Chen v Minister for Immigration & Anor [2011] FMCA 23

such that the cancellation of the Applicant's visa could not be cancelled (sic)[2] as the prescribed notice was not given within the three year period prescribed by s 134(9).

1. As to B, the applicant claims that the Tribunal misinterpreted and misapplied the law in relation to whether s 134(5) applied to the Applicant:
   1. in determining whether the Applicant would suffer extreme hardship for the purposes of ss 134(40 and 134(50 of the Act, the Tribunal erroneously took into account the situation of 'many students', rather than the Applicant's personal circumstances.
2. As to C, the applicant claims that the Tribunal's decision is so unreasonable and or not supported by probative evidence as to be invalid:
   1. In determining whether the Applicant would suffer extreme hardship for the purposes of ss 134(4) and 134(50 of the Act, in circumstances where the Applicant's application for Australian Citizenship had been approved, but where citizenship could not be granted if the Applicant's permanent residence visa was cancelled, the Tribunal unreasonably and without any probative evidence:
   2. speculated that the Applicant might somehow obtain permanent residence in the future by way of an unstated visa class; and should permanent residence be granted
   3. posited that the Applicant might in the future then be able to apply for Australian Citizenship.

1. The primary visa holder is Mr Minhua Chen, who is the applicant's father. Mr Chen (senior) applied for a Business Skills - Business Talent (Migrant) (Class EA) (Subclass 132) visa along with his wife, his daughter, and the applicant.
2. On 30th March 2006, a delegate of the Minister for Immigration and Citizenship notified Mr Minhua Chen that he and his wife and children had been granted Subclass 132 visas, subject to the condition that they entered Australia by 20th August 2006. They entered Australia on their visas on 7th July 2006.
3. On 25th June 2009, a delegate of the Minister wrote to the applicant. The letter was headed Notice of Intention to Consider Cancellation of your Visa.
4. The letter said (in part):
   • I am writing to notify you that there may be grounds to consider cancellation of your Business Skills visa. Please read this letter carefully as it contains important information about the Minister's powers to cancel your visa, your opportunity to make representations about the proposed cancellation, as well as the consequences of having your visa cancelled....
   • Reasons for Considering Cancellation
   • On 25 June 2009, Mr Minhua Chen was sent a Notice of Intention to Consider Cancellation of his Business Skills visa under section 134 of the Act. As you were granted a visa because Mr Minhua Chen was granted a visa, your Business Skills visa must be cancelled.
   • Opportunity to comment
   • The Act gives you the opportunity to comment on these grounds for cancellation. Your representation should say why you think the cancellation of any visas held by you and members of your family unit (eg dependent children) would result in extreme hardship. You may include documents that support your claims.[3]
5. A delegate of the Minister decided to cancel the applicant's visa on 21st October 2009. In the delegate's Record of Decision, the delegate noted;

• I received a written response from Mr Minhua Chen through Mr John Han on 23 July 2009 via email to the notice of intention to cancel.
  • No claims were made that the cancellation would result in extreme hardship for members of the family unit.
  • Part D: Whether To Cancel
  • No claims have been made by any members of the family unit that extreme hardship would be suffered as a result of their visa being cancelled. In the absence of any other information, I do not consider the cancellation of their visas would result in extreme hardship to any of the family members.
  • Part E: Decision to Cancel
  • Having already cancelled the visa of Mr Minhua Chen, I have decided to cancel the Business Skills visas held by:

as I am satisfied that members of the family unit would not suffer extreme hardship as a result of visa cancellation.[4]

1. That same day, the delegate wrote to the applicant, giving him notice that his visa had been cancelled. The letter stated (in part):
   • The Migration Act 1958 (the Act) provides that where a person's visa is cancelled under section 134 of the Act and another person holds a visa only because the person whose visa is cancelled a visa, then the Minister must cancel the other person's visa by giving written notice. On 21 October 2009, Mr Minhua Chen's visa was cancelled under section 134 of the Act. As you were granted a visa because Mr Minhua Chen was granted a visa, your visa must be cancelled:
   • At the time of notifying both yourself and Mr Minhua Chen of my intention to consider cancellation of your visas, you were given the opportunity to make representations about whether you would suffer any extreme hardship as a result of having your visa(s) cancelled. As no representations about hardship were made, your visa(s) has been cancelled under section 134 of the Migration Act. A record of my decision is attached.[5]
2. On 1st February 2010, the applicant applied to the Administrative Appeals Tribunal for review of the delegate's decision. The Tribunal heard the application, along with that of his father, mother and sister, on 28th June 2010 and handed down its decision on 9th July 2010, affirming the delegate's decision.

