Kamlangram (Migration)

This matter concerned an appeal by three applicants against decisions not to grant them Child (Residence) (Class BT) visas, specifically Subclass 802. The applicants were over 18 years of age at the time of their applications. The decision was made by Margie Bourke, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicants met the criteria for a Subclass 802 visa, particularly concerning their engagement in full-time study since turning 18. The Tribunal was required to consider the requirements of clauses 802.214 and 802.221(2)(b) of the Migration Regulations 1994, which stipulate that applicants over 18 must not be engaged in full-time work and must have been undertaking a full-time course of study leading to a professional, trade, or vocational qualification, or be incapacitated for work.

The Tribunal found that the applicants met the criteria relating to their relationship status and not being engaged in full-time work. However, the Tribunal determined that the applicants had not met the full-time study requirement. While acknowledging the applicants had completed English language courses and that their studies were impacted by the COVID-19 pandemic and financial difficulties, the Tribunal noted a gap in their tertiary studies and limited evidence of enrolment in a specific course leading to a qualification. The Tribunal referred to the case of *Sok v MIMIA* [2005] FMCA 190 regarding the interpretation of "reasonable time" for commencing studies.

Consequently, the Tribunal affirmed the decisions not to grant the visas. However, the Tribunal recommended that the matters be referred to the Minister for consideration of intervention under section 351 of the Migration Act 1958, given the compelling reasons presented by the applicants, including the impact of the pandemic and financial constraints, and the potential negative impact on their mother residing in Australia.