Buttawong (Migration) - [2025] ARTA 1651

BUTTAWONG (MIGRATION) [2025] ARTA 1651 (22 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mrs Nongnuch Buttawong
Visa Applicant:  Mr Anusorn Yoying
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2317969

Tribunal:General Member Downes
Place:Brisbane
Date: 22 July 2025
Decision:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 22 July 2025 at 10:03am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – full-time study since turning 18 – two-year break in study – COVID-19 restrictions, financial hardship and lack of access to online study – informal study then re-enrolment – applicant and family’s decision not beyond their control – country information general and not specific to applicant’s circumstances – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 101.213(1)(c), 101.221(2)(b)
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on

1 September 2023 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under section 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 21 November 2022. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child). The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy the study-related criteria in cl 101.213(1)(c) of Schedule 2 to the Regulations.
The review applicant appeared before the Tribunal on 15 July 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
ISSUE AND LAW
A subclass 101 visa is for a person outside Australia seeking a permanent visa based on being the dependent child of an Australian citizen or permanent visa holder.
Relevantly to this matter, if, at the time of application, the visa applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl 101.213. These requirements must continue to be met at the time of decision: cl 101.221(2)(b).
Pursuant to cl 101.213(1)(c), at the time of application, the visa applicant must have, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.
The department’s policy, which is not binding on the Tribunal, provides:
3.9.3.12. Breaks in study after commencement of post-secondary education
In assessing whether the applicant has been undertaking a full-time course of study, decision makers may take into account exceptional circumstances arising outside of the applicant’s control that may have led to a temporary gap in undertaking the full-time course.
If, following the commencement of full-time study, exceptional circumstances that are beyond the applicant’s control have caused a temporary gap in their study, then after consultation with a manager and after acceptable evidence of these circumstances has been provided by the applicant and assessed as genuine, the applicant may be assessed as having met the ‘full-time study’ requirement. An applicant must demonstrate that the gap in their tertiary full-time study is temporary. The decision maker must fully document the circumstances, the documentation sighted and their assessment as to genuineness in departmental systems.
An applicant who is yet to commence full-time study because of exceptional circumstances arising outside of the applicant’s control will not be considered as meeting the ‘full-time study’ requirement.
CONSIDERATION OF EVIDENCE AND CLAIMS
Factual matters
The visa applicant is a 24-year-old man from Thailand. At the time he applied for the visa, he was aged 21 years. The visa application is sponsored by the visa applicant’s mother, the review applicant.
The review applicant provided oral and documentary evidence to the department and the Tribunal. Having regard to this evidence, I make the following findings of fact:
a.The visa applicant turned 18 in January 2019.
b.At this time, the visa applicant was studying a vocational certificate at N-Tech Business Administration Pakkhad Technological College. The visa applicant was admitted into this program on 16 May 2017 and graduated on 15 May 2020.
c.The visa applicant then studied a Diploma of Vocational Education in Industrial Trades Program at Chonburi Technical College. The visa applicant claims that this program commenced in May 2020 but the only documentary evidence before the Tribunal is a letter from the college dated October 2022 confirming that the applicant was a student at that time. I acknowledge that the Thai academic usually commences in May and accordingly, I accept the applicant’s claim at face value. The visa applicant was studying this course at the time the visa application was made.
It is apparent from the aforementioned findings that the visa applicant had a two-year break in study between the completion of his first vocational certificate and the commencement of his next diploma. This break occurred after the visa applicant turned 18 and before the visa application was made.
The review applicant provided a signed letter to the department dated 10 November 2022 stating, among other things:
The gap between my son's final year of school and the start of his current study - My son graduated vocational certificate on 15 May 2020 during the COVID-19 pandemic. It was a very tough time for everyone. Even the Thai national entrance exam was almost postponed. After a serious family discussion, I decided to let him take ag ap period. During this period, my son was finding things to learn, like short courses. And he has been financially supported by me. Right after the COVID-19 situation became better, my son restarted his education at Chonburi Technical College, and he is currently enrolled.
