1516890 (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa by a 22-year-old applicant born in the Philippines. The applicant's mother was an Australian permanent resident at the time of the application. The dispute before the Tribunal was whether the applicant met the criteria for Subclass 101, specifically clause 101.213, which applies to applicants who have attained 18 years of age at the time of application.

The primary legal issue before the Tribunal was to determine if the visa applicant satisfied the additional criteria stipulated in clause 101.213 of the Migration Regulations 1994 for applicants over 18 years of age. These criteria require that, since turning 18, or within a reasonable time after completing the equivalent of Year 12, the applicant must have been undertaking a full-time course of study leading to a professional, trade, or vocational qualification. This requirement must continue to be met at the time of the decision, unless the applicant is incapacitated for work due to the loss of bodily or mental functions.

The Tribunal found that the applicant had turned 18 on 11 January 2010 and was 22 at the time of application. It was not claimed that the applicant was incapacitated for work. The Tribunal noted that the relevant provision contemplates a single full-time course of study, potentially extending to qualifications obtained through various institutions, as per the principles in *Sok v MIMIA* [2005] FMCA 190. However, no claims were advanced by the applicant regarding undertaking a full-time course of study since turning 18 or within a reasonable time of completing secondary education.

Consequently, the Tribunal affirmed the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa, as the applicant failed to meet the essential criteria under clause 101.213.