Ho (Migration)

This matter concerned an appeal by the visa applicant, Ho, against a decision of the Migration Review Tribunal (MRT) which affirmed the refusal of a Subclass 101 (Child) visa. The dispute centred on whether the applicant had satisfied the full-time study requirement for the visa.

The primary legal issue before the court was whether the Migration Review Tribunal had erred in finding that the visa applicant had not satisfied the criterion in clause 101.213(1)(c) of the Migration Regulations 1994. This clause requires that, for applicants over 18, they must have been undertaking a full-time course of study at an educational institution leading to a professional, trade, or vocational qualification, either since turning 18, or within six months or a reasonable time after completing the equivalent of Year 12.

The Tribunal's reasoning was that the applicant had failed to demonstrate that the periods of study gaps were "reasonable" for the purposes of satisfying the full-time study requirement. Despite the applicant providing various documents, including academic transcripts and certifications from different educational institutions, there were inconsistencies and unexplained gaps in his study history. Specifically, the applicant's explanation of his study at Hue Tourism Vocational College differed from the provided academic transcripts, and he admitted to not studying between recovering from a leg injury in 2016 and resuming studies in July 2018. The Tribunal concluded that, based on these circumstances, the applicant had not satisfied the Tribunal that he had met the full-time study requirement. Consequently, the Tribunal affirmed the decision under review.