Macintosh (Migration)

The Administrative Appeals Tribunal considered an application for a Child (Residence) (Class BT) visa, Subclass 802, made by an applicant who had turned 18 prior to lodging the application. The primary dispute concerned whether the applicant met the additional criteria applicable to applicants over 18, specifically the requirement to be undertaking a full-time course of study at the time of application.

The legal issue before the Tribunal was whether the applicant satisfied clause 802.214(1)(c) of the Migration Regulations 1994, which mandates that an applicant over 18 must have been undertaking a full-time course of study leading to a professional, trade, or vocational qualification at the time of application, or within a reasonable period after completing Year 12. The Tribunal also had to consider the requirement that this criterion must continue to be met at the time of the decision, as per clause 802.221(2)(b).

The Tribunal reasoned that the applicant, having turned 18 before lodging the application, was required to meet the additional criteria. It was acknowledged by both the applicant and their agent that the applicant was not undertaking full-time study at the time the application was lodged. While the applicant commenced English language courses after lodging the application, the Tribunal found these courses did not lead to a professional, trade, or vocational qualification as required by the regulations. Furthermore, the Tribunal noted that the applicant had completed high school in July 2014 and commenced English studies in July 2016, which was considered outside the scope of a "reasonable time" for commencing study, particularly given the specific wording of the criterion requiring study at the time of application.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 802 visa, finding that the applicant had not met the relevant criteria for the visa subclass.