Australian Immigration Daily News

Who is a dependent child for the purposes of Regulation 1.03?

Easy question, hard question, or question you would prefer not to think about?

Well, it was the determinative question in a case that was decided by the Federal Circuit Court on 1 August 2017, Sadat v Minister for Immigration & Anor (2017) FCCA 1748.

And the question arose in somewhat complicated circumstances, as follows:

The applicant (Arabi Sadat) was the child of a woman who was married to a person whose surname was “Iqbal”.  Mr Iqbal applied for a student visa. At the time of this application,  the applicant Arabi Sadat was living with his mother and Mr Iqbal; however, at the time of the application, Arabi Sadat also had regular contact with his biological father.  Over time, though, the relationship between Arabi Sadat’s mother and biological father deteriorated, and Arabi came to live with his father on a permanent basis.

The student visa application that had been made by Mr Iqbal was refused by the Department. While Mr Iqbal and his wife (Arabi Sadat’s mother) applied to the Tribunal for review of the refusal of the visa  application, neither of them included Arabi Sadat in their applications for review.

The biological father did seek review of the refusal of Arabi Sadat’s visa application, which had been made as a “member of the family unit” of Mr Iqbal. 

At the hearing of Arabi Sadat’s case before the Tribunal, the biological father gave evidence that he was the sole source of financial support for Arabi.

So here was have a somewhat unusual situation, where a child was seeking a visa as a member of the family unit of the primary applicant for a student visa even though, at the time of the application for review, he was no longer living in the household of the primary applicant, and was not being supported by the applicant.

Was he nonetheless still a member of the family unit of the primary applicant, for the purposes of the Migration Regulations?

Is your head spinning yet? Keep reading!

The applicable regulation ( former sub-regulation 1.12(2A) provided that a member of the family unit of the holder of a Student Visa is a “dependent child” of the holder of the student visa, or of the spouse or de facto partner of the holder of the student visa.

Regulation .03 defines a “dependent child” as a child who either has not turned 18, or who has turned 18 and is “dependent” on the holder of the student visa, or on the visa holder’s spouse or de factor partner.

And, Regulation 1.05A defines a person as one who is wholly or substantially reliant on the other person for financial support to meet the person’s basic needs for food, clothing and shelter.

So, can you be a “dependent child” within the meaning of Regulation 1.03, without being “dependent” within the meaning of Regulation 1.05A?

This was the Court’s answer: the definition of “dependent child” under Regulation 1.03 specifies that a person must be either under the age of 18, or, if over the age of 18, must be “dependent” on the other person, in the sense of being financially  dependent for support,.  Either. Not both.

So, so long as the applicant (Arabi Sadat) was under the age of 18, he met the definition of being a “dependent child”, even though at the time of the hearing before the Tribunal, he was living with his biological father, and not the applicant for the student visa that had been refused.!

Interestingly, in this case the Minister argued that in order to be a “dependent child”, one must be “dependent” within the meaning of Regulation 1.05A, that is substantially or wholly reliant on the primary applicant or on the spouse or de facto partner of the primary applicant for financial support for basic living needs.

However, the Court held that the plain language of Regulation 1.03 is binary: one can be a dependent child either by virtue of being under the age of 18, or, if over the age of 18, “dependent”  in the sense of financially dependent for support. 

So under Regulation 1.03, a child who is under the age of 18 does not need to be financially dependent in order to qualify as a “dependent child”.

So it’s possible to be a dependent child without being dependent!

And to be dependent without being a dependent child!

The Migration Regulations are a true joy, aren’t they?