Custodio (Migration) - [2022] AATA 919

Custodio (Migration) [2022] AATA 919 (1 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Alvin Christian Custodio
REPRESENTATIVE:  Mr Martin Udall (MARN: 0746812)
CASE NUMBER:  2015163
HOME AFFAIRS REFERENCE(S):          CLF2019/35838
MEMBER:Maxina Martellotta
DATE:1 April 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 01 April 2022 at 1:53pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child of an Australian relative – study requirements – gaps in full-time studies – applicant’s mother provided funds for his support – bank transfers – wholly or substantially reliant – financial hardship – reasonable time – conditions of the bridging visa – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 802.212, 802.214, 802.221; rr 1.03, 1.05
CASES
Hussain v MIBP [2017] FCCA 3247
Huynh v MIMA [2006] FCAFC 122
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIAC [2007] FCA 413
Sok v MIMIA [2005] FMCA 190
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 September 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 17 September 2019. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).
The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl 802.216, 802.226A), the criteria to be met in this case include cl 802.212 (1) (a), 802.214 and 802.221 (2) (a).
The delegate refused to grant the visa on the basis that 802.212 (1) (a), 802.214 and 802.221 (2) (a) were not met because the applicant at the time of application and at the time of decision had not met the requirement that he was dependant in accordance with regulation 1.05A(1) and as such did not satisfy the definition of dependant child as specified in regulation 1.03(b). Further that the applicant did not demonstrate that at the time of application he met the study requirements of 802.214(1)(c).
The applicant appeared before the Tribunal on 8 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother, Mrs Quency.
The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The representative requested the opportunity to provide additional materials to the tribunal in support of his client’s claims and the tribunal allowed a further seven days (until 15 March 2022). Additional materials were received and have been considered by the Tribunal.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in the present case are whether the applicant meets the dependent child criteria and if so does he also satisfy the study requirements?
Dependent child criteria
The criterion in cl 802.212 essentially requires that at the time of application, the applicant is a ‘dependent child’ of an eligible person and is under 25 years of age or incapacitated for work. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the applicant has turned 18 (or if already 18, only because the applicant has turned 25): cl 802.221(1) or (2)(a).
Dependent child
At the time of application, the applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or eligible New Zealand citizen: cl 802.212(1)(a). ‘Dependent child’ is defined in reg 1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions.
In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].
The term ‘dependent’ is defined in r.1.05A. It requires that at the relevant time, and for a substantial period immediately before that time, the person who is claiming to be dependent (the ‘first person’) must be wholly or substantially reliant on the other person for financial support to meet their basic needs for food, clothing and shelter. Further, the first person’s reliance on the other person must be greater than their reliance on any other person or source of financial support to meet those basic needs: r.1.05A(1)(a)(ii) and (ii). Alternatively, the first person must be wholly or substantially reliant on the other person for financial support because they are incapacitated for work to the total or partial loss of their bodily or mental functions: r.1.05A(1)(b).
Relevantly, the terms of r.1.05A(1) do not carry with them any implication of necessity or lack of choice. The question is whether as a matter of fact, the first person is relying on the other person for support: Huynh v MIMA [2006] FCAFC 122 at [44].
According to his visa application the applicant claimed that his mother was and continues to provide him with financial support. This includes the period he was living in the Philippines and since he has been in Australia. He stated that prior to coming to Australia he lived with his paternal grandparents who took care of him by using money provided by his mother.
