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Important Decision from Full Court on Child Visas and Meaning of Dependent Child

Who is a “dependent child” within the meaning of the Migration Regulations?

This might seem to be a somewhat “obscure” or “arcane” question.

But it is an important one for parents who are seeking to get a “child” visa (Subclass 802) for an “adult child”- one who has turned 18.

Especially so in this era of “prolonged adolescence” when many children who are over the age of 18 are still not financially independent.

The Migration Regulations – sub-regulation 802.214(2) – do include a “special provision” which makes it possible to obtain a permanent “child” visa for a child who is over 18 years old, on condition that the child meet the definition of a “dependent child” under regulation 1.03.

In turn, that definition of “dependent child” states that a child will be considered to be “dependent” if she or he   is “incapacitated for work due to the total or partial loss of the child’s bodily or mental functions”.

The difficult issue that arises from this definition is whether the child must be totally incapacitated from doing any work, or whether a “partial” incapacity is sufficient.

A very recent decision of the Full Court of the Federal Court – Cole v Minister for Immigration and Border Protection (2018) FCAFC 66 (1 May 2018)provides important guidance and clarification on this issue.

The background circumstances of this case were as follows: the applicant was a British citizen who had originally arrived in Australia on a Working Holiday visa. She subsequently applied for a Child (Residence) – Subclass 802 visa, with her father serving as her sponsor.  At the time that the visa application was made, the applicant was 20 years old.

The Department refused the visa application in the first instance on the basis that the applicant was not satisfied that she had a medical condition that met the definition of “incapacitated for work”.

An application for merits review of this refusal then followed in the Tribunal.

There was evidence before the Tribunal that the applicant was suffering from both depression and Post-Traumatic Stress Disorder due to a childhood trauma. Due to these conditions, there were periods when the applicant was unable to work.

However, there was also evidence that the applicant was not permanently incapacitated from all work, and that there had been periods when she had been employed both in the UK and in Australia. In fact, there was evidence that she had been working up until one week prior to the hearing before the Tribunal.

There was also evidence before the Tribunal that the applicant should not work full time until she addressed her mental health concerns. The psychological evidence stated that the applicant was able to look for casual employment involving up to 15 hours a week, and that she could gradually increaser her working hours.

The Tribunal took the view that the definition of “dependent child” meant that an applicant must be completely incapacitated from all work.  Accordingly, since the applicant had been able to do some work on a part-time basis, the Tribunal concluded that she did not meet the definition. Accordingly, it affirmed the refusal of her visa.

Although the Federal Circuit Court also took the view that the definition of dependent child required that a person must be completely incapacitated from work, the Full Court concluded that this approach was incorrect.

The Full Court held that the definition of dependent child in regulation 1.03 does not require that a person be completely incapacitated.  Rather, the Court ruled that the correct interpretation of the regulation allows that a person may meet the definition if they are “substantially incapacitated” – meaning that due to their physical or mental condition there is a significant impairment in their earning capacity, to the point where the applicant does not derive sufficient income from work and requires financial support.

At the same time, the Full Court stated that a person who is only “trivially” or “minimally” incapacitated from work – would not be able to meet the definition of a “dependent child”.

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Comments

  • Weizi - Zhu
    Weizi - Zhu Friday, 11 May 2018

    would advice applicant between 18 and 25 to proceed with full time study help? if that helps, I would think academic study is better than vocational study as the latter looks too intentional

  • Guest
    Bernard M Scheelings Friday, 11 May 2018

    Subject to concrete proof that full-time studies and living expenses of student have been paid for by parents for the last number of years and on a long term basis. A sudden commencement of full time study course would not wash as this is perceived as contrived

    Ben Scheelings
    ex Senior Migration Officer

  • Guest
    Nahida Monday, 14 May 2018

    A dependant child was under the age of 22 when applied for a child visa and his application has not been finalised until now that he is 28 becaus the sponsor was subjected to MD 72’s bar. The child is still a full time student and unemployed living illegally in Pakistan with his mother. What are the prospects for his visa application?

  • Guest
    BenScheelings Monday, 14 May 2018

    Nahida, I presume 'child' holds an Afghani passport. Also presume 'child' is a female and presume 'child' is unmarried and living (in refugee holding centre or with relatives?). I understand that a foreign passport holder cannot attend Pakistani education centres (university of tech college, etc) so evidence of official full-time studies may be in question. If parent is in Australia how come dependent child was not included in application?

  • Guest
    Nahida Monday, 14 May 2018

    The applicant was included in the application but the application was barred from processing under MD 72. Your presumption is almost correct, but the child is male, studies in private college paying fee as an international student and lives with his mother and siblings.

  • Guest
    Bernard M Scheelings Monday, 14 May 2018

    Nahida, I am confused about the MD 72 (ordering for consideration and disposing of family visa applications). Why and for what reason? There is some crucial information missing and as a former senior migration officer and thus indocrinated to be wary. There is more to this than meets the eye. I presume the sponsor is a parent (father) and based in Australia. Is he sponsoring the entire family or only the student? Presume the entire family. Refugee or family migration and if Dubai is handling this be prepared for a tough time.

  • Guest
    Nahida Tuesday, 15 May 2018

    Bernard, the sponsor entered Australia as an IMA and he is not a citizen yet. He has applied to sponsor his entire family, wife and children, including the student. The question, is the student was 22 when application was lodefed now he is 28, how will the department go by?

  • Guest
    Bernard M Tuesday, 15 May 2018

    Nahida, if the 28 year old is still a full-time student, living with family and totally dependent, department will have to give approval serious consideration (presume student does not have any other close family e.g. wife in home country. AAT, if it comes to that, would agree.

  • Guest
    Guilda Said Wednesday, 23 May 2018

    I have an issue of concern. A full time student from Vietnam aged 23 whose mother intends to apply for a subclass 132. She supports the son financially and has been doing so for the last 2 years in Australia. The son wants to continue with studying Masters in Australia.
    Can the mother include the son with her application as long as the son is still continuing with his education as she is the parent responsible for the son.

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