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[2002] AATA 899
respondent. The Tribunal affirmed the decisions cancelling the three applicants' secondary business visas. It concluded that the resulting hardship would not be extreme within s 134(5) [47]-[48].
The applicants' visas depended on their father's business visa. After his visa was cancelled, the law required cancellation of their secondary visas unless that would cause them extreme hardship. The Tribunal accepted that leaving Australia would be difficult for them because of their education, friendships, work, and personal lives. It considered their individual circumstances, including their family connections and visits to Indonesia, and decided that the hardship, though genuine, was not extreme enough to prevent cancellation.
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2,322 words · generated 02/10/2026
The Administrative Appeals Tribunal (AAT), constituted by Deputy President Purvis, considered three related applications by Fifi Pirana Salim, Sylvia Pirana Salim, and Fransnardo Harjo Salim. They sought review of decisions cancelling their secondary business visas under s 134(4) of the Migration Act 1958. Their visas had been granted because they were members of the family unit of their father, Kurnia Salim, who held the primary business skills visa [1].
No linked legislation citations have been extracted yet.
The statutory sequence was central. The Minister cancelled the father's primary visa under s 134(1) on 25 July 2001. His appeal to the AAT was dismissed, and the cancellation decision was affirmed on 21 March 2002 [1]-[2]. Section 134(4) then required cancellation of the family members' business visas, subject to the protection in s 134(5). Under that exception, the Minister must not cancel a secondary visa if cancellation would result in extreme hardship to that person [10].
The applicants had received notice of the proposed cancellation on 6 April 2001. The notice invited them to explain why their visas should not be cancelled and asked them to provide details of any extreme hardship they and the other visa holders might suffer. The Tribunal recorded that they seemingly did not respond to that invitation [3]. Their visas were cancelled on 25 July 2001, and they applied for review on 14 August 2001 [4].
Their circumstances differed, although the claims overlapped. Fifi had arrived in Australia at thirteen, had studied at school and university here, obtained science and technology-management qualifications, and was working in two jobs. She said she had few connections in Indonesia beyond her family, but she had returned there regularly and had parents, grandparents, and other relatives in Bandung [18]-[23].
Sylvia had spent more than ten years in Sydney, was studying for a Bachelor of Science, and had worked during her studies. She was also in a de facto relationship with a fellow student, whom she said might have to leave Australia if her own visa were cancelled. She described limited social connections in Indonesia, but had returned there several times and remained close to her parents [24]-[29].
Fransnardo had studied in Australia from his mid-teens and was completing a degree in industrial chemistry. He said that returning to Indonesia would interrupt his studies and make re-assimilation difficult. He had also returned to Indonesia on several occasions, had parents and grandparents there, and was financially supported by his parents [30]-[33].
The applicants also raised concern about being Chinese Indonesians, their limited familiarity with Indonesian culture, their social and career prospects, and the consequences of leaving friends and education in Australia [34]-[36]. The Tribunal heard oral evidence from each applicant and considered documents including personal statements and resumes [7]-[8]. The applications were heard together, with evidence in one also received in the others [5].
The Tribunal affirmed the cancellation decisions. Its conclusion was not that the applicants would suffer no hardship. It accepted they would. The decisive finding was that the hardship established did not meet the statutory description “extreme” [45]-[48].
The AAT framed the issue as whether cancelling each individual visa would result in extreme hardship to its holder [9]-[11]. It drew on the Federal Court’s discussion of “extreme hardship” in Man Ki Kim v Minister for Immigration and Ethnic Affairs and on AAT decisions in Siwei Wang and Setiawan [12]-[13]. The reasons describe hardship as a subjective assessment, requiring more than inconvenience or detriment, and requiring the effect on the person to be considerable [13].
The Tribunal also emphasised causation. The hardship had to be a necessary consequence of cancellation; a mere possibility or probability would not suffice. The focus was on consequences that would result from cancellation, assessed at the hearing date [14]. In applying that approach, the Tribunal distinguished the need to leave Australia, which was the contemplated legal consequence of cancellation, from the personal effects of leaving [44]. That distinction kept the inquiry focused on the applicants' likely experiences rather than treating departure itself as sufficient to establish extreme hardship.
