Flomo (Migration)

The Administrative Appeals Tribunal considered applications for Child (Migrant) (Class AH) visas, Subclass 101, made by Brooks Saye Gborweah and Randolphine Lee Gborweah. The applicants, who were over 18 at the time of their applications, claimed to be undertaking full-time secondary education in Liberia and financially supported by their mother in Australia. The Department had raised concerns regarding the genuineness of documents submitted to evidence their schooling and the applicants' eligibility under criterion 101.213, which pertains to full-time study since turning 18 or completing secondary school.

The primary legal issues before the Tribunal were whether the applicants met the requirements of criterion 101.213, specifically concerning their engagement in full-time study since turning 18, and whether the submitted documentary evidence was sufficiently reliable. The Tribunal also had to consider the implications of the Department's findings of incorrect information and bogus documents, and whether any compassionate or compelling reasons existed to waive certain criteria, such as the long separation from their sponsor and the sponsor's health and emotional impact.

The Tribunal reasoned that the wording of criterion 101.213, which requires full-time study since turning 18 or within a reasonable time after completing the equivalent of Year 12, could encompass an applicant who, at the time of application, was still undertaking full-time secondary education and had not yet commenced post-secondary studies. This interpretation was considered to align with the purpose of the provision, which allows for dependency if engaged in full-time study. The Tribunal noted that the applicants had turned 18 and had not yet completed the equivalent of Year 12, and were financially supported by their mother. While acknowledging the Department's concerns about document reliability, the Tribunal found it open to conclude that the applicants met the study requirements under clause 101.213 and the ongoing requirement under clause 101.221(2)(b).

Consequently, the Tribunal remitted the applications for reconsideration by the Minister. The remittal was with the direction that the applicants met the criteria under clause 101.213 and clause 101.221(2)(b) of Schedule 2 to the Regulations, and that Public Interest Criterion 4020 should be considered for the purposes of clause 101.223.