Chareonlop (Migration) - [2025] ARTA 2104

CHAREONLOP (MIGRATION) [2025] ARTA 2104 (10 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Wandee Chareonlop
Visa Applicant:  Mr Narupon Sangudom
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2316323

Tribunal:Wan Shum
Place:Sydney
Date: 10 July 2025
Decision:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 10 July 2025 at 12:15pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – visa applicant over 18 years – full-time course of study – gap in studies – Volunteer Emergency and Rescue Work – pre-requisite English language studies – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cls 101.213, 101.221
CASES
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 6 October 2023 to refuse to grant a Child (Migrant) (Class AH) visa to the visa applicant under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 20 October 2021. 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). Relevantly to this matter, they include cl 101.213 which applies to visa applicants who are over 18 at the time of application.
The delegate refused to grant the Subclass 101 visa because there was no evidence that the visa applicant is validly enrolled in, and actively participating in, a full-time course leading to a professional, trade or vocational qualification so was not satisfied that the applicant meets cl 101.213(1)(c). As there was no evidence of incapacity, the delegate was not satisfied that the applicant meets cl 101.213(2).
The applicant, the mother of the visa applicant, sought review of that decision and was represented in relation to the review.
The applicant appeared before the Tribunal on 10 June 2025 to give evidence and present arguments and was assisted by her representative. The Tribunal also received oral evidence from the visa applicant by videoconference. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The visa applicant was born in November 1996 so was 24 when he made the visa application. He is now 29 years old. He is a citizen of Thailand.
The applicant is the mother of the visa applicant. She lives in Sydney and came to Australia in September 2007 as the holder of a student visa…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Chareonlop (Migration) [2025] ARTA 2104
Case: [2025] ARTA 2104
Decision Date: 10 July 2025

CaseChat Overview and Summary

In the case of Chareonlop, the visa applicant, a Thai citizen born in November 1996, applied for a Subclass 101 (Child) visa after turning 18. The application was made on 20 October 2021, when the visa applicant was 24 years old. The visa applicant's mother, who had migrated to Australia in September 2007 and subsequently obtained citizenship, was the applicant. The primary issue before the Tribunal was whether the visa applicant met the specific criteria for a Subclass 101 visa, particularly regarding full-time study leading to a professional, trade, or vocational qualification.

The legal issues centred on whether the visa applicant had been undertaking a full-time course of study that met the specified requirements at the time of application and whether this requirement continued to be met at the time of the decision. The visa applicant claimed to be studying an English communication course at N Education Co Ltd, which was due to be completed by 20 March 2023. However, the Tribunal found that this course did not lead to the award of a professional, trade, or vocational qualification, thus failing to satisfy the visa criteria.

The Tribunal affirmed the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa, finding that the study requirement under cl 101.213(1)(c) was not met. As a result, the criteria for the grant of a Subclass 101 visa were not satisfied. There were no claims advanced in respect of other visa subclasses in Class AH, and the Tribunal upheld the decision under review.