The Tribunal accepted substantial parts of the applicants' evidence. They had spent formative years in Australia, received some or all of their secondary and tertiary education here, and developed relationships with friends and academic peers [45]. It acknowledged that leaving those people would be hard, and that adjusting to life outside Australia and away from university would also be difficult [46]. The reasons therefore do not deny that the applicants had established important lives in Australia.
The Tribunal's assessment nevertheless placed those difficulties below the statutory threshold. It considered that the applicants were relatively young, intelligent, and capable, and regarded the formation of relationships during years spent in Australia as neither strange nor unexpected [46]. It also had before it evidence of their regular visits to Indonesia and their family connections there. The Respondent had submitted that the applicants could receive support from family and could seek employment there; the Tribunal set out those submissions at [40]-[43]. The reasons do not treat every submission as an independent factual finding, but the overall assessment addressed the applicants' family, education, relationships, and likely adjustment.
The Tribunal's dispositive finding was that the resulting hardship was “unfortunate”, emotional, and to some degree financial, but not extreme [47]. It described the required threshold in terms of hardship that was exceptional or exceedingly great in degree. The conclusion was individual in formulation, but the same ultimate assessment applied to all three applications: the evidence did not show that cancellation would produce hardship of the necessary intensity [45]-[48].
The decision applied the statutory framework as it stood in the provisions quoted in the reasons. Section 134(4) required cancellation of a qualifying family member's business visa after cancellation of the primary visa, subject to s 134(5). Section 134(5) stated that the Minister must not cancel the secondary visa if cancellation would result in extreme hardship to the person [10]. The Tribunal did not question the operation of the statutory scheme in this case; it determined whether the exception applied to these applicants.
Before this decision, the meaning of “extreme hardship” had been considered in Man Ki Kim. The Tribunal reproduced the Federal Court's explanation that hardship is relative and must be assessed in light of the particular person's situation, while “extreme” denotes a very high degree of hardship [12]. It also referred to Wang and Setiawan for a subjective approach and the proposition that the statutory word “extreme” sets a higher threshold than hardship or undue hardship [13]. Those propositions form the interpretive materials identified in this decision; the judgment does not provide a full account of the earlier cases beyond the passages it quotes or summarises.
The present decision's contribution in this record is its application of those ideas to secondary business visa holders whose primary visa had been cancelled. It states that the relevant hardship must follow from cancellation and that the decision-maker should assess the actual consequences for each person [14], [44]. It then applies that framework to the applicants' education, personal ties, family connections, and circumstances on the hearing date [45]-[47].
The judgment does not establish that it changed or displaced the law. Nor does it provide a later history of the provision or indicate whether subsequent decisions adopted, limited, or rejected its approach. The decision is an AAT merits-review determination. The text records an affirmance of the decisions under review, not a superior-court ruling altering the statutory test [48].
At [14], the Tribunal says that hardship must be “a necessary consequence” of cancellation, and that a mere possibility or probability would not be enough. In plain English, the decision-maker must connect the claimed impact to the cancellation and assess what is expected to happen, rather than rely on speculative or remote possibilities. The same paragraph identifies the hearing date as the relevant date for the circumstances being assessed.
At [44], the Tribunal says that needing to leave Australia does not itself establish hardship, because leaving is the result contemplated by the cancellation scheme. In plain English, the inquiry is not simply whether departure will occur. It is what that departure will mean for the particular person, including the consequences for relationships, education, finances, and adjustment, insofar as those effects are established on the evidence.
At [45], the Tribunal recognises that all three applicants would experience emotional hardship because of their time in Australia, education, and relationships. This is significant because the outcome did not depend on rejecting their attachment to Australia. The Tribunal accepted that attachment and the likely pain of leaving, then assessed whether its degree met the statutory standard.
At [46], the Tribunal explains that leaving friends and the university environment would be hard, but considered such hardship within the range contemplated by Parliament's use of “extreme”. In plain English, serious disruption or sadness does not automatically meet the statutory exception. The impact must be assessed for the individual and reach the higher threshold.
