Chen (Migration)

This matter concerned the review of a decision to cancel the student visa of the first applicant, Mr. Chen. The dispute arose because Mr. Chen was not enrolled in a registered course, a condition of his Subclass 573 Higher Education Sector visa. The Tribunal was required to consider whether the visa should be cancelled, taking into account the circumstances of the applicants, including the third applicant's diagnosed autism and developmental delays.

The primary legal issue before the court was whether the Migration Tribunal erred in exercising its discretion to set aside the decision to cancel Mr. Chen's visa. This involved determining whether the Tribunal adequately considered the best interests of the child applicant, particularly in light of the limited and often inaccessible specialist care available for children with autism in China, as contrasted with the care being received in Australia. The court also had to assess whether the Tribunal’s finding that the circumstances weighed marginally in favour of not cancelling the visa was open to it on the evidence.

The Tribunal acknowledged that Mr. Chen had failed to comply with a visa condition, thus establishing a ground for cancellation under section 116(1)(b) of the Migration Act. However, the Tribunal then exercised its discretion not to cancel the visa. In doing so, it gave significant weight to the third applicant's diagnosed autism spectrum disorder, language delay, and global developmental delay. The Tribunal considered extensive evidence regarding the poor standard of specialist care for autistic children in China, including reports of lack of understanding, inadequate diagnosis and treatment, and financial barriers to accessing services. It concluded that the best interests of the child were served by remaining in Australia where he was receiving appropriate therapy. The Tribunal found that while there were factors favouring cancellation, the cumulative evidence, particularly concerning the child's welfare, weighed marginally in favour of not cancelling the visa.

The Tribunal set aside the decision under review and substituted a decision not to cancel the first named applicant’s Class TU visa. The Tribunal noted it had no jurisdiction with respect to the other applicants.