Karnjanapuwadol (Migration)

The Administrative Appeals Tribunal considered an application for a Child (Residence) (Class BT) visa, Subclass 802, made by Sawapon Karnjanapuwadol. The applicant, who had turned 18, was sponsored by his stepfather, Ashley Johannes De Wit. The core of the dispute revolved around whether the applicant met the study requirements for the visa, particularly after turning 18 and at the time of the decision.

The primary legal issue before the Tribunal was to determine if the applicant met the criteria for a Subclass 802 visa, specifically concerning his age and ongoing studies. The delegate had previously refused the visa on the grounds that the applicant, having turned 18, was not undertaking a full-time course of study at the time of the decision, thus failing to meet clause 802.221(2)(b) of the Migration Regulations 1994. The Tribunal also considered whether the applicant was incapacitated for work due to loss of bodily or mental functions, as an alternative criterion.

The Tribunal found that the applicant met the relationship requirements under clause 802.214(1)(a) and continued to meet this at the time of the decision. Crucially, the Tribunal considered evidence provided by the applicant, including a Diploma of Events Management from TAFE NSW and confirmation of enrolment and payments for a Bachelor of Information Technology at the University of Newcastle. This evidence demonstrated that the applicant was undertaking full-time study after turning 18 and continued to do so at the time of the decision. Therefore, the Tribunal concluded that the applicant met the requirements of clause 802.214(1)(c) and clause 802.221(2)(b).

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant had met the specified criteria for the Subclass 802 visa.