At [47], the Tribunal states its conclusion: the applicants' hardship was “unfortunate”, emotional, and financial to a degree, but was not extreme. This passage is the application of the test, rather than a finding that there would be no adverse consequences. The distinction between hardship and extreme hardship is the core of the result.
The decision is most directly relevant to fact patterns involving secondary business visa holders whose visas are exposed to cancellation following cancellation of a primary holder's visa under the statutory arrangement considered in s 134(4)-(5). It addresses the evidence required to invoke the extreme-hardship exception, rather than the grounds for cancelling the primary visa [1], [9]-[10].
The factual comparison is strongest where secondary visa holders have spent formative years in Australia, studied or worked here, formed friendships, and face a move to a country where they say they have limited social connections. The decision shows that those features can be accepted as real sources of hardship without necessarily meeting the statutory threshold [20]-[35], [45]-[47].
It is also relevant where claimed harm includes disruption to ongoing university study, employment, or a personal relationship. Here, the Tribunal considered the applicants' studies and work, Sylvia's de facto relationship, and possible interruption to degree courses [26]-[29], [32], [41]-[43]. It did not treat any one of those circumstances as automatically decisive. Instead, it considered their likely impact alongside other circumstances.
The decision highlights the importance of individual evidence. The applicants' histories were not identical: their arrival ages, study paths, employment, relationships, and frequency of travel to Indonesia differed [18]-[33]. The Tribunal's stated approach required attention to the subjective consequences for each person [44]-[45]. It also focused on consequences that would follow from cancellation, not merely possible future difficulties [14].
This judgment does not define every circumstance that could amount to extreme hardship. Nor does it say that family support, return visits, or capacity to adapt will always defeat such a claim. Those matters were features of the evidence and submissions in these particular reviews. Any analogy depends on the facts and the statutory provisions applicable to the matter being considered.
The judgment itself reports no later treatment. It was decided on 8 October 2002, and the supplied reasons contain no citations to decisions delivered after that date. It would therefore be unsupported to say, from this text alone, that later courts followed, distinguished, or overruled this AAT decision.
The authorities discussed within the reasons are earlier or contemporaneous materials. The Tribunal cited Man Ki Kim for the approach to “extreme hardship” [12], and referred to Siwei Wang and Setiawan when describing subjective assessment and the high statutory threshold [13]. It also referred to Ashok Kumar on focused consideration of the applicant's circumstances at the relevant date [14]. Those are the relationships described by the judgment; they are not evidence of later judicial treatment of Salim.
The AAT's own disposition was to affirm the decisions under review [48]. The reasons do not say that the decision binds other tribunals or courts, nor do they discuss its precedential status. A later-treatment history would require material outside the supplied judgment, which is not available here.
The judgment does not explore the precise evidentiary standard for proving that a consequence is “undoubtedly or almost certainly” likely, beyond its statement of the approach [44]. It also does not explain how a decision-maker should assess a combination of several moderate hardships, or when their cumulative effect might become extreme. The result indicates that these applicants' combined circumstances did not cross the threshold, but it does not set a formula for combining impacts [45]-[47].
The decision discusses the applicants' concern about being Chinese Indonesians and their asserted limited familiarity with Indonesian culture [34]-[35]. The final reasoning does not separately analyse the potential impact of those matters or explain what evidence would be needed to establish a particular level of risk or hardship. The outcome should not be read as a general finding about conditions in Indonesia; the reasons provide no country-information analysis.
The treatment of the applicants' educational disruption is also brief. The Respondent argued that any interruption could have been anticipated and noted that the visas were due to expire in April 2003 [42]-[43]. The Tribunal's final assessment refers generally to leaving the university environment [46], but does not make a detailed finding about how much time would be lost, whether a course could be continued elsewhere, or how those consequences affected each applicant separately.
Finally, the reasons do not report later cases interpreting s 134(5) or treating this decision. Whether later authorities have refined the subjective assessment, the causal requirement, or the threshold remains unanswered by the judgment itself.
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DECISION AND REASONS FOR DECISION [2002] AATA 899
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2001/1206; N2001/1207;
And MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Tribunal The Hon Mr R N J Purvis Q.C., Deputy President
Decision The Tribunal affirms the decisions under review.
