Bui (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, subclass 101 (Child) visa, by a visa applicant who had deferred Bachelor studies. The dispute centred on whether the applicant had undertaken a full-time course of study leading to a professional, trade, or vocational qualification within a reasonable time after completing the equivalent of Year 12 in the Australian school system, as required by clause 101.213(1)(c) of the Migration Regulations. The decision under review was made by the Migration Review Tribunal.

The primary legal issue before the court was to determine what constituted a "reasonable time" for the purpose of clause 101.213(1)(c). This required consideration of the surrounding circumstances, including the actual time elapsed, the activities undertaken during that period, the purpose of those activities, and, if no relevant activities were pursued, the reasons for that inaction. The court was also required to assess the credibility and reliability of the evidence presented by the applicant and her mother regarding the applicant's intention to study and the reasons for deferring her Bachelor studies.

The Tribunal found the applicant's oral evidence to be candid, spontaneous, and consistent, thus credible and reliable. It was satisfied that the applicant and her mother always intended for the applicant to commence full-time study as soon as possible after completing the equivalent of Year 12. The Tribunal accepted the applicant's explanation for deferring her Bachelor studies in 2015, which involved part-time study due to financial and emotional difficulties stemming from her mother's personal circumstances, including marital difficulties and domestic violence. Medical documentation supporting the applicant's mental health and anxious state during this period was also accepted. The Tribunal concluded that, in the specific circumstances of this case, the period taken by the applicant to undertake full-time study was reasonable, as the steps taken were consistently aimed at ensuring her English proficiency for successful entry into a qualifying course.

The Tribunal remitted the decision for reconsideration.