MIGRATION - Child (Migrant) (Class AH) visa - Subclass 101 (Child) - visa applicant over 18 years - full-time course of study - gap in studies - Volunteer Emergency and Rescue Work - pre-requisite English language studies - decision under review affirmed

Migration Act 1958 (Cth), s 65

Migration Regulations 1994, Schedule 2, cls 101.213, 101.221

Hussain v MIBP [2017] FCCA 3247

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

Sok v MIMIA [2005] FMCA 190

1. This is an application for review of a decision made by a delegate of the Minister on 6 October 2023 to refuse to grant a Child (Migrant) (Class AH) visa to the visa applicant under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The visa applicant applied for the visa on 20 October 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). The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this matter, they include cl 101.213 which applies to visa applicants who are over 18 at the time of application.
3. The delegate refused to grant the Subclass 101 visa because there was no evidence that the visa applicant is validly enrolled in, and actively participating in, a full-time course leading to a professional, trade or vocational qualification so was not satisfied that the applicant meets cl 101.213(1)(c). As there was no evidence of incapacity, the delegate was not satisfied that the applicant meets cl 101.213(2).
4. The applicant, the mother of the visa applicant, sought review of that decision and was represented in relation to the review.
5. The applicant appeared before the Tribunal on 10 June 2025 to give evidence and present arguments and was assisted by her representative. The Tribunal also received oral evidence from the visa applicant by videoconference. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

1. The visa applicant was born in November 1996 so was 24 when he made the visa application. He is now 29 years old. He is a citizen of Thailand.
2. The applicant is the mother of the visa applicant. She lives in Sydney and came to Australia in September 2007 as the holder of a student visa and remained in Australia on a series of student visas and later made a combined application for temporary and permanent Partner visas both of which were granted in January 2017. The visa applicant is her son from a previous relationship. She is now an Australian citizen.
3. The application for a Subclass 101 visa was made on 20 October 2021, 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 that leads to the award of a professional, trade or vocational qualification.
4. In this case, the visa application form was completed indicating that the visa applicant had completed secondary education in March 2015 and that he was currently undertaking post-secondary school study at N Education Co Ltd from 5 April 2021 which was due to be completed on 20 March 2023. In the qualification field, the words 'English Communications course' were entered.
5. As evidence of this study, a certified copy of the certificate issued by the Ministry of Education certifying that the visa applicant had completed the Basic Education Core Curriculum on 25 March 2015 at Bodindecha (Sing Singhaseni) school was provided. Also provided was a letter from N Education Ltd dated 12 October 2021 confirms that the visa applicant had been a full-time student since 5 April 2021 and was undertaking the intermediate English communication course and had already completed the elementary, pre-intermediate English communication courses.
6. On the Form 80 - Personal particulars for assessment including character assessment, the section seeking details of all tertiary education and qualifications was completed indicating that the visa applicant had obtained a Bachelor's Degree in Fisheries from Kasetsart University in May 2019. A copy of the translated qualification was provided that verifies his successful completion of the final examination on 27 May 2019. The applicant also provided details of being currently enrolled in an English Communication course at N Education Co. Ltd. The school issued a letter confirming that he had finished the course at elementary, pre-intermediate and intermediate levels. The first course started in April 2021 and the third course in September 2022.
7. In the section seeking details of all employment and unemployment at question 19 it was answered reflecting that he joined Kuson Sattha Surat Thani Foundation, a not-for-profit organization as a Volunteer Emergency and Rescue Worker from June 2019 to February 2021; and that from April 2021 he had been studying English Communication course at N Education Co. Ltd.
8. At question 54, the visa applicant provided a more detailed response stating:

A GAP OF NO FULL-TIME STUDY WAS BETWEEN FINISHING MY UNIVERSITY DEGREE (IN MAY 2019) UNTIL STARTING MY FULL-TIME ENGLISH COMMUNICATION COURSE (IN APR 2021). > > WITH THE START OF THE RAINY SEASON AHEAD, I WANTED TO TRAIN IN RESCUE WORK, SO I CAN HELP OUT PEOPLE AND ANIMALS. DU.RING THE RAINY SEASON IN THAILAND, THERE ARE SO MANY FLOODS AND WATER-RELATED EMERGENCIES. PEOPLE CAN LOSE THEIR HOMES IN FLOODS. > > SO MANY PEOPLE AND ANIMALS ALSO GET INJURED AND DROWN. DURING THE COVID PANDEMIC IN LATE 2019, THE HOSPITALS COULD NOT HANDLE ALL THE SICK PEOPLE COMING IN, SO CHARITY ORGANISATIONS WOULD BUILD TEMPORARY PLACES TO HELP PEOPLE WITH FOOD AND MEDICINE, AND TO ALSO HAVE A PLACE TO STAY IN, ESPECIALLY IF THEY LOST THEIR HOUSES. SO I JOINED KUSON SATTHA SURAT THAN! FOUNDATION (JUNE 2019 TO FEBRUARY 2021) AND DID UNPAID VOLUNTARY EMERGENCY AND RESCUE WORK. > > I FINISHED 5 TRAINING COURSES AT THE FOUNDATION AND THEY INCLUDE: > > BASIC LIFE SUPPORT TRAINING (30 JUN 2019), BASIC CPR TRAINING (15 JUL 2019), USE OF DIVING > > EQUIPMENT TRAINING (10 AUG 2019), DIVING (WITH SNORKEL) TRAINING (22 SEP 2019) AND > > WATER RESCUE TRAINING (l FEB 2020). > > (PLEASE SEE ATTACHMENT 3 - EMERGENCY VOLUNTEER AND RESCUE TRAINING CERTIFICATES).

