural and Indigenous Affairs (2002) 36 AAR 42 and Re Chen and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 628. She noted that the applicant has been in Australia for a relatively short period and that she arrived as an adult, having already completed an undergraduate degree in Indonesia. She stated that the applicant has parents, extended family and friends in Indonesia and submitted that there was no evidence that the applicant would lack support from her family if she returned to Indonesia. Ms Priskich noted that the purchase of a share in the business occurred almost six months after the decision to cancel her visa, so at that time the applicant must have understood the possibility that her involvement with the business might be disrupted. She noted that the applicant has the option of applying for a business skills visa in her own right on the basis of her activities with the business.

21. Ms Priskich conceded that the applicant would suffer some hardship if forced to return to Indonesia. However, she submitted that the applicant's business skills and qualifications could be used to establish a business or obtain employment in Indonesia. She said that there was no credible evidence that the applicant would be unable to continue to follow her religious beliefs in Indonesia, or that her status as a single woman of Chinese background would prevent her from having a successful business and personal life.

22. In reaching its decision the Tribunal takes into account the documentary and oral evidence and the submissions made at the hearing.

23. The Tribunal notes that the applicant has been in Australia for four years and was an adult when she arrived. The Tribunal accepts that she is a competent person, of good character, who is held in high regard by friends, colleagues and members of her Church. The Tribunal finds that she has made a valuable contribution to the activities of the business and has made practical use of her qualifications and experience.

24. There is no doubt that the applicant enjoys living in Australia and that cancellation of the visa would cause disruption to her established lifestyle and to her business activities, particularly as the business is already beginning to return a profit. However, the Tribunal accepts the submission by Ms Priskich that the applicant purchased a share of the business several months after the decision to cancel her visa, so she was aware of the possible risk to her continued involvement in the business when she decided to proceed with the purchase.

25. The Tribunal takes into account that the applicant is a single 28 year-old female Christian, of Chinese background. However, there is no persuasive evidence that these factors would necessarily lead to hardship if her visa was cancelled. She practised her religion before arriving in Australia and during her subsequent visits to Indonesia. She now has postgraduate qualifications in a business-oriented field, together with practical experience in the establishment and operation of a successful retail business. The Tribunal accepts that the applicant has become independent and self-reliant, and is satisfied that these attributes would assist her in seeking employment or establishing her own business in Indonesia. The applicant has provided no objective evidence of discrimination against women in general or single women in particular, or against persons of Chinese background, that would prevent her from seeking employment or establishing her own business in Indonesia.

26. The applicant stayed with her family on the three occasions she returned to Indonesia for holidays, and the Tribunal accepts the submission by Ms Priskich that there is no indication that her family would fail to support her in any business venture or application for employment in Indonesia. She has an established network of immediate and extended family, together with friends, in Bandung and would appear to be well placed to pursue employment or business opportunities in that city. The applicant's father has his own business in Indonesia and provided the funds for the purchase of a share of the business, and there is no evidence that he is seeking prompt repayment of the loan.

27. The Tribunal notes that in Re Huang and Minister for Immigration and Multicultural Affairs [2002] AATA 656 the member of the family unit had not lived in his home country for twelve years and had lost contact with that country. In Re Salim Deputy President Purvis said at paragraphs 46 and 47:

...

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.

28. The Tribunal agrees with Mr Gibson that the all matters should be taken together when assessing the level of hardship to the applicant. In considering all the relevant material, and for the reasons set out above, the Tribunal finds that the applicant has not demonstrated that the level of hardship would be extreme for the purposes of the Act. Therefore, under s134(5) of the Act, the Tribunal finds that cancellation of the applicant's business skills visa would not result in extreme hardship to her.

DECISION

29. The Tribunal affirms the decision under review.

I certify that the twenty-nine [29] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd) Olympia Sarrinikoloau

Clerk

Date of hearing: 28 November 2003

Date of decision: 4 December 2003

Counsel for applicant: Mr J. Gibson

Solicitor for applicant: Lai & Hamilton

Advocate for respondent: Ms V. Priskich

Solicitor for respondent: Blake Dawson Waldron