IMMIGRATION - business skills visas - cancellation of primary business skills visa - subsequent cancellation of secondary business skills visas - whether cancellation would result in extreme hardship to the secondary visa holders - meaning of extreme hardship - subjective test
Man Ki Kim v Minister for Immigration and Ethnic Affairs [1995] FCA 1088; (1995) 37 ALD 481 at 487
Siwei Wang v Minister for Immigration and Multicultural Affairs [2000] AATA 961
Setiawan v Minister for Immigration and Multicultural Affairs [2002] AATA 260
Ashok Kumar v Minister for Immigration and Multicultural Affairs [2000] AATA 961
8 October 2002 The Hon Mr R N J Purvis Q.C., Deputy President
1. These are three applications relating to the children of Mr Kurnia Salim, that is, Fifi Pirana Salim ("Fifi"), Sylvia Pirana Salim ("Sylvia") and Fransnardo Harjo Salim ("Fransnardo") ("the Applicants"), seeking review of decisions by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Respondent") made on 25 July 2001 cancelling the Applicants' business visas pursuant to section 134(4) of the Migration Act 1958 ("the Act"). The visas issued to the Applicants were as members of the family unit of their father Mr Kurnia Salim, he having at one time satisfied the relevant requirements referrable to the establishment of an eligible business in Australia. The primary business skills visa of the father was cancelled on 25 July 2001 pursuant to section 134(1) of the Act, the Respondent then by statute being required to cancel the secondary visas of the Applicants. The latter cancellations are however subject to the provisions of sections 134(4) and (5) of the Act.
2. Mr Kurnia Salim appealed the decision to cancel his visa to the Administrative Appeals Tribunal on 14 August 2001, such appeal being dismissed and the decision under review affirmed on 21 March 2002.
3. The Applicants were given notice of the intention of the Respondent to cancel their visas on 6 April 2001. In such notice it was stated:
"It has come to the Department's attention that there may be grounds for cancellation of your Business Skills visa under section 134 of the Migration Act 1958 because:
* you are a family member of a primary Business Skills visa holder, Kurnia Salim; and
* you hold a Business Skills visa which you would not hold if you were not a family member of the primary Business Skills visa holder; and
* the primary Business Skills visa holder is currently under notice of intention to cancel under section 134 of the Migration Act 1958.
* The Minister for Immigration and Multicultural Affairs has the power to cancel the visa of a Business Skills visa holder under the provisions of sections 134 to 136 of the Migration Act 1958 if the visa holder has not obtained a substantial ownership interest in, and utilised his or her skills in actively participating at a senior level in the day-to-day management of an eligible business in Australia. Where this has not occurred, the visa holder is required to show they have made genuine efforts to do so (subsections 134(1) and 134(2) refer). These provisions also refer to your right to make representations (section 135) and to seek review of any cancellation decision (section 136). A copy of the relevant provisions is provided at Attachment A.
The Migration Act 1958 gives you the opportunity to comment on these grounds for cancellation and to give reasons why your visa should not be cancelled.
You should now provide this office with a written answer as to why your visa should not be cancelled. Your answer should provide details of any extreme hardship you and the other visa holders might suffer if your visa were cancelled.
The Applicants seemingly did not respond to the above-mentioned invitation.
4. The Applicants' visas were each cancelled on 25 July 2001. The Applicants appealed to the Tribunal by applications for review of decisions dated 14 August 2001.
5. The applications of the Applicants were heard together, the evidence in the one being received as evidence in the others.
6. The Applicants were each represented by Mr Paramita, Migration Agent of A1 Migration Services, the Respondent by Ms Susan Goodman, Solicitor of Messrs Blake Dawson Waldron Lawyers.
7. The documents lodged by the Respondent with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted into evidence and marked T1 to T20, and the supplementary documents so lodged S1 to S4. Other written material was tendered on behalf of the Applicants and marked accordingly, namely:
A Statements of Fifi Pirana Salim, Sylvia Pirana Salim and Fransnardo Harjo Salim Undated
8. Oral evidence was given by each of the Applicants on which they were cross-examined.
(1) On 25 July 2001 the Respondent cancelled the business skills visa of Kurnia Salim, the visa holder and father of the Applicants pursuant to section 134(1) of the Act.
