Mudzinganganya (Migration)

This matter concerned an appeal before the Migration Review Tribunal regarding applications for Child (Migrant) (Class AH) visas, specifically Subclass 101 (Child) visas, made by two applicants. The core dispute revolved around whether the applicants, who were over 18 at the time of application, met the study requirements stipulated by the relevant regulations. The first applicant had completed high school, taken a gap year, and then enrolled at university, but faced significant obstacles including late fee payments, a state of emergency, COVID-19 restrictions, and power outages, which prevented her from studying. She subsequently enrolled at a university in another country but was unable to travel or study online. The second applicant had failed their final high school exams.

The Tribunal was required to determine if both applicants met the criteria for a Subclass 101 visa, particularly concerning the requirement for applicants over 18 to be undertaking a full-time course of study within a reasonable time after completing the equivalent of Year 12, or if they were incapacitated for work. The Tribunal also had to consider whether these requirements continued to be met at the time of the decision. The applicants also needed to satisfy requirements regarding their relationship status and not being engaged in full-time work.

The Tribunal found that both applicants met the criteria relating to their relationship status and not being engaged in full-time work. However, the assessment of the study requirement differed for each applicant. For the first applicant, the Tribunal accepted that the circumstances she encountered, including the state of emergency, COVID-19 restrictions, and power outages, constituted a reasonable explanation for the delay and inability to study, and that her subsequent attempts to enrol in overseas study were also hindered by external factors. Consequently, the Tribunal determined that the decision under review for the first applicant should be remitted back to the Department for reconsideration, with a direction that she met the relevant criteria. For the second applicant, who had failed their final high school exams and did not appear to have met the study requirement within a reasonable time, the Tribunal affirmed the decision not to grant the visa.