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Are the criteria for the grant of a Child visa (Subclass 101) overly stringent in the cases of children who are over 18 years old, but who remain financially dependent on their parents?
Do the Migration Regulations recognise the reality of modern life, where many children who are over 18 may need time to “find themselves” – to discover what direction they would like to take in life, and to decide what vocational or academic studies would be most appropriate for them to take to reach their goals?
Do the Regulations unreasonably restrict the reunification of financially dependent children with their parents? Would it be appropriate to reform the Regulations and make them less stringent, in order to facilitate family reunions?
A recent case decided in the Federal Circuit Court, Nguyen v Minister for Immigration & Anor (2016) FCCA 2373 (22 September 2016) highlights these issues.
The story in this case was that the applicant was a young woman who was born in Vietnam in March of 1995, and who was 19 years old at the time she applied for a Child visa. Her mother had become an Australian permanent resident in May of 2014.
The applicant had completed her secondary education in Vietnam in July 2013. After finishing high school, she had undertaken an apprenticeship in hair dressing at a hair salon in Vietnam. According to a statutory declaration that she filed with the Tribunal, the applicant stated that she had started this apprenticeship “to decide whether she would like to continue her career path”. She continued with the apprenticeship for 18 months.
Then, the applicant became aware that the Migration Regulations require that an applicant for a Child visa who is over the age of 18 must be undertaking “a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification”. So she then moved to Ho Chi Minh City and commenced a full time course in hairdressing. She had not started this course at the time that she lodged her visa application.
The problem for the applicant in this case was the limitations on the grant of Child visas for applicants over 18 years old that is imposed by clause 101.213 of Part 101 of Schedule 2.
This clause provides, at 101.213(1)(c) that a dependent child who is over the age of 18 can qualify for a Child visa provide that, since turning 18, or within 6 months of completing the equivalent of year 12 in the Australian school system, or within “a reasonable time” of completing the equivalent of year 12, has commenced the full-time course of study.
The issue in this case was whether the applicant had commenced her hairdressing course “within a reasonable time”.
The chronology was that she had completed her secondary education in July 2013; had been in the apprenticeship from October 2013 – April 2015; and had not enrolled in the certificate/diploma course in hairdressing until October 2015. So a total period of about 2 years and 2 months had passed since the applicant had finished high school in Vietnam before she commenced the certificate/diploma course.
In determining whether the applicant had started the diploma/certificate course “within a reasonable time”, the Tribunal had regard to the considerations identified in the case of Sok v Minister for Immigration & Multicultural & Indigenous Affairs, which include:
Here, what apparently proved fatal to the applicant insofar as the Tribunal was concerned was that she had not commenced the course of study directed toward the certificate/diploma until after she had applied for the Child visa, and because she had understood that enrolling in such a course was necessary to satisfy the criteria for grant of the visa. This fact, combined with the circumstance that the applicant had not commenced the course until 2 years and 2 months had elapsed since she had finished high school., led the Tribunal to conclude that the applicant had not commenced the course “within a reasonable time”.
And it was the view of the Federal Circuit Court that the Tribunal’s conclusion that the applicant had not commenced the course within a reasonable time was one that was “open” to the Tribunal.
Accordingly, the applicant lost her case before the Federal Circuit Court.
The question remains though, in the wake of this decision, whether the criteria for the grant of Child visas for applicants over the age of 18 are overly stringent, or not. It appears that in this case that it was not “in contest” that even though the applicant had begun an apprenticeship after finishing high school, she was still financially dependent on her mother.
Which raises the question: Should it really be the case that the only way that a person who is over the age of 18 and is still financially dependent on a parent or parents be able to secure a Child visa is if they are enrolled in a full-time course of study directed toward an award?
Does this regulatory framework adequately take into account the fact that (for several decades now) we have been living in an age of “prolonged adolescence” where it is not remotely unusual for children over the age of 18 to remain financially dependent on their parents for many years?
Should there be more flexibility in this framework, to make it easier for children in early adulthood to be reunited with their parents in Australia? Is the present regime “too harsh”?
What has your experience been in advising clients on Child visas?
What do you think?
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There does need to be exemptions. In some countries it is not customary for girls to study and/or remain living dependently with the parent/s until they are married. Others simply cannot afford to educate their children. With the law as it is at the moment many children, especially girls, cannot meet the requirement. On top of that requirements for other visas, ie 457, are nowhere near as stringent.
The regulation is very unfavorable to the most disadvantaged children.