Jara-Salgado (Migration)

The Administrative Appeals Tribunal considered an application for a Child (Residence) (Class BT) visa, Subclass 802, made by an applicant who was over 18 years of age. The primary dispute concerned whether the applicant met the full-time study requirements for the visa, particularly in light of disruptions caused by a transfer from Chile and the impact of the COVID-19 pandemic.

The Tribunal was required to determine if the applicant, being over 18 at the time of application and decision, was enrolled in and participating in full-time education. This involved assessing whether the applicant met the criteria under cl.802.214 and continued to meet them under cl.802.221(2)(b) of Schedule 2 to the Migration Regulations. Specifically, the Tribunal had to consider the interpretation of "undertaking a full-time course of study" and what constitutes a "reasonable time" for commencing such study, referencing principles from cases such as *Sok v MIMIA* and *Hussain v MIBP*.

The Tribunal found that the applicant met the relationship and full-time work criteria. However, the assessment of the full-time study requirement was complicated by the applicant's transfer from Chile and the subsequent impact of the COVID-19 pandemic on their studies. The Tribunal noted that the applicant must be studying at the time of the decision, as per *Opoku-Ware v MIBP*. Given the complexities surrounding the applicant's study arrangements and the need for clarification from the educational institution, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for a Child (Residence) (Class BT) visa, Subclass 802, for reconsideration. The Tribunal directed that the applicant met the criteria under cl.802.214 and cl.802.221(2)(b) of Schedule 2 to the Regulations, leaving the remaining criteria to be considered by the Minister.