Basnayake Appuhamilage (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, brought by Basnayake Appuhamilage. The primary dispute revolved around whether the applicant met the 'continuous study' requirement stipulated in subclause 802.221(2)(b) of the Migration Regulations 1994 at the time of her application, and whether she continued to be a full-time student at the time of the decision. The Federal Circuit and Family Court of Australia, through Member Stephen Conwell, was tasked with determining these issues.

The court was required to consider whether the applicant had, since turning 18, or within a reasonable time after completing the equivalent of Year 12, been undertaking a full-time course of study leading to a professional, trade, or vocational qualification, as required by clause 802.214(1)(c). Furthermore, the court had to assess if this requirement, along with others such as not being engaged in full-time work and maintaining a specific relationship status, continued to be met at the time of the decision, as mandated by clause 802.221(2)(b). The court also had to consider the meaning of 'reasonable time' in the context of the study requirement, taking into account surrounding circumstances, activities undertaken, and reasons for any lack of activity.

The court found that the applicant met the criteria relating to her relationship status and not being engaged in full-time work at both the time of application and the time of decision. However, the applicant's enrolment in a course had been cancelled, and she had a period of casual employment and a gap in her studies. While the court acknowledged the applicant's explanation for the gap in studies, which involved a toxic relationship, it did not make a definitive finding on whether the applicant had met the 'continuous study' requirement or was a full-time student at the time of the decision.

Consequently, the court remitted the application for a Child (Residence) (Class BT) visa back to the Minister for reconsideration. The direction was that the applicant met the criteria under clauses 802.214 and 802.221 of Schedule 2 to the Regulations, leaving the remaining criteria to be assessed.