LAM (Migration)

The Administrative Appeals Tribunal considered the case of LAM, an applicant for a Child (Residence) (Class BT) visa, Subclass 101. The dispute centred on whether the applicant, who was over 18 years old at the time of application, met the criteria for full-time study as required by the Migration Regulations.

The primary legal issue before the Tribunal was whether the visa applicant satisfied the requirements of cl.101.213(1) and cl.101.221(2) of the Migration Regulations. Specifically, the Tribunal had to determine if the applicant was undertaking full-time study at the time of application and at the time of the decision, and if the period between completing secondary education and commencing full-time study constituted a "reasonable time" as contemplated by the regulations.

The Tribunal reasoned that for applicants over 18, additional criteria relating to study must be met. The applicant had a three-year gap between completing the equivalent of Year 12 and commencing tertiary studies. The Tribunal applied the principles from *Sok v MIMIA* [2005] FMCA 190, considering the surrounding circumstances, the actual time involved, the activities undertaken, and the reasons for any lack of relevant activities. In this instance, the Tribunal found that the three-year gap was not a "reasonable time" for the applicant to have commenced full-time study after completing Year 12. The Tribunal also noted there was no evidence that the applicant was incapacitated for work.

Consequently, the Tribunal concluded that the criteria for the grant of a Subclass 101 visa were not met. The Tribunal affirmed the decision not to grant the visa.