Chan (Migration)

This matter concerned an application for review of a decision by the Department of Home Affairs not to grant the applicant a Child (Residence) (Class BT) visa, Subclass 802. The applicant, who was over 18 at the time of application, sought to demonstrate that he met the criteria for the visa, which included requirements relating to relationships, work, and study. The Tribunal was required to determine whether the applicant had satisfied these criteria, both at the time of his application and at the time of the decision.

The primary legal issue before the Tribunal was whether the applicant had met the full-time study requirement under clause 802.214(1)(c) of the Migration Regulations 1994. This clause requires that an applicant over 18, since turning 18 or within a reasonable time after completing the equivalent of Australian Year 12, must have been undertaking a full-time course of study leading to a professional, trade, or vocational qualification. The Tribunal also considered whether the applicant had met the related requirements of not being engaged in full-time work and not having a spouse or de facto partner, which must be met at both the time of application and the time of decision.

The Tribunal found that while the applicant had completed his secondary education in June 2016, he then took a gap year before commencing a Diploma of Leadership and Management in February 2018. He found this course too challenging and subsequently withdrew in October 2018 to enrol in a Certificate IV unit of Leadership and Management. The Tribunal noted that the applicant had not been undertaking a full-time course of study within a reasonable time after completing Year 12, nor had he been undertaking such a course at the time of his application. The Tribunal accepted that the applicant was not engaged in full-time work and had no spouse or de facto partner, but concluded that the failure to meet the full-time study requirement meant the criteria for the visa were not met.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Child (Residence) (Class BT) visa.