Chen (Migration)

This matter concerned an appeal by a visa applicant against the refusal of a Subclass 802 Child (Residence) visa. The applicant, who was over 18 at the time of application, was required to satisfy additional criteria relating to full-time study or incapacity for work. The Tribunal was asked to determine whether the applicant was undertaking full-time study at the time of application and decision, or alternatively, whether he was incapacitated for work.

The primary legal issue was whether the applicant met the requirements of cl.802.214(1)(c) of Schedule 2 to the Migration Regulations 1994, which mandates undertaking a full-time course of study leading to a professional, trade, or vocational qualification since turning 18 or within a reasonable time after completing Year 12. This requirement was also subject to cl.802.221(2)(b), meaning it had to continue to be met at the time of the decision. The alternative to meeting this study requirement was being incapacitated for work due to loss of bodily or mental functions, as per cl.802.214(2).

The Tribunal found no evidence that the applicant was incapacitated for work. While acknowledging the applicant had been a full-time student until January 2016, the Tribunal was not satisfied that he was undertaking full-time study between January 2016 and November 2016. This period included enrolment in an Elementary English Language Skills (EELS) course and a course at La Lingua Language School, neither of which the Tribunal considered to be full-time courses leading to a professional, trade, or vocational qualification. The EELS course was deemed non-certificate study, and the La Lingua course was a non-AQF award course. Consequently, the Tribunal concluded that the applicant did not satisfy cl.802.214(1)(c).

As the applicant failed to meet the essential criteria for the grant of a Subclass 802 visa, the Tribunal affirmed the decision not to grant the visa.