Nomrawee (Migration)

The Administrative Appeals Tribunal considered an application for review by Nomrawee (the review applicant) concerning a decision to refuse a Subclass 101 (Child) visa for her son. The visa applicant, a Thai national born in January 1995, was 23 years old when the application was lodged in August 2018. The review applicant, a Thai national and Australian permanent resident, sponsored her son. The core of the dispute centred on whether the visa applicant met the criteria for applicants over 18, specifically the full-time study requirement.

The Tribunal was required to determine if the visa applicant met the criteria prescribed by Part 101 of Schedule 2 of the Migration Regulations 1994, as they stood at the time of application and decision. This involved assessing whether the applicant, having turned 18, satisfied the requirements relating to relationships, work, and study. Specifically, the Tribunal had to consider the applicant's full-time study status and the gap between his secondary education completion in May 2013 and his enrolment in post-secondary studies in May 2018.

The Tribunal found that while the visa applicant met the relationship criteria, he failed to satisfy the full-time study requirement. The regulations stipulated that an applicant over 18 must be undertaking full-time study and have completed their secondary education no more than 12 months prior to the application, or have compelling and compassionate reasons for any delay. The visa applicant had completed secondary school in May 2013 and did not commence post-secondary studies until May 2018, a gap of five years. The Tribunal noted that there was no provision within the regulations for a waiver of this requirement, and the circumstances presented did not constitute compelling or compassionate reasons for the significant study gap. Consequently, the Tribunal affirmed the delegate's decision to refuse the visa.