Respondent: Minister for Immigration and Citizenship

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 visa applicant meets the following criteria for a Subclass 101 (Child) visa:

• cl 101.213 of Schedule 2 to the Regulations; and
• cl 101.221 of Schedule 2 to the Regulations

MIGRATION - Child (Migrant) (Class AH) visa - Subclass 101 (Child) - full-time study after turning 18 - gaps in study history - mental health and family matters, gap year in middle of course, then successful completion - change of subject area and career path, and academic progression - decision under review remitted

Migration Act 1958 (Cth), s 65

Migration Regulations 1995 (Cth), Schedule 2, cls 101.213(1)(c), 101.221(2)(b)

Hussain v MIBP [2017] FCCA 3247

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

Sok v MIMIA [2005] FMCA 190

Veljanovski v Minister for Home Affairs [2019] FCCA 502

Wake v MIAC [2010] FMCA 272

1. This is an application for review of a decision made by a delegate of the Minister on 25 January 2022 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The visa applicant applied for the visa on 18 January 2021. 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).
4. The delegate refused to grant the visa on the basis that the visa applicant failed to satisfy cl 101.213 of Schedule 2 to the regulations.
5. The parties appeared before the Tribunal on 2 May 2025 to give evidence and present arguments.
6. The review applicant was represented in relation to the review.
7. For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter be remitted for reconsideration.

1. As the visa applicant was over 18 years of age at the time of application, the issue in this case is whether she is able to satisfy the requirements of cl 101.213. These requirements must continue to be met at the time of decision: cl 101.221(2)(b).

1. 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).

1. At the time of application, the visa applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl 101.213(1)(a). This must continue to be the case at the time of this decision: cl 101.221(2)(b).
2. There is no evidence that the visa applicant is, or has ever been, engaged, partnered or married. The Tribunal is satisfied that the visa applicant meets this criteria at the time of application and continues to satisfy it at the time of decision.

1. At the time of application, the visa applicant must not be engaged in full-time work: cl 101.213(1)(b). This must continue to be the case at the time of this decision: cl 101.221(2)(b).
2. There is no evidence that the visa applicant is, or has ever been, engaged in full-time work. The Tribunal is satisfied that the visa applicant meets this criteria at the time of application and continues to satisfy it at the time of decision.

1. 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: cl 101.213(1)(c).
2. This provision appears to contemplate a single full-time course of study at a particular institution (such as a degree or a technical college qualification), although it might well extend to cover a qualification that is obtained from an institution or accreditation body upon satisfaction of a variety of criteria, some of which may be fulfilled by undertaking courses at alternative institutions: Sok v MIMIA [2005] FMCA 190 at [15]- [16]. In determining what is a 'reasonable time' for cl 101.213(1)(c), it is relevant to consider the surrounding circumstances including the actual time involved, what activities were undertaken during that time, the purpose for which those activities were undertaken and, if no relevant activities were undertaken, the reason why: Sok v MIMIA [2005] FMCA 190 at [19]. This requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the loss of bodily or mental functions: cl 101.213(2).
3. 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.

1. The visa applicant's evidence in relation to her study timeline and reasons for gaps in same are contained in the Application for migration to Australia by a child (Form 47CH), the Sponsorship for a child to migrate to Australia (Form 40CH), the Personal particulars for assessment including character assessment (Form 80) and the various submissions provided to the Tribunal. They disclose that the visa applicant:

(i) completed the Australian Year 12 equivalent of school in December 2014;

(ii) was enrolled to study a 'Certificate in Social Sciences' from the Open University of Sri Lanka, from early 2015 until she completed the course in April 2017;

(iii) whilst undertaking the above certificate was also enrolled to study a 'Diploma in International Airline Cabin Crew' from the International Airline and Aviation College from February 2016 until she completed the course in June 2016;

(iv) was enrolled to study an 'Advanced Diploma in Business Management' from the American Institute of Computer Technology from August 2016 until she completed the course in March 2020;

(v) was enrolled to study a 'Diploma in Hospitality and Tourism Management' at the Global Institute of Higher Education from August 2020 until she completed the course in August 2021; and

(vi) commenced a Bachelor of Business (International Hotel Management) at the Le Cordon Bleu College in Adelaide in August 2022 and continues to progress with these studies at the time of this decision.

