WANG (Migration)

[2025] ARTA 1740

WANG (MIGRATION) [2025] ARTA 1740 (6 AUGUST 2025)

DECISION AND  

REASONS FOR DECISION

Applicant:Mr Yilin WANG

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:  2314877

Tribunal:General Member W Shum

Place:Sydney

Date:  6 August 2025

Decision:The Tribunal sets aside the decision under review and remits the application for a Child (Migrant) (Class AH) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 101 (Child) visa:

·cl 101.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 06 August 2025 at 9:56am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – study requirement – full-time study since turning 18 – studying at time of application – completed diploma then studied English at home preparing to come to Australia – no requirement that study be continuous – granted student visa and currently studying in Australia – some part-time work in Australia – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 101.213(1)(c), (2), 101.221(2)(b)

CASES
Hussain v MIBP [2017] FCCA 3247
Khan v MICMSMA [2021] FedCFamC2G 271
Opoku-Ware v MIBP (2015) 297 FLR 416

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister on 14 September 2023 to refuse to grant a Child (Migrant) (Class AH) visa to the applicant under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 3 March 2022. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate was satisfied that the applicant was studying at the time of application but did not accept that the applicant continued to satisfy that requirement because of the gap between completing that study in China and commencing study in Australia. As there was no evidence of incapacity, the delegate was not satisfied that the applicant meets cl 101.213(2) and refused to grant the visa on the basis that the applicant did not continue to satisfy the study requirement such that of cl 101.221(2)(b) was not met.

4. The applicant sought review of that decision and was represented in relation to the review.

5. The applicant appeared before the Tribunal on 24 June 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The representative was present during the hearing.

6. For the following reasons, the Tribunal has concluded that the decision under review should be set aside and the matter should be remitted for reconsideration.

   BACKGROUND

7. The applicant was born in October 2001 and was 20 when he made the visa application. He is now 23 years old. He is a citizen of the People’s Republic of China (China). The application for a Subclass 101 visa was lodged while he was in China, but he has since entered Australia on a visitor visa and was subsequently granted a student visa while onshore, although this appears to have ceased.

8. He is being sponsored for the Subclass 101 visa by his mother. She lives in Sydney and is the holder of a permanent visa granted in July 2021 as a partner of an Australian permanent resident. The visa applicant is her son from a previous relationship.  

9. The application was made on 3 March 2022, after the visa applicant had already turned 18. In such circumstances, additional criteria relating to relationships, work, and study must be met at the time of application: cl 101.213. Essentially, the requirements are that the applicant is single, is not engaged in full-time work and is undertaking full-time study.

10. In this case, the visa application form was completed indicating that the applicant was never married or in a de facto relationship and the section regarding employment was left blank. No information was entered in the response fields to the questions seeking details of secondary study, but under the section seeking details of post secondary studies, it was completed indicating that the applicant was undertaking a Diploma of Electrical Engineering at Lianyuanguang Technical College in Lianyuanguang, Jiangsu Province in China which commenced from 16 September 2019 and had an expected completion date of 30 June 2022.

11. Following a request from the Department, a Form 80 was provided which was completed with information that he had never worked and a detailed explanation was given regarding his schooling, relevantly, that he had attended junior high school from September 2013 to July 2016 followed by Guannan Secondary Vocational School from September 2016 to July 2019. It was stated that after completing his Diploma in July 2022, he then studied the English language at home to prepare for coming to Australia and arrived on 29 December 2022. He wrote that since February 2023, he had been studying at the Australian Vocational Training Institute.

12. In the section for education details, each subject he had undertaken at Lianyuanguang Technical College was listed as completed.

13. While the delegate was satisfied that the applicant was studying at the time of application, the delegate did not accept that self-study was the type of study that met the requirements of cl 101.213(1)(c) and did not consider that the gap between completing his study in China and commencing Diploma study to be a reasonable gap in study. The delegate found that cl 101.213(2) did not apply as there was no evidence of incapacity, and concluded that the visa applicant did not continue to satisfy cl 101.213(1)(c) and thus did not satisfy cl 101.221(2)(b).

14. On review, evidence was submitted of the applicant’s study and dependency.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in this case is whether the applicant continues to satisfy the criteria for applicants over 18 in respect of his relationship status, work and study: cl 101.221(2)(b).

