MIGRATION - Child (Migrant) (Class AH) visa - Subclass 101 (Child) - full-time course of study at educational institution since turning 18 - never worked full-time - financially supported by father - evidence of studies inconsistent and incomplete - decision under review affirmed

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), 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 27 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 13 November 2019. 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). Relevantly to this case, they include cl 101.213 which contains work, study and relationship requirements for children who have turned 18.
4. The delegate refused to grant the visa on the basis that cl 101.213 because the delegate was not satisfied the applicant had been undertaking a full time course of study at an educational institution since turning 18. The delegate's decision records that the applicant gave conflicting information about her studies and the delegate's own examination of the Pherson's Health College website found it was missing common information found on most websites for other education providers, which caused the delegate not to be satisfied that it was operating as a training provider.
5. The review applicant appeared before the Tribunal on 19 September 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Miss Larbi and the review applicant's partner, Ms Esther Boateng. The Tribunal hearing was conducted with the assistance of an interpreter in the Akan (Ghana) and English languages.
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 should be affirmed.

1. The issue in the present case is whether the applicant meets the criteria for applicants over the age of 18 set out in cl 101.213 at time of application and if so, whether she continues to do so at the time of the Tribunal's decision.

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. The applicant gave evidence that she is not engaged to be married and has never been married or had a spouse or de facto partner. There being no evidence to the contrary, the Tribunal finds accordingly.
3. Accordingly, cl 101.213(1)(a) is met and continues to be met 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. The applicant gave evidence that she has never been engaged in full-time work and that she was financially supported by her father, the visa applicant. The review applicant gave evidence that he has financially supported the visa applicant at all times, transferring her money from Australia and paying all of her education expenses. Ms Boateng gave evidence that she assisted the review applicant to send money to the visa applicant in Ghana using a remittance service, Remitly.
3. Transfer histories for Remitly accounts in the names of Ms Boateng and the review applicant show a number of transfers to the visa applicant and her brother Emmanuel and Ms Boateng gave evidence that the visa applicant and Emmanuel live together and she sends the money to whomever is available to accept it. The Departmental file contains bank statements from an account held by the review applicant showing transfers to WorldRemit and remittance receipts for remittances sent to the visa applicant and Emmanuel during 2017 - 2019. On the evidence before me, I find that the applicant has never been engaged in full-time work.
4. Accordingly, cl 101.213(1)(b) is met. It continues to be met 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. There is no suggestion that the applicant is incapacitated for work because of loss of bodily or mental functions. Therefore she must have been undertaking full-time study since turning 18, or within 6 months (or a reasonable time) after completing year 12.
3. 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).
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. In the visa application the applicant stated that she was studying a Diploma in Nursing/Medicine Counter Assistant at Nursing Training College, Accra which she commenced on 25 September 2016 and was due to be completed on 20 June 2021.
6. The applicant completed the equivalent of year 12 at Ebenezer High School on 30 June 2016 and turned 18 in April 2017. I find that in 2017, 2018 and 2019 she was a full-time student at Phersons Health College, completing a Health Care Certificate One in 2018 and a Health Care Certificate Two in 2019. In making that assessment I have had regard to the academic transcripts provided by Phersons Health College evidencing those studies.
7. While I have noted the delegate's concerns about whether Phersons Health College was actually operating as a training provider at that time, I have had regard to the information provided by that college about its website and its operations on 19 September 2024 and I give the applicant the benefit of the doubt in that regard.
8. However for the following reasons, I am not satisfied that the applicant was engaged in full time studies at Phersons Health College after the end of 2019:
   • As set out in the delegate's decision, the visa application was lodged on 13 November 2019 and the applicant provided a letter from Phersons Health College dated 17 October 2019 advising that the applicant had completed a two year program from December 2016 to December 2019 and the college was currently offering a program in medicine counter assistants which started in August 2019;
   • The Department contacted Phersons Health College in February 2020 to verify the applicant's study claims. Phersons Health College advised that the applicant had completed her course in August 2019 and was no longer a student at their college;
   • When invited to respond to that information, the applicant provided a further letter from Phersons Health College dated 15 November 2021 which stated that she was pursuing a re-schooling program in medicine counter assistant which was deferred due to COVID and was currently studying a Level 1 Award Certificate in Customer Service from City and Guilds UK, which she due to complete in August 2023;
   • However at hearing the applicant gave evidence that the Health Care Certificate course that she was studying in 2019 required a period of 9 months practical experience and that she undertook 6 months of that practical experience in 2019 and had three months left to complete when COVID hit in early 2020 when everyone was asked to stay home for all of 2020 and 2021. She gave evidence that she did not undertake further studies or complete her practical training in 2020 and 2021 because of COVID, but returned to complete the last three months of her practical training between June and September 2022 before graduating from her course;
