Formoso (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101 (Child), by a 25-year-old male citizen of the Philippines. The applicant's mother, an Australian citizen, sponsored his application. The primary dispute revolved around whether the applicant met the additional criteria for applicants over 18 years of age, specifically concerning full-time study. The decision was made by Moira Brophy of the Tribunal.

The legal issues before the Tribunal were whether the applicant satisfied clause 101.213 and clause 101.221 of Schedule 2 to the relevant regulations. Clause 101.213 sets out requirements for applicants over 18 regarding relationship status, engagement in full-time work, and undertaking a full-time course of study. Clause 101.221 stipulates that these criteria must continue to be met at the time of the decision. The delegate had refused the visa on the basis that clause 101.213(2) was not met, finding no evidence of the applicant undertaking a full-time course of study leading to a qualification since turning 18 or within a reasonable period after completing Year 12.

The Tribunal found that the applicant met the criteria relating to his relationship status (clause 101.213(1)(a)) and not being engaged in full-time work (clause 101.213(1)(b)), accepting the evidence provided by the applicant and sponsor. Crucially, the Tribunal also found that the applicant met clause 101.213(1)(c) and clause 101.221(2)(b), indicating that he was undertaking a full-time course of study leading to a qualification and continued to do so at the time of the decision.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the specified criteria under clauses 101.213 and 101.221.