Nguyen (Migration)

This matter concerned an appeal by a visa applicant, who was over 18 years of age at the time of application, against the decision to affirm the refusal of a Subclass 101 (Child) visa. The applicant was born in 1994 and was 22 years old when the visa application was lodged. The core of the dispute revolved around whether the applicant had met the specific study requirements stipulated by the Migration Regulations.

The legal issue before the Tribunal was whether the visa applicant had satisfied the criteria relating to full-time study. Specifically, the Tribunal had to determine if the applicant had been undertaking a full-time course of study since turning 18, or within six months or a reasonable time after completing the equivalent of Year 12, and if this study was continuing at the time of the decision. The regulations clearly state that part-time studies are not acceptable and that the applicant must be studying at the time of the decision.

The Tribunal reasoned that the applicant, being over 18 at the time of application, was subject to additional requirements under cl.101.213 of Schedule 2 to the Regulations, which included undertaking full-time study. The Tribunal found that the study undertaken at AMATC was not full-time study, and therefore, the applicant had not met this essential criterion. This failure to meet the full-time study requirement meant that the applicant did not satisfy the conditions for the grant of the visa.

Consequently, the Tribunal affirmed the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.