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”.