9. The delegate noted that there was no evidence that the visa applicant's English course was a pre-requisite for a full-time course and there was no evidence of enrolment for a subsequent full-time course. The delegate found that there was no evidence provided that the applicant is validly enrolled in, and actively participating in, a full-time course leading to a professional, trade or vocational qualification and concluded that cl 101.213(1)(c) did not appear to be met. The delegate, having found that cl 101.213(2) did not apply as there was no evidence of incapacity, concluded that the visa applicant did not satisfy cl 101.213.
10. On review, it was submitted that the visa applicant was undertaking English tuition in preparation for entry into a Master course program. The evidence to substantiate this was the applicant's statutory declaration and documents including: a translation of graduate student recruitment information for Master of Science (aquaculture) degree at Kasetsart University for 2023; a copy of the visa applicant's CU-TEP score issued on 27 March 2024 for a test taken on 9 March 2024; a receipt for payment for Master's degree application fee to Chulalongkorn University made on 27 March 2024 with translation; and a statement from the owner of Macawdenia Aviaries along with photographs of the visa applicant taken in April to June 2024 with the description that he attended to conduct studies on Macaw birds as part of the requirements for qualification and selection into a Masters degree program at Chulalongkorn University. The evidence also included a completed application and registration form for a Bachelor of Science in Biology at Ramkhaemhang University signed and dated 21 May 2025.

1. The issue in this case is whether, at the time of application, the visa applicant has met 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). Relevantly in this case, it is the study requirement that is in issue.