1. In its Reasons for Decision, the Administrative Appeals Tribunal defined the issues in relation to the applicant, his mother and his sister, as:
   1. whether the decisions to cancel their visas were made in accordance with the provisions of the Act; and
   2. whether their visas should not be cancelled because they will suffer extreme hardship as a result.[6]
2. The applicants argued that it was a condition precedent to the valid exercise of the delegate's power to issue a notice proposing to cancel the visas[7] held by the secondary visa holders, Mr Ting Chen, Ms Fan and Ms Chen, that the visa held by the primary visa holder, Mr Minhua Chen, had already been cancelled. The applicant relied on the decision of Lander J in Zhong v Minister for Immigration and Citizenship[8], which considered when a Notice under s 107 of the Act could be issued for the purposes of a cancellation under s 190 of the Act. Lander J held at [72]:
   • In my opinion, s 107 is only engaged where the Minister, or relevantly a delegate of the Minister, has concluded that the holder of a visa has not complied with one of the sections or subsections mentioned in s 107(1). It is only in that case that the Minister or the delegate is entitled to give notice to the visa holder in accordance with that subsection. Section 107 is engaged because the minister, or a delegate of the Minister, has reached a state of mind where they consider that the holder of a visa has not complied with a relevant section.[9]
3. However, the Tribunal followed its own decision in Lin and Minister for Immigration and Citizenship[10], distinguishing the decision in Zhong v Minister for immigration and Citizenship and rejecting the argument that the cancellation of the visa holder's visa is a pre-condition or a condition precedent to the issuing of a notice to the secondary visa holder under s 135 of the Act.[11]
4. The Tribunal noted that the applicant had spent nearly nine months in

Australia in 2007 and seventeen months in Australia in 2008/2009, departing on 21st July 2009. The Tribunal took note of the applicant's statement that said:

1. He loved the life and people in Sydney; 2. He had made several friends;

1. He applied for Australian citizenship on 11th June 2009.
2. It was argued by Mr Dobbie, for the applicant, that if his visa were cancelled he would be unable to attain Australian citizenship, which would cause him extreme hardship.
3. The Tribunal rejected that argument, saying:
   • In the Tribunal's view, Mr Chen's situation is similar to that of many students who have studied in Australia. The fact that his business visa has been cancelled does not prevent him from applying for a visa on his own account. Ultimately, if he is granted a visa entitling him to permanent residency, he may in future be able to apply for Australian citizenship. Thus, while Mr Chen may have preferred another outcome, the Tribunal is not satisfied on the basis of the evidence before it that he will suffer extreme hardship if his visa is cancelled, and we are satisfied that s 134(5) does not therefore apply.[12]
4. The Tribunal affirmed the delegate's decision.

1. The applicant filed his application on 6th August 2010, along with an affidavit in support by Ma Rosario Xiella Devine, solicitor, annexing a copy of the Tribunal decision.
2. The applicant's solicitor filed a written outline of submissions on 4th November 2010. The first respondent's solicitors filed their outline of submissions on 12th November 2010.
3. The application was heard by way of submissions on 17th November 2010.

