Weledu (Migration) - [2025] ARTA 2245

WELEDU (MIGRATION) [2025] ARTA 2245 (4 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Deginsh Berhane Weledu
Visa Applicant:  Mr Dagim Tilahun Janka
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2312357

Tribunal:General Member Downes
Place:Brisbane
Date: 4 August 2025
Decision:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 04 August 2025 at 12:50pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – visa applicant over 18 years – full-time course of study – gaps in studies – college closure due to the COVID-19 pandemic – equivalent of year 12 in the Australian school system – primary carer for family member – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cls 101.213, 101.221; r 1.03
CASES
Reyes v Minister for Immigration & Anor [2007] FMCA 1721 (29 November 2007)
Wake v Minister for Immigration & Anor [2010] FMCA 272
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 12 July 2023 to refuse to grant the visa applicant a Child (Migrant) (Class AH) Subclass 101 visa under section 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 27 November 2020. 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).
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy the study-related criteria in cl 101.213(1)(c) in Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
The review applicant appeared before the Tribunal on 21 July 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
ISSUE AND LAW
A subclass 101 visa is for a person outside of Australia seeking a permanent visa based on being the dependent child of an Australian citizen or permanent visa holder.
Relevantly to this matter, if, at the time of application, the visa applicant has turned 18, they need to meet certain requirements relating to relationships, work, and study: cl 101.213. These requirements must continue to be met at the time of decision: cl 101.221(2)(b).
Pursuant to cl 101.213(1)(c), at the time of application, the 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. In the decision of Wake…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Weledu (Migration) [2025] ARTA 2245
Case: [2025] ARTA 2245
Decision Date: 4 August 2025

CaseChat Overview and Summary

The case involves a 25-year-old man from Ethiopia, who applied for a Child (Migrant) (Class AH) visa, specifically a Subclass 101 (Child) visa, through his mother as the review applicant. The applicant had completed secondary education in Ethiopia and had undertaken various courses of study in Ethiopia and Australia. The delegate refused the visa application primarily due to a gap in the applicant's study history, which was deemed not reasonable for the purposes of the relevant migration criteria.

The central legal issues in this case involved the interpretation of the criteria for a Subclass 101 visa, specifically the requirement that the applicant, having turned 18, 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. The Tribunal needed to determine if the applicant's breaks in study were reasonable and whether his educational qualifications were equivalent to Year 12 in the Australian school system. Furthermore, the Tribunal had to consider whether the delegate's decision was legally sound in applying these criteria to the applicant's case.

The Tribunal found that the delegate erred by not determining whether the schooling completed by the applicant was equivalent to Year 12 in the Australian school system before concluding on the reasonableness of the study gaps. The Tribunal noted that the phrase "after completing the equivalent of year 12 in the Australian school system" required a factual determination, and this was not adequately addressed by the delegate. The Tribunal further highlighted that Year 11 and 12 in Australia are not compulsory, and thus the equivalence of the applicant's Ethiopian education to Year 12 in Australia needed careful consideration. Ultimately, the Tribunal affirmed the delegate's decision not to grant the visa, finding that the criteria for the grant of a Subclass 101 visa were not met.

The final orders of the Tribunal affirm the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa. The Tribunal's decision was based on the finding that the delegate's reasoning did not adequately address the equivalence of the applicant's educational qualifications to Year 12 in Australia, which is a prerequisite for the application of the criteria regarding study gaps.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Pursuant to cl 101.213(1)(c), at the time of application, the 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. In the decision of Wake v Minister for Immigration & Anor [2010] FMCA 272 at [10], the court conveniently referred to these alternatives “as the ‘first wing’ and the ‘second wing’”. These requirements do not apply if the applicant is incapacitated for work due to the total or partial loss of the applicant’s bodily or mental functions: cl 101.213(2) and reg 1.03.CONSIDERATION OF CLAIMS AND EVIDENCEFacts and submissions The visa applicant is a 25-year-old man from Ethiopia. At the time he applied for the visa, he was aged 20 years. The visa application is sponsored by the visa applicant’s mother, the review applicant. The visa applicant turned 18 in November 2017. He provided evidence to the Tribunal regarding his education history. According to this material (which I accept as true):a.The visa applicant received the Ethiopian General School Secondary Education Certificate in August 2015. The visa applicant claims that he received this certification on completion of grade 10.b.The visa applicant commenced post-secondary studies in September 2018 at Blessed Tvet College. According to his Grade Report dated 16 October 2020, he completed courses between September 2018 and March 2020, before the College closed due to the COVID-19 pandemic.c.The visa applicant resumed post-secondary studies in September 2020 in a full-time three year Accounting & Finance qualification at Admas University. I note that he provided, among other things, a letter from Admas University dated 28 March 2023 which provides that his anticipated graduation date was July 2023.d.The visa applicant commenced studying a Western Cuisine Mastery Course at Eskafer Cookery and Catering School in October 2023 and is due to finish this course in August 2025, according to a letter from the school dated 19 May 2025. The visa applicant has had breaks in study: between August 2015 and September 2018, a period of approximately three years; between March 2020 and September 2020, being approximately six months; and between July and October 2023, being approximately three months. It is apparent from the decision record that the delegate refused to grant the visa because of the gap in the applicant’s study between 2015 and 2018, which the delegate did not consider to be a ‘reasonable period’ for the purposes of cl 101.213(1)(c). In my view, the delegate erred in their reasoning. The delegate accepted that the visa applicant’s gap in study occurred ‘immediately following secondary education’. However, the delegate did not determine whether the schooling completed by the visa applicant was ‘the equivalent of year 12 in the Australian school system’. It is necessary to make this finding before moving onto the question of whether any break in study constituted a ’reasonable period’.

