EL MASRI (Migration)

The Administrative Appeals Tribunal considered the case of El Masri, where the review applicant sought a Child (Migrant) (Class AH) visa, Subclass 101, for their child. The core dispute revolved around whether the visa applicant met the criteria for the visa, specifically concerning their engagement in a full-time course of study and the source of funds for their education and living expenses.

The legal issues before the Tribunal were whether the visa applicant, having turned 18, was undertaking a full-time course of study at an educational institution leading to a professional, trade, or vocational qualification, either since turning 18 or within six months or a reasonable time after completing the equivalent of Year 12. Additionally, the Tribunal needed to assess the dependency of the visa applicant, particularly in relation to the source and regularity of financial support.

The Tribunal found inconsistencies in the evidence provided by both the review applicant and the visa applicant regarding the visa applicant's study schedule and the source of funds. While the visa applicant claimed to study full-time in accounting, the review applicant's evidence suggested varying attendance hours. Furthermore, the money transfers presented as evidence of financial support were primarily sent by the review applicant's daughter, and the Tribunal was unable to definitively determine whether the funds were the review applicant's or her daughter's, or if they were genuinely being used for tuition fees and daily expenses. The Tribunal also noted that the visa applicant had only completed the equivalent of Year 6 of basic education and had failed final exams for that level, casting doubt on whether they had completed the equivalent of Year 12.

Consequently, the Tribunal concluded that the criteria for the grant of a Subclass 101 visa were not met. The Tribunal affirmed the decision not to grant the visa.