MIGRATION - Child (Migrant) (Class AH) visa - Subclass 101 (Child) - visa applicant over 18 years - dependent child of an Australian resident - full-time course of study - lengthy gap in studies - family health issue - impact of COVID pandemic restrictions - mental health issues - decision under review affirmed

Migration Act 1958 (Cth), ss 65, 359

Migration Regulations 1994, Schedule 2, cls 101.213, 101.221; r 1.03

Berenguel v MIAC [2010] HCA 8

Hussain v MIBP [2017] FCCA 3247

Khan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 463

Opoku-Ware v MIBP [2015] FCCA 1638; (2015) 297 FLR 416

Reyes v Minister for Immigration & Anor [2007] FMCA 1721

Wake v Minister for Immigration & Anor [2010] FMCA 272

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 March 2023 to refuse to grant the visa applicant a Child (Migrant) (Class AH) Subclass 101 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The visa applicant applied for the visa on 29 July 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 delegate refused to grant the visa on the basis that the visa applicant did not meet the study-related criteria in cl 101.213(1)(c) of Schedule 2 to the Regulations.
4. The review applicant appeared before the Tribunal on 12 May 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.
5. The review applicant was represented in relation to the review.
6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

1. 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.
2. 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).
3. 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.
4. Where cl 101.213(1)(c) applies, 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] FCCA 1638; (2015) 297 FLR 416.
5. The department's policy, which is not binding on the Tribunal, provides:

3.9.3.12. Breaks in study after commencement of post-secondary education

In assessing whether the applicant has been undertaking a full-time course of study, decision makers may take into account exceptional circumstances arising outside of the applicant's control that may have led to a temporary gap in undertaking the full-time course.

If, following the commencement of full-time study, exceptional circumstances that are beyond the applicant's control have caused a temporary gap in their study, then after consultation with a manager and after acceptable evidence of these circumstances has been provided by the applicant and assessed as genuine, the applicant may be assessed as having met the 'full-time study' requirement. An applicant must demonstrate that the gap in their tertiary full-time study is temporary. The decision maker must fully document the circumstances, the documentation sighted and their assessment as to genuineness in departmental systems.

An applicant who is yet to commence full-time study because of exceptional circumstances arising outside of the applicant's control will not be considered as meeting the 'full-time study' requirement.

1. The court in Reyes v Minister for Immigration & Anor [2007] FMCA 1721 opined at [14] that cl 101.213 (which is in the same terms as cl 802.214(1)(c)) "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".

1. The visa applicant is a 27-year-old woman from the Philippines. At the time she applied for the visa, she was aged 24 years. The visa application is sponsored by the visa applicant's mother, the review applicant.
2. It is uncontentious that the visa applicant graduated from high school in 2014 and that she then studied a Bachelor of Arts at Ateneo de Davao University, from which she graduated in April 2020. What transpired after this time is less clear, in part due to errors which the visa applicant concedes that she has made in her written evidence.

1. The visa applicant concedes that she took a break in studies following the completion of her Bachelor degree.
2. The visa applicant claims to have recommenced study in June 2022 when she enrolled in an Australian Grand Diploma in Commercial Cookery, Professional Baking, and Hospitality Services at the Institute of International Culinary and Hospitality Entrepreneurship (First Cooking School). Initially, she claimed that she enrolled in this course in January 2022.
3. The visa applicant claims to have withdrawn from the First Cooking School due to financial hardship and the review applicant's diagnosis with breast cancer, which further impacted her financial situation. She then claims to have then enrolled in Associate in Culinary, Baking and Pastry Production (Second Cooking School) at Joji Illagan International Management School in November 2022. Initially, she claimed that she enrolled in this course in June 2022.
4. The visa applicant submitted some documentary evidence to the Tribunal in support of her claims, including:
   1. A statement of account regarding the First Cooking School dated December 2022, which provides an enrolment date of 15 November 2022.
   2. A registration form for the Second Cooking School dated 8 December 2022, which provides an enrolment date of 8 December 2022.
   3. A letter from the review applicant's doctor dated 29 November 2022 stating to the effect that the review applicant commenced treatment for breast cancer in November 2022.
5. I do not accept the visa applicant's claims as to when she commenced the First Cooking School and the Second Cooking School as they are inconsistent with the documentary evidence provided, and I prefer the documentary evidence because I consider it more reliable.
6. Having regard to this evidence, I find that:
   1. The visa applicant enrolled in the First Cooking School on 15 November 2022, but withdrew from the course shortly thereafter.
   2. The visa applicant enrolled in the Second Cooking School on 8 December 2022.
7. I therefore find that the applicant took a break in studies between 18 April 2020 and 15 November 2022, being a period of approximately two years and seven months.

