IMMIGRATION & CITIZENSHIP - cancellation of business visa - applicant granted visa as a member of the family unit of business visa applicant - applicant's husband's visa cancelled - Minister under obligation to cancel applicant's visa unless this would result in extreme hardship - whether applicant would face extreme hardship if visa cancelled.

Migration Act 1958 - s 134

Dell v Dalton (1991) 23 NSWLR 528

FG O'Brien v Elliott [1965] NSWR 1473

Man Ki Kim v Minister for Immigration and Ethnic Affairs [1995] FCA 1088; 37 ALD 481

Re Kabalan [1993] FCA 76; (1993) 113 ALR 330

03 November 2000 Mr B.J. McMahon (Deputy President)

1. This is an application to review a decision made by a delegate on 20 September 1999, cancelling the applicant's business visa pursuant to section 134(4) of the Migration Act 1958.

2. Business visas are issued to selected applicants who satisfy the Minister's requirements concerning the establishment of an eligible business in Australia. A visa is also issued to a person who is a "member of the family unit" of the visa applicant. If the primary visa is cancelled, then the Minister is obliged to cancel the secondary visa of a family member, subject to the provisions of subsections (4) and (5) of section 134. These subsections are in the following terms:

"(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;

(5) The Minister must not cancel the other's person's business visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person."

3. In the present case, a business visa was issued to the applicant's former husband and to the applicant as a member of his "family unit". After they had migrated to Australia, there were difficulties in the marriage which subsequently led to a divorce. The applicant's husband (Wing Hin Lau) returned to Hong Kong and indicated to the Department that he did not intend to comply with his obligations under his visa. It was accordingly cancelled on 27 March 1998. The applicant was given notice of an intention to cancel her visa. After considering submissions made on her behalf, the reviewable decision was arrived at.

4. There is no doubt that the Minister is under an obligation to cancel the applicant's business visa unless that cancellation would result in "extreme hardship" to the applicant. The question to be resolved in these proceedings is whether that consequence "would result" in terms of subsection (5).

5. The applicant was born in Shanghai on 20 March 1970 and remains a citizen of the People's Republic of China. At the age of 15 she moved with her parents to Shenzhen, a city about one hour removed from Hong Kong. She completed five years of primary education and six years of secondary education, leaving school at the age of 18 in 1988. She had a reasonably steady experience of employment in Shenzhen after leaving school.

6. She was employed with Southern Country Entertainment Centre as a bookkeeper from July 1988 until November 1992. From January 1993 until August 1995, she was employed as an accountant with the Empire Hotel. With the help of a friend, she obtained employment with Shenzhen Development Bank as an accountant in January 1996. She remained with the bank until she left of her own accord in December of that year, intending to travel with her husband to Australia within a few months.

7. Breaks in her employment occurred because of changes in ownership or because of other reasons for temporary redundancies. There was some evidence from the applicant of her pursuit of new employment after each break and of the interviews she was obliged to attend in competition with other applicants. Her periods of unemployment, however, are not remarkable. Because of its proximity to Hong Kong, Shenzhen is particularly fortunate and, as the applicant agreed, enjoys many employment opportunities for suitably qualified people.

8. In March 1990, her parents were divorced. Since then she has had little contact with her father. She last spoke to him by telephone in 1996. Her mother continues to live in her own house in Shenzhen.

9. She met Wing Hin Lau in July 1992. After a period of courting they married on 4 February 1994. In December 1995, he applied in Hong Kong for a business visa as he was concerned about the pending Hong Kong takeover. After the visa was issued, the applicant ceased employment with the bank at her husband's request. A few months later, they travelled to Australia, arriving on 15 February 1997.

10. Initially, the applicant and her husband lived at her sister-in-law's home in Melbourne. In late March 1997, Mr Wing's mother arrived in Australia to live with the couple. This was not a successful arrangement. The evidence was that quarrels followed. In April 1997, a new villa in Melbourne was rented and, shortly thereafter, the applicant and her husband separated. The applicant continued to live alone in the villa while her husband returned to Hong Kong.

11. Divorce proceedings were instituted by her husband on 11 December 1997 in the District Court of Hong Kong, Divorce Jurisdiction. The divorce has since taken place but maintenance arrangements have not yet been finalised. On 24 September 1998 the Court made an order requiring the applicant's husband to pay to her HK$8,000 per month (the current rate of exchange is approximately HK$5 to the Australian dollar). From this amount, HK$3,200 has to be repaid for legal aid which financed her court case. The remaining HK$4,800 continues to be paid to the applicant in Australia each month. Obviously the legal aid debt will be repaid one day but the applicant was unable to say when that would occur. Their litigation continues as the applicant is seeking to obtain a lump sum from her former husband.