1. Hence, the visa applicant commenced full-time course of study at a tertiary institution within six months of completing the equivalent of Year 12 in the Australian school system and therefore satisfies the initial requirement contained in the subject clause.
2. The visa applicant took a gap year in her study during 2017/2018. Her evidence was that as she had undertaken a number of years of continuous full-time academic study which included matriculation from high school, a certificate course and diploma, she felt the need to "step back to rest, reflect and broaden my perspective before resuming my academic journey".
3. The visa applicant had spent considerable periods of time away from her mother and extended family and this created mental health issues for her during this period as she lacked the immediate emotional support and assistance of her mother and family members.
4. The Tribunal notes that this gap year occurred during her study of the Advanced Diploma in Business Management and that she returned to the course and successfully completed it in March 2020.
5. The Tribunal finds that the visa applicant's reasons for undertaking a gap year were reasonable given the extended period of time during which she was away from her mother and family, the concern of her mental health and the fact that she returned to the study and successfully completed the course. The Tribunal is satisfied that the visa applicant always intended to remain in full-time study and would have but for her personal concerns.
6. After completing the advanced diploma in March 2020, the visa applicant did not return to full-time study until August 2020.
7. The visa applicant's evidence is that upon completion of the advanced diploma, she had a period of reflection and reassessment of her career goals. She undertook research in relation to future career pathways and commenced the Diploma in Hospitality and Tourism Management in August 2020.
8. The Tribunal notes that the time away from study during this period was less than five months and following completion of the previous course. The Tribunal further notes that the recommencement of study was in a different field of endeavour, moving from business management to hospitality and tourism management.
9. Having regard to these matters, the Tribunal finds that the visa applicant's reasons for the period of time between the conclusion of one course of study and the commencement of the subsequent one, were reasonable in the circumstances. The tribunal is satisfied that it is not uncommon for students to reassess and reconsider their career pathway and if necessary, commence an alternative course of study as a result thereof. It is also reasonable to have a period of time between completing one course and commencing another.
10. Following completion of the Diploma in Hospitality and Tourism Management in August 2021, the visa applicant had a further 12 months away from formal study before commencing her current course which is a degree in International Hotel Management.
11. The visa applicant continues to progress through her degree course and is expected to complete the study in 2026.
12. The Tribunal notes that this course is a further and significant step in the tourism management sector and reinforces the evidence of the visa applicant that she had made a considered and measured decision, during her time away from study, to move from business management into the tourism and hospitality field.
13. The visa applicant's evidence was that she focused on personal and family matters during this 12 month hiatus in her study program. The visa applicant was in the process of having a visa application for Australia finalised. She felt that a break was necessary for her mental health, given the extended period of time away from her mother. The visa applicant's evidence is that she missed very much her mother's support during her years of study whilst her mother was in Australia.
14. The Tribunal finds that the visa applicant's reasons for undertaking a further 12 month gap away from study were reasonable given the extended period of time during which she was away from her mother and family, the concern regarding her mental health and the fact that she returned to the study and successfully completed the course. The Tribunal is satisfied that the visa applicant always intended to remain in full-time study and would have but for her personal concerns.
15. Indeed, the visa applicant continues to undertake the same course and is progressing towards completion of her bachelor's degree.
16. The Tribunal refers to the relevant clause that the visa applicant must satisfy at the time of application, cl 101.213 (1)(c), and gives careful consideration to the wording of the subclause.
17. The relevant subclause states the requirement that an applicant, "..has, since turning 18.... been undertaking full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification."
18. In considering the meaning of words contained in the subclause, the Tribunal has had reference to the Macquarie Dictionary, in particular the meaning of 'since' which is referred to as meaning 'from then until now' and 'in the period following the time when'.
19. In Wake v MIAC [2010] FMCA 272, it was held that 'since' in this context means 'continuously' from the event of turning 18. In Veljanovski v Minister for Home Affairs [2019] FCCA 502, the court also referred to 'since' as 'continuously'.
20. The word 'continuously' is defined in the Macquarie Dictionary as including 'unbroken', 'uninterrupted in time' and 'without cessation'.
21. In relation to the meaning of the word 'undertaking', the Macquarie Dictionary refers to 'to take on oneself' and 'lay oneself under obligation to perform or execute'.
22. In Sok v Minister for Immigration and Citizenship [2007] FCA, the Court stated the following when considering the meaning of the word 'undertaking':

