Wenzel (Migration)

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101, made by Miss Bernal, who was over 18 years of age at the time of application. The review applicant was Mrs Wenzel, presumably Miss Bernal's mother. The dispute before the Tribunal was whether Miss Bernal met the additional criteria for applicants over 18, specifically concerning full-time study.

The legal issues before the Tribunal were whether Miss Bernal had, since turning 18 or within a reasonable time after completing the equivalent of Year 12, been undertaking a full-time course of study leading to a professional, trade, or vocational qualification, as required by cl.101.213(1)(c) of Schedule 2 to the Regulations. The Tribunal also considered whether the requirement to meet these criteria continued to be met at the time of the decision, as stipulated by cl.101.221(2)(b). The Tribunal noted that the exception for being incapacitated for work due to loss of bodily or mental functions did not apply.

The Tribunal reasoned that while Miss Bernal had graduated from high school at age 16 and turned 18 before commencing tertiary study, her explanation for the break in study was relevant. She stated she had to care for her younger siblings due to her mother's work commitments and business management. The Tribunal considered this explanation in light of the "reasonable time" provision for commencing study, acknowledging that surrounding circumstances, including the purpose of any activities undertaken, are relevant. The Tribunal found that the applicant had commenced tertiary study in the Bachelor of Science in Hotel and Restaurant Management program in the first semester of 2014/2015.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the visa applicant met the criteria specified in cl.101.213(1)(c) and cl.101.221(2)(b) of Schedule 2 to the Regulations.