ALI (Migration)

The Administrative Appeals Tribunal considered the case of a visa applicant seeking a Child (Migrant) (Class AH) visa, Subclass 101 (Child). The primary dispute concerned whether the applicant, who was over 18 years of age at the time of application, met the specific criteria for this visa subclass, particularly in relation to her studies.

The legal issues before the Tribunal were whether the visa applicant satisfied the requirements of clause 101.213 of Schedule 2 to the Migration Regulations 1994, which pertains to applicants over 18 years of age. This included assessing whether the applicant was unmarried, not engaged in full-time work, and, crucially, whether she had 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 the equivalent of Year 12 in Australia. The Tribunal also had to consider whether these criteria continued to be met at the time of the decision, as stipulated by clause 101.221(2)(b).

The Tribunal reasoned that the applicant met the criteria relating to her relationship status and engagement in full-time work. Regarding the study requirement, the Tribunal found that the applicant, having fled Afghanistan due to safety concerns, commenced studies in Indonesia at a Refugee Learning Centre within a reasonable time after completing the equivalent of Year 12. The Tribunal was satisfied that the English language and computing courses undertaken were the equivalent of those leading to a vocational qualification in Australia. Applying the principles from *Hussain v MIBP* and *Opoku-Ware v MIBP*, the Tribunal concluded that the applicant had been undertaking relevant study and continued to be engaged in these studies at the time of the decision.

Consequently, the Tribunal remitted the application for a Child (Migrant) (Class AH) visa, Subclass 101, for reconsideration. The Tribunal directed that the visa applicant met the criteria specified in clauses 101.213 and 101.221 of Schedule 2 to the Regulations.