Akinyemi (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101, made by a 23-year-old Nigerian national. The review applicant, the visa applicant's father, sought review of the delegate's decision to refuse the visa. The primary dispute revolved around whether the visa applicant met the criteria relating to full-time study, particularly after turning 18.

The Tribunal was required to determine whether the visa applicant satisfied the criteria set out in cl.101.213 and cl.101.221 of the Migration Regulations 1994. Specifically, the court needed to ascertain if the applicant was undertaking a full-time course of study leading to a professional, trade, or vocational qualification at the time of the application, and whether this status continued to be met at the time of the decision. The delegate had refused the visa on the basis that there was no evidence the applicant was a full-time student at the time of application or at the time of the decision.

The Tribunal found that while the applicant had provided evidence of past study and, in a submission to the Tribunal, claimed to have commenced a Bachelor of Computer Science in March 2016, this information was not presented to the Department at the time of the initial application or in response to a request for further information. The delegate's decision was based on the evidence before them, which did not demonstrate that the applicant was a full-time student at the time of application. Although the applicant later provided evidence of enrolment in a new course, this was after the delegate's decision and did not satisfy the requirement that the criteria be met at the time of application. The Tribunal noted that the criteria for applicants over 18, including the requirement for full-time study, must be met at the time of application and continue to be met at the time of the decision.

Consequently, the Tribunal affirmed the delegate's decision not to grant the visa applicant a Child (Migrant) (Class AH) visa, as the applicant had not met the relevant criteria at the time of the application.