Rodger (Migration)

This matter concerned an application for a Child (Class AH) visa, subclass 101, by an applicant who had turned 18 and was not enrolled in full-time education, having completed a post-secondary university course. A break in study occurred after the completion of this course. The applicant's mother, an Australian citizen, had a terminal cancer diagnosis with a limited life expectancy. The case was before the Administrative Appeals Tribunal (AAT).

The primary legal issue before the Tribunal was whether the applicant met the criteria for the Child (Subclass 101) visa, specifically provision 101.213(1)(c) of Schedule 2 to the Regulations, which requires applicants over 18 to be enrolled and participating in full-time education. A secondary issue was whether the circumstances of the case were sufficiently unique or exceptional to warrant referral for ministerial intervention under sections 351, 417, or 501 of the Migration Act 1958 (Cth).

The Tribunal found that the applicant did not satisfy the specific educational requirement of provision 101.213(1)(c). However, it noted that the applicant was otherwise continuing in full-time university study and met other visa requirements. The Tribunal reasoned that the mother's terminal illness, the close relationship between mother and applicant, and the resulting distress constituted strong compassionate circumstances. Furthermore, the separation placed a considerable burden on the sponsor, who was the primary carer for the applicant's mother and a daughter with high special needs. Considering the applicant's demonstrated commitment to family care and his desire to spend time with his mother and assist in her care, alongside his ability to complete his studies online in Australia and his strong future employability, the Tribunal concluded that these constituted unique or exceptional circumstances warranting referral to the Minister.

The Tribunal affirmed the decision not to grant the visa but referred the case to the Department for consideration of ministerial intervention.