Kamlangram (Migration)

The Administrative Appeals Tribunal reviewed decisions of the Department of Home Affairs not to grant Child (Residence) (Class BT) visas to three applicants. The applicants sought to meet the criteria for a Subclass 802 visa, which requires applicants over 18 to satisfy specific relationship, work, and study requirements.

The primary legal issue before the Tribunal was whether the applicants met the criteria for a Subclass 802 visa, specifically the requirement that an applicant over 18 must have, since turning 18 or within a reasonable time after completing Year 12, been undertaking a full-time course of study leading to a professional, trade, or vocational qualification. The Tribunal also considered whether these criteria continued to be met at the time of the decision.

The Tribunal found that while the applicants met the relationship and work criteria, they failed to satisfy the full-time study requirement. The Tribunal interpreted the study requirement as contemplating a single full-time course of study, and noted that the applicants had not provided sufficient evidence of undertaking such a course. Although the applicants had completed English language courses and demonstrated a sufficient degree of English proficiency, and their studies were impacted by the COVID-19 pandemic and financial difficulties, these circumstances did not, in the Tribunal's view, fulfil the specific criterion for a Subclass 802 visa.

Consequently, the Tribunal affirmed the decisions not to grant the visas. However, the Tribunal acknowledged the compelling reasons for the applicants' situation, including the impact of the pandemic and financial constraints, and recommended that the matters be referred to the Minister for assessment for the exercise of discretion under section 351 of the Migration Act 1958 (Cth).