Phromphian (Migration)

The Administrative Appeals Tribunal considered the case of a visa applicant seeking a Child (Migrant) (Class AH) visa, subclass 101. The applicant, who had turned 18, was found not to have met the criteria relating to undertaking a full-time course of study. The Tribunal affirmed the decision not to grant the visa.

The primary legal issue before the Tribunal was whether the visa applicant satisfied the requirements of clause 101.213 of the Migration Regulations 1994, specifically concerning full-time study for applicants over 18. This clause requires that since turning 18, or within a reasonable time thereafter, the applicant must have been undertaking a full-time course of study leading to a professional, trade, or vocational qualification, unless incapacitated for work. The Tribunal also considered whether the applicant met the ongoing requirements under clause 101.221(2)(b) at the time of the decision.

The Tribunal found that while the applicant met the criteria relating to not being married or in a de facto relationship, and not being engaged in full-time work, he failed to meet the study requirement. The applicant had not undertaken a full-time course of study since turning 18. The Tribunal noted that the applicant's father had guided him towards international study in Australia and that the applicant had not applied for study in Thailand due to financial constraints and the plan to obtain the visa. Despite this, the applicant had since passed an admission examination and been accepted into a Bachelor of Engineering program in Bangkok.

Although the visa criteria were not met, the Tribunal recommended the matter for consideration of the Minister’s discretionary powers under section 351 of the Migration Act 1958. The Tribunal identified compassionate and compelling circumstances, including the applicant's age, his relationship with his father, and the father's international work and financial support for the family. The Tribunal concluded that it would cause hardship to the father if he could not support his son to reside with him and achieve an Australian tertiary qualification and career.