DO (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101. The visa applicant, a national of Vietnam, was 24 years old at the time of the application. The core dispute revolved around whether the applicant was undertaking a full-time course of study at the time of her application, a criterion for the visa. The Administrative Appeals Tribunal considered the evidence presented by the applicant, including confirmations of study from Saigon University, and statements regarding her cessation of studies and subsequent alternative educational pursuits.

The primary legal issue before the Tribunal was to determine if the visa applicant satisfied the criterion in cl.101.213 of the Migration Regulations 1994, which requires the applicant to be undertaking full-time study at the time of application and at the time of the decision. This involved assessing the veracity of the applicant's claims regarding her study status, particularly in light of her admission that she had not attended university since August 2016 and had received advice from university staff that was not based on official policy.

The Tribunal reasoned that while the applicant had not completed her studies at Saigon University and had ceased attending, she had undertaken alternate studies, including self-study of English and enrolment in a Japanese course. Crucially, the Tribunal accepted the applicant's explanation that her pause in formal university studies was based on misleading advice received from university administration staff, which she had acted upon in good faith. The Tribunal found that the applicant's circumstances were beyond her control and that she had ultimately been adversely affected by this advice. Consequently, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the applications for a Child (Migrant) (Class AH) visa, Subclass 101, for reconsideration. The direction was that the visa applicant met the criteria specified in cl.101.213 and cl.101.221(2)(b) of Schedule 2 to the Regulations.