Australian Immigration Daily News

Who can meet the definition of being a “dependent child” in order to be eligible for a Child Residence visa? 

Clause 1.03 of the Migration Regulations 1994 defines the term “dependent child” to mean a child or step-child who is not in a spousal or de facto relationship and is not engaged to be married, and who falls into one of 3 distinct categories: 

* (a) the child has not yet turned 18 years of age;

* (b)(i) the child has turned 18 and is “dependent” on the person (parent)

* (b)(ii) the child has turned 18 but is “incapacitated for work due to the total or partial loss of the child’s bodily or mental functions” 

The interpretation of the phrase “incapacitated for work” is highly consequential, as clause 802.212 of the Migration Regulations specifies that the applicant for a child visa must be a dependent child of the sponsoring parent, and clause 802.214 requires that if the child has turned 18, must meet the definition of a “dependent child” under 1.03(b)(ii). 

So, suppose you have had some form of psychological trauma and are unable to work full-time, but you are able to work part-time. 

In those circumstances, can you be considered “incapacitated for work”, and so be able to satisfy 802.214? 

This question was addressed in a decision of Judge Lucev of the Federal Circuit Court that was handed down on 14 September 2017 – Cole v Minister for Immigration & Anor (2017) FCCA 2234. 

The background of this was was as follows: The applicant was a British citizen who originally came to Australia on a Working Holiday visa. She then made an application for a Child Residence visa, with her father as the sponsor. She was 20 years old at the time of the application. 

There was evidence before the Tribunal (following the Department’s refusal of the application) that the applicant was suffering from both depression and post-traumatic stress disorder as the result of a childhood trauma. There was also evidence (apparently from treating psychologists or counsellors) that the applicant should not work on a full-time basis until she had progressed in her therapy, and that in the meantime she should limit her employment to part-time work only. 

Did this evidence mean that the applicant was “incapacitated for work”, that she thus satisfied the definition of “dependent child” under clause 1.03(b)(ii) of the Regulations, and that she therefore satisfied the criterion for the grant of a Child visa specified under clause 802.214? 

So it was argued by the applicant in the Federal Circuit Court. 

It was submitted that the definition of “dependent child” does not state that the applicant child must be incapacitated from full time work, and, equally, that the definition does not state that a child with a capacity only for part-time work is not precluded from being recognised as a dependent child. 

Unfortunately for the applicant, these submissions did not persuade Judge Lucev. 

The Court found that the term “incapacitated”, in its “dictionary definition” means to be “deprived of capacity, or made incapable or unfit, or disqualified” from doing something. The Court took note of the fact that the term “incapacitated” is not qualified in any way in clause 1.03(b)(ii) – for example, that this clause does not read “partially” incapacitated. Consequently, the Court concluded that in order to be considered “incapacitated” for work, one must be totally incapacitated from being able to work at all. 

Therefore, an applicant who is able to work on a part-time basis is not someone can be found to be incapacitated from work, and is therefore someone who is not able to satisfy the eligibility criteria for the grant of a child visa under clause 802.214 of Schedule 2. 

An interesting point that arises from this decision is that clause 802.214 does not “carve out” an exception for children who are over the age of 18 and are “dependent” on a parent, within the meaning of regulation 1.05A – that is, a person (including a child) who is substantially reliant on another person for financial support to meet basic needs for food, clothing or shelter. 

Therefore, under Part 802 of the Regulations, the only avenue for obtaining a child visa is for the applicant to be either 1) under the age of 18; 2) if over 18, not in a spousal or de facto relationship and not engaged to be married and have not been engaged in full-time work and have commenced a full time course of study leading to a professional, trade or vocational qualification within 6 months or a reasonable time of turning 18, or being completely incapacitated from work due to an impairment of mental or physical abilities. 

One might question, mightn’t one, whether this regulation truly reflects the realities of modern life, where children may defer further study after turning 18 – for example, to travel or work – and may remain financially dependent on their parents well beyond the age of 18. 

Shouldn’t the Migration Regulations recognise these practical realities of modern life and modern families – that “adulthood” may not really “begin” at 18, and that perhaps the eligibility criteria for “child” visas should be revised and enlarged? 

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