Putt Legal has successfully represented hundreds of people who have visa applications refused by the Department of Home Affairs. One compelling case was that of Jane*, a British national who applied for a Child Visa after being sponsored by her father who holds both British and Australian citizenships. 

Background

 

*Jane was 20 years old when she applied for a Child Visa on the basis that she was the only child of her parents who had migrated to Australia three years prior. But her application was refused because the immigration case officer was not satisfied that she was dependent on her parents, even though it was accepted that she suffered severe mental health problems which impacted her ability to work and support herself. 

Jane suffered from severe Posttraumatic Stress Disorder (PTSD) as a result of having been sexually assaulted as a 12-year old. Her PTSD symptoms impacted on her ability to complete her education and secure long-term employment. The nature of her condition and their associated symptoms were unpredictable and erratic. And various environmental triggers would set her off at any time.  

When her parents migrated to Australia, she refused to relocate with them. But within a year of them leaving, she experienced a significant breakdown and attempted take her own life. On hearing of Jane’s situation, her heartbroken parents returned to the UK straight away to support their daughter. They stayed with her for three weeks and then arranged for her to travel to Australia immediately afterwards. When she arrived, it became evident to them that Jane needed full-time care and support.  

Jane’s parents sought professional advice in Australia to find the simplest way to facilitate a long-term visa for Jane. They were advised she could obtain a Working Holiday Visa first and then apply they should apply for a Child Visa. So that is what they did. Jane lodged the Child Visa application in February 2014.  

Visa and Appeal Refusal

Jane’s Child Visa application was refused in October 2014 because she was not considered to fall within the definition of “dependent child”. The immigration case officer pointed to the fact that Jane had, in fact, been independent from her parents for about 1 year after they migrated to Australia and she had demonstrated a capacity to work as a young adult.  

Jane and her parents took her case to the Administrative Appeals Tribunal (AAT) but the visa refusal decision was affirmed. At this point, Jane and her parents were lost and unsure of what to do next! Jane and her parents visited Putt Legal, and after a long in-depth review of the evidence, Jessica advised Jane to seek judicial review of the AAT’s decision.  

On September 2017, a judge of the Federal Circuit Court dismissed the case. Jodie then appealed to the Federal Court. On May 2018, the Full Federal Court bench comprising three senior justices unanimously permitted the appeal. It all hinged on the definition of “dependent child” and whether that meant that Jane must be 100% incapacitated for work. Putt Legal successfully argued on Jane’s behalf that the definition being applied by the immigration department and the AAT was incorrect. The Federal Court agreed with this submission: 

 The relevant test is not that Jane cannot work at all, ever. Instead, the test is whether Jane is unable to engage in full-time paid employment (because of her PTSD) to the extent that she cannot support herself financially.  

 That is, it is a test of incapacity to work in the context of the definition of dependence.” 

This ruling constitutes a direction within the Australian migration case law about how to define the concept of “dependence” in the context of a child visa application. Thanks to the Putt Legal team, a precedent has been set which now forms Australian immigration law and policy.

Outcome

Following the Full Federal Court hearing, Jane’s case was remitted back to the AAT for another hearing.  At that hearing, extensive medical evidence was presented on Jane’s behalf to prove the relationship between her ongoing PTSD symptoms and her inability to work on a full-time basis to support herself independently. The Tribunal Member made a decision in Jane’s favour at the conclusion of the hearing.   

 On 16 January 2020, almost six years after she lodged her visa application, Jane’s visa was granted and she became an Australian permanent resident. 

 *We have changed our client’s name for privacy reasons. 

WHY PUTT LEGAL?

Putt Legal are your specialists in Immigration Law. We can assist you in making your migration to Australia seamless.

The Australian visa process can be complex and confusing; our lawyers work with you to guide you through every step of the way.

We are highly qualified and experienced in immigration law matters and are committed to providing expert advice in every individual case.

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