1. It is apparent from the decision record that the delegate refused to grant the visa because of the break in studies between the visa applicant's completion of her Bachelor degree and the commencement of her vocational training. Relevantly, the decision record states:

Based on the above information, the applicant had a break in study from approximately 18 April 2020 until mid-2022. I note that the gap occurred after she had already commenced post-secondary study. As previously stated, the term 'reasonable time' as it applies to a break in study is solely intended to cover the period between secondary school and post-secondary studies.

Therefore, I cannot be satisfied that the applicant has been an active student in full-time study since turning 18 years old. As a result, the applicant does not appear to satisfy paragraph 101.213(1)(c).

I also considered subclause 101.213(2), which states that the study clause will not apply for those applicants over the age of 18 years of age who are dependent due to being incapacitated for work due to the total or partial loss of the child's bodily or mental functions.

As the applicant has not provided any evidence of incapacity, I am not satisfied that the applicant meets subclause 101.213(2).

1. The representative made the following submissions in relation to the break in study:

17. From April 2020 to January 2022, om client took a break in her studies . This interruption was due to two overlapping and unavoidable circumstances:

Like many students globally our client was impacted by the severe disruption to higher education caused by the pandemic. Educational institutions in the Philippines either suspended classes or transitioned to formats that were not accessible or suitable for her field of study, especially given the practical and in-person requirements of courses she was interested in pursuing.

19. The obstacles created by the restrictions from COVID pandemic were out of her control.

20. Mental Health Difficulties Due to Family Breakdown:

During this period, our client was struggling significantly with her mental health as a result of her parents ' divorce. The emotional distress stemming from this family breakdown greatly affected her ability to focus, function, and make academic progress.

She did not take up employment and remained financially dependent on her parent during this difficult time. The impact on her mental health was serious, and her capacity to resume full-time study was understandably delayed.

21. Our client has been attending counselling sessions for 13 months with a Psychologist to manage her mental health issues. A copy of statutory declaration is enclosed and marked as "E".

22. These factors combined created an extraordinary situation where she could not reasonably be expected to continue formal studies immediately.

1. No evidence was put before the Tribunal in support of the COVID-19 related submissions. The visa applicant provided written and oral evidence to the Tribunal regarding her mental health, but no medical evidence was provided, nor other evidence to support the visa applicant's claims that she attended counselling sessions (for example, evidence of payment for such sessions).

1. The visa applicant claims that the Second Cooking School is a full-time course. The visa applicant gave oral evidence that she attends classes Monday to Friday but not for the full day. She also gave oral evidence that she sometimes attends school on Sundays for preparation.
2. The Tribunal gave the visa applicant the opportunity to provide evidence to corroborate her claims and evidence following the hearing. Upon receipt of additional evidence, the Tribunal wrote to the review applicant pursuant to s 359A of the Act in the following terms:

The Tribunal acknowledges the material provided on 23 May 2025, including the letters from the visa applicant's School Registrar certifying that she is a full-time student of Associate in Cookery and Bread and Pastry Production and that her class schedule is from Mondays to Fridays.

• The visa applicant's statutory declaration states that she is studying an Associate in Culinary, Baking and Pastry Production (emphasis added).
• The registration form you submitted to the Tribunal dated 8 December 2022 states that the visa applicant is studying an Associate in Culinary, Baking and Pastry Production (emphasis added).

The Tribunal has made its own enquiries to ascertain the start dates of the visa applicant's program (noting the previous inconsistent evidence provided) and the nature of the program. In course of making these enquiries, the Tribunal identified that:

• The student registration page for Joji Ilagan International Management School only refers to an Associate in Culinary, Baking and Pastry Production and not an Associate in Cookery and Bread and Pastry Production.
• Information on the website and Facebook pages for the Career Institute of Southeast Asia indicates that classes for the two-year Diploma programs are only held on Sundays.

Extracts from the websites reviewed by the Tribunal are enclosed with this letter.

The Tribunal also notes that the registration form you submitted to the Tribunal dated 8 December 2022 relevantly states in relation to subjects:

This evidence, submitted to the Tribunal by you, also suggests that the visa applicant's classes are or were only held on Sundays.

In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

Please note, however, that we have not made up our mind about the information.

• The visa applicant is studying an Associate in Culinary, Baking and Pastry Production program.

• Classes for the program are only held on Sunday.

• The program is not a full-time course of study.

