SHI (Migration)

The Administrative Appeals Tribunal considered the case of SHI, an applicant for a Child (Migrant) (Class AH) visa, Subclass 101. The dispute centred on whether the applicant met the eligibility criteria for the visa, specifically concerning their study status and capacity for work at the time of application and decision.

The primary legal issue before the Tribunal was whether the applicant satisfied clauses 101.213(1) and 101.221(2)(b) of Schedule 2 to the Migration Regulations. These clauses require an applicant over 18 years of age to have been undertaking a full-time course of study leading to a professional, trade, or vocational qualification, or to have been incapacitated for work, both at the time of application and continuing at the time of the decision.

The Tribunal reasoned that the applicant, being over 18 at the time of application, needed to demonstrate they were either a full-time student or incapacitated for work. The Tribunal noted that the provision contemplates a single full-time course of study, though it may encompass qualifications obtained through various institutions. The Tribunal also considered the meaning of "reasonable time" in relation to commencing study and the requirement for the applicant to be studying at the time of the decision. After reviewing the evidence, the Tribunal concluded that the applicant did not meet the criteria for full-time study and was not incapacitated for work.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Subclass 101 visa, as the necessary criteria were not met. No claims were advanced in respect of other visa subclasses within Class AH.