Chen (Migration)

The Administrative Appeals Tribunal considered the case of Mr Chen, who sought review of a decision to cancel his Student (Temporary) (Class TU) Subclass 590 (Guardian) visa. The cancellation was based on the grounds that Mr Chen had engaged in work in Australia, thereby breaching a condition of his visa.

The primary legal issue before the Tribunal was whether Mr Chen had contravened condition 8101 of his visa, which prohibits engaging in work in Australia. If this ground for cancellation was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, taking into account all relevant circumstances.

The Tribunal found that while Mr Chen had purchased a motel business and his phone contained messages indicating an active role in its day-to-day operations, these actions did not necessarily constitute "work" in contravention of his visa condition. Mr Chen submitted that he was primarily in Australia to look after his child, who was studying, and that his involvement in the business was a consequence of being defrauded by an employee, leading him to monitor the business to ensure it was run properly. The Tribunal considered these circumstances, including the applicant's explanation for his involvement and the fact that he had appointed local managers.

Ultimately, the Tribunal concluded that, having regard to the entirety of the circumstances, the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel Mr Chen's Subclass 590 (Guardian) visa.