1828598 (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, by an applicant who had turned 18. The primary dispute before the Tribunal was whether the applicant met the criteria set out in clause 802.214 of Schedule 2 to the Migration Regulations 1994, specifically concerning relationship status, engagement in full-time work, and full-time study, or alternatively, whether the applicant was incapacitated for work due to a loss of mental functions.

The Tribunal was required to determine if the applicant met the requirements of clause 802.214(1)(a) and (b) regarding relationship status and not being engaged in full-time work, both at the time of application and at the time of the decision. Crucially, the Tribunal also had to consider whether the applicant could satisfy clause 802.214(2), which relates to being incapacitated for work due to a total or partial loss of bodily or mental functions, as this would exempt them from the full-time study requirement under clause 802.214(1)(c). The applicant had indicated that a significant gap in his studies was due to depression and potentially Asperger’s syndrome.

The Tribunal accepted the applicant's oral evidence that he was not engaged to be married, nor had he ever had a spouse or de facto partner, thus satisfying clause 802.214(1)(a). Similarly, the Tribunal accepted his evidence that he was not engaged in full-time work at the time of application and found no evidence to suggest he was engaged in full-time work at the time of the decision, satisfying clause 802.214(1)(b). However, the Tribunal noted that the applicant's claims regarding depression and Asperger's syndrome were relevant to clause 802.214(2), which concerns incapacity for work due to loss of mental functions. The Tribunal indicated that if the applicant met the criteria under subclause (2), the full-time study requirement in subclause (1)(c) would not apply.

Given the findings regarding clauses 802.214(1)(a) and (b), and the need for further consideration of the applicant's potential claim under clause 802.214(2), the Tribunal remitted the application for reconsideration. The Tribunal directed that the applicant met the criterion specified in clause 802.214 of Schedule 2 to the Regulations.