Apted (Migration)

The Administrative Appeals Tribunal considered an application for a Child (Residence) (Class BT) visa, Subclass 802, made by an applicant aged 19 years at the time of application. The applicant, who was adopted by Australian and American parents in the USA, sought to reside in Australia to pursue post-secondary studies. The core of the dispute revolved around whether the applicant met specific criteria for applicants aged 18 years or over, particularly concerning their enrolment in full-time 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, which pertains to post-secondary studies for applicants aged 18 years or over. This assessment needed to consider whether the applicant was enrolled in full-time study, and if not, whether extraordinary and unforeseeable factors, such as the COVID-19 pandemic and the USA's ratification of the Hague Convention, might be relevant to their circumstances. The Tribunal also had to ensure that the applicant continued to meet the relevant criteria at the time of the decision, as stipulated by cl.802.221(2)(b).

The Tribunal found that the applicant met the criteria under cl.802.214(1)(a) and cl.802.221(2)(b), relating to their relationship status and not being engaged in full-time work. However, the specific criterion concerning full-time post-secondary study was not definitively met based on the evidence presented. Given these findings, the Tribunal concluded that the matter should be remitted to the Minister for reconsideration of the remaining criteria for the visa. The Tribunal directed that the applicant met cl.802.214 and cl.802.221 of Schedule 2 to the Regulations.