1902206 (Migration)

The Administrative Appeals Tribunal considered the case of a child visa applicant who had turned 18 and was seeking a Child (Residence) (Class BT) visa, Subclass 802. The applicant had previously been enrolled in full-time study but had withdrawn from her courses. The dispute centred on whether the applicant continued to meet the specific criteria for the visa after turning 18, particularly concerning her study commitments.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 802.214 of the Migration Regulations 1994, which stipulates that applicants over 18 must have been undertaking a full-time course of study leading to a professional, trade, or vocational qualification, and that this requirement must continue to be met at the time of the decision, as per clause 802.221(2)(b). The Tribunal also considered the interpretation of "reasonable time" for commencing study after completing Year 12 and the requirement for the applicant to be studying at the time of the decision.

The Tribunal reasoned that while the applicant had completed Year 12 and initially enrolled in tertiary studies, she had withdrawn from her courses in 2012 and again in early 2015. The Tribunal noted that the applicant had not provided any documentation to support her claims of withdrawing due to her brother's ill-health or her subsequent employment. Crucially, the Tribunal found that the applicant was not undertaking full-time study at the time of the decision, a requirement for applicants over 18 under clause 802.221(2)(b). Applying the principles from cases such as *Sok v MIMIA* and *Hussain v MIBP*, the Tribunal concluded that the applicant's conduct, characterised as a whole, did not demonstrate that she had been undertaking the required study.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Child (Residence) (Class BT) visa, Subclass 802, as the criteria were not met. However, the Tribunal considered that strong compassionate circumstances existed, including the family's bereavement of their only other child to cancer in 2017, and recommended the matter for the Minister's consideration under section 351 of the Migration Act 1958.