1. The applicant's solicitor, Mr Dobbie, submitted that the Administrative Appeals Tribunal (AAT) had committed jurisdictional error in rejecting the argument that it was a condition precedent to the valid exercise of power to give the s 135 notice that the visa held by Minhua Chen had to have been cancelled before the notice could be given.
2. Although it was not directly on point, the applicant relied on the decision of Lander J in Zhong v Minister for immigration and Citizenship[13], particularly at [71] and [72]. The submission is that the AAT fell into error by following its earlier decision in Lin and Minister for Immigration and Citizenship[14], where Handley DP distinguished the decision in Zhong on the facts, stating that:
   • ...it was concerned with non-compliance and the relevant section of the Act in that case required the Minister to have first decided that the holder of the visa had not complied with specific provisions of the Act before giving the holder of the visa a notice. While s 134(4) is subject to s 134(5) and s 135, s 134(4) is purely about cancelling visas by giving written notice of cancellation to the visa holders, and does not itself deal with the grounds for cancellation. There is no requirement in the subsection for the Minister to have attained a particular state of mind.[15]
3. The applicant's submission is that, contrary to the AAT's finding, a prescribed state of mind is required before the s 135 notice can be given. That state of mind, prescribed in clear language by s 135(1)(a), is that the Minister "proposes to cancel the visa: held by the applicant.
4. The only time that state of mind can exist is when the visa held by the primary visa holder has been cancelled under s 134(1). The power under s 134(4) is only enlivened if the primary visa holder's visa has been cancelled under s 134(1).
5. The thrust of the applicant's argument is that the Minister is not permitted to give notice under s 135 for the purposes of a cancellation under s 134(4) until the primary visa holder's visa is cancelled. The construction of the legislation, given the interaction between ss 134 and 135, requires it. Mr Dobbie referred the decision of Gleeson CJ in Plaintiff S157/2002 v The Commonwealth of Australia[16], where his Honour said at [19]:
   • Later again, in R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section[17], Dixon J referred to "imperative duties or inviolable limitations or restraints" which may be imposed by legislation, contravention of which would not be protected by a privative provision. To describe the duty as imperative, or a restraint as inviolable, is to express the result of a process of construction, rather than a reason for adopting a particular construction; but it explains the nature of the judgment to be made. Because what is involved is a process of statutory construction, and attempted reconciliation, the outcome will necessarily be influenced by the particular statutory context.
6. Mr Dobbie submitted that there was an absurdity relating to the time to respond to a s 135 notice on the construction adopted by the AAT, namely, that s 135 contains different time limits to respond to a notice:
   1. A visa holder has 28 days to respond if notice is given in Australia; but
   2. A visa holder has 70 days to respond if notice is given outside Australia.
7. The absurdity that is argued is that if the secondary visa holder was given notice in Australia but the primary visa holder was given notice outside Australia, the secondary visa holder would have to respond within 28 days, before the primary visa holder, who would have 70 days to respond.
8. It was further submitted that another absurdity would arise if the Minister were to give a section 135 notice to a secondary visa holder without reference to a primary visa holder at all.
9. The submission is that it is a precondition to the giving of a s 135 notice that the primary visa holder's visa has been cancelled pursuant to s 134(1) before the notice could be given, as the state of mind required by s 135(1)(a) could not exist before that cancellation occurred.
10. As to the second leg of the ground, it was submitted that the AAT committed jurisdictional error by failing to have regard to the applicant's personal circumstances. The applicant had claimed that he would suffer extreme hardship if his visa were to be cancelled, because:
    1. in his mind and his heart he had committed fully to Australia;
    2. he had applied for Australian citizenship; and
    3. the cancellation of his visa has devastated him and prevented him form becoming an Australian citizen.
11. Mr Dobbie submitted that, despite correctly stating that the test for extreme hardship is a subjective test requiring a full consideration of the applicant's personal circumstances, the Tribunal had erroneously applied an objective test by comparing his situation to that of many other students who had studied in Australia.
12. The third leg of the ground is that the Tribunal's decision is so unreasonable and or not supported by probative evidence that it is invalid. Mr Dobbie submitted that the Tribunal, in circumstances where the applicant's application for Australian citizenship had been approved, but where citizenship could not be granted if his permanent residence visa was cancelled, the Tribunal unreasonably and without any probative evidence:
    1. speculated that the applicant might somehow obtain permanent residence at an unspecified time in the future by way of an unstated visa class, and, if that were granted;
    2. posited that the applicant might then be able to apply for Australian citizenship.
13. However, he submitted, there was no evidence that the applicant would be eligible for a visa entitling him to permanent residence. It was unreasonable to determine the applicant's claim of extreme hardship on the basis of baseless speculation. There was, therefore, a failure to give a proper consideration to the applicant's claims, which constitutes jurisdictional error.
14. Mr Dobbie referred to the decision of the High Court in Minister for Immigration and Citizenship v SZMDS[18], where Crennan and Bell JJ held at [130]-[131] that:
    • 130. In the context of the Tribunal's decision here, 'illogicality' or 'irrationality' sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence....
    • 131. ...but, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based.