The applicant provided the following evidence relevant to his dependency status at hearing:
a)His mother left the Philippines when he was a baby. His mother worked in Australia and would come back once or twice a year to visit. His paternal grandparents took care of him until he moved to Australia with his mother in 2019.
b)He lived at a property which belonged to his mother with his grandparents and his sister. His father did not live with them or take care of him as he had another family in a different city. He did not have much to do with his father. He did not think his father gave his grandparents any money for his support as he is unemployed.
c)His grandparents took care of his day to day needs. They lived in his mother’s house as his mother had a close relationship with his paternal grandparents. His grandparents also have their own home (where other members of the family live) but the arrangement was that they would stay in his mother’s house when caring for the applicant and his sister.
d)His mother did not owe any money on the house which she had bought with her own funds. His mother financially supported him when he lived with his grandparents. His mother transferred funds to his grandparents on a monthly basis and they would use those funds to pay for food, schooling costs, clothing and other everyday living expenses. If he needed extra items, he would ask his mother and she would send money to his grandparents or would deposit money into his bank account when he was old enough to have an account.
e)After arriving in Australia he lived with his mother and her (now ex) partner). Her partner and she separated in December 2019. His mother is employed as a carer. She met the cost of the rent and other day to day household costs for the applicant. The applicant did not pay for any of these costs and is reliant upon his mother. When he needs something, he asks his mother.
f)After the separation the applicant and his mother and sister moved to another area and his mother rented a property. They continue to live in that property and his mother meets the accommodation costs.
g)From July 2019 he has operated an Australian bank account. This is the account into which his mother deposits money into which he can use for his own expenses or when he needs to do the household grocery shopping.
h)His mother sold the family home in the Philippines in late 2019 after everyone had left and his grandparents moved back to their own home. Those funds were deposited into his bank account. He does not know why his mother had the money deposited into his bank account, but his mother accesses the funds in his account.
i)His mother purchased a car in December 2019 using money from his account. He does not have a driver’s licence. This was because she needed a car following the separation.
j)Some cash deposits were made into his account, but he cannot recall where they came from.
k)He does not have any source of income and is wholly dependent upon his mother to meet his day to day costs of living.
Mrs Quency provided the following evidence:
a)At the time of the visa application she was a permanent resident of Australia. She is now an Australian citizen.[1]
b)She left the Philippines and worked in other countries before living in Australia since 2017. Her husband passed away. She re-partnered but that relationship ended in December 2019.
c)When she first left the Philippines her children were very young. The applicant was still a baby. She left the children in the care of their paternal grandparents. She had to work abroad because the children’s father would not financially support them. She has a good relationship with her parents-in-law.
d)The children and grandparents lived in a property that she owned. That property has since been sold. The grandparents were living there rent free because of the care arrangement. She would send them money each month to cover the costs of her children, which included food, schooling, clothing and whatever other costs needed to be covered. When the applicant turned 18 years, she was able to send him money directly as well.
e)She sold her property in the Philippines in late 2019 to support the children’s studies in Australia. She initially transferred the funds into her son’s account because she did not want to touch it as it was for his studies but then she ended up accessing those funds to meet costs such as purchasing a new car and to cover other expenses that arose following her separation. She still covers the costs of the applicant as he does not work and has no means of supporting himself.
f)Her son completed high school in April 2019. She was in the Philippines when her son graduated, and she brought her son to Australia with her. They initially were coming for a break but then her children wanted to stay with their mother. She continues to support the applicant and meet his accommodations, food and other day to days costs and expenses. She works as a carer and uses income from her employment.
[1] 23 July 2021
Written submissions and evidence provided and relied upon by the applicant included the following:
a)The applicant’s mother sent money to his grandparents who took care of him whilst the applicant was still in the Philippines as evidenced by bank transfers made out in the name of the applicant’s paternal grandfather (Gregorio Custodio) for the period September 2018 to March 2019.
b)Copies of money transfers were provided which show and the tribunal finds that monthly transfers were sent to Gregorio Custodia by the applicant’s mother, on 10 September 2018 (AUD139.20); 14 October 2018 (AUD274.50);4 November 2018 (AUD275.65);31 December 2018 (AUD284.35); 14 January 2019 (AUD280.79); 31 January 2019 (AUD2,456.31) and 19 March 2019 (AUD141.03).
