Extreme Hardship Overcomes Business Visa Cancellation for Adult Offspring
Cases involving extreme hardship as a means of overcoming business visa cancellations are problematical. The difficulty is the word ‘extreme’ as the adjective to hardship. There have been AAT cases in the past where the inability of a student to complete a course would not establish extreme hardship. But the case of Howes v MIAC [2008] AATA 905 (6.10.08) had the added ingredient of the fact the students came from Zimbabwe where the students would have to return to chaos. The AAT accepted this submission:
“The applicants are young adults. Mark has less than one year to go before he is a qualified plumber. Richard has only embarked upon a tertiary course but has qualifications which will permit that tertiary course to become a career. So what the tribunal encounters is two young adults who have embarked on a course pursuant to the visa that has been cancelled which is most likely to lead them to qualifications and a career that will give them a higher degree of security and certainty and, one hopes, happiness and prosperity. It is a trite proposition, with respect, to point out that a qualification that permits someone to have a career is one of the most important components for a young person in establishing the security and the happiness of their future life.
It is in the context of being deprived of that security and certainty, that the submission is made, that requiring them to go back to Zimbabwe amounts to extreme hardship. So we would ask the tribunal to stand back from the respondent’s position of comparing distilled and isolated factual phenomena. To stand back and look at whether for these applicants this is extreme hardship. On the one hand they, until the cancellation of the visa, were looking forward to enjoy, all being well, a constructive, sensible, certain future in a prosperous, secure, stable democracy. The result of a cancellation of their visa is to condemn them to financial insecurity and to living in a society in social, economic and political chaos.”
•27. I accept that submission, and am satisfied, on the balance of probabilities, that cancelling the applicants’ visa would cause them extreme hardship of the kind described in the applicants’ submissions. For the reasons which I explain further below, I accept the above argument and am satisfied, on the evidence taken as a whole, that cancellation of the visas would result in extreme hardship for both applicants.
The AAT member in his decision went on to focus on the dangers of daily living in Zimbabwe as well as the economic chaos. The chaotic situation in Zimbabwe was what tipped the balance in favour of the applicants in this case.
Recapping, s. 134 of the Migration Act permits the Minister to cancel a business visa when the primary visa holder has failed to establish a business. The consequential cancellation provisions are as follows:
(4) Subject to subsection (5)…, if:
(a) the Minister cancels a person’s business visa.. 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 … business visa….
(5) 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.
The visa holders in Howes got the benefit of that extreme hardship provision.