Xu (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. The primary dispute concerned whether the applicant met the criteria under clause 802.214(1)(c) of Schedule 2 to the Regulations, which requires an applicant over 18 to have been undertaking a full-time course of study leading to a professional, trade, or vocational qualification, either since turning 18 or within a reasonable time after completing the equivalent of Year 12. 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 was required to determine if the applicant satisfied the full-time study requirement at the time of application and at the time of the decision. The applicant had provided evidence of her study history in her home country and Australia, including training courses and self-learning, and argued that any hiatus in her formal education was unavoidable due to course commencement dates. The Tribunal also considered the applicant's relationship status and work engagement, finding that she met the requirements of clauses 802.214(1)(a) and (1)(b), and that these continued to be met at the time of the decision.

In its reasoning, the Tribunal referenced the principles established in *Sok v MIMIA* [2005] FMCA 190 regarding the interpretation of "reasonable time" for commencing a course of study. This involves considering the actual time involved, the activities undertaken, their purpose, and the reasons for any inaction. While the Tribunal accepted the applicant's evidence regarding her relationship status and work engagement, it did not make a final determination on the full-time study criterion within the provided text. Instead, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the application for a Child (Residence) (Class BT) visa, Subclass 802, for reconsideration. The direction given was that the applicant met the criteria under clause 802.214 and clause 802.221(2)(b) of Schedule 2 to the Regulations.