1601652 (Migration)

This matter concerned an appeal to the Tribunal regarding the refusal of a Subclass 101 (Child) visa for Mr El Hindy, who applied as the dependent child of Mr Hindi, an Australian citizen. The core of the dispute revolved around whether Mr El Hindy met the specific eligibility criteria for the visa, particularly concerning his educational pursuits and dependency status after turning 18.

The Tribunal was required to determine whether Mr El Hindy satisfied the requirements of clause 101.213 of the Migration Regulations 1994, which mandates that applicants over 18 must have, since turning 18 or within a reasonable time after completing Year 12, been undertaking a full-time course of study leading to a professional, trade, or vocational qualification. The Tribunal also needed to consider whether Mr El Hindy met the definition of a "dependent child" as defined in regulation 1.03 and elaborated in regulation 1.05A, specifically regarding financial dependency.

The Tribunal found that Mr El Hindy had not met the requirement to be undertaking a full-time course of study. While he had attended a technical college from approximately 2009 to 2013, he confirmed he had not undertaken any further study since mid-2013. The Tribunal noted that the provision contemplates a single full-time course of study and that the circumstances surrounding the cessation of his studies, including insufficient student numbers and financial constraints, did not excuse the failure to meet this requirement. Although Mr Hindi provided financial support, the Tribunal concluded that, as Mr El Hindy did not meet a key eligibility criterion, the decision to refuse the visa must be affirmed, as it had no discretion to grant the visa on compassionate grounds.