Decision

Reasons for decision

For the reasons set out above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).DECISION The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.Date(s) of hearing: 21 July 2025Representative for the Applicant: Mr Samuel Stafford

Ratio Decidendi

Legal Principle Established

In support of the post-hearing submissions, the representative also submitted:a.Extract from World Education News and Reviews regarding Education in Ethiopia published on 15 November 2018. b.A document titled “The Education and Training Policy and Its Implementation’ published by the Minister of Education in February 2002.c.Gazette of the Federal Democratic Republic of Ethiopia dated 17 September 2009d.Letter from the Ministry of Labour and Skills regarding the entry requirements into the Ethiopian TVET system dated 28 July 2025.Consideration The Regulations and the Act do not elaborate on the meaning of “after completing the equivalent of year 12 in the Australian school system”. The department’s policy uses the phrase “after secondary schooling” interchangeably with “after completing the equivalent of year 12”. However, in the Tribunal’s view, this overly simplifies the issue. Education in Australia is determined at a state-based level. However, I note that the Australian Government’s Study Australia website provides the following useful summary:A complete Australian school education spans 13 years and includes: ·Foundation: also called preschool, preparatory school, or kindergarten is for children aged 3-5 years of age·Primary school: is from grades 1-6 and is compulsory·Secondary school: or high school is from grades 7-10 and is compulsory·Senior secondary school: or senior secondary college is from grades 11-12 It is important to note, as the applicant’s representative acknowledged, that Year 11 and 12 in Australia are not compulsory. A student who has completed Year 10 may proceed to a different pathway of education or full-time work. The wording in the Regulations requires the level of education to be the ‘equivalent’ of Year 12 in Australia. The adjective equivalent is defined in the Macquarie Dictionary as ‘1. equal in value, measure, force, effect, significance, etc. 2. corresponding in position, function, etc.’ Reyes v Minister for Immigration & Anor [2007] FMCA 1721 (29 November 2007) concerned a judicial review application from a decision by the Migration Review Tribunal to affirm the delegate’s decision refusing to grant a Subclass 101 visa. The applicant claimed that the Tribunal committed jurisdictional errors by assuming without relevant evidence that the completion of secondary school in the Philippines was the equivalent of Year 12 in the Australian school system. The court, in dismissing the application, commented that:13.There might be merit in that submission if the Tribunal had proceeded on a view of the law or facts that was not on any view open to it. However, I consider that it was open to the Tribunal to conclude that the applicant’s completion of secondary schooling in the Philippines at the age of 18 was the equivalent of the completion of year 12 in Australia. That seems to me to be a simple and obvious conclusion.14.Notwithstanding the direction of some of the submissions at the hearing before this court, it seems to me that the regulation is not concerned with whether a person is entitled to enter college or university. Rather, it is concerned with allowing people who are 18 or more, and who are thus legally adults, to continue to be eligible for child migrant visas on the basis that they are doing full-time, career-oriented, post-secondary courses of the sort usually undertaken by young adults.15.Accordingly, in my view, it was open to the Tribunal to conclude that the applicant’s completion of secondary schooling in the Philippines, at the age of 18, was the equivalent of year 12. In view of the applicant’s implicit acceptance of that view, the Tribunal did not need to expose its reasoning process or marshal the evidence on which it was based.16.Moreover, whether a particular educational qualification is the equivalent of year 12 in Australia is a question of fact. While determinations of fact may be reviewable, in exceptional circumstances, I do not consider that any of those circumstances arise in this case. The applicant simply did not ask the Tribunal to depart from the simple and obvious view that the completion of secondary school in the Philippines, at the age of 18, is the equivalent of the completion of year 12 in Australia.