Castaneto (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding a decision not to grant the applicant a Child (Migrant) (Class AH) visa, Subclass 101. The core of the dispute revolved around whether the applicant, who had turned 18, met the specific criteria for full-time study at an educational institution leading to a professional, trade, or vocational qualification, as required by the regulations.

The Tribunal was required to determine if the applicant had, since turning 18, and within a reasonable time after completing the equivalent of Year 12 studies, been undertaking a full-time course of study. This included considering whether lengthy gaps in studies and the timing of Year 12 equivalent completion after the age of 18 were permissible under the relevant legislative provisions. The Tribunal also had to assess whether the applicant continued to meet these criteria at the time of the decision.

In its reasoning, the Tribunal considered the provisions of clause 101.213 of the Migration Regulations, which sets out the additional requirements for applicants over 18. It noted that the requirement for full-time study must be met both at the time of application and at the time of the decision, as per clause 101.221(2)(b). The Tribunal rejected the argument that Year 12 equivalent studies completed in March 2015 should be the sole reference point for assessing the subsequent period of study. Drawing on principles from *Sok v MIMIA* [2005] FMCA 190, the Tribunal considered that determining a 'reasonable time' involves examining the surrounding circumstances, including the activities undertaken and the reasons for any inaction. Ultimately, the Tribunal found that the criteria under clause 101.213 were not met at either the time of application or the time of the decision.

Consequently, the Tribunal affirmed the original decision not to grant the applicant a Child (Migrant) (Class AH) visa, Subclass 101, as the necessary criteria were not satisfied. No claims were advanced in relation to other visa subclasses within Class AH.