Luong (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 101 (Child) visa. The review applicant sought to have a decision affirmed that the visa applicant did not meet the full-time study requirement for applicants over 18, as stipulated by clauses 101.213(1)(c) and 101.221(2)(b) of the Migration Regulations 1994. The Tribunal was informed that the visa applicant was not incapacitated for work, married, in a de facto relationship, or engaged.

The primary legal issue before the Tribunal was whether the visa applicant had engaged in full-time study for a "reasonable time," considering various study gaps and the reasons provided for them. Specifically, the Tribunal had to assess the explanation for the period between late 2014 and March 2016, during which the visa applicant purportedly ceased study following the death of her uncle and experienced distress.

The Tribunal reasoned that while compassionate circumstances, such as the death of a family member, could explain study interruptions, the duration and nature of the delay needed to be justifiable. The review applicant's explanation that the visa applicant was distressed and suffering stress for approximately 10 months following her uncle's death was not sufficiently substantiated to demonstrate an inability to study during that period. The Tribunal found that the evidence did not establish that the visa applicant could not have undertaken study during this time, nor was there a clear indication that the visa applicant was unable to study due to the circumstances. Consequently, the Tribunal concluded that the criteria for the grant of a Subclass 101 visa were not met.

The Tribunal affirmed the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa. No claims were advanced in respect of other visa subclasses within Class AH.