Ho (Migration)

The Administrative Appeals Tribunal considered the case of Ms. Ho, a Vietnamese national who had been granted a Student (Temporary) (Class TU) visa, Subclass 573 (Higher Education Sector). The dispute concerned the cancellation of her visa by the Minister.

The primary legal issue before the Tribunal was whether the ground for cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) was established, specifically whether Ms. Ho had failed to comply with a condition of her visa. This condition required her to continue to satisfy the primary criteria for the grant of the visa, which included maintaining enrolment in a specified course of study. The Tribunal also had to consider whether, having found a ground for cancellation, it should exercise its discretion to cancel the visa.

The Tribunal found that Ms. Ho had failed to maintain enrolment in a course that met the requirements for her Subclass 573 visa since September 2015. She had not completed her initial English studies, and her subsequent enrolment in a Diploma of Business with a different provider in 2016 did not satisfy the conditions of her visa. While the cancellation was not mandatory, the Tribunal considered the circumstances, including Ms. Ho's lack of clarity regarding her study intentions and career goals, and her parents' unawareness of her visa status. The Tribunal concluded that the ground for cancellation was made out and exercised its discretion to affirm the decision to cancel her visa.