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 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
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”.
In her personal statement, she stated the following in respect of her studies:
17.As a child I dreamt about becoming a doctor. In most Asian families' parents want their child to become doctors. In the Philippines I did not get sufficient marks to go into medicine. So I studied and completed a Bachelor of Science in Tourism Management.
18.After completing my Bachelor's degree I came to visit my father in Australia.
19.My father agreed to support me if I wanted to come to Australia for further studies.
20.While in Australia I spoke with people and learnt that you could study medicine after graduating with another degree. I also learnt that this was very completive. Universities prefer students with appropriate life experience. I decided to enrol in child care and education as this would give me experience in working with children which would be invaluable if l became a doctor. Even if l wasn't able to get into medicine, working in child care was sometime I knew I would enjoy doing. So I completed a Diploma in Early Childhood Education and Care.
21.After completing my Diploma, I continued to prepare myself for the medical entrance examinations (GAMSAT- Graduate Medical Schools Admissions Test) by studying privately using senior high school textbooks. I just did this privately and was not enrolled in any course. Because I had already completed a university degree in the Philippines and a Diploma in Australia, I was confident that I had the ability to study privately.
22.However, I now realise that gaining entrance into a medical degree in Australia is much more difficult and complicated then I thought. It has taken me a long time to understand the Australian system and get the information I needed to decide about whether to try to get into medicine. I have now decided to focus on improving my qualifications in early childhood education. I have enrolled in a Graduate Diploma in Early Childhood Education.
23.My father has told me that he will continue to support me while I am studying the Graduate Diploma.
During the hearing, the applicant confirmed that she had completed a Bachelor degree in the Philippines and that she then commenced study in Australia from June 2020 to July 2021, although she appears to have commenced study at a different institution in July 2019. The Tribunal asked for an explanation for the gap between the courses.
The applicant explained that she was preparing to apply for the visa to Australia which took some time. When asked about her study in Australia, the applicant confirmed that she was currently undertaking a Graduate Diploma for Early childhood teaching course, which was full-time. Given the letter from the education institution confirming enrolment is dated 2 May 2025, it appears that the enrolment occurred following the appointment of a new representative which the Tribunal was informed about on 28 April 2025.
The Tribunal explained the criterion required that she was undertaking full-time study at the time of visa application. When asked if she was studying when the visa application was made on 19 August 2021, she said that she was doing a diploma of leadership. However, the Tribunal notes that details of this course were not entered on the visa application form and no evidence was provided to the Department of enrolment or study for this course. Furthermore, the applicant said that she only studied this course for a couple of months and could not remember the name of the education provider. She claimed that she had always wanted to study medicine, so had done some self-study of physics and chemistry textbooks but that it was competitive to get into medical school. She admitted that she had not applied to any medical schools but thought that the current Graduate Diploma in Childhood teaching will enable her to do so. She considered that she had always been studying since she had been in Australia.
The applicant’s father was named as a potential witness at the hearing, but the Tribunal considered that it was unnecessary to take evidence from her father, as the applicant was in the best position to give evidence about her own study history. The Tribunal agreed to a request for further time to provide written submissions noting that the representative had received the Department/Tribunal files one week prior and referred to having believed that she met the visa requirements on that information.
The Tribunal has considered these submissions and the applicant’s claims.
The submissions are that the applicant satisfied the “time of application” requirements by providing an explanation for the gap in study between completion of the applicant’s Bachelor’s degree (in May 2018) and commencement of her Diploma (in July 2019). It was submitted that the delegate had misconstrued cl 802.214(1)(c) and sought to rely on Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 at [25] to [26]. It was submitted that the requirements of cl 802.214(1)(c) can be construed without imposing the additional words that “at the time the application was lodged (the applicant) was validly enrolled in, and actively participating in, a full-time course of study”; that the heading does not connect grammatically to its terms; and that the construction should not lead to unfairness and absurdity, referring to the purpose is “to ensure that the applicant – an adult over 18 - is dependent on her father, and dependent not from choice but rather as the result of wanting to study”. However, the application of Berenguel was considered by the Court in Opoku-Ware v MIBP (2015) 297 FLR 416 and rejected at [80].
The submissions refer to cl 802.214(1)(c) as being the only criterion the delegate considered, and state that the delegate misconstrued and misapplied this criterion. The submissions are that the delegate:
proceeded on the basis that the applicant had finished her Diploma on 18 July 2021 and had applied for her child visa, a month later, on 19 August 2021. In view of the purpose of the relevant legislation – to allow a genuinely dependent child (albeit, over 18 years old) to be granted the visa – it would have, in all the circumstances, been legally unreasonable for the delegate not to grant the visa simply because of this difference in dates (see Minister of Immigration v Li [2013] HCA 18). There would also be the underlying jurisdictional error of misconstruction and misapplication of law.