12. The applicant's mother continues to live in her house in Shenzhen. She has been diagnosed with terminal lung cancer. She has lived in the United States of America from time to time and has a "green card" for that country. Although she presently lives in Shenzhen and is subject to medical checks every three months, she has been an occasional patient in a hospital in Shanghai over the last few years. It was the applicant's evidence that her mother proposed to sell the house and return to the United States of America for additional medical treatment. The proposal to sell the house, however, has been on foot for some time. In the meantime, the applicant has continued to stay in the house with her mother whenever she visited Shenzhen and, if required to leave Australia, would be able to resume living there.

13. The applicant had a circle of friends in China before she left in February 1997. She said in her statement that the last time she had any contact with her friends was in about February 1998 when she wrote to them, but received no reply. She has been back on a number of occasions to Shenzhen. It would be strange if she had not made some contact with at least some of those friends on those occasions. In fact, during the course of her cross examination she agreed that on some of these visits she was successful in meeting some of her old friends.

14. Since arriving in Australia in February 1997, the applicant has spent only 26 of the last 44 months in this country. She left Australia on 18 July 1997, returning on 7 September 1997. This relatively short visit was to the United States of America to visit her mother who was then living in that country.

15. She again departed from Australia on 30 November 1997 and did not return until 14 February 1998. During that time she was in Shenzhen dealing with her divorce. It was necessary for her to apply for legal aid and to instruct solicitors in Hong Kong. During that time she stayed at her mother's house.

16. She again left Australia on 31 May 1998 and did not return until 15 November 1998. During that period of five and a half months she was again in Shenzhen dealing with her divorce case. She again stayed in her mother's house. At that time, her mother was still living in the United States of America. Ms Wang said that she was not working during this period. She spent her time studying English at home.

17. She again left Australia on 7 January 1999 and was away until 27 May 1999. During this four and a half month period, she was in China to look after her mother who had by then returned to seek medical treatment in a hospital in Shanghai. The applicant stayed with her grandmother, who lives alone in that city. The applicant also has an aunt and other family members in Shanghai. During that visit, her mother's health stabilised and she returned to Shenzhen in May 1999, where she received further treatment at the Shenzhen Hospital.

18. The applicant was in Australia between May and August 1999 and then left for a further month. She went back to Shenzhen to look after her mother, returning in October 1999.

19. A similar visit took place from 16 January 2000 for one month. The applicant has remained in Australia since 14 February 2000. Her mother came to visit her in Sydney in August this year and stayed for one month before returning to Shenzhen where she still lives.

20. The applicant's case is that she would suffer extreme hardship if her visa was cancelled because of the following factors:

"I would be disadvantaged if I returned to China for the following reasons:

a) My mother who holds a green card for the USA is presently in China. She is dying of lung cancer. My father lives in China but I have not seen him since 1996 and then only briefly. My last contact with my father, other than in passing, was prior to my parents' divorce in 1990. I have no brothers or sisters.

b) My household registration is in Shenzhen and as such I can only live in Shenzhen. I have a grandmother from my mother's side who lives in Shanghai. There is no guarantee that the Government will permit me to reside in Shanghai as I was a former resident of Shenzhen.

c) My mother is planning to sell her house so that she can pay for medical treatment.

e) I have little prospects of obtaining employment. Several people who have recently arrived in Australia from Shenzhen and even Shanghai have told me that the prospects of me obtaining employment in Shenzhen is limited unless you have contacts or a recent university education. This is supported from what I have read in the Chinese newspaper and I have seen on SBS TV and my own experience.

f) I have no contact or friends in China. I would be isolated.

g) If I returned to China the maintenance that my ex husband currently pays me will be reduced. I am told by my lawyers in Hong Kong that if I return to China to live the Family Court in Hong Kong could order my exhusband to pay me no maintenance. My solicitors further inform me that I may not even receive a property settlement.

h) At present I am in full time employment 5 days a week. I am able to support myself with the money I receive from my husband and from my wages. I am able to live a healthier lifestyle than I could expect to live in China. I as a taxpayer am making a positive contribution back to the community.

i) I have a network of friends in Australia with whom I can look to for emotional support."