1. Mr Potts of counsel appeared for the Minister.
2. As to the applicant's first ground, or the first leg of the ground, that the cancellation under s 134(1) of the visa held by the primary visa holder is a condition precedent to the valid exercise of power to give notice to a secondary visa holder under s 135(1), Mr Potts submitted that there was a logical fallacy in the applicant's argument that there needs to be a prescribed state of mind before a section 135 notice can be given. The fallacy is the assumption that the state of mind can only exists in relation to a secondary visa holder once the primary visa holder's visa has been cancelled.
3. It was submitted that the legislative scheme envisages that the Minister will have reached a point at which he intends to cancel the visa, subject to consideration of any representations that the visa holder wishes to make. In sending a section 135 notice to the secondary visa holder, the Minister is indicating an intention to cancel the primary visa holder's visa; as a consequence the Minister would cancel the visa held by the secondary visa holder.
4. Mr Potts submitted that there was no absurdity in respect of the fact that there are two different periods of time prescribed for making representations, 28 days and 70 days, depending on whether the visa holders are inside or outside Australia at the time the notice is given. Further, it was submitted that the applicant had not explained how in practice a situation would arise where the Minister would give a section 135 notice to a secondary visa holder without reference to the primary visa holder.
5. In respect of the applicant's claim that the Tribunal misinterpreted and misapplied the law in relation to s 134(5) by taking into account the situation of 'many students' rather than the applicant's personal circumstances in determining whether he would suffer extreme hardship, Mr Potts submitted that this was not an accurate characterisation of the way that the Tribunal dealt with the claim of extreme hardship.
6. The Tribunal had taken the applicant's personal circumstances into account and the claimed bases on which he said he would suffer extreme hardship. There was nothing impermissible in the Tribunal contrasting the applicant's situation with those of others in order to make some assessment of the relative level of hardship he might face if his visa were to be cancelled. The term 'extreme' was a comparative term which invites comparison wit other levels of hardship. Nothing in the text of s 134(5) prevents the Tribunal from considering whether the circumstances which would befall the applicant upon the cancellation of his visa would involve a level of hardship which was more or less extreme than that which would be experienced by students in a similar position.
7. It was put to the tribunal that the applicant was already mentally committed to becoming an Australian citizen and that the cancellation of his visa would prevent this from happening. The Tribunal addressed that argument by finding that he might be able to obtain a visa entitling him to permanent residency and thereby attain Australian citizenship that way.
8. As to the third leg of the applicant's ground, that the Tribunal's decision was so unreasonable and not supported by probative evidence as to be invalid, Mr Potts submitted that the Tribunal decision in relation to extreme hardship was plainly open to it. There was no illogicality or irrationality in what the Tribunal did.

