Chen (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Chen, an applicant for an Electronic Travel Authority (Class UD) visa, subclass 601. The dispute concerned the cancellation of Chen's visa. The AAT was required to determine whether the grounds for cancellation existed and, if so, whether to exercise its discretion to set aside the delegate's decision to cancel the visa.

The primary legal issue before the Tribunal was whether Chen had breached the conditions of her visa by intending to work in Australia. Chen had arrived in Australia shortly after obtaining her ETA visa and had commenced a work qualification. The Tribunal had to assess whether this action demonstrated an intention to work in Australia, which would be contrary to the purpose of an ETA visa, namely temporary tourism or business purposes. The Tribunal also had to consider whether, even if grounds for cancellation existed, it was appropriate to exercise its discretion to allow Chen to remain in Australia.

In its reasoning, the Tribunal noted that the ETA visa was granted for the purpose of tourism or business. The applicant's immediate commencement of a work qualification shortly after arrival strongly indicated an intention to work in Australia, thereby contravening the conditions of her visa. The Tribunal found that the grounds for cancellation were established. In considering the exercise of discretion, the Tribunal took into account the applicant's failure to appear at the hearing, which prevented the Tribunal from obtaining further information or submissions from her. This failure to participate in the review process weighed against the applicant.

The Tribunal affirmed the delegate's decision to cancel the applicant's visa.