Pasuengos (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for a Child (Residence) (Class BT) visa, Subclass 802, made by Melanor Cabrera Pasuengos. The dispute centred on whether the applicant met the specific criteria for the visa, particularly those applicable to applicants over 18 years of age.

The primary legal issue before the Tribunal was to determine if the applicant satisfied the requirements of clauses 802.214(1)(c) and 802.214(2) of the Migration Regulations. These clauses relate to the applicant's study history and the continuation of meeting certain criteria at the time of the decision. Specifically, the Tribunal had to assess whether the applicant had been a continuous full-time student since turning 18.

The Tribunal's reasoning focused on the applicant's study history post-18 years of age. It noted that the applicant had not been a continuous full-time student and had not studied for a period exceeding 3.5 years after turning 18. While the applicant met the relationship status criteria (cl 802.214(1)(a)) and the criterion of not being engaged in full-time work (cl 802.214(1)(b)), the failure to meet the study requirement under cl 802.214(1)(c) was determinative. The Tribunal applied the principle that all relevant criteria must be met at the time of the decision, as stipulated by cl 802.221(2)(b).

Consequently, the Tribunal concluded that the applicant did not meet the criteria for the grant of a Subclass 802 visa. The decision under review, which affirmed the refusal of the visa, was therefore affirmed by the Tribunal.