Ellis (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, subclass 101, by a 26-year-old Zambian national. The applicant's mother, a Zambian national married to an Australian citizen, was the sponsor. The core of the dispute revolved around whether the applicant, having turned 18, continued to meet the relevant visa criteria, specifically those pertaining to undertaking a full-time course of study. The Administrative Appeals Tribunal was tasked with reviewing the delegate's decision to affirm the refusal of the visa.

The legal issues before the Tribunal were whether the applicant satisfied the criteria set out in clauses 101.213 and 101.221 of the Migration Regulations 1994. These clauses require an applicant over 18 years of age to be undertaking a full-time course of study at an educational institution leading to a professional, trade, or vocational qualification, both at the time of application and at the time of the decision. The Tribunal also considered whether any break in the applicant's studies was due to circumstances outside of his control, as per departmental policy.

The Tribunal found that the applicant had completed his secondary studies in December 2012 but did not commence university until 2015, resulting in a three-year gap. While the applicant provided evidence of seeking government loans to fund his tertiary education at the University of Zambia, the delegate had determined that this period constituted a reasonable time to have applied to other institutions. The Tribunal accepted the evidence of the applicant and his mother as truthful but ultimately concluded that the applicant had not demonstrated that the break in his studies was due to circumstances beyond his control. Consequently, the Tribunal found that the applicant did not meet the requirements of clause 101.213, which needed to be met at the time of the decision under clause 101.221(2)(b).

The Tribunal affirmed the decision not to grant the applicant a Child (Migrant) (Class AH) visa, subclass 101, as the criteria for the visa were not met.