16. In this case, the delegate was not satisfied that cl 101.214(1)(c) continued to be met at the time of decision. Clause 101.214(1)(c) requires that, at the time of application, the visa applicant must have, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

17. In this case, the applicant had completed secondary school at Jiangsu Guannan Secondary Vocational (also translated elsewhere as ‘Specialised’) School in July 2019 before he turned 18; as he turned 18 in October 2019. This means that to meet the requirement of cl 101.213, he must have been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification since October 2019. The applicant had commenced full-time study of a Diploma of Electrical Engineering at Lianyuanguang Technical College in September 2019.

18. The evidence reflects that at the time of application in March 2022, he was still undertaking study of Electrical Engineering at Lianyuanguang Technical College which he then completed in July 2022. This means that he was undertaking the requisite study at the time of application as required by cl 101.214(1)(c).

19. Where cl 101.214(1)(c) is met, it must continue to be met at the time of decision: cl 101.221(2)(b). For this purpose, the decision-maker must look at the time period from the commencement of study until the time of decision and ask whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247. The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416. The Federal Court on appeal in Khan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 271 further elaborated at [74] that:

    74In summary, the action of studying must have commenced by the time of application and the visa applicant must be studying at the time of the decision.  The decision-maker is required to look at the time period from the visa applicant commencing study within cl 101.213(1)(c) until the time of the decision and ask whether the visa applicant’s conduct in that period warrants the conclusion that the visa applicant has been undertaking relevant study in that period.  But I should note that it is not necessary for visa applicants to have been continuously involved in study without pause from the time they commenced that study until the time of decision.

20. In this case, after the applicant’s arrival in Australia, he commenced further post secondary study by undertaking a Diploma of Project Management at the next academic intake and is currently undertaking the Advanced Diploma of Project Management which he is due to complete in February 2026. Both of these courses were full-time, and while the applicant required an extension to complete the Diploma component, it was explained that this was due to his English language proficiency. In any case, the Tribunal accepts that this study leads to a professional, vocational or trade qualification.

21. In looking at the period between completing his studies in China and commencing his Diploma studies in Sydney, the evidence reflects that applicant did not undertake any formal study between July 2022 until February 2023. There was thus a period of several months when he was not actively engaged in study at an educational institution. The delegate did not consider that the gap was a ‘reasonable break’.

22. However, having regard to Khan, the Court held that there is not requirement that any post-secondary study be continuous without a break. The applicant had applied for and was granted a student visa in March 2023 which reflects an intention to study. The Tribunal further notes that the study in Australia in project management, is study of a kind that would be considered relevant to his earlier study in engineering. Having regard to all of the evidence about this period, the Tribunal considers that the gap between completing his post secondary study in China and commencing post secondary study in Australia is study which continues to meet the study requirement in cl 101.214(1)(c) at the time of this decision.

23. In respect of the other requirements in cl 101.214(1), the applicant claimed that he was not engaged to be married, does not have, and never had, a spouse or de facto partner and the Tribunal accepts that he was single at the time of application and continues to be single now. This means that he continues to meet cl 101.214(1)(a).

24. In respect of full-time work, the applicant claims that he was not working in China and only commenced working after he came to Australia. There is no evidence that he was working at the time of application and the Tribunal accepts that he was not engaged in full-time work at that time. The applicant gave evidence that he had been doing paid work on Fridays and occasionally Saturdays, at a noodle market stall operated by a friend, for a maximum of 9 hours per week. The Tribunal notes that his wages are paid directly into his bank account based on the copies of his bank statements which were provided that reflect regular payments from June 2023 with the description of ‘BBQ’ on a weekly basis, initially of $270 which later increased to $300-350 and on two occasions he was paid $700 and $500. It appears that he is paid on average around $300 per shift. On the evidence before it, the Tribunal accepts that the work at the BBQ stall is not full-time work; so he is not engaged in full-time work at the time of decision. Accordingly, cl 101.213(1)(b) continues to be met at the time of decision.

25. The applicant had met all of the requirements of cl 101.214(1) at the time of application and continues to satisfy these requirements at the time of this decision and therefore meets the requirements of cl 101.221(2)(b).

26. Given the findings above, the appropriate course is to set aside the decision under review and remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

27. The Tribunal sets aside the decision under review and remits the application for a Child (Migrant) (Class AH) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 101 (Child) visa:

    ·cl 101.221(2)(b) of Schedule 2 to the Regulations.

    Date(s) of hearing:  24 June 2025

    Representative for the Applicant:Mr Nelson Guang Lai Shi (MARN: 9578392)