c)A copy of the applicant’s father’s birth certificate was also provided which shows and the tribunal finds that Gregorio Custodia is the applicant’s father’s father (the applicant’s paternal grandfather).
d)Copies of bank statements showing regular deposits made into the applicant’s bank account for the period July 2019 to January 2022 by the applicant’s mother totalling $3,780.
e)This account also shows the following deposits made into the applicant’s account from a source identified as Masilang Teodora Rem Teodora Mista Masilia totalling $30740 between 27 November 2019 and 16 December 2019. The evidence is that these are the proceeds from the sale of the mother’s property in the Phillippines.
f)Withdrawals from that account by the applicant’s mother following these deposits totalled $14,800 and a further $13,310.01 was transferred to Seaview Ford Clarkson on 2 December 2019.
g)Two cash deposits were made to the account totalling $2,450 In December 2020 and July 2021.
The tribunal is satisfied that the evidence provided by the applicant and witness is consistent with documents provided to the tribunal. The tribunal finds that:
a)   At the time of the visa application the applicant’s mother was a permanent resident of Australia. She is now an Australian citizen.
b)   The applicant’s mother has been the person financially supporting the applicant since he was a young child.
c)   Whilst the applicant’s mother worked overseas she arranged for her son to be cared for by his paternal grandparents.
d)   The applicant’s mother owned a property in the Philippines this is where her son, and his grandparents lived in rent free. The applicant’s mother provided the accommodation for the applicant when he was in the Philippines.
e)   The applicant’s mother regularly sent back money to the applicant’s grandparents to cover the applicant’s basic needs including, food, education and clothing.
f)    The applicant has continued to meet the applicant’s costs and expenses since he arrived in Australia in July 2019.
g)   The applicant sold her property located in the Philippines in late 2019 and initially deposited the proceeds of sale into her son’s bank account but she has since drawn on those funds.
The tribunal is satisfied on the basis of the evidence and findings of fact that the applicant at the time of application and for a substantial period immediately before that time, was wholly or substantially reliant on his mother for financial support to meet his basic needs for food, clothing and shelter. Further, his reliance on his mother is greater than their reliance on any other person or source of financial support to meet those basic needs. The Tribunal is also satisfied that as of the date of decision the applicant continues to be a person who is a dependant child of an Australian permanent resident.
Accordingly, cl 802.212(1)(a) is met at the time of application and continues to be met at the time of decision.
Applicant under 25 or incapacitated for work
At the time of application, the applicant must not have turned 25. However, this requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the total or partial loss of bodily or mental functions: cl 802.212(1)(b), (2).
The applicant’s date of birth is 24 September 2000. As noted, his visa application was made on 17 September 2019. The tribunal finds that the applicant was over 18 years of age at the date of the visa application and at the time of decision is 21 years of age. The applicant confirmed that he was not incapacitated for work due to total or partial loss of his bodily or mental functions and the tribunal so finds.
Accordingly, cl 802.212(1)(b) is met
Criteria for applicants over 18
If, at the time of application, the applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl 802.214. These requirements must continue to be met at the time of decision: cl 802.221(2)(b).
As found the applicant was 18 years of age when he made his visa application on 17 September 2019.
Relationship status and history
At the time of application, the applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl 802.214(1)(a). This must continue to be the case at the time of this decision: cl 802.221(2)(b).
At hearing the applicant gave evidence and the Tribunal finds that he is not engaged to be married and does not or ever had a spouse or defacto partner. Accordingly, cl 802.214(1)(a) is met. It continues to be met at the time of decision.
Not engaged in full-time work
At the time of application, the applicant must not be engaged in full-time work cl 802.214(1)(b). This must continue to be the case at the time of this decision cl 802.221(2)(b).
At hearing the applicant confirmed and the tribunal finds that at the time of application he was not engaged in full time work. Accordingly, cl 802.214(1)(b) is met. It continues to be met at the time of decision.
