Sao (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, subclass 802, made by an applicant who had turned 18. The applicant arrived in Australia in January 2006 and lodged her application in November 2020, at which time she was 23 years old. The Tribunal, presided over by Stephen Conwell, was required to determine whether the applicant met the criteria for the visa, specifically those relating to post-secondary studies for applicants aged 18 and over.

The central legal issue was whether the applicant satisfied clause 802.214(1)(c) of the Migration Regulations 1994, which requires that an applicant aged 18 or over, at the time of application, must have been undertaking a full-time course of study since turning 18 or within a reasonable time thereafter. Crucially, this criterion, along with others, must continue to be met at the time of the decision, as per clause 802.221(2)(b). The Tribunal also considered whether the applicant met the requirements of clauses 802.214(1)(a) (relationship status) and 802.214(1)(b) (not engaged in full-time work).

The Tribunal found that the applicant met the criteria regarding her relationship status and was not engaged in full-time work. However, the applicant had a significant study gap of 19 months and had not been engaged in a course of full-time study since turning 18. The Tribunal noted that the applicant had worked approximately 40 hours a week in a casual job for several months in 2021, which was the primary reason for changing her enrolment from full-time to part-time study. Applying the principles from *Sok v MIMIA* [2005] FMCA 190 regarding the interpretation of "reasonable time" and the need for continuous full-time study, the Tribunal concluded that the applicant had not met the requirements of clause 802.214(1)(c) at the time of the application, nor had she continued to meet it at the time of the decision.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Child (Residence) (Class BT) visa.