Okoye (Migration)

The matter before the Federal Circuit Court of Australia concerned an application for Child (Migrant) (Class AH) visas, specifically Subclass 101, by four children residing in Africa, seeking to join their Australian citizen father in Australia. The primary applicant in this review was Cajetan Ikechukwu Okoye. The core dispute revolved around whether the visa applicants met the eligibility criteria stipulated in the Migration Regulations 1994, particularly concerning age, study, and employment requirements.

The court was required to determine whether the visa applicants satisfied the criteria for a Subclass 101 visa, as set out in Schedule 2 of the Migration Regulations. Specifically, the court had to consider whether the applicants, having turned 18, were not engaged in full-time work and had been undertaking a full-time course of study leading to a professional, trade, or vocational qualification since turning 18, or within a reasonable time after completing the equivalent of Year 12. The court also had to consider the age requirement of not having turned 25 at the time of application, and whether this requirement was met or if exceptions applied.

The Tribunal affirmed the decision not to grant the visa. It found that while the applicant Cajetan Ikechukwu Okoye was only a few days shy of 25 at the time of application, thus meeting that specific criterion, he did not meet the subsequent requirements. The Tribunal noted that the applicant was now 29 years old, and the critical issue was whether he had been undertaking a full-time course of study or was engaged in full-time work since turning 18. The evidence presented indicated that the applicant had been engaged in full-time work, which disqualified him from meeting the study requirement under clause 101.213(1)(b) and (c) of the Regulations. Consequently, the criteria for the grant of a Subclass 101 visa were not met. The Federal Circuit Court of Australia dismissed the application on 24 November 2017.