We are delighted to report a recent win in the Federal Court in relation to a longstanding client, Jodie Cole.
Jodie arrived in Australia in February 2013 on a Working Holiday Visa. In February 2014, she lodged an onshore application for a Child visa, sponsored by her father. At the time of the application, Jodie was aged 20, and therefore had to establish that she was dependent on her parents or incapacitated for work.
She made the application as a “disabled child”, disclosing on the application form that she was reliant on her parents for all needs, including accommodation, money, food and clothing. The application was supported by medical letters stating that Jodie suffered from depression, anxiety and post-traumatic stress disorder due to a serious childhood trauma.
In July 2014, the Department of Immigration requested further medical information and a health examination. The family complied with the request, including providing a letter from a registered clinical psychologist as to the nature of Jodie’s condition. In August 2014, a Medical Officer of the Commonwealth (‘MOC’) determined that Jodie met the visa’s health requirements.
In October 2014, Jodie’s visa application was refused essentially because ‘the MOC found the Appellant was not incapacitated for work’. The Delegate did not accept that Jodie had a medical condition which met the definition of being ‘incapacitated for work due to the total or partial loss of the child’s bodily of mental functions’ as required by the Migration Regulations.
Jodie’s family then lodged a merits review application in the Administrative Appeals Tribunal. The Tribunal was provided with evidence that Jodie was incapacitated for work due to her PTSD and severe depression, and was totally dependent on her parents for financial support. The Tribunal was informed that Jodie had been employed from time to time but was presented with evidence which indicated that that she was unable to work full time until she had addressed her mental health concerns.
The Tribunal took the view that the legislative definition of “dependent child” meant that Jodie had to be completely (as opposed to partially) incapacitated from all work, in order to be eligible for the visa. Accordingly, it concluded that she was not a “dependent child” as there was evidence she had been able to work on a part time basis. The Tribunal therefore affirmed the refusal decision.
An appeal to the Federal Circuit Court failed, with the Court adopting the view that a person must be completely incapacitated from work in order to meet the definition.
Federal Court Appeal
Putt Legal assisted Jodie with an appeal to the Full Court of the Federal Court. The appeal raised two grounds –
- That the Tribunal misconstrued the definition of “incapacity” and the legislative intention did not preclude a statutory interpretation of being “wholly or substantially” incapacitated for work; and
- That the Tribunal failed to apply the correct test in determining incapacity to work.
The Court accepted both grounds, ruling that the definition, correctly interpreted, did not require a person to be completely incapacitated but included situations where an applicant might be “substantially incapacitated” for work, noting that ‘to adopt the Minister’s interpretation would mean that a child with illness, who is unable to work at all and is, therefore, dependent on her parents for the necessities of life would meet the dependent child definition, that is, someone who is completely incapacitated, would meet the definition, but another child with the same condition, who has only a small working capacity of, say, ten hours per week, but cannot earn sufficient funds for rent, food, clothing etc. and is equally dependent on his or her parents, would not qualify for a visa. That would be a surprising conclusion…”
Why is this case important?
The Federal Court’s ruling provides much needed clarity to the definition of “dependent child”, where it relates to children who have turned 18 but are unable to work due to a disability.
And of course, it means that Jodie and her family are one step closer to ending the ongoing legal battle to achieve permanent residence. The Tribunal will now be required to make the decision again according to the correct interpretation of the law.