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.
4. There is no evidence that the applicant was incapacitated for work because of loss of bodily or mental functions and cl 101.213(2) does not apply.
5. The evidence before the Tribunal is that the visa applicant had completed secondary school in March 2015 and then completed a Bachelor of Science (Fisheries) at Kasetsart University on 27 May 2019. The applicant claims that at the time of application he had been undertaking full-time study of the English language at English World operated by N Education Co. Ltd., and provided evidence of having commenced a full-time English communications course in April 2021.
6. However, the evidence from N Education Co. Ltd about the applicant's study of English reflects that the course of itself does not lead to the award of a professional, trade or vocational qualification and, in the Tribunal's view, is not a course of study at an educational institution leading to the award of a professional, trade or vocational qualification.
7. The applicant now claims that he was undertaking the English course to prepare for Master degree study.
8. Prior to the hearing, a statement in English from the visa applicant was submitted, which included the following: that he had been passionate about animals and aimed to enrol in a suitable course relating to animal studies either at a Bachelor or a Master level and initially, was aiming to pursue a Master degree "as it seemed a logical sense after completing a Bachelor degree. However, to enter the Master degree course I was interested in, Master of Science in Aquaculture, I must meet a certain level of English." The evidence to support this claim was provided following the hearing which reflects that for entry into a Masters program at The Graduate School, Kasetsart University, if an exemption does not apply and is not granted, the student will need to sit for an English proficiency examination and for students who fail, the student must enrol in a course "English Required by Graduate School" (01355501) course" or provide evidence of achieving a minimum score in certain English language proficiency tests.
9. However, this claim was only made on review, after the visa was refused. There was no such claim made to the Department, which addresses a gap in study by referring only to his volunteer work as set out above and does not refer to any intention to undertake post-graduate study that would lead to the award of a professional, trade or vocational qualification.
10. At the hearing, his mother mentioned that the COVID-19 pandemic also affected his ability to engage in full-time study. However, no evidence was provided of any attempts to enrol in further study towards a professional, trade or vocational qualification and, while the Tribunal acknowledges that various activities were impacted by lockdowns imposed by Governments worldwide during the COVID-19 pandemic, there was no mention of proposed or intended study being impacted because of the pandemic during the processing of the visa application. The Tribunal further notes that the applicant's completion of various courses with the foundation where he was volunteering appear to have all been completed prior to the COVID-19 pandemic reaching SE Asia/ Thailand.
11. Following the Tribunal's invitation to provide any other evidence regarding the planned Master study, the Tribunal received further statements from the visa applicant and his mother. While the Tribunal accepts that the COVID-19 pandemic had an impact on school closures, there is no evidence that the applicant had contacted the university at the time to make any enquiries about a Master course in aquaculture. He has provided a printout of the course outline for the Master of Science (Aquaculture) at Kasetsart University and also a screenshot reflecting that the course applications for the Master in Aquaculture for 2021 involved an interview and thesis proposal for first semester (3rd round) to occur on 8 July 2021 with interviews to be announced on 20 July 2021. For second semester, the interview and thesis proposal was scheduled for 25 November 2021 with interviews to be announced on 1 December 2021. Based on the screenshots of messages which are undated (but likely after the hearing) and appear to have been translated using the application, the visa applicant has contacted a member of the Aquaculture Faculty, Sukkrit Nimitkul, Associate Professor at Kasetsart University and enquired as to whether there was an impact of COVID-19 pandemic on study. Associate Professor responded stating that there was quite a lot as students were not able to attend laboratory work and the teaching was done online so practical skills such as breeding and raising fish larvae could not be carried out properly.
12. The Tribunal accepts that COVID-19 pandemic had an impact on study in Thailand and other countries around the world due to closures of schools and lockdowns to limit the spread of the disease, and there would likely have been concerns about attending classes or study in-person. However, having read the unofficial translation of his response, the Tribunal does not consider that it supports a conclusion that it was not possible to undertake study during the pandemic. The evidence from the visa applicant reflects that he could have proceeded with enrolment and even study, albeit online, of a Master course in Aquaculture at Kasetsart University by July 2021. However, there is no evidence that he did so. According to the statements presented after the hearing, the English communications course that he had enrolled in was an online course. There is no evidence to suggest that any English study through the university would have been classroom based, given that the study of other subjects went ahead online.
13. In his statement of 3 June 2025, the visa applicant had explained that his mother had believed that, following a request from the Department for health examinations to be undertaken, he would be granted the visa and advised him not to commence any study at that point.
14. Furthermore, while copies of the 2021 and 2023 graduate information for entry into Master of Science (Aquaculture) have been provided, the only evidence provided to support his assertions of intending to pursue a Masters degree reflect that it was not until 2024 that he engaged in the application and enrolment process for graduate studies. The first of these being evidence of taking a test for entry into graduate school at Chulalongkorn University of his English language proficiency (referred to as CU-TEP) on 9 March 2024, and included an application fee paid on 27 March 2024. The Tribunal accepts that he attended an aviary to monitor macaw breeding patterns from May to June 2024, but there is no evidence that the application process went beyond paying an application fee and contacting a faculty member. He did not provide a completed application form for the Master degree study, only an application form for another Bachelor degree in Science made on 21 May 2025, a couple of weeks before the hearing. When asked about this, he claimed that the teacher he had hoped would supervise his work for a Masters degree at Chulalongkorn University, Professor Pongchai Dumrongrojwattana, had informed him that there were no positions for new students that year, and that he was advised by the university that the teacher would be leaving the university. The applicant provided screenshots of messages exchanged with the Professor on and around 26 June 2024, however, the Tribunal does not consider that the content of the messages and evidence presented supports this claim.
15. Having considered all of the circumstances, including the steps taken and when these occurred, the Tribunal is not convinced on the evidence provided that he enrolled in an English communications course in April 2021 to pursue Masters study. The applicant had said that, at a minimum, the English language study would have allowed him to have any profession in Thailand by improving his English language capabilities. The initial steps to apply for enrolment in a Master program were done in March 2024, several months after the visa application was refused, and he did not proceed with enrolment in a Master program. In addition, the Tribunal notes that shortly after the applicant was notified of a hearing, the visa applicant promptly enrolled in a bachelor's degree in science. This was 6 years after he completed his first bachelor's degree in science, at a different university. Although he claims that he is now interested in land animals, it appears that his enrolment at this stage in another bachelor's degree in science rather than, for example post graduate study, was to meet the time of decision visa criteria, and not a reflection of a genuine desire to undertake further tertiary study for career purposes. It thus appears that he was taking the English classes at the time of application not for further study, but for general improvement and possibly in the hope he would move to Australia to live with his mother, who is sponsoring him for the visa.
16. The English communications course that the visa applicant was studying at the time of application was not leading to the award of a professional, trade or vocational qualification and, given this, the Tribunal finds that cl 101.213(1)(c) is not met. This means that cl 101.213(1) is not satisfied and 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) and the Tribunal affirms the decision under review.

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

Representative for the Applicant: Ms Kanokwan Subhodyana