2015945 (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, by an applicant who was over 18 years of age at the time of application. The applicant sought review of a decision affirming the refusal of her visa application. The primary issue before the Tribunal was whether the applicant met the criteria set out in clause 802.214 of the Migration Regulations 1994 at the time of her application.

The Tribunal was required to determine if the applicant satisfied the requirements of clause 802.214, specifically concerning her relationship status, whether she was engaged in full-time work, and whether she was undertaking a full-time course of study or was incapacitated for work. These criteria needed to be met at the time of application and continue to be met at the time of the decision. The Tribunal also considered the applicant's request for the matter to be referred to the Minister for intervention under section 351 of the Migration Act 1958, having regard to the President's Direction and the Minister's Guidelines concerning unique or exceptional circumstances.

The Tribunal found that while the applicant met the criteria relating to her relationship status and not being engaged in full-time work, she failed to meet the requirement of undertaking a full-time course of study at the time of her application. The applicant provided evidence of completing a Diploma of [Subject] in July 2024, but confirmed she was not studying at the time of her visa application in November 2019. Consequently, clause 802.214(1)(c) was not satisfied. Despite the applicant presenting strong compassionate circumstances, including being the eldest of four siblings, caring for her younger sisters, having her Australian permanent resident mother present, and having no family in the Philippines, the Tribunal concluded that these circumstances did not overcome the failure to meet the specific visa criteria at the time of application.

The Tribunal affirmed the decision under review, finding that the applicant did not meet the criteria for the grant of a Subclass 802 visa. The Tribunal noted that no claims were advanced in respect of the other visa subclass in Class BT (Subclass 837). The applicant's request for referral to the Minister for intervention was considered, but ultimately the Tribunal affirmed the original decision.