Han (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101, made by Mr Feng Han. The review applicant, presumably a parent, sought review of the decision not to grant the visa. The Tribunal was required to determine whether the visa applicant satisfied the relevant dependency and educational requirements for the visa.

The primary legal issue before the Tribunal was whether the visa applicant met the educational requirements stipulated in clause 101.213 of the Migration Regulations 1994. Specifically, the Tribunal had to consider whether, after turning 18, the applicant had, within a reasonable time after completing the equivalent of Year 12, undertaken a full-time course of study leading to a professional, trade, or vocational qualification. The Tribunal also had to consider whether these criteria continued to be satisfied at the time of the decision, as per clause 101.221(2)(b).

The Tribunal found that the visa applicant turned 18 in November 2008 and the application was lodged in August 2011. While the Tribunal accepted that the applicant was not engaged, married, in a de facto relationship, or engaged in full-time work, it found that the educational requirements were not met. The applicant completed high school in June 2008. He then studied in Australia from October 2008 to February 2009, after which he suffered an accident and returned to China. The Tribunal noted that while photographs of burns were submitted, there was insufficient corroborating evidence to establish that the break in study was for a reasonable period or that the applicant was unable to resume studies due to the injury. The Tribunal concluded that the period between completing Year 12 and the visa application, including the break in studies, was an unreasonable length of time without undertaking a full-time course.

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