Yang and Minister for Immigration and Multicultural and Indigenou S Affairs

[2003] AATA 330

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 330

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/219

GENERAL ADMINISTRATIVE DIVISION		)
Re		HYUK-GIN YANG

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms J Cowdroy, Member

Date26 February 2003

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd) J Cowdroy
  Member

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – business visa – secondary visa holder – whether secondary visa holder will suffer extreme hardship if visa cancelled

Migration Act 1958

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

WRITTEN REASONS FOR ORAL DECISION

11 April 2003 Ms J Cowdroy, Member    

1.      This is an application for review of a decision of the Department of Immigration, Multicultural and Indigenous Affairs to cancel the applicant’s visa as a secondary business visa holder. 

2.      Mr Cramer appeared for the respondent.  There was no appearance by or on behalf of the applicant or his representative.  All reasonably attempts were made to contact him by telephone, and, having spoken to the applicant’s former lawyers, who advised that they had not been instructed to appear on his behalf, I was satisfied that all reasonable steps had been taken to locate and notify the applicant, and I decided to hear the matter in the applicant’s absence. 

3.      The applicant has provided by way of evidence an affidavit which was sworn on 6 August 2002.  He claims that the cancellation of his visa would cause him extreme hardship.  He sets out therein a number of grounds and I will deal with each of those in turn.

4.      Firstly, he claims that if he were compelled to return to Korea that he would immediately be required to undertake military service in that country.  The applicant’s contention in this regard could not be tested, as he was not present.  However, the respondent’s submissions are that it seemed most unlikely that he would be required to immediately undertake military service and in support of that contention provided an outgoing passenger card which shows that the applicant returned to Korea on 9 December 2002.  Mr Cramer submitted that, even if the applicant were compelled to undertake military service, that service would not qualify as an extreme hardship given that such obligation applies to the Korean community at large.

5.      The other grounds in respect to which the applicant claims extreme hardship is the fact that he has forfeited his identity card in Korea which makes it impossible for him to obtain employment. Again, Mr Cramer submitted that there was no evidence, apart from the material in the affidavit, to support that contention, nor was there any evidence that the applicant would not be able to re-acquire such a card if he were to return to Korea.

6.      Mr Cramer also pointed out that, in assessing what is extreme hardship, regard can only be had to the consequence of the cancellation of the visa and the forfeiture of the ID card was not such a consequence.

7.      The third main ground the applicant contends would constitute extreme hardship is that, if he returned to Korean, he would be obligated to repay his father’s debts.  As Mr Cramer pointed out, there is no evidence to support that contention nor is there evidence of the extent of those debts; and, although the applicant suggested that he was liable to be physically harmed if he were to return to Korea and the debts were not paid, that allegation could not be tested nor was there any evidence to support such an allegation.

8.      I am mindful of the fact that the applicant has spent considerable time in Australia since first arriving in 1991 and I have balanced that against the other factors.  I note that the applicant has a current university enrolment, but as Mr Cramer has pointed out, it would seem that that enrolment occurred after the decision to cancel was advised, and, in any event, there was no information before the Tribunal about whether the studies were commenced or, if they had been commenced, the progress being made.

9.      Mr Cramer drew my attention to the decision of Deputy President Purvis in Re Salim and Minister for Immigration, Multicultural and Indigenous Affairs [2002] AATA 899 which makes comments as to how developing friendships in this country are to be treated.. I acknowledge that it would be hard, given that Mr Yang has been here for a number of years, for him to relinquish those friendships. However, having regard to all the matters that have been put in his affidavit, I am not reasonably satisfied that the cancellation of his visa would result in extreme hardship.

10.     Consequently, the Tribunal affirms the decision under review.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member

Signed:         Sarah Oliver
  Associate

Date of Hearing  26 February 2003
Date of Decision  26 February 2003
Date of Written Reasons          11 April 2003

No appearance by or on behalf of Applicant
Solicitor for the Respondent     Mr B Cramer, Blake Dawson Waldron