Full-time study (or incapacitated for work)
At the time of application, the applicant must have, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification: cl 802.214(1)(c).
This provision appears to contemplate a single full-time course of study at a particular institution (such as a degree or a technical college qualification), although it might well extend to cover a qualification that is obtained from an institution or accreditation body upon satisfaction of a variety of criteria, some of which may be fulfilled by undertaking courses at alternative institutions: Sok v MIMIA [2005] FMCA 190 at [15]-[16]. In determining what is a ‘reasonable time’ for cl 802.214(1)(c), it is relevant to consider the surrounding circumstances including the actual time involved, what activities were undertaken during that time, the purpose for which those activities were undertaken and, if no relevant activities were undertaken, the reason why: Sok v MIMIA [2005] FMCA 190 at [19]. This requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the loss of bodily or mental functions: cl 802.214(2).
Where cl 802.214(1)(c) applies, it must continue to be met at the time of decision: cl 802.221(2)(b). For this purpose, the decision-maker must look at the time period from the commencement of study until the time of decision and ask whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247. The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR
The applicant gave evidence and the Tribunal finds that at the time of application he was not incapacitated for work due to the loss of bodily or mental functions and the Tribunal so finds. This means that the study requirements must be met.
The applicant provided the following evidence both by way of written submissions and oral evidence:
a)He completed high school (this was the equivalent to Australian year 12) in the Philippines in April 2019. A certificate and other documents issued by the Holy Trinity School show completion on 30 March 2019.
b)After he finished high school he travelled to Australia and arrived on 15 July 2019. His mother and her previous partner accompanied him to Australia. He was initially granted a visitor visa. When he first arrived, he spent time with his mother, visiting places and getting to know Australia as he had never been here before.
c)He made his visa application on 17 September 2019. He was not studying at that point in time but had started to look for schools with relevant courses and TAFE was the only school that would take him as an international student. He thinks around December 2019 he enrolled in a Certificate III in Commercial Cooking which started in February 2020. This was full time course at the Joondalup campus.
d)The applicant provided a TAFE enrolment advice showing that as of 26 June 2020 the applicant was enrolled full time in a Certificate III in Commercial Cookery and had commenced units in February 2020 and ended on 27 December 2020.
e)He did not finish this course as he stopped in December 2020. This was due to financial problems – at that time he only another three weeks from completing the course. He did not withdraw he just stopped going. His sister was going to a private school and this is expensive, and his mother told him she could not financially support both he and his sister studying.
f)His sister is now at a public school. He wants to return to study as soon as possible. He has not been able to start at any course. He made inquiries in February 2022 but there are no options because courses have already started and are still looking. He did not do so earlier because of financial problems and his mother was still paying for his sister’s education. This is now different because his sister is no longer at a private school. He has forgotten which schools he has made inquiries with and cannot name them.
g)He agreed that he did not look or engage in any study in 2021 even though he knew that his sister was moving from private to public school at the end of the year. The problem is that his sister needs to complete her education first before he re-engages in studies and he has no timeframe for when this might happen. It is hard to find schools.
h)Since December 2020 when he stopped studying, he has been at home doing chores.

Mrs Quency provided the following evidence:
a)Her son first started studying in February 2020 in a Certificate III in Commercial Cooking. In December 2020 she decided her son should stop studying so that she could pay for her daughter to complete year 10 in a private school. As a result her son has not studied since December 2020. Her son would like to resume his cooking course, but she asked him to wait.
b)The intention is for her son to resume his studies now that her daughter is enrolled in a public school. She has emailed the previous TAFE but as yet there has been no reply from the schools. It is also hard because of his visa. She started making inquiries about two weeks ago, but the cost of courses is too expensive. She is sure he will return to study now her daughter is in the public system. She has been sick for two weeks and has not really done anything. Her son may be starting study again in a couple of weeks.
