Nguyen (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101, where the applicant was over 18 years of age at the time of application. The Administrative Appeals Tribunal was required to determine whether the applicant met the relevant criteria for the visa, specifically concerning full-time study.

The primary legal issue before the Tribunal was whether the applicant had met the requirement under clause 101.213(1)(c) of the Migration Regulations 1994, which mandates that an applicant over 18 must have, since turning 18 or within a reasonable time after completing Year 12, been undertaking a full-time course of study leading to a qualification. This requirement must also continue to be met at the time of the decision, as per clause 101.221(2)(b). The Tribunal had to consider the applicant's study history, including a gap between degrees and part-time English studies, to determine if this criterion was satisfied.

The Tribunal reasoned that clause 101.213(1)(c) contemplates a continuous period of full-time study, or a reasonable time after completing Year 12 during which relevant activities were undertaken. While acknowledging that a single qualification might involve study at different institutions, the Tribunal found that the applicant's history did not demonstrate a continuous undertaking of full-time study. Specifically, a period of part-time English studies between completing one degree and commencing another was not considered to satisfy the requirement of undertaking a "full-time course of study" in the manner contemplated by the regulation. The Tribunal applied the principles from cases such as *Sok v MIMIA* and *Hussain v MIBP*, focusing on the characterisation of the applicant's conduct over the relevant period.

Consequently, the Tribunal concluded that the applicant had not met the criteria for the grant of a Subclass 101 visa. The decision under review, which affirmed the refusal of the visa, was therefore affirmed.