The final orders of the Tribunal were to affirm the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa, maintaining the status quo in terms of the visa applicant's immigration status. The hearing took place on 10 June 2025, with Ms Kanokwan Subhodyana representing the applicant.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.BACKGROUND The visa applicant was born in November 1996 so was 24 when he made the visa application. He is now 29 years old. He is a citizen of Thailand. The applicant is the mother of the visa applicant. She lives in Sydney and came to Australia in September 2007 as the holder of a student visa and remained in Australia on a series of student visas and later made a combined application for temporary and permanent Partner visas both of which were granted in January 2017. The visa applicant is her son from a previous relationship. She is now an Australian citizen. The application for a Subclass 101 visa was made on 20 October 2021, after the visa applicant had already turned 18. In such circumstances, additional criteria relating to relationships, work, and study must be met at the time of application: cl 101.213. Essentially, the requirements are that the applicant is single, is not engaged in full-time work and is undertaking full-time study that leads to the award of a professional, trade or vocational qualification. In this case, the visa application form was completed indicating that the visa applicant had completed secondary education in March 2015 and that he was currently undertaking post-secondary school study at N Education Co Ltd from 5 April 2021 which was due to be completed on 20 March 2023. In the qualification field, the words ‘English Communications course’ were entered. As evidence of this study, a certified copy of the certificate issued by the Ministry of Education certifying that the visa applicant had completed the Basic Education Core Curriculum on 25 March 2015 at Bodindecha (Sing Singhaseni) school was provided. Also provided was a letter from N Education Ltd dated 12 October 2021 confirms that the visa applicant had been a full-time student since 5 April 2021 and was undertaking the intermediate English communication course and had already completed the elementary, pre-intermediate English communication courses. On the Form 80 – Personal particulars for assessment including character assessment, the section seeking details of all tertiary education and qualifications was completed indicating that the visa applicant had obtained a Bachelor’s Degree in Fisheries from Kasetsart University in May 2019. A copy of the translated qualification was provided that verifies his successful completion of the final examination on 27 May 2019. The applicant also provided details of being currently enrolled in an English Communication course at N Education Co. Ltd. The school issued a letter confirming that he had finished the course at elementary, pre-intermediate and intermediate levels. The first course started in April 2021 and the third course in September 2022. In the section seeking details of all employment and unemployment at question 19 it was answered reflecting that he joined Kuson Sattha Surat Thani Foundation, a not-for-profit organization as a Volunteer Emergency and Rescue Worker from June 2019 to February 2021; and that from April 2021 he had been studying English Communication course at N Education Co. Ltd.

Evidence

Evidence Before The Court

On review, it was submitted that the visa applicant was undertaking English tuition in preparation for entry into a Master course program. The evidence to substantiate this was the applicant’s statutory declaration and documents including: a translation of graduate student recruitment information for Master of Science (aquaculture) degree at Kasetsart University for 2023; a copy of the visa applicant’s CU-TEP score issued on 27 March 2024 for a test taken on 9 March 2024; a receipt for payment for Master’s degree application fee to Chulalongkorn University made on 27 March 2024 with translation; and a statement from the owner of Macawdenia Aviaries along with photographs of the visa applicant taken in April to June 2024 with the description that he attended to conduct studies on Macaw birds as part of the requirements for qualification and selection into a Masters degree program at Chulalongkorn University. The evidence also included a completed application and registration form for a Bachelor of Science in Biology at Ramkhaemhang University signed and dated 21 May 2025.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether, at the time of application, the visa applicant has met 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). Relevantly in this case, it is the study requirement that is in issue.Full-time study (or incapacitated for work) 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: cl 101.213(1)(c). This provision appears to contemplate a single full-time course of study at a particular institution (such as a degree or a technical college qualification), although it might well extend to cover a qualification that is obtained from an institution or accreditation body upon satisfaction of a variety of criteria, some of which may be fulfilled by undertaking courses at alternative institutions: Sok v MIMIA [2005] FMCA 190 at [15]-[16]. In determining what is a ‘reasonable time’ for cl 101.213(1)(c), it is relevant to consider the surrounding circumstances including the actual time involved, what activities were undertaken during that time, the purpose for which those activities were undertaken and, if no relevant activities were undertaken, the reason why: Sok v MIMIA [2005] FMCA 190 at [19]. This requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the loss of bodily or mental functions: cl 101.213(2). Where cl 101.213(1)(c) applies, it must continue to be met at the time of decision: cl 101.221(2)(b). For this purpose, the decision-maker must look at the time period from the commencement of study until the time of decision and ask whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247. The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416.

Decision

Reasons for decision

The English communications course that the visa applicant was studying at the time of application was not leading to the award of a professional, trade or vocational qualification and, given this, the Tribunal finds that cl 101.213(1)(c) is not met. This means that cl 101.213(1) is not satisfied and 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) and the Tribunal affirms the decision under review.DECISION The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.Date(s) of hearing: 10 June 2025Representative for the Applicant: Ms Kanokwan Subhodyana

Ratio Decidendi

Legal Principle Established

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