Ho (Migration)

The Administrative Appeals Tribunal considered the case of Mr Ho, who held a Student (Temporary) (Class TU) visa, subclass 573 Higher Education Sector. The dispute concerned the cancellation of Mr Ho's visa by the Department of Immigration and Border Protection. The Tribunal was tasked with reviewing this decision.

The primary legal issue before the Tribunal was whether Mr Ho had breached condition 8202 of Schedule 8 to the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course and to maintain satisfactory course progress and attendance. If a breach was found, the Tribunal also had to consider whether to exercise its discretion to cancel the visa.

The Tribunal found that Mr Ho had breached condition 8202(2) as he was not enrolled in a registered course at the time of the cancellation decision, a fact he admitted. While the Tribunal acknowledged Mr Ho's explanation for ceasing his studies, including an assault he suffered in May 2014 which affected his mental health, it found that the significant period of non-enrolment and his failure to inform his education provider or the Department of these circumstances outweighed any mitigating factors. The Tribunal considered Mr Ho's personal circumstances, including his age, nationality, previous work experience, desire to study in construction or building, and his concerns about returning to Vietnam without qualifications, but ultimately determined these did not warrant setting aside the cancellation.

The Tribunal affirmed the decision to cancel Mr Ho's visa.