(2) As secondary visa holders the Applicants' visas were cancelled pursuant to section 134(1) of the Act on 25 July 2001.
(3) Section 134(5) of the Act provides that the Minister must not cancel a business visa under subsection 134(4) if the cancellation of that visa would result in extreme hardship to the secondary visa holders. The issue for determination by the Tribunal is whether the cancellation of the Applicants' visas would result in their experiencing as to each of them extreme hardship.
10. The relevant legislative provisions are as follows:
(1) Subject to subsection (2) and to section 135 the Minister may cancel a business visa... by written notice given to its holder, if the Minister is satisfied that its holder:
(a) has not obtained a substantial ownership interest in an eligible business in Australia; or
(b) is not utilising his or her skills in actively participating at a senior level in the day to day management of that business; or
(i) hold a substantial ownership interest in; and
(ii) utilise his or her skills in actively participating at a senior level in the day to day management of;
(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 persons business visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person."
11. The issue for determination by the Tribunal, as earlier stated, is as to whether the cancellation of the visa granted to one or more of the Applicants would result in extreme hardship being experienced by her or him.
12. 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] FCA 1088; (1995) 37 ALD 481 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 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 bring 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 in 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..."
13. As was noted by the Tribunal in Siwei Wang v Minister for Immigration and Multicultural Affairs [2000] AATA 961 and in Setiawan v Minister for Immigration and Multicultural Affairs [2002] AATA 260, hardship from the point of view of the person allegedly experiencing it must be judged subjectively. It involves more than inconvenience or detriment. Affectation must be to a considerable degree before it can properly be called hardship. At paragraph 30 in Wang [supra] the Tribunal considered the significance that should be ascribed to the word "extreme" as used in the statute and 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 meanings of the word "extreme"... 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..."
14. 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. In Ashok Kumar v Minister for Immigration and Ethnic Affairs (1997) 50 ALD 488 the Federal Court referred to Man Ki Kim [supra] where it was stated at ALD 487 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 applications is the date of the hearing.
15. A business skills subclass 127 visa was granted to the father Mr Kurnia Salim on 22 April 1998 and was due to expire on 22 April 2003. Secondary visas were at the same time issued to the Applicants and their mother, the same also due to expire on 22 April 2003. On 13 February 1997 in support of the application for a business skills migrant visa it was inter alia stated on behalf of the father (T24, p84):
"We believe that Mr Salim and his family represent a significant gain to Australia. He is a businessman of high repute with considerable wealth, business acumen and a young family to bring to this country."
16. At the time of the making of his application for migration to Australia on 25 August 1996, each of the three children were stated in the application to then be temporary resident in Australia in order to study, Fifi having arrived on 8 May 1989, Sylvia on 5 February 1993 but Fransnardo not until 24 November 1996. On 17 April 1998 the father was by letter informed by the Australian Embassy, Jakarta (T33, p343):
"Any children included in this application who are currently studying in Australia must be outside Australia at the time of decision. If they are in Australia at time of decision, we will need to have written confirmation withdrawing them from this application. They will then need to apply for a class 802 visa in Australia."
17. The children presumably were outside of Australia at the relevant time as there is not any evidence of there being an application for a class 802 visa. Indeed, on 22 April 1998 the father was informed that (T34, p345):
"I am pleased to advise you that your application for migration to Australia under the Business Skill Migration Category (Visa Class 127) has been approved...
All the visa holders listed above must enter Australia on or before 19 June 1998.
The visas issued to... Fifi, Sylvia and Fransnardo are subject to the condition that travel is not made in advance of yourself, and will include a special code to indicate this to the officers at the immigration clearance point on arrival in Australia.
The visas issued to Fifi, Sylvia and Fransnardo are subject to the condition that they do not marry before travelling to Australia..."
18. Fifi was born in Indonesia on 28 March 1976. She lived there with her family attending the Indian Memorial School in Bandung from 1982 to 1989. She was then enrolled at St. Catherine's School, Sydney, where she remained for three years. In the Details of Child or Other Dependent, accompanying the father's migration application and with reference to Fifi, it was stated (T24, p229):
"My daughter, Fifi Pirana is financially and emotionally dependent on me. I am responsible for the payments of student fees, books, accommodation and day-to-day expenses."
