Case: Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 229 ; (2005) 142 FCR 257
Outcome: referred to
Tribunal, having considered the relevant authorities to the application then before it, said (at [63]-[64]): In the case currently before the Tribunal, the review applicant put forward to the Department untranslated medical records relating to his maternal grandmother. However, no submissions were provided to the Department to explain the significance or relevance of this evidence to the possible cancellation of the review applicant's student visa. In addition, the Tribunal notes that, in its section 359A letter dated 1 August 2008, the review applicant was invited to provide comment and further information relating to the issues arising in relation to his application for review. However, the review applicant failed to do so within the prescribed period, namely, 19 August 2008, or at any time thereafter. Accordingly, the Tribunal has had regard to the evidence presented to the Department, and accepts that the review applicant may well have been concerned about his maternal grandmother's health at the time that he ceased to be enrolled in a registered course. However, based on the limited evidence before it, the Tribunal is not satisfied that having regard to Ministerial Direction No 38, the tests in Wang and Chen and the dictionary definition of "exception", that these circumstances, even once cultural matters are factored in, constitute exception circumstances beyond the review applicant's control. Nor does the evidence before the Tribunal provide any causal link between the circumstances cited by the review applicant and the non-compliance that has occurred in relation to the cessation of his enrolment. The Tribunal concluded by stating that it was satisfied that the relevant conditions existed for a cancellation of the visa under s 116(3) of the Act and reg 2.43(b) of the Regulations and upheld the primary decision. The appellant then applied to the Federal Magistrates Court of Australia for a review of the Tribunal's decision. The grounds of application raised numerous issues relating to the alleged failure of the Tribunal in the conduct of the proceedings. Fifthly, and finally, the appellant claims that the Tribunal applied the wrong test in determining whether grounds existed for the cancellation of his visa. The appellant submits that rather than form a positive state of satisfaction that there were no exceptional circumstances beyond the appellant's control which explained his non-compliance with condition 8202 as reg 2.43(2)(b)(ii) of the Regulations requires, the Tribunal referred to the discussion in Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 229 ; (2005) 142 FCR 257 at [107] - [116] . That discussion is based on s 137L(1)(b) of the Act which is phrased in different terms to reg 2.43(2)(b)(ii). That section requires an appellant to satisfy the Tribunal that certain circumstances do exist. In contrast, reg 2.43(2)(b)(ii) requires the Tribunal to form a positive state of satisfaction that exceptional circumstances don't exist. The appellant submits that such application of the wrong test constitutes a jurisdictional error.