This information is relevant to the review because cl 101.213(1)(c) of Schedule 2 to the Regulations requires that, at relevant times, the visa applicant has been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

The information referred to in this letter suggests that the course that the visa applicant has been studying since 2022 is not a full-time course of study. If we rely on this information in making our decision, we may find that that the visa applicant has not been studying a full-time course of study, and accordingly, she does not satisfy the criteria for the grant of the visa referred to in this letter. This may lead us to affirm the decision under review.

You are invited to give comments on or respond to the above information in writing.

Your comments or response should be received by 16 June 2025. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

If you cannot provide the written comments or response by 16 June 2025, you may ask us for an extension of time. If you make such a request, it must be received by us by 16 June 2025 and you must state the reason why the extension of time is required.

We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

1. In response to the 359A letter, the applicant submitted another letter from the School Registrar stating that:
   1. The class schedule for Term 2, SY 2022-2023 to Term 3, SY 2023-2024 was Monday, Wednesday and Friday from 8 am to 12 pm.
   2. The class schedule for Term 1 SY 2024-2025 is every Sunday.
2. I note that the School Registrar previously certified documents stating:
   1. The applicant was a full-time student.
   2. The class schedule of the program is from Monday to Friday.

1. I have carefully considered the evidence before me and the submissions made. On balance, I am not satisfied that the visa applicant satisfies the criteria for the grant of the visa. There are three reasons.
2. First, the visa applicant was not studying at the time the visa application was made. Having regard to the findings set out above, she did not enrol in further study until approximately four months after making the visa application.
3. I acknowledge the representative's submissions that:

The Berenguel principle, as established in Berenguel v MIAC [2010] HCA 8, is that even if a visa criterion appears under a heading such as "Criteria to be satisfied at time of application," that does not mean the criterion must strictly be satisfied at the time of application. Instead, the actual wording and purpose of the provision determine whether it can also be satisfied at the time of decision.

1. I note that the representative relied upon Basnayake Appuhamilage (Migration) AATA 2572 (16 June 2022), where the Tribunal applied the Berenguel principle.
2. While I acknowledge that the Berenguel principle has been applied by the Tribunal, I do not accept the representative's submission because I note that this approach is inconsistent with the approach taken by the Federal Court of Australia, for example, in Khan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 463 (12 May 2023), where the court stated:
   1. And as I have said, as the phrase "has ... been undertaking" is used in the present perfect continuous tense, that tense denotes an action that has already commenced and is ongoing. And such an interpretation is consistent with the plain reading of cl 101.213(1)(c). Clause 101.213(1)(c) requires that the visa applicants must have actually commenced a full-time course of study by the time of the visa application is lodged. The clause identifies when the study must have commenced, that is, "since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system".
   2. The clause is drafted to permit study or its penumbra such as enrolment or other preliminary steps to commence within a time period, for example, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system. But the study or its penumbra must have commenced. To construe it otherwise is to re-write "been undertaking".
3. Second, I do not accept that exceptional circumstances that are beyond the visa applicant's control caused the visa applicant's temporary gap in their study or that characterised as a whole, the visa applicant's conduct in that period warrants the conclusion that they have been undertaking relevant study because insufficient evidence has been provided to support the applicants claims.
4. The representative directed the Tribunal to the case of Basnayake Appuhamilage (Migration) AATA 2572 (16 June 2022), where the Tribunal permitted a break in study that coincided with the visa applicant experiencing stress and anxiety caused by a relationship breakdown. In that case, the visa applicant submitted evidence of a police witness statement and intervention order to support the claims.
5. In contrast, no evidence was provided in relation to the effect of the COVID-19 pandemic on the applicant's study. I note from media articles that the Philippines had one of the world's longest school closures but remote learning was available. Additionally, no medical evidence was provided in relation to the visa applicant's claimed mental health issues, in circumstances where she claims to have sought treatment.
6. Third, I do not accept that the visa applicant has been studying a full-time course of study. The evidence that has been submitted is inconsistent, as summarised above. The visa applicant has not filed additional primary evidence of her course hours (for example, additional course registration documents or course timetables). Instead, she has relied upon her own written and oral evidence and the certifications made by the School Registrar. I do not consider this evidence reliable given the inconsistencies and the failure to provide a reasonable explanation for the inconsistencies. While the visa applicant has submitted her Academic Transcript, I note that the number of units completed per year is significantly less than the number completed during the visa applicant's full-time Bachelor degree.
7. The visa applicant does not claim to have been incapacitated for any period, meaning

cl 101.213(1)(c) must be met. For these reasons, it is not. 8. 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).

1. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa

Representative for the Applicant: Mr Leonardo Giampietro