Post hearing, the applicant provided the tribunal with the following evidence:
a)An unsigned direct debit arrangement with North Metropolitan TAFE in February 2020. The representative advised that this is evidence showing that the mother was meeting the applicant’s education costs when he was studying in 2020.
b)Evidence that the applicant has post hearing enrolled in a three day a week, 10-week Certificate III in Hospitality with a commencement date of 26 April 2022. This is in the form of an email from VTS training stating that they are looking forward the applicant commencing the course.
The tribunal makes the following findings of fact:
a)The applicant turned 18 on 24 September 2018 and he completed the equivalent of Australian year 12 high school at the Holy Trinity School in the Philippines on 30 March 2019.
b)The applicant arrived in Australia in July 2019
c)At the date of making his visa application on 17 September 2019 the applicant was 18 years of age.
d)The applicant enrolled in a Certificate III Commercial Cookery course in December 2019 and commenced studies as a full-time student in February 2020. He stopped attending in December 2020 and did not complete the course.
e)The applicant has not studied since the end of December 2020.
f)On 11 March 2022 he received an email welcoming him to a course provided by VTS training. This is a 10-week Certificate III in Hospitality with a start date of April 26 2022. The email states that he needs to click on a link to enrol.
As noted, the initial question is whether at the time of application, the applicant, has since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. The Federal Court has observed that the term undertaking may not necessarily be synonymous with the term actively participating.’’[2] The term could be defined as engaging in or entering upon some enterprise such that on the evidence the applicant is engaging or participating or entering upon a full-time course of study. As noted, this requires consideration of the surrounding circumstances, the actual time of the break, what activities were undertaken and their purpose and if no relevant activities were undertaken the reason for the break. [3]
[2] Sok v MIAC [2007] FCA 413 at 66
[3] Sok v MIMIA [2005] FMCA 190
In this matter the evidence is that since turning 18 years of age (24 September 2018) having completed the equivalent of year 12 high school in April 2019 there are gaps in the applicant’s study history. The initial gap is in the period between completing high school at the end of March 2020 until he enrolled in a Certificate III in Commercial Cookery in December 2019.
The circumstances of the initial break in study April 2019 to February 2020 was a period in which the tribunal the applicant was making the transition from the Philippines to Australia. He left the Philippines with his mother in mid July 2019 and then following his arrival in a new country the tribunal accepts the evidence that the applicant in this time was getting acquainted with his new circumstances and had started making relevant inquiry about study options which resulted in his enrolling in a course of study in December 20219 and commencing his studies in the new year
In this case the period between completing high school and enrolling in his course of study was about a nine-month period. As noted, the applicant arrived in Australia in mid July 2019 and by the December 2019 he had enrolled in a course of study. The tribunal is satisfied taking into account the evidence about the surrounding circumstances, the activities undertaken and the actual time the facts of this case satisfy the requirement of a reasonable time.
For these reasons the tribunal is satisfied that cl 802.214(1)(c) is met at the time of application.
The remaining question is whether at the time of decision the applicant continues to meet the study requirement. As noted, the decision-maker must look at the time period from the commencement of study until the time of decision and ask whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that they have been undertaking relevant study.[4] This involves consideration of what the applicant has been doing, the length, nature and explanation for any gaps is study.
[4] Hussain v MIBP [2017] FCCA 3247
In this case the Tribunal notes that the applicant ceased his studies in December 2020 and at the time of hearing in March 2022 he had not resumed any form of study. This is a gap of some 14 months.
The Tribunal noted that different explanations were provided for this gap. These explanations included financial reasons, issues related to the conditions of the bridging visa and also that attempts to enrol in courses were unsuccessful because by the time inquiries were made the courses were full.
Ultimately, in the Tribunal’s assessment of the evidence the clearest explanation for the break in study appears to be that the applicant’s mother had decided to financially prioritise the daughter’s private education and as the proceeds from the sale of the property she had owned in the Philippines had been dissipated, she told her son to stop studying until such time she could meet the costs of both children’s education. This appeared would notionally be when her daughter completed year 10 at a private school in December 2021.
