1921029 (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802. The applicant, who had turned 18, was required to meet specific post-secondary study requirements. The dispute centred on whether the applicant had satisfied these study requirements, particularly in light of delays in commencing post-secondary education and a withdrawal from a course after obtaining a visitor visa. The decision was made by Margie Bourke, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine whether the applicant met the criteria for a Subclass 802 visa, specifically concerning the requirement to have undertaken a full-time course of study since turning 18, or within a reasonable time after completing the equivalent of Year 12. This included assessing whether the applicant had been undertaking such study at the time of application and continued to do so at the time of the decision, as stipulated by the relevant clauses of Schedule 2 to the Regulations. The Tribunal also had to consider the meaning of "reasonable time" in this context, taking into account the surrounding circumstances and the applicant's activities and reasons for any delays.

The Tribunal reasoned that the applicant had satisfied the relationship status and work requirements for the visa. Regarding the study requirement, the Tribunal noted that the provision contemplates a single full-time course of study, but can extend to qualifications obtained through alternative institutions. It applied the principles from *Sok v MIMIA* [2005] FMCA 190 regarding the determination of a "reasonable time" and the need to consider surrounding circumstances, including the purpose of activities undertaken and reasons for inaction. The Tribunal also referred to *Hussain v MIBP* [2017] FCCA 3247, which requires an assessment of the applicant's conduct as a whole from the commencement of study until the decision, and *Opoku-Ware v MIBP* (2015) 297 FLR 416, which mandates that the applicant must be studying at the time of the decision.

The Tribunal concluded that the applicant met the criteria under cl.802.214 and cl.802.221(2)(b) of Schedule 2 to the Regulations. Consequently, the Tribunal remitted the application for a Child (Residence) (Class BT) visa for reconsideration by the Minister, with the direction that the applicant meets these specified criteria.