Andres (Migration) - [2025] ARTA 1196

ANDRES (MIGRATION) [2025] ARTA 1196 (9 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Miss Gia Ponce De Leon Andres
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2305407

Tribunal:Wan Shum
Place:Sydney
Date: 9 July 2025
Decision:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 09 July 2025 at 1:17pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – full-time study since turning 18 and at time of application – study history, including private study during study gap and changes of career path – no evidence of study at time of application – new enrolment shortly before rescheduled hearing – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 802.214(1)(c), (2)
CASES
Berenguel v MIAC [2010] HCA 8
Hussain v MIBP [2017] FCCA 3247
Khan v MICMA [2023] FCA 463
MIAC v Henschel [2013] FCCA 584
Opoku-Ware v MIBP (2015) 297 FLR 416
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 March 2023 to refuse to grant a Child (Residence) (Class BT) Subclass 802 visa to the applicant under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 19 August 2021. The criteria for the grant of the visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly for visa applicants who are over 18 at the time of application, the criteria that must be satisfied includes a requirement of full-time study unless the person is incapacitated for work. In this case, the delegate refused to grant the Subclass 802 visa because the applicant was not studying at the time the application was made and because of the gap in post-secondary studies so was not satisfied that the applicant remained an active student in a full-time course of study at the time of lodgement and since turning 18. In addition, the delegate noted that at no point had the applicant claimed to be incapacitated for work and did not consider that cl 802.214(2) applied. The delegate was not satisfied that the applicant meets cl 802.214 of Schedule 2 to the Regulations.
The applicant sought review of that decision and was initially represented in relation to the review by the same migration agent who assisted with her visa application. She later appointed the representative whose name appears below.
The applicant appeared before the Tribunal on 5 June 2025 to give evidence and present arguments. The representative named below also attended.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant was born in September 1998 and is now 27 years old. She is a citizen of the Philippines. She first came to Australia in January 2019 as the holder…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Andres (Migration)

Details

AGLC: Andres (Migration) [2025] ARTA 1196
Case: [2025] ARTA 1196
Decision Date: 9 July 2025

CaseChat Overview and Summary

The case of Andres (Migration) involved a Filipino citizen, born in September 1998, who applied for a Subclass 802 Child (Residence) (Class BT) visa. The applicant had initially come to Australia on a visitor visa in January 2019 and subsequently applied for and was granted a Student visa on 2 August 2019. The visa application for the Subclass 802 Child visa was lodged on 19 August 2021, after the applicant turned 18. The application was sponsored by the applicant’s father, Mr Roland Remigio Gianan Vargas, an Australian citizen. The primary legal issue before the Tribunal was whether the applicant met the criteria for the grant of the Subclass 802 visa at the time of application, specifically the requirement that the applicant was undertaking full-time study.

The Tribunal examined the application and the supporting evidence, including the visa application form, Form 80, and other documents. The application form and Form 80 indicated that the applicant had completed her Diploma of Early Education and Care at Western Sydney Technology College on 18 July 2021, which was prior to the date of the application. No evidence was provided to suggest that the applicant was undertaking any full-time study at the time of the application. The applicant did provide new evidence shortly before the rescheduled hearing, showing enrolment in a Graduate Diploma for Early Childhood Education course, but this enrolment occurred after the application date. The Tribunal concluded that the applicant did not meet the study criteria at the time of the application, and therefore affirmed the decision not to grant the visa.