It is apparent from the decision record that the delegate did not accept the review applicant’s evidence as providing an acceptable reason for the visa applicant’s break in study. Relevantly, the decision record provides:
However I have also considered that under policy advice, flexibility may be given in regards to gaps in study that have occurred after post-secondary studies where it has been demonstrated that there is exceptional circumstances beyond the applicant’s control which have caused a temporary gap in their study. I have considered that the sponsor has provided claims that the applicant’s break in study was due to the COVID-19 pandemic, however I note that she states that it was a family decision for the applicant not to pursue study during the COVID-19 and no claims have been made that the applicant was prevented from studying due to circumstances related to the COVID-19 pandemic that were beyond their control, such as forced school closures. The applicant has made no claims or provided any supporting documents to demonstrate that he attempted to enrol in a course of study during the period May 2020 to May 2022 and was prevented from enrolment or online study due to complete closure of relevant educational institutes. As the applicant’s break in study has been claimed to be a personal decision and choice of the family, rather than the applicant being prevented from full-time study due to other forces, I do not consider the claims to demonstrate exceptional circumstances beyond the applicant’s control. In addition, the term ‘temporary’ generally indicates a short-term period where study has already re-commenced, and while it has been demonstrated that the applicant’s study has re-commenced, I would not consider an accumulative period of 24 months (2 years) to be a short-term period. Therefore I am not satisfied to exercise flexibility in this case for acceptance of the gap in study.
The review applicant provided a signed letter to the Tribunal dated 1 July 2025. Relevantly, this letter states:
I would like to explain the circumstances that led to my son, Anusorn Yoying, pausing his education between May 2020 and May 2022.
This difficult decision was made during the height of the COVID-19 pandemic in Thailand. The situation at the time was extremely severe and unprecedented. Schools across the country, including my son's college, suspended in-person learning. Online learning was introduced, but unfortunately, Anusorn was not equipped with a computer or stable internet connection to participate effectively. In addition, we were facing financial hardship as my husband was the sole income earner and I was unable to work due to visa limitations in Australia. Despite doing everything we could, we simply could not afford the necessary resources for him to continue his studies remotely. The impact of COVID-19 pandemic in Thailand is beyond our control. And the remote study is not as effective as in class, face-to-face learning.
We also lacked family support on the ground in Thailand. My relatives live in rural areas and were unable to provide the help or access needed for my son to continue his education during that time.
Given these overwhelming circumstances, it was a situation completely beyond our control. As soon as the COVID-19 restrictions began to ease and we were financially able, I returned to Thailand, purchased a motorbike for Anusorn, and supported his return to full-time study in May 2022.
Throughout the entire gap period, I remained responsible for Anusorn's daily living expenses, continuing to provide financial and emotional support as I have done his entire life.
I kindly ask that this explanation be taken into consideration as evidence of my ongoing commitment and support for my son, and as a demonstration that the interruption in his education was due solely to external factors beyond our control.
The review applicant gave oral evidence to the Tribunal to the effect that:
a.She was granted a temporary partner visa in January 2021 and started working shortly thereafter.
b.The short courses that her son studied during his break in studies were via YouTube or other channels on his phone.
Following the hearing, the representative made the following submissions:
Regarding the school closures in Thailand during the COVID-19 pandemic, we conducted some research on the internet. Please find our findings below.
First Wave (2020)
·Closure begins March 18, 2020: The government ordered all local and international schools closed from Wednesday, 18 March to curb COVID‑19 spread ( semester start: Initially expected to reopen around March 31, but the Education Ministry later postponed reopening the new semester from 16 May to 1 July 2020, transitioning to online classes in the interim ( in July 2020: Schools reopened 1 July 2020, under strict hygiene measures like masks, physical distancing, and protective screens ( )
Total closure period, 2020:
From 18 March to 1 July — roughly 3.5 months.
Second Wave (Dec 2020–Jan 2021)
·Schools closed again in early January 2021: A resurgence in cases, especially in Bangkok and Samut Sakhon, led to closures from 4 January through January 2021, initially set from 4–17 January, then extended for the month ( closure period, Jan 2021:
About 1 month.
Later Closures (2021–2022)
·Phased reopening mid-2021: In June 2021, schools reopened gradually under the "Sandbox Safety Zone in School" scheme ( 2022 resumption: Schools across Thailand resumed on-site learning on or around 17 May 2022 after nationwide closures and distance education throughout 2020–2021 ( Hesitancy & Public Distrust
·Sharp rise in vaccine hesitancy by May 2021: Reuters and Bangkok Post reported increased distrust due to government disorganisation, supply delays, and reliance on Sinovac and AstraZeneca ( people are particularly doubtful: The Diplomat highlighted deep suspicion among Thai youth during the Pfizer rollout for students in October 2021 ( workers and parents showed hesitancy: Surveys in early to mid‑2021 reflected concerns among parents and medical staff .
