Valdoz (Migration)

[2025] ARTA 2247

Valdoz (Migration) [2025] ARTA 2247 (23 July 2025)

Applicant:Miss Christine Apostol Valdoz

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:  2403690

Tribunal:General Member W Shum

Place:Sydney

Date:  23 July 2025

Decision:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 23 July 2025 at 10:43am

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – applicant over 24 years – dependent child of an Australian relative – applicant withdrew from university studies – later studies in Australia – decision under review affirmed   

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cls 802.214, 802.221

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister on 13 February 2024 to refuse to grant a Child (Residence) (Class BT) visa to the applicant under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 17 April 2023. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).

3. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly for visa applicants who are over 18 at the time of application, the criteria that must be satisfied includes a requirement of full-time study unless the person is incapacitated for work. In this case, the delegate refused to grant the Subclass 802 visa because the applicant was not studying at the time the application was made. In addition, the delegate noted that at no point had the applicant claimed to be incapacitated for work and did not consider that cl 802.214(2) applied. The delegate was not satisfied that the applicant meets cl 802.214 of Schedule 2 to the Regulations.

4. The applicant sought review of that decision and was initially represented in relation to the review by the same migration agent who assisted with her visa application. She later appointed the representative whose name appears below. 

5. The applicant appeared before the Tribunal on 22 July 2025 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Agapita Apostol Valdoz. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages. The representative named below also attended.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   BACKGROUND

7. The applicant was born in January 2003 and is now 22 years old. She is a citizen of the Philippines. She first came to Australia in November 2022 as the holder of a visitor visa and then lodged a child visa application while in Australia.

8. The applicant’s mother, Mrs Agapita Apostol Valdoz, who is sponsoring her for the Child (Subclass 802) visa is a permanent resident having been granted a Partner (Subclass 100) visa on 11 March 2020. The applicant is her biological daughter.

9. The application for a Subclass 802 visa was lodged on 17 April 2023, after the applicant had already turned 18. In such circumstances, certain criteria relating to relationships, work, and study must be met at the time of application: cl 802.214. These are that the applicant is single, is not engaged in full-time work and is undertaking full-time study.

10. The visa application form was completed indicating that she had commenced secondary education at Reina Mercedes Vocational School in the Philippines on 14 June 2015 and had completed on 10 March 2021. In the section seeking details of post-secondary study, it was completed indicating that she had commenced university education in September 2020 and withdrawn from these studies in November 2022.

11. The accompanying Form 80 was completed indicating that the applicant had commenced a Bachelor of Science in Information Technology at the lsabela State University Cauayan Campus in the Philippines in June 2020 but had withdrawn from this course in November 2022. Following a request for clarification and further evidence of study, the applicant had advised that she had made an error in her completion date of secondary school study, which was completed in 2020. She added that she had not been able to continue with her study at lsabela State University after coming to Australia to visit her mother in November 2022 and had to withdraw from her study.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicant, who was over 18 at the time of application, met the additional requirements in respect of relationships, work, and study: cl 802.214.

13. The delegate concluded that the applicant did not meet the requirement in respect of study at the time of application. The requirement is that the visa applicant is undertaking a full-time course of study after turning 18, or within 6 months or a reasonable time after completing the equivalent of Year 12 in the Australian education system. This requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the loss of bodily or mental functions: cl 802.214(2).

14. There is no evidence that the applicant was incapacitated for work due to the loss of bodily or mental functions and cl 802.214(2) does not apply.

15. The evidence provided when the visa was being processed of the applicant’s studies reflect that she had completed senior high school in the Philippines in April 2020 and then commenced study at Isabella State University in Semester 1 of 2020-21 but had withdrawn from the course in Semester 2 of 2022.

16. A few days prior to the hearing, the representative provided evidence of the applicant’s study in Australia which reflects that she was enrolled at Stanley College from March 2024 in a Diploma of Information Technology (Cyber Security) course which was due to completion in May 2025. She has now enrolled in a Certificate III in Commercial Cookery. A day prior to the hearing, evidence in the form of a screenshot of the applicant’s academic results she had been undertaking since March 2024. Other documents were provided regarding her dependency which are not directly relevant to the issue in this case.

17. During the hearing, the Tribunal explained the criterion required that she was undertaking full-time study at an educational institution at the time of visa application. The applicant confirmed that she was not undertaking full-time study when the visa application was lodged on 17 April 2023.

18. The applicant’s mother was a witness at the hearing and informed the Tribunal that she had financially supported her daughter and that she had not enrolled in her study at the time of application. She added that she had enrolled her in study after the visa was refused.

19. Accordingly, cl 802.214(1)(c) is not met. This means that cl 802.214 is not satisfied.

20. The representative acknowledged that the visa criteria was not met and indicated that they would be seeking Ministerial Intervention in this case and that they had proceeded with the review process to access that option. The Tribunal acknowledges that the applicant’s mother wishes for her daughter to stay with her in Australia but is unable to make a favourable finding on review in the circumstances of this case.

21. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met and there have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837). Given this, the Tribunal will affirm the decision under review.

    DECISION

22. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

    Date(s) of hearing:  22 July 2025

    Representative for the Applicant:           Mrs Marimi Tanag (MARN: 1386887)