2013158 (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, made by an applicant who had turned 18 at the time of application. The applicant had completed secondary school in 2014 and pursued various full-time study courses in England and Australia, including a Bachelor of Arts degree completed in 2018. Following an 18-month break in her studies, the applicant enrolled in further tertiary education in Australia, commencing a Certificate IV course in February 2020, which she soon transitioned into a Bachelor of [Disciple 1] course, completed in December 2021. She was subsequently enrolled in a Master of [Specialisation 2] course. The applicant had a rare medical condition diagnosed in 2005, requiring lifelong surveillance and surgery in 2017, with further genetic testing in 2018 revealing a predisposition to transfer the condition to any children. The Tribunal was satisfied that the applicant met the relationship criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant had met the study requirements for a Subclass 802 visa, specifically concerning the period of study and any breaks therein, given her age at the time of application and decision. The Tribunal was required to consider the applicant's entire period of study as a whole, taking into account the reasons for any breaks in her education.

The Tribunal reasoned that the applicant's study history, while including an 18-month break, should be viewed in its entirety. This break was attributed to the applicant's rare medical condition, which necessitated surgery and ongoing monitoring, as well as the physical and mental stress associated with her health issues and genetic predisposition. During this period, the applicant focused on regaining her health, developing family relationships, and exploring study and career options. The Tribunal was satisfied that the applicant had provided sufficient documentation to support her academic achievements and current enrolment, and that the study requirements, when considered holistically, were met.

Consequently, the Tribunal remitted the application for a Child (Residence) (Class BT) visa, Subclass 802, for reconsideration by the Minister, with a direction that the applicant met the criteria specified in cl.802.214 and cl.802.221(2)(b) of Schedule 2 to the Regulations.