Phan (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, subclass 101, made by Huy Truong Nguyen, who was the biological and eldest son of the review applicant. The application was made on 17 April 2020, at which time the visa applicant was 20 years of age. The Tribunal was required to determine whether the visa applicant met the eligibility criteria for the visa.

The primary legal issue before the Tribunal was whether the visa applicant, who was over 18 years of age at the time of application and had not been studying, met the requirements for the subclass 101 visa. Specifically, the Tribunal had to consider if participation in military service could be considered equivalent to attending an educational institution for the purposes of the visa. The visa applicant had left school at age 13, had not completed year eight, and had subsequently undertaken four years of military service in Vietnam.

The Tribunal reasoned that the criteria for a subclass 101 visa require the applicant to be under 18 years of age at the time of application, or if over 18, to be undertaking full-time study at a secondary school or a post-secondary institution. The Tribunal found that the visa applicant was 20 years old when the application was made and had not been studying. While the visa applicant had undertaken military service, the Tribunal concluded that this was not the equivalent of attending an educational institution as contemplated by the visa requirements. Consequently, the Tribunal affirmed the decision not to grant the visa.