Abenoja (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, before the Tribunal. The applicant had turned 18 at the time of lodging her application. The core of the dispute revolved around whether the applicant met specific criteria for applicants over 18, particularly those relating to post-secondary studies.

The Tribunal was required to determine if the applicant satisfied the criteria under cl.802.214(1)(c) of the Migration Regulations 1994. This clause mandates that applicants aged 18 or over must have, since turning 18 or within a reasonable time after completing the equivalent of Year 12 in the Australian school system, commenced undertaking a full-time course of study leading to a professional, trade, or vocational qualification. The Tribunal also had to consider whether this criterion, along with others, continued to be met at the time of the decision, as per cl.802.221(2)(b).

The Tribunal found that the applicant met the criteria under cl.802.214(1)(a) and (b), relating to not being engaged to be married or in a de facto relationship, and not being engaged in full-time work, respectively. Crucially, the Tribunal accepted evidence that the applicant commenced undertaking the requisite full-time study within a reasonable time after completing the equivalent of Year 12. In determining what constituted a "reasonable time," the Tribunal considered the surrounding circumstances, drawing on principles from *Sok v MIMIA* [2005] FMCA 190.

Consequently, the Tribunal remitted the application 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.