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 affirmedLEGISLATION
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 416STATEMENT 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…
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- Andres (Migration) [2025] ARTA 1196
- Case
- [2025] ARTA 1196
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CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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