2207760 (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to refuse Child (Migrant) (Class AH) visas under Subclass 101 to three young men from Lebanon. The applicants' father, an Australian permanent resident, was the sponsor. The delegate's refusal was based on the applicants not meeting the study requirements stipulated in clause 101.213(1)(c) of the Migration Regulations 1994 (Cth), which mandates that applicants over 18 must have been undertaking a full-time course of study leading to a professional, trade, or vocational qualification since turning 18 or within a reasonable time after completing Year 12.

The primary legal issue before the Tribunal was whether the visa applicants had satisfied the study requirement under cl 101.213(1)(c) of the Regulations, and whether this requirement continued to be met at the time of the decision as per cl 101.221(2)(b). The delegate was not satisfied that the applicants had met this criterion, leading to the refusal. The Tribunal considered evidence provided by the Department, as well as oral and documentary evidence presented during the review process, including information about the applicants' schooling in their home country and their subsequent enrolment in courses in a third country, which was impacted by disruptions including the COVID-19 pandemic.

The Tribunal found that the matter should be remitted for reconsideration. While the delegate had refused the applications based on a lack of satisfaction regarding the study requirements, the Tribunal considered the context of the applicants' disrupted schooling and their efforts to continue their education. The Tribunal indicated that an interpretation of the provisions that best achieves the purpose of the legislation should be applied, particularly in circumstances where schooling was interrupted and the applicants were seeking refuge. The Tribunal concluded that a decision could not be made on the papers without further consideration, and therefore remitted the matter for reconsideration by the delegate.