Marquez (Migration)

This matter concerned a review by the Administrative Appeals Tribunal of a decision not to grant a Child (Migrant) (Class AH) visa, Subclass 101, to the applicant. The applicant had withdrawn from tertiary studies in 2018, and a request for Ministerial Intervention had been made. The Tribunal was asked to consider whether the applicant met the relevant criteria for the visa.

The primary legal issue before the Tribunal was whether the visa applicant continued to meet the requirements of clause 101.221(2)(b) of the Migration Regulations 1994 at the time of the decision. This clause mandates that if the applicant is over 18 at the time of application, they must continue to meet the criteria set out in clause 101.213 at the time of the decision. Specifically, the Tribunal had to determine if the applicant satisfied the full-time study requirement under clause 101.213(1)(c) at the time of the review decision.

The Tribunal reasoned that for the full-time study requirement to be met at the time of decision, the applicant must be undertaking a full-time course of study leading to a professional, trade, or vocational qualification. Drawing on case law, the Tribunal noted that this requirement contemplates a continuous engagement in study, and the applicant must be studying at the time of the decision. As the applicant had withdrawn from tertiary studies in 2018 and was not undertaking a full-time course of study at the time of the review decision, they failed to satisfy this criterion.

Consequently, the Tribunal concluded that the applicant did not meet the criteria for the grant of a Subclass 101 visa. The Tribunal affirmed the decision not to grant the visa.