19. Her tertiary education began in 1993 at the University of New South Wales where she remained until she graduated with degrees in Bachelor of Science and Master of Technology Management.
20. In her statement to the Tribunal Fifi stated that she first arrived in Australia at (Exhibit A):
"...a young age of thirteen (first time I left Indonesia) and have been living in Australia for almost 14 years, during which I have been residing in Kingsford, Sydney...
I made many friends in high school and have maintained close friendships with quite a number of them... During my tertiary education, I made many more friends from different countries and diverse backgrounds...
At the present time, I am an employee at ResMed Limited, North Ryde and Coles Supermarket Aus Pty Ltd, Pagewood. I have been working at both companies for one year as a Web Content Producer at ResMed and as a Customer Service Provider at Coles. In addition, my father and I are the proprietors of Ultima Trading. The reasons for my employment at ResMed and Coles are to acquire work experience, to establish myself financially for the future...
...I have also developed a passion for tennis since my arrival in Sydney..."
21. In her oral evidence before the Tribunal Fifi stated that she would experience hardship if her visa be cancelled. She said that she has established her life in Australia since she was thirteen years of age. She did "not know much about Indonesia... I do not have friends in Indonesia... I return to keep in touch with my parents and grandparents". She said that she did not know how to communicate in the Indonesian community and found it like a foreign country "every time I go home". During the course of her cross-examination she acknowledged returning to Indonesia almost every year and that she usually tries "to go home" about Christmas time. She has her parents and grandparents, as well as other relatives, living in Bandung in West Java.
22. Fifi did say that her parents are of Chinese decent and that she speaks to them in a mixture of Indonesian and English. Her father has his business activities her mother is "a full time housewife". Fifi said that she wanted to be financially stable and would like to become involved in an information technology career. She was concerned that if she returned to Indonesia she would need to start her life again. She was not presently able to apply for a skilled migrant visa as she had been working for less than twelve months and not acquired necessary management experience.
23. Since 1990 Fifi has returned to Indonesia on not less than ten occasions for periods ranging from two and a half weeks to two months at a time.
24. Sylvia was born in Indonesia on 4 November 1977. She lived there with her family attending the same school as had her sister, in Bandung, from 1983 to 1991. She then spent three years at Kwang Lung (Guangyang) Secondary High School in Singapore. Sylvia commenced her tertiary education at the University of New South Wales in 1993 where she remains studying for a Bachelor of Science degree.
25. The details accompanying her father's initial application for migration also recited (T24, p233):
"My daughter, Sylvia Pirana is financially and emotionally dependent on me. I am responsible for the payments of students fees, books, accommodation and day-to-day expenses."
26. In her statement tendered before the Tribunal Sylvia stated that she has been living in Sydney for over ten years and is currently studying at university for her above-mentioned degree, majoring in mathematics with computing. In addition to her studies she has worked for approximately four years during her time in Australia with different companies, presently being employed by Westpac Banking Corporation at the Error Investigations Department. Whilst working she says that she has been able to learn "the diverse cultures of Australia and way of life here in Australia and have adapted myself to the Australian culture. Furthermore, working has also taught me to be independent and I am currently supporting myself financially." She says that she has been renting accommodation since 1998. Having obtained her Bachelor of Science degree she says that she would like to commence a Master of Technology Management or Master of Computer Science degree course.
27. Sylvia says that returning to Indonesia and having to live there would be "extremely hard for me as I have spent most of my life overseas".
28. In her oral evidence before the Tribunal Sylvia said that she is presently in a de facto relationship with a fellow student she met at university. She says that they have been living together since 1998 and apart from their study are both working at Westpac. Seemingly Sylvia sponsored the obtaining of a visa for her companion. If her visa is cancelled then she says his visa also would be cancelled and they will have to "go back to the same city where it would be hard to live with my husband." Otherwise she says her case is similar to that of her sister Fifi. She does not "really have friends in Indonesia they have all gone overseas". Nevertheless, she is close to her parents even be it that they are "not really happy" with her de facto husband and they want "me to live with my sister and brother whereas I want to establish myself". She says that she is not familiar with Indonesian culture and it will be "hard for me to settle down".
