Tran (Migration)

The Administrative Appeals Tribunal considered an application for a Child (Migrant) (Class AH) visa, Subclass 101 (Child), made by a visa applicant who had turned 18. The primary issue before the Tribunal was whether the applicant met the criteria for applicants over 18, as stipulated in clause 101.213 of Schedule 2 to the Migration Regulations 1994, and continued to meet these requirements at the time of the decision, as required by clause 101.221(2)(b).

The Tribunal was required to determine if the applicant satisfied the conditions relating to relationship status, engagement in full-time work, and undertaking a full-time course of study. Specifically, clause 101.213(1)(a) requires that the applicant not be engaged to be married and not have, or have ever had, a spouse or de facto partner. Clause 101.213(1)(b) mandates that the applicant not be engaged in full-time work. Clause 101.213(1)(c) requires that, since turning 18 or within a specified period after completing the equivalent of Year 12, the applicant has been undertaking a full-time course of study leading to a professional, trade, or vocational qualification.

The Tribunal found that the applicant met the criteria concerning relationship status and not being engaged in full-time work, based on the submissions of the applicant's agent and the absence of contrary evidence. However, the Tribunal did not make a definitive finding on the full-time study requirement, which is a crucial element for applicants over 18. Due to this unresolved issue, the Tribunal concluded that the matter should be remitted to the Minister for reconsideration. The Tribunal directed that the visa applicant meets the criteria under cl.101.213 and cl.101.221(2)(b) of Schedule 2 to the Regulations, implying that the remaining criteria, particularly the full-time study requirement, needed further assessment.