Nguyen (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101 (Child), by a visa applicant who was 23 years old at the time of the Tribunal's decision and 21 at the time of application. The delegate had found that while the applicant was engaged in full-time studies at the time of lodgement, they were not satisfied that the applicant was studying full-time at the time of the decision, and therefore the applicant did not meet criterion cl 101.221(2)(b). The applicant had completed a Bachelor of Biotechnology and was awaiting entrance examinations for a Bachelor of Mechanics degree.

The primary legal issue before the Tribunal was whether the visa applicant continued to satisfy the requirement of being engaged in full-time study at the time of the decision, as required by cl 101.221(2)(b) of the Migration Regulations 1994. This criterion is relevant for applicants over 18 who need to demonstrate continued satisfaction of dependent child requirements at the time of decision, unless the failure to meet them is solely due to turning 18 or 25. The Tribunal also considered the overarching criteria for a 'dependent child' under cl 101.211, which requires the applicant to be under 25, not engaged or partnered, and either reliant on a parent for financial support for basic needs or incapacitated for work.

The Tribunal reasoned that the applicant's period between completing his Bachelor's degree and awaiting entrance examinations for his Master's degree constituted a period of transition rather than a cessation of full-time study. It noted that the applicant had provided evidence of his intention to undertake further study and had confirmed the timing of his entrance examinations. The Tribunal concluded that the applicant met the criteria under cl 101.211, cl 101.213, and cl 101.221 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that the visa applicant met the specified criteria for the Subclass 101 (Child) visa.