In regard to the gap between completion of the applicant’s Bachelor’s degree (in May 2018) and commencement of her Diploma (in July 2019), there was ample evidence before the delegate which the delegate ignored- clearly because of their misconstruction of the law. The delegate refers (at page 2) to the “Completed Form 80 – Personal particulars for assessment including character assessment” provided by the applicant, signed by her and dated 18 July 2019 (page 18). This evidence includes the following:
·That applicant completed her Bachelor’s degree in the Philippines in May 2018 and then commenced her Diploma in Australia in July 2019. (page 6).
·She came to Australia on a visitor visa on19 January 2019 to visit her father and departed on 2 April 2019. (page 9)
·She again, on 1 June 2019, came to Australia on student visa and stated that the reason for her journey was “FULL TIME STUDIES” (page 9). Note that she commenced her Diploma in July 2019.
·In the Form 80 which she submitted as part of her application for the child visa, under the heading “Further stay – What is your main reason for remaining in Australia?” she answered “FULL TIME STUDIES” (page 7).
The evidence above provides a cogent explanation for the gap between completion of the applicant’s Bachelor’s degree (in May 2018) and commencement of her Diploma (in July 2019). It cannot be doubted that, had the delegate not misconstrued the law, the delegate would have been obliged to grant the visa.
The submissions on this point appear to be based on the construction of cl 802.214(1)(c) as not requiring study at the time of application. However, the Court in MIAC v Henschel [2013] FCCA 584 and the Federal Court on appeal in Khan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 463 in considering the identically worded cl 101.213(1)(c) for offshore Child visas has held otherwise. The Court in Khan held at [73] that “the study must be ongoing at the time the application is made (cf. the heading to the clause). It is a “time of application” criterion.” The Tribunal must therefore consider whether the applicant is undertaking full-time study at an educational institution leading to the award of a professional, trade or vocational qualification at the time of application.
The applicant told the Tribunal that she had been doing self-study of senior high school textbooks after completing the Diploma as she was hoping to study medicine. However, this is not the kind of study required by cl 802.214(1)(c) – it must be full-time study at an educational institution. There is no evidence that the applicant was undertaking any formal study from the completion of her Diploma in July 2021 and her enrolment in May 2025.
In respect of the submissions regarding the gap in study between completing her Bachelor degree in the Philippines and commencing her Diploma study in Australia, the applicant’s failure to satisfy cl 802.214(1)(c) is not because of any gap in study prior to the visa application lodgement. It is because she was not undertaking a full-time course of study at at an educational institution at the time of application.
The submissions next refer to Hussain v MIBP [2017] FCCA 3247 at [111]. However, the reasoning of the Court here is only relevant where cl 802.214(1)(c) is met. The Tribunal accepts the submissions that the proper construction is that, when the time of application requirement in regard to study are met, it must continue to be met at the time of decision and that the decision-maker must look at the time period from the commencement of study until the time of decision and ask whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247. However, as the applicant was not studying at the time of application, the issue of whether the applicant continues to be undertaking full-time study at the time of decision does not arise for determination.
The applicant did not give any reasons for not undertaking study at the time the application was made and there is no evidence that it was related to incapacity for work due to the total or partial loss of his bodily or mental functions. There is no evidence to support a conclusion that the applicant was dependent on her father, the sponsor in this case, because she was incapacitated for work on account of total or partial loss of his bodily or mental functions as set out in subparagraph (b)(ii) of ‘dependent child’ for the purposes of cl 802.214(2).
While the Tribunal accepts that the applicant is enrolled in study now, there is no evidence that the applicant was undertaking full-time study at an educational institution at the time the visa application was lodged. She had already completed her Diploma studies on 18 July 2021. The Tribunal acknowledges that it was a period of around 1 month later that the visa application was lodged. However, the regulations require the applicant to be undertaking the relevant study at the time of application. The applicant has not provided evidence to support a conclusion that she was enrolled or studying a full-time course at an educational institution on 19 (or 20 August 2021), which means the Tribunal cannot find that she was undertaking relevant full-time study at the time the application was made.

Given the above findings, the Tribunal finds that at the time of application lodgement on 19 August 2021, the applicant was over 18 years of age and not undertaking full time study at an educational institution leading to the award of a professional, trade or vocational qualification. This means that she did not meet cl 802.214(1)(c).
The Tribunal acknowledges that the applicant wishes to remain in Australia with her father, but is unable to make a favourable finding on review as the applicant does not satisfy one of the criteria for the grant of a Subclass 802 visa.
Conclusion
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 2025
Representative for the Applicant: Mr Gursharan Singh (MARN: 0640600)