1. It is argued that the s 135 notice given to the secondary visa holder is invalid because it is a condition precedent that the primary visa holder's visa must actually have been cancelled before the notice is sent to the secondary visa holder. It was further argued that the Minister needs to have a particular state of mind, namely that the Minister proposes to cancel the visa, which can only come into existence in respect of the secondary visa holder's visa has been cancelled.
2. Subsection 134(4) provides:
   • 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 not 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.
3. However, subsection (5) provides the circumstance in which the secondary visa holder's visa must not be 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.
4. Again, s 135(1) requires the Minister to give written notice to a visa holder:
   • Before cancelling a visa under subsection 134(1), (3A) or (4), the Minister must give its holder written notice:
   • (a) stating that the Minister proposes to cancel the visa; and
   • (b) inviting its holder to make representations to the Minister concerning the proposed cancellation within:
     • (i) if the notice is given in Australia - 28 days after the notice is given; or
     • (b) if the notice is given outside Australia - 70 days after the notice is given.
5. Subsection 134(4) requires the minister to cancel the visa of the secondary visa holder once the primary visa holder's visa has been cancelled, unless the cancellation of the secondary visa holder's visa would result in extreme hardship to that person (s 134(5)). This is subject to the requirement under s 135 that the Minister must give both the primary visa holder and the secondary visa holder the opportunity to make representations within specified period of time. The primary visa holder can, of course, make representations about matters pertinent to subsections (1) or (3A), noting the guidelines, which are non-exhaustive, set out in subsection (3). However, the secondary visa holder can only make representations about extreme hardship.
6. In my view, it does not follow that the Minister can only call on the secondary visa holder to make representations under s 135 once the primary visa holder's visa has been cancelled. The decision to cancel the primary visa holder's visa will normally be made after considering all the representations made by the primary visa holder. If those representations are unsuccessful, the visa will be cancelled. It follows that the visa of the secondary visa holder will also be cancelled, unless that person satisfies the Minister that this cancellation would result in extreme hardship.
7. To my mind, there is nothing in either s 134 or s 135 that requires the Minister to wait until the primary visa holder's visa is actually cancelled before issuing under s 135 to the secondary visa holder giving him or her the opportunity to make representations on the limited issue of extreme hardship.
8. The language of the sections does not require the decision to be made to cancel the visa of the primary visa holder before issuing a notice under s 135 to the secondary visa holder. As the cancellation of the secondary visa holder's visa must follow unless it would result in extreme hardship, it would clearly be more practical for the Minister to have that information available at the time of cancelling the visa of the primary visa holder.
9. The argument raised about an "absurdity" arising from different of time, 28 days or 70 days, according to whether the visa holders are in Australia or outside Australia does not, with respect, lead anywhere. I am unable to discern any absurdity in practice, just as I am unable to envisage a situation where a section 135 notice would be given to a secondary visa holder without reference to the primary visa holder. There would be no point in doing so, because the cancellation of the secondary visa holder's visa flows from the cancellation of the visa of the primary visa holder.
10. It can certainly be said that the cancellation of the primary visa holder's visa is a condition precedent to the cancellation of the secondary visa holder's visa under s 134, but it is not a condition precedent to the giving of notice under s 135.
11. The first leg of the applicant's ground of review has not been made out.
12. The applicant has also argued that the Tribunal fell into error by failing to consider the applicant's claim of extreme hardship subjectively. Instead, he claims that the Tribunal erroneously applied an objective test.
13. What the Tribunal did was to consider the applicant's claims of the hardship he would suffer, set out in paragraphs [54] and [55] of the decision. The Tribunal noted:
    • There is no specific evidence of hardship.[19]
14. The Tribunal then, in paragraph [56], equated the applicant's situation to that of many students who have studied in Australia and noted that there was nothing top prevent him from applying for some other sort of visa on his own account. That could well lead him to obtaining permanent residence and eventually citizenship.
15. That, with respect, is not speculative. It is no more than a consideration and evaluation of the applicant's claim. The Tribunal noted that there was no specific evidence of hardship, and what its examination of the applicant's claim was doing was considering that claim against the test for extreme hardship set out in Man Ki Kim v Minister for Immigration and Ethnic Affairs[20], where Foster J held at 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. 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.
16. What the applicant claimed was that he was "devastated" by the cancellation of his visa because it would prevent him form becoming an Australian citizen, which he had committed to doing. All the Tribunal was doing was noting that many people would be in that situation, and it was looking for some evidence from the applicant that this situation would impose extreme hardship on him, which he had failed to provide. The Tribunal could hardly be expected just to accept the applicant's claim that he was "devastated" without being provided with information as to why that was the case.
17. The applicant did not provide any evidence that the cancellation would cause more hardship to him than it would to any other person in a similar situation, for reasons that were peculiar to him. The Tribunal's task was to evaluate his claim that the hardship that would result would be extreme hardship, rather than a lesser form. Hardship is not an absolute, it is a relative term.
18. The Tribunal applied the test correctly and did not fall into error.
19. As to the applicant's claim that the Tribunal's decision was so unreasonable, illogical or irrational that no rational or logical decision maker could arrive at such a decision, I am far from persuaded that this claim has been made out.
20. The applicant claimed that the cancellation would cause him extreme hardship because it would deprive him of the chance to obtain permanent residence and eventually citizenship. The Tribunal was not satisfied on the basis of the evidence he provided that he had established his case.
21. There is nothing unreasonable, irrational or illogical about that.
22. The applicant has not succeeded in establishing that the Tribunal fell into jurisdictional error and, in the absence of such error, his application must fail.
23. The application will be dismissed.
24. I will consider the question of costs. The applicant is an adult and is not under any disability. It is normally the case that costs follow the event.

I certify that the preceding 70Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !seventyseventy (70) paragraphs are a true copy of the reasons for judgment of Scarlett FM

[2] There appears to be a typographical error in this sentence. It presumably refers to the visa not being able to be cancelled.

[7] A notice under the provisions of s 135 of the Migration Act

[8] [2008] FCA 507; (2008) 171 FCR 444

[9] [2008] FCA 507; (2008) 171 FCR 444 at [72]

[10] [2009] AATA 938

[15] [2009] AATA 938 at [17]

[18] [2010] HCA 16; (2010) 266 ALR 367

[20] [1995] FCA 1088; (1995) 37 ALD 481