29. She says that the occasions when she has returned to Indonesia have been mainly during holidays. Since 1995 Sylvia has returned to Indonesia on no less than four occasions for periods of from two and a half weeks to four months at a time. She says that she does not have any school friends "back home".
30. Fransnardo was born in Indonesia on 6 January 1981. He lived there with his parents until late 1996 or early 1997 when he continued with his education in Australia attending Marcellin College and Waverley College, then the University of Southern Queensland (began Bachelor of Business), University of Sydney (foundation program) and then University of New South Wales (Bachelor of Industrial Chemistry). He is still studying for the latter mentioned degree.
31. In his statement Fransnardo says that he left Indonesia to study in Singapore at the age of twelve, arriving in Sydney when he was fifteen years of age and has remained here since then. He says that due to his "short stay in Indonesia I have no friends there since most of my time in Indonesia was spent with my parents and grandparents." He further says that he being the youngest in the family and having left Indonesia at a younger age "compared to my elder sisters, I believe that I have reasons to miss the company of my parents, more so than my elder sisters. Therefore I tend to visit Indonesia more often then [sic] my sisters because I miss my parents and grandparents. Even though I love them so much, I would still like to complete and acquire my undergraduate degree and pursue my career in Australia as an Industrial Chemist." He says that if he had to return to Indonesia "it would be difficult for me to complete my degree successfully due to the language barrier, difficulty in entering the Indonesian University and my lack of knowledge of the Indonesian culture and humanity." He further says that he would "find it difficult to reassimilate into the Indonesian community" if he had to return there permanently, this on account of his never having had an Indonesian education at least beyond the age of twelve years. He has been studying in English language schools since a very young age.
32. In his oral evidence before the Tribunal Fransnardo said that he is presently in second year at university and if he was to "go back " to Indonesia he would miss university time and have to make it up. This on account of the differing academic years. He says that his father "sent me here to study chemistry". He further said that it was his father's intent for him to be involved in his business and to work with him in Indonesia when he finishes his course. He is presently supported financially by his parents.
33. Since late 1996/early 1997 Fransnardo has returned to Indonesia on no less than five occasions for periods ranging from two weeks to four months at a time.
34. In a joint statement (Exhibit A) the Applicants say that they would find it difficult to reassimilate into the Indonesian community if they had to return there permanently. Each of them, they say, has never had an Indonesian education as they studied in English language schools from kindergarten. They make mention of the fact that being Chinese Indonesians they find it difficult living in an anti-Chinese society. They continue by saying:
"Since the approval of my family's permanent residency in Australia, my parents and grandparents were happy because the three of us have been given the opportunity to live peacefully, away from the riots and terrible incidents. We can therefore lead a normal life and establish our family in a safe, friendly and multicultural country like Australia. However, the cancellation of our father's visa has somewhat crushed the dreams of not only the three of us but also the dreams of our parents and grandparents for the future descendants of the Salim family. Our family had intended to migrate and settle in Australia and has thus purchased a home in Kingsford over six years ago and we had been living there ever since...
Since we don't have any non-Chinese Indonesian or Muslim friends, we have very limited knowledge of the Indonesian and Muslim culture, thus becoming a barrier for us to reassimilate into the Indonesian community. In addition, because we have spent almost all of our teenage, adolescent and adult life in Australia and growing up in Australia, we have a much better understanding of the Australian community, culture and lifestyle... Since we have not stayed long enough each time we returned to Indonesia (during our holidays from studies or work), we have never had much chance in establishing any sort of relationship with anybody in Indonesia. Therefore nearly all of our close friends, especially those whom we grew up with are either Australian residents or citizens. The main reason for our trips to Indonesia is to visit and spend time with our parents and grandparents."
