We managed to get a visa granted to a child dependent above 26 years old without any evidence of mental nor physical incapacity.
This family had enquired with many agents in Australia and in their home country with no avail. They really lost all hope and thought it would be impossible to migrate with their child even though they had been waiting for this visa for more than 11 years. They thought it was an unfortunate event but one that they would have to accept since time had simply brought the child above the age threshold of 23.
According to migration legislation, a child can only be included as a dependent member of family unit if they are:
- a child or step child who have not yet reached 18 years of age; or
- Children aged above 18 and under 23, and is dependent on the family head;
- Children above the age of 23 and is dependent on the family head on the basis of being incapacitated for work due to a total or partial loss of the child’s bodily or mental functions.
In this particular case, our client, a family who had been awaiting a family type visa since 2011, faced a unique challenge. Their dependent child, who was originally under 18 when the application process began, had unfortunately aged beyond 23 by the time the visa was poised for grant in 2023. This posed a significant obstacle, given the prevailing regulations that stipulate an age limit of 23 for dependent inclusion, unless mental or physical incapacitation is established.
Difficulties with this case
Upon receiving a request for explanation from the Department of Home Affairs, our client was confronted with the reality that their child no longer fit the criteria for dependent inclusion due to age. Despite lacking any mental or physical incapacitation, the child remained fully reliant on parental financial support as a full-time student.
So how did we find a solution?
While the odds seemed stacked against them, our firm’s expertise uncovered a legal loophole that could be leveraged to their advantage. We meticulously crafted a comprehensive legal submission, methodically presenting compelling arguments that aligned with this unique legal nuance. A pivotal aspect of our strategy involved addressing the precise legal definition of dependency, as outlined in r 1.05A of the Migration Regulations 1994, demonstrating unequivocally the child’s genuine reliance on parental financial support.
Our rigorous efforts culminated in the favorable grant of permanent residency visas not only for the adult parents but also for the child, who had crossed the age threshold, all without the need to establish mental or physical incapacitation. This achievement not only showcases our firm’s dedication to innovative problem-solving but also underscores the intricacies and effectiveness of our legal approach.
Should you or anyone you know face a complex immigration situation that demands meticulous legal maneuvering, we stand ready to offer our unparalleled expertise and personalized assistance. You can get in touch with us to discuss further about your case and we can offer a different insight: Book a Consultation
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