1600791 (Migration)

This matter concerned a review of a decision not to grant a Child (Migrant) (Class AH) visa to a 24-year-old male from the Philippines, sponsored by his Australian citizen mother. The visa applicant was over 18 at the time of application, necessitating that he meet additional criteria relating to relationships, work, and study, which must continue to be met at the time of the decision. The central dispute revolved around whether the visa applicant was engaged in full-time study and not engaged in full-time work at the time of application.

The legal issues before the Tribunal were whether the visa applicant met the requirements of clause 101.213 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant was engaged in full-time study and not engaged in full-time work, as these were conditions precedent to the grant of the visa for an applicant over 18. The Tribunal also considered whether the applicant qualified as a dependent child under subparagraph (b)(ii) of the definition of "dependent child" in regulation 1.03, which relates to incapacity for work due to loss of bodily or mental functions, and whether he was dependent under regulation 1.05A.

The Tribunal found that the visa applicant had ceased studying in the second semester of 2012 and had not studied since. Evidence indicated he had been employed full-time since July 2013, with his mother confirming he worked for his uncle and that she paid his salary to keep him occupied. While the applicant had sustained injuries in 2013 and 2014, requiring medical treatment and time off work, the Tribunal concluded these did not render him incapacitated for work in a manner that would satisfy the criteria for a dependent child under regulation 1.03(b)(ii). Furthermore, the Tribunal determined that the applicant was engaged in full-time work, as defined by the policy intention to exclude adult children who are in a position to support themselves financially, and therefore did not meet the requirement of not being engaged in full-time work under clause 101.213(1)(b).

Consequently, the Tribunal affirmed the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa, as the criteria for the grant of such a visa were not met. The Tribunal also briefly noted that the applicant would not meet the criteria for other subclasses within Class AH, such as Subclass 102 and Subclass 117, as he was not an orphan relative and had not been adopted.