Promkhan (Migration)

The Administrative Appeals Tribunal considered the case of Promkhan, where the review applicant sought a Child (Migrant) (Class AH) visa, subclass 101, for her son. The son, born on 7 August 1993, had turned 18 at the time of application and was under 25. The core dispute revolved around whether the visa applicant met the specific study criteria for applicants over 18.

The Tribunal was required to determine if the visa applicant had, since turning 18 or within a reasonable period after completing the equivalent of Year 12, been undertaking a full-time course of study at an educational institution leading to a professional, trade, or vocational qualification. This criterion, as outlined in clause 101.213(1)(c) of the Migration Regulations 1994, needed to be met at the time of application and continue to be met at the time of the decision, as per clause 101.221(2)(b).

The Tribunal's reasoning focused on the interpretation of "since" in relation to the full-time study requirement. Citing *Wake v MIAC*, the Tribunal held that "since" meant "continuously from" the event of turning 18, rather than "at any time after." The evidence presented indicated that the visa applicant had completed secondary education in 2008, further study in 2014, and undertaken military duty between 2014 and 2016. While some documents relating to TAFE and university enrolment were provided, the Tribunal found that the applicant had not continuously undertaken a full-time course of study since turning 18, nor had he met the alternative requirement of being incapacitated for work.

Consequently, the Tribunal concluded that the criteria for the grant of a Subclass 101 visa were not met. The decision under review, which affirmed the refusal of the visa, was therefore affirmed by the Tribunal.