In that time, the applicant was engaged in undertaking various tasks at home. On the evidence, it appears that the applicant did not undertake or engage in any activity that could be described as entering upon some enterprise such that on the evidence the applicant is engaging or participating or entering upon a full-time course of study. The evidence is that he only started making inquiries only in early 2022 by which time he says courses were full. The tribunal asked the applicant and the mother if they were aware that the sister would be finishing her private schooling at the end of 2021 why didn’t the applicant seek to engage in making inquiries about courses earlier. In the Tribunals’ assessment no cogent explanation was provided in response to that question.
The Tribunal noted that in the matter of Sok v MIMIA[5] [2005] FMCA 190 the types of circumstances which may justify a finding that a period of time greater than six months is reasonable included:
·A young person undertaking a one year exchange program in another country
·Living and working in another country
·Civil unrest which interrupts studies
·Illness and
·Military service
[5] [2005] FMCA 190
None of these types of examples arise on the evidence in this matter. Likewise the Tribunal notes that Department policy also provides examples which may justify a longer break in study as including matters such as giving birth, illness, dire financial necessity or moving between courses.[6] Again the evidence does not give rise to any of these examples. The break in study was not due to dire financial necessity but due to the applicant’s mother choosing to prioritise the funding of her daughter’s private education.
[6] Policy – Migration Regulations Schedules – Sch 2 Visa 802-Child Student Status (if not studying at 18 (reissued 1 January 2016)
At the hearing the applicant was unclear of any time frame in which he would return to study. It appears post hearing the applicant has since engaged with a training provider to undertake a 10- week course which will result in a Certificate III in Hospitality. That course is yet to commence, and it is unclear on the evidence whether the applicant will actually be undertaking a course of full-time study. The email invites the applicant to click on a link to enrol. On this basis the presented evidence is that the applicant has yet to enrol in that course:
Dear Alvin
I hope you are well and looking forward to commencing your Certificate III in Hospitality Course on April 26th 2022 in Joondalup.
Please see attached a leaflet with the list of units and the cost. A Barista Course is also included as well the RSA. At the end of the course you need to complete 36 service periods of work experience, which we assist in getting for you. We have had roughly an 80% success rate of students getting employment from this.
The course will be on Monday, Tuesday and Wednesday every week for 10 weeks
Please click on the link below to enrol.
Joondalup expression of interest link
As noted, clause, 802.221 (2) (b) requires the applicant continue to satisfy the study requirement. Following the decision of Hussain[7] whilst there is no requirement for an applicant to have been continuously involved in study from the commencement of their studies to the time of decision, they must however at the time of decision be undertaking a full- time course.[8] In the tribunal’s assessment the evidence does not support a conclusion that at the time of decision the applicant meets the study requirement. He is not on the evidence undertaking a relevant course of full-time study
[7] Op cit.
[8] Opoku-Ware v MIBP (2015) 297 FLR.
For these reasons above, the criteria cl 802.221 (2) (b) is not met.
For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).
DECISION
The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.
Maxina Martellotta
Member

ATTACHMENT – RELEVANT LAW
Migration Regulations 1994
1.03     Definitions
…
dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:
(a)has not turned 18; or
(b)has turned 18 and:
(i)       is dependent on that person; or
(ii)      is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions.
…
step-child, in relation to a parent, means:
(a)a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or
(b)a person who is not the child of the parent but:
(i)       who is the child of the parent’s former spouse or former de facto partner; and
(ii)      who has not turned 18; and
(iii)     in relation to whom the parent has:
(A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or
(B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.
1.05A Dependent
(1)Subject to subregulation (2), a person (the first person) is dependent on another person if:
(a)at the time when it is necessary to establish whether the first person is dependent on the other person:
(i)       the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii)      the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or
(b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.
…