The gap in Anusorn’s education between May 2020 and May 2022. This period coincided with the most disruptive phase of the COVID-19 pandemic in Thailand, during which the country experienced repeated and extended school closures, accompanied by deep public concern and mistrust in the government’s pandemic response.
Thailand’s schools were first ordered to close nationwide in March 2020, prompting a shift to online learning. Although some institutions began a phased reopening in July 2020, further outbreaks led to intermittent closures and returns to remote learning throughout 2021 and into 2022. Students like Anusorn faced constant uncertainty about whether schools would remain open or whether conditions were safe for in-person attendance.
This instability affected Anusorn deeply. He developed legitimate concerns about returning to school due to worries about his health and safety, particularly given the crowded environments and inadequate protective infrastructure in many public institutions. These fears were not unfounded. At the time, there was widespread anxiety in Thai society regarding the government’s ability to control the pandemic. Many people, especially the younger generation, questioned the reliability of information, the lack of clear planning, and the delays in securing sufficient high-quality vaccines.
Vaccine hesitancy grew across the country not simply because of misinformation, but because many Thai citizens doubted the competence and transparency of the government’s vaccine distribution strategy. Concerns about limited vaccine options, slow rollouts, and political interference further eroded public trust.
At the time, Anusorn lacked access to reliable digital tools for online learning. He doesn’t have access to a computer or the Internet. The only electronic device with an internet connection was his mobile phone. And that was hard to use as a learning tool during the COVID-19 pandemic.
Anusorn was not equipped with a computer or a stable internet connection to participate effectively. In addition, Mrs Buttawong was facing financial hardship as her husband was the sole income earner and she was unable to work due to visa limitations in Australia. She was on a Bridging Visa E with no work rights until her Partner Visa (Subclass 820) was granted on 27 January 2021. Then she started to work.
Throughout this time, Mrs Buttawong continued to support him financially and emotionally, even while residing in Australia. Once conditions improved and stability returned to the education sector, she took concrete steps to re-enrol Anusorn, including returning to Thailand herself and purchasing a motorbike so he could resume his studies.
The educational gap was a consequence of the broader public health crisis and the breakdown in public confidence that occurred during that time. I respectfully ask that this explanation be considered as part of the broader context of Anusorn’s application.
Consideration
I have carefully considered the claims, evidence and submissions provided. On balance, I find that the criteria in cl 101.213(1)(c) of Schedule 2 to the Regulations are not met.
I am not satisfied that, at the time of application, the visa applicant had been studying relevant post-secondary studies since turning 18. My reasons are as follows:
a.The visa applicant had a two-year break in studies.
b.There is no evidence before the Tribunal that the visa applicant attempted to continue formal studies during this break.
c.There is no evidence before the Tribunal that the applicant was prevented from studying during this break because of school closures or a lack of available in-person education. The evidence provided about the impact of the pandemic in Thailand is general in nature and not specific to the applicant’s circumstances, including schools in the applicant’s province.
d.Insufficient evidence has been provided about the claimed financial hardship, and any inability to provide the visa applicant with a laptop. The evidence before the Tribunal is to the effect that the review applicant commenced working one year before the visa applicant returned to studies. In any event, there is no evidence before the Tribunal that remote learning was the only option available to the visa applicant during his break in studies.
e.The evidence before the Tribunal is that the visa applicant (together with his family) made a choice to take a break in studies because of concern and uncertainty relating to the COVID-19 pandemic. While this choice may be understandable, it was ultimately a choice and not a matter beyond his control. I agree with the delegate’s sentiments in this regard. I also note that the Regulations do not permit the Tribunal to waive the visa criteria for compelling or compassionate reasons.
There is no evidence before the Tribunal to demonstrate that the visa applicant completed the equivalent of Year 12 in the Australian school system.
There is no evidence before the Tribunal to the effect that the visa applicant was incapacitated at any time, meaning cl 101.213(2) does not apply.
For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.
Date(s) of hearing: 15 July 2025
Representative for the Applicant:Mr Theeradech Paopeng (MARN: 0851174)