"..the word can relevantly be defined as "engaging in" or "entering upon" some enterprise: see The Australian Oxford Dictionary and The Oxford English Dictionary. It may therefore have been enough for the Tribunal to have asked itself whether, on the material before it, the visa applicant had established to its satisfaction that he had been engaging (or participating) in, or entering upon, a full-time course of study."

1. The Tribunal has also had regard to the authority of Opoku-Ware v MIBP [2015] FCCA 1638; (2015) 297 FLR 416, where the Court considered that the words 'has been undertaking' describes an action that has already commenced and 'remains ongoing'.
2. Therefore, the visa applicant has had three periods of time away from full-time study since the completion of her Year 12 education at the end of 2014.
3. The first period of time away from full-time study was as a result of the gap year taken between 2017/2018. The second period of time was following the completion of her Diploma in Business Management and commencement of her Diploma in Hospitality Management in 2020/2021. The third period of time was between the completion of her Diploma in Hospitality Management and the commencement of her Bachelor of International Hotel Management.
4. The first and third periods of time away from full-time study was, on the visa applicant's evidence, required as a result of the continuous study that she had been undertaking and the pressure and stress felt by her being away from her family and especially her mother over a number of years.
5. The Tribunal finds that the visa applicant's reasons for undertaking the time away from study on those two occasions were reasonable given the extended period of time during which she was away from her mother and family, the impact on her mental health as a result of this and the fact that on each occasion she returned to the study and successfully completed the course.
6. The second period of time away from full-time study was a period of approximately four - five months, from the completion of one course until the commencement of a new pathway of study. The Tribunal takes into account the normal requirement for a break between finalising one course of study and commencing a new one, together with the fact that the visa applicant carefully considered and researched the different pathway in her career trajectory during this period.
7. The Tribunal accepts that it is not uncommon for students to reassess and reconsider their career pathway and if necessary, commence an alternative course of study as a result thereof. It is also reasonable to have a period of time between completing one course and commencing another. The Tribunal finds that the visa applicant's reasons for undertaking the second period of time away from study was reasonable in view of the evidence and submissions provided.
8. The Tribunal also notes that since completing her senior schooling, the visa applicant has commenced and completed four higher education qualifications including a Certificate, two Diplomas and an Advanced Diploma. The visa applicant has never withdrawn from or failed to complete any of her tertiary courses. Further, the Tribunal notes that she continues to this progress through her bachelor's degree and is on course to complete it in 2026.
9. In view of the above, the Tribunal must consider whether, in the ordinary meaning of the words contained in the subclause, the visa applicant had been, since turning 18, undertaking full-time course of study in an educational institution at the time of application.
10. Having carefully considered all the evidence and submissions made by the visa applicant, and in the Tribunal is satisfied pursuant to cl 101.213(1)(c) that, at the time of application, the visa applicant had:
    • - 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 ('engaging or participating in') a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.
11. In view of the above, the Tribunal finds the visa applicant is able to satisfy regulation 101.213 at the time of application and given her ongoing full-time study, is able to satisfy cl 101.221 at the time of this decision.

1. 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 visa applicant meets the following criteria for a Subclass 101 (Child) visa:
   • cl 101.213 of Schedule 2 to the Regulations; and
   • cl 101.221 of Schedule 2 to the Regulations.