Lemlem (Migration)

The Administrative Appeals Tribunal reviewed a decision by the Department of Home Affairs to refuse a Child (Migrant) (Class AH) visa, subclass 101, for an applicant born in 1995. The applicant, an Eritrean citizen residing in Ethiopia, was sponsored by his mother, an Australian citizen. The Department had initially requested evidence regarding the applicant's student status and financial support, and later requested DNA testing to confirm the biological relationship, which was provided. The delegate refused the visa application, finding that the applicant did not meet certain criteria under the Migration Regulations.

The primary legal issues before the Tribunal were whether the applicant met the requirements of clause 101.213(1)(c) and clause 101.213(2) of the Migration Regulations. Specifically, the Tribunal had to determine if the applicant was a full-time student at the time of application and had been continuously so since turning 18, or if he was incapacitated for work due to loss of bodily or mental functions, or if he was undertaking on-the-job training leading to a professional, trade, or vocational qualification. The Tribunal also considered a recent Federal Court decision, *Khan v Minister for Immigration, Citizenship and Multicultural Affairs* [2023] FCA 463, which clarified that the relevant study must have commenced at the time of visa application.

The Tribunal affirmed the delegate's decision, finding that the applicant had not satisfied the requirements of the visa. Despite the sponsor's statutory declaration indicating the applicant was studying Auto Mechanic, no enrolment letter was provided, and the explanation for its absence was deemed insufficient. Furthermore, the Tribunal was not satisfied that the applicant met the criteria for incapacity for work or for on-the-job training. The evidence provided, including money transfers and a rental agreement, did not establish that the applicant was a full-time student as required by the regulations at the time of application. The Tribunal noted that the applicant could still make a request directly to the Minister and that further evidence addressing the broader circumstances might be considered.