The final orders of the Tribunal were to affirm the decision not to grant the applicant a Child (Residence) (Class BT) visa. The date of the hearing was 5 June 2025, and the applicant was represented by Mr Gursharan Singh.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.BACKGROUND The applicant was born in September 1998 and is now 27 years old. She is a citizen of the Philippines. She first came to Australia in January 2019 as the holder of a visitor visa and then lodged a Student visa application while in Australia which was granted on 2 August 2019 in connection with her proposed study for a Diploma of Early Childcare Education. The applicant’s father, Mr Roland Remigio Gianan Vargas, who is sponsoring her for the Child (Subclass 802) visa is an Australian citizen by grant. The applicant is his biological daughter. The application for a Subclass 802 visa made by the applicant was lodged on 19 August 2021, after the applicant had already turned 18. In such circumstances, certain criteria relating to relationships, work, and study must be met at the time of application: cl 802.214. These are that the applicant is single, is not engaged in full-time work and is undertaking full-time study. In this case, the visa application form was completed with the same information in the section seeking details of the child’s student status for the separate questions of the applicant’s secondary education and post secondary study; Diploma of Early Education and Care at Western Sydney Technology College with the date commenced given as 20 July 2020 and date completed or estimated date of completion as 18 July 2021. The visa application form was signed and dated 18 July 2021. The accompanying Form 80 was completed indicating that the applicant had completed a Bachelor of Science in Tourism Management at John B. Lacson Foundation Maritime University in the Philippines between June 2014 and May 2018. In the section seeking details of all tertiary education and qualifications, the details that were provided were that between July 2019 and July 2020 the applicant had studied for a Diploma of Early Education and Care at the Australian Learning Group - 4 Life Colleges, although no indication was given as to whether this was completed or she had withdrawn or was currently enrolled; and beneath that entry, the details provided were that she had completed the same course at Western Sydney Technology College between July 2020 and July 2021. The accompanying information included a statement confirming enrolment at Western Sydney Technology College in a Diploma of Early Childhood Education and Care with the commencement date given as 20 July 2020 and the expected end date of 18 July 2021. The form 80 was signed and dated 17 July 2021. The information read together reflects that at the time the application was taken to have been lodged on 19 August 2021, the applicant had completed her Diploma study. The other supporting documents provided to the Department included a letter from Love of Learning Early Learning Centre located in Mount Druitt stating that the applicant had been working ‘permanently as a Part Time Diploma trained Educator from December 2019 to the date of the letter, which was 6 August 2021. The evidence provided to the Department did not reflect that she was undertaking study when the application was made. This is the issue before the Tribunal.CONSIDERATION OF CLAIMS AND EVIDENCE

Evidence

Evidence Before The Court

The other supporting documents provided to the Department included a letter from Love of Learning Early Learning Centre located in Mount Druitt stating that the applicant had been working ‘permanently as a Part Time Diploma trained Educator from December 2019 to the date of the letter, which was 6 August 2021. The evidence provided to the Department did not reflect that she was undertaking study when the application was made. This is the issue before the Tribunal.CONSIDERATION OF CLAIMS AND EVIDENCE As the applicant was over 18 at the time of application, she had to meet additional requirements in respect of relationships, work, and study: cl 802.214. The requirement in respect of study is that, at the time of application, the applicant is undertaking a full time course of study after turning 18, or within 6 months or a reasonable time after completing the equivalent of Year 12 in the Australian education system. This requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the loss of bodily or mental functions: cl 802.214(2). The evidence provided with the visa application of the applicant’s studies reflect that she had been undertaking full-time study at Western Sydney Technology College and completed the Diploma of Early Education and Care on 18 July 2021. The visa application form was signed and dated 18 July 2021 and the form 80 was signed and dated 17 July 2021. The Form 956 appointing a registered migration agent, and the family composition form were signed and dated 31 July 2021, and the supporting material are stamped as certified copies of the original and dated 31 July 2021. The visa application fee was prepaid on 12 August 2021, and the forms and supporting material were sent by registered post and stamped as received by the Department on 20 August 2021. However, the Tribunal notes that the letter acknowledging receipt of the application reflect that the application was made on 19 August 2021. In any case, while it appears on the information available to the Tribunal that the application would have been made on 20 August 2021 based on the date stamp, the evidence reflects that she had already completed the Diploma of Early Education and Care as at that date and the earlier date of 19 August 2021. A couple of days prior to the rescheduled hearing, which had been rescheduled four times due to the applicant’s initial representative being absent for the first hearing scheduled on 29 April 2025 and then the applicant’s change of representative a week prior to the second hearing scheduled for 6 May 2025, the applicant provided evidence of having enrolled in a Graduate Diploma for Early Childhood Education course at Acknowledge Education on 2 May 2025 for commencement on 26 May 2025. The letter confirms that the applicant will be attending classes online and the course is being delivered in English and that the course of study is due to be completed on 24 May 2026. The other documents provided a day prior to the hearing included a personal statement signed and dated 5 June 2025 and documents regarding her financial situation which were attached to a brief email which stated that she was “working part-time only and her main focus is on her studies”.

Decision

Reasons for decision

For the reasons above, the criteria for the grant of a Subclass 802 visa are not met and the Tribunal must affirm the decision under view.DECISION The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.Date(s) of hearing: 5 June 2025Representative for the Applicant: Mr Gursharan Singh (MARN: 0640600)

Ratio Decidendi

Legal Principle Established

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