21. Some of the above matters have been established through evidence. Others are less certain. As to paragraph (c), the evidence is that although the applicant's mother was planning to sell her house in the future, she has been planning to do so for some time. She still lives in her house and, although terminally ill, was still well enough to travel to Australia this year. As to paragraph (d) it follows that, at this time, (which is the relevant time for decision making purposes) the applicant does have a home to return to in China.

22. As to paragraph (e) the fact is that the applicant has had good employment experience in Shenzhen in middle level positions. She stated that because of her age (30) and because in Shenzhen, which is a prosperous city and attracts a good deal of talent, many job applicants now have a master's degree or a PhD degree, she would be disadvantaged in finding work. The type of work for which the applicant is suited and in which she is experienced, clearly does not require the holding of higher degrees. The applicant has said that she is interested in pursuing her education if she does return to Shenzhen. Quite apart from any further qualification she may acquire, her life experience in the past few years has meant the acquisition of a certain facility in the English language. She is presently employed full time as a receptionist and sales assistant in a firm of optometrists in Sydney. On the evidence put before me, the applicant should have as good a chance as any other person with her education and experience in obtaining suitable employment. With her added language skills, she should have a better chance than most others in obtaining employment where there is a demand for those skills.

23. As to paragraph (f), I cannot accept that the applicant has no contacts or friends in China. She certainly has family. Her mother continues to reside in Shenzhen. Her grandmother, her aunt and her aunt's family are in Shanghai. On her visits to Shenzhen, she has been able to contact some but not all of her former friends.

24. She has made a friend of Jenny Mathews in Sydney. Mrs Mathews, who was born in Shanghai and is currently married to an Australian citizen, has become quite friendly with the applicant. In her evidence, she agreed that she would keep in touch with the applicant if Ms Wang returned to China. If Mrs Mathews returns to China with her new baby (as she intends to do) the applicant has invited her to stay with her. I cannot agree that a person who has lived in Shenzhen since the age of 15, who has been educated to secondary school standard in that city, and who has had many years of employment there, would be isolated if she returned.

25. As to paragraph (g), the court order requiring payment of HK$8,000 per month will continue until varied. Evidence from Hong Kong solicitors in letters tendered in the hearing was that the amount of maintenance might be reduced if she were to live in China because the living standard in China is lower than that in Hong Kong. Although this advice was not categorical, the solicitors were of the view that her place of residence would be taken into account by the Court. If it is, as one would expect, relevant to consider reducing maintenance because living costs are less than they were when the amount of maintenance was struck, then it follows that the applicant, in real terms, would be no worse off. If she returns to Shenzhen, she will, in addition, continue to be able to pursue her litigation to obtain a lump sum payment. All other aspects of the litigation to date have been conducted while she lived in that city, even though the proceedings were heard in a Hong Kong court.

26. The meaning of "extreme hardship" has not been considered in the context of subsection 134(5). It has been considered in other immigration contexts, particularly when used in conjunction with the phrase "irreparable prejudice". The explanatory memorandum and the second reading speech to Parliament when the legislation was introduced are not helpful.

27. In Man Ki Kim v Minister for Immigration and Ethnic Affairs [1995] FCA 1088; 37 ALD 481, Foster J considered the phrase "extreme hardship or irreparable prejudice". His Honour was concerned principally in considering whether the reasons given by the Immigration Review Tribunal in that case were adequate. However, in considering that adequacy, he had occasion to deal with the phrase "extreme hardship" dissociated from its accompanying words. At page 487 he said:

"..it is, in my opinion, important to approach the phrase "extreme hardship" in a broad way. Clearly, it imports a high degree, perhaps a very high degree of hardship, but it must be applied in the context of the facts of the particular case. "Hardship" is in itself a relative term. What may be a "hardship" to a sensitive person, or one in a particularly vulnerable situation, may be no great burden at all to a person of more stoical disposition or in a more protected situation. Similarly, the word "extreme" must be evaluated against the facts of the particular case. Such an evaluation cannot, consistently with the duties imposed upon the decision-maker by the Act, be approached in a dismissive or perfunctory fashion. A full and proper consideration of the person allegedly suffering the hardship or prejudice must be undertaken. Again, as emphasised in the passages cited, separate consideration must be accorded to the questions of "extreme hardship" and 'irreparable prejudice". They are different concepts.

"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 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 of continuum of hardship. It obviously connotes an area within which an ascertainable burden of hardship must find itself 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: cf Dell v Dalton (1991) 23 NSWLR 528; 14 MVR 158."

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 [1993] FCA 76; 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.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.J. McMahon (Deputy President)

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

Solicitor for the Respondent Sharon Hanstein (DIMA)