35. The Applicants further indicated that during their return trips to Indonesia they try to reconnect, establish and maintain ties with their family but that they have "no friends in Indonesia we have no social life and no dependable friends for moral and emotional support." They also say that the demand for information technology (the discipline undertaken by Fifi and Sylvia) and chemistry (the discipline undertaken by Fransnardo) graduates in Indonesia is said to be "not as large as in Australia and thus the opportunity for us to pursue our individual careers is very remote and limited."
36. No issue is raised in these review applications as to the character and good standing of the Applicants. References from friends and employers bear witness to the standing in which they are so held. Their academic achievements - as to Sylvia and Fransnardo not yet complete - are commendable.
37. Apart from reciting the factual situation as it is set forth earlier in these reasons, Mr Paramita appearing on behalf of the Applicants submitted that with reference to Fifi that "it is not her fault if her father business did not meet the immigration regulation." It was submitted that it would be "totally unfair for all of them if after all these years spending half of her age and spend all her teen and adult age in Australia" she is required to leave the country. It was submitted that she would experience extreme hardship, this constituted by having no friends, being alienated and it being hard for her to readjust to her way of life. It was submitted that Fifi "is entitled to choose her place of living. Now that she is independent she claims it's so inhumane to send her back after all these years." As to Sylvia, a similar submission was made but in addition that she is in a de facto relationship and sponsored her de facto husband enabling him seemingly to remain in Australia. It is said that Sylvia and her de facto husband "planned all their future in Australia. He has nothing in Indonesia." In addition returning to Indonesia "will be very hard for the family" in that the de facto marriage "is not so blessed by the family." With regard to Fransnardo, it was submitted that whilst he is familiar with Indonesian way of life he has spent six years in Australia and it will be "hard for him to go back to his country". Basically it is said "all his friends now are Australian."
38. The Tribunal has an understanding of the situation in which each of the Applicants finds her and himself and has sympathy for them. Their position is solely attributable, at least until April 2003, to the failure of the father to live up to the expectations evidenced in his 1997 business visa application. The father allowed his children to remain in Australia furthering their education but without regard to the legislative consequence of his own visa being cancelled.
39. On behalf of the Respondent it is submitted that there is an onerous standard to be met in demonstrating that an Applicant will suffer extreme hardship if a relevant visa remains cancelled. This submission does not mean that there is an increased onus or burden of proof on the Applicant but merely that the standard of hardship is heightened to "extreme."
40. So far as Fifi is concerned, the Respondent contends that whilst it is accepted she will suffer some hardship in returning to Indonesia the evidence is not such as to establish that such hardship will be extreme. There is not any evidence to suggest that Fifi will not be able to return to her parents' home at least until she is able to establish herself in Indonesia. Any emotional or financial hardship she might suffer, it is submitted, will be minimised by the support of her family and their friends. She has maintained connection with Indonesia, as has Sylvia and Fransnardo, in returning "home" on a number of occasions. Further, there was not any evidence that Fifi would be unable to obtain employment in Indonesia and redevelop a connection with her homeland.
41. With respect to Sylvia it is contended on behalf of the Respondent that she also may suffer emotional hardship if she is to return but that there is not any evidence to suggest that she will not be able to obtain employment in that country and support herself. Further, there was not any evidence to suggest that she would be unable to obtain support from her de facto husband's family so that the couple could remain together. Sylvia has remained in contact with Indonesia and in fact has returned to the country on the occasions earlier mentioned.
42. Sylvia might experience some difficulty or delay in completing her degree course but this as a consequence of the cancellation of her father's visa and one that might well have been anticipated by him and by Sylvia. In any event, the business visa of each of the Applicants was to expire in April 2003.
43. As to Fransnardo it was submitted that he also has returned frequently to Indonesia since he has been studying in Australia and remains familiar with the Indonesian way of life. There was not any evidence that he would suffer emotional or financial hardship, that he would not be able to return to his parents' home and receive their support. There may be a slight interruption in his degree course but that also might have been anticipated with the expiry of the visa in April 2003.
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.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon Mr R N J Purvis Q.C., Deputy President
Signed: O. Caragianni .....................................................................................
Man Ki Kim
Minister for Immigration and Ethnic Affairs
The Tribunal affirmed the decisions cancelling the three applicants' secondary business visas. It concluded that the resulting hardship would not be extreme within s 134(5) [47]-[48].