   • This applicant's evidence at hearing that she did not undertake any studies or practical work experience in 2020 and 2021 because of COVID is inconsistent with the various letters purporting to be from Phersons Health College:
     • A letter dated 14 November 2021 suggests the applicant was at that time pursuing the re-schooling programme in medicine counter assistant which had been deferred during COVID, which is inconsistent with the applicant's own evidence that she did not engage in any studies in 2020 and 2021 and did not return to the practical component of the course she was undertaking prior to COVID until June 2022;
     • A further letter dated 12 August 2024 maintains that the information in the earlier letter dated 14 November 2021 was correct and that during her time as a student the applicant completed one of her courses successfully and was awarded the Level 1 award in Customer Service on 27 March 2022. This is inconsistent with the applicant's own evidence at hearing that she did not engage in any studies in 2020 and 2021;
     • A further letter dated 19 September 2024 states that one of the school's administrators must have provided incorrect information at the time the Department sought to verify the applicant's enrolment in February 2020, because the applicant was at that time undertaking a year's practical work off campus. However the applicant's own evidence at hearing was that she was required to completed 9 months of practical training after finishing the on-campus component of her studies in July 2019, that she undertook 6 months of that in the second half of 2019 prior to the advent of the COVID pandemic and she was not able to resume the last three months of her practical training until June 2022.
9. In a submission dated 18 November 2021 provided to the Department, it was stated that the applicant completed nursing at Accra Nursing Training College in 2021 and was enrolled in the Medical Assistant course at Phersons Health College in 2021 which she was due to complete by August 2023. This is inconsistent with the applicant's evidence to the Tribunal that she did not study in 2020 or 2021 because of COVID and that she completed the practical component of her health course at Phersons Health College between June and September 2022. There is no documentary evidence before the Tribunal indicating that the applicant was at any time enrolled in a course at Accra Nursing Training College.
10. The Tribunal has had regard to the Certificate issued by City & Guilds for completion of a Level 1 Aware in Customer Service awarded to her on 27 March 2022. As discussed with the applicant at hearing, this is not consistent with her evidence that she was studying a health care or nursing course which she completed after finishing the practical component in September 2022. The applicant responded that the customer service award was in fact part of her health care course, but her earlier evidence was that she completed her on-campus studies in July 2019 and the academic transcripts that she has provided for that course makes no reference to customer service.
11. At hearing the applicant gave evidence that she completed a Medicines Counter Assistant Certificate in September 2022 and after the hearing she provided a copy of a certificate indicating that it was awarded to her on 30 September 2022. The timing of the award is inconsistent with the information in the letter from Phersons Health College dated 15 November 2021 stating that she was expected to complete the Medicines Counter Assistant course in August 2023. None of the academic transcripts provided by the applicant in these proceedings corroborate her claims to have undertaken that course.
12. In circumstances where the evidence of the applicant's studies between 2020 and 2023 is both inconsistent and incomplete, I give greater weight to the evidence obtained by the Department as recorded in the delegate's decision. That information is that the applicant completed her course in August 2019 and was no longer a student at their college at the time the Department sought to verify her enrolment in February 2020. It is consistent with the academic transcripts provided by the applicant from Phersons College for 2018 and 2019.
13. I find that the applicant completed the Health Care Certificate One at Phersons Health College in August 2019 and was no longer a student at that college at the time the visa application was made on 13 November 2019. The applicant's own evidence is that she did not undertake any studies in 2020 or 2021 and I find accordingly. I am not satisfied on the evidence before me that the applicant undertook any further studies at Phersons Health College in 2022 as claimed. For these reasons I am not satisfied that the applicant undertook any studies between August 2019 and December 2022, a period of almost three and a half years.
14. The legislative requirement is that at the time of application, 'the applicant has, 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'. This does not necessarily involve continuous involvement in study, rather it requires a decision-maker considering whether, characterised as a whole, the visa applicant's conduct in that period warrants the conclusion that the visa applicant has been undertaking relevant study in that period which in turn involves an examination of what the applicant has been doing in that interval.[1]
15. When asked about her activities in 2020 and 2021, the applicant gave evidence that she was not studying and not working and simply staying at home because of COVID. I have not accepted her claims to have completed her practical training in relation to the Health Care Certificates she undertook in 2018 and 2019. On the evidence before me, I am not satisfied that her conduct during the period August 2019 and December 2022, characterised as a whole, warrants a conclusion that she was undertaking relevant study
16. For these reasons, cl 101.213 is not met at the time of application. As such, it is not necessary for the Tribunal to go on to consider whether the applicant is a full-time student as at the time of Tribunal's decision.
17. For the reasons 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).

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

Representative for the Applicant: Mr Tolbert Tony Assante (MARN: 0960227)

[1] Hussain v MIBP [2017] FCCA 3247