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Guest garynhelen

What if my daughter turns 18 before visa granted?

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Guest garynhelen

Apologies if this has already been answered, but we are concerned that due to the new processing times given, our eldest daughter will be 19 by the time our visa is looked at. Does this mean that she will no longer be able to be included on our visa? Would really like some assurance as this will make the difference between us going or not, so would rather know now so we don't waste the next three years living in limbo!

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Guest Sebbers

We attended the state migration open day in Newcastle and raised the same question with diac as both our children will have turned 18 if we have to wait until 2012. We were assured that as long as they are in full time education and totally dependant on us that the decision will be made on their age at the time the application was made and not their age at the time of visa grant. We were told that a child can be classed as a dependant as long as they are under the age of 25 and in full time education.

 

Hope this helps

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Guest wanderer

Sebbers [ and garynhelen],

Just a little tweaking on

We attended the state migration open day in Newcastle and raised the same question with diac as both our children will have turned 18 if we have to wait until 2012. We were assured that as long as they are in full time education and totally dependant on us that the decision will be made on their age at the time the application was made and not their age at the time of visa grant. We were told that a child can be classed as a dependant as long as they are under the age of 25 and in full time education.

 

 

What the situation is according to Gollywobbler and Alan Collett [and AI] is that the decision re age of dependants and whether that are to be considered a dependant or not is made at time of Visa determination rather than date of lodgement.

 

Despite

 

Relationship status

 

 

The child must not be married or in a de facto relationship or be engaged to be married.

If aged 18 or over the child must, in addition to the above, never have had a spouse or a

de facto partner.

 

 

Age

 

 

Generally the child must be under 25 years old, but if they are aged 18 or over, they must

be a full-time student and financially dependent on the sponsoring parent. The only

exception to this requirement is where a child has a disability which stops them from

working.

If a child turns 18 years old after the application is lodged, the child will continue to be

assessed as a child under 18 years old. If the child turns 25 years old after the application

is lodged but before it is decided, they may still be eligible for a visa, however they will

need to show that they are still dependent on the parent and meet the other

requirements for the visa.

Following are the different requirements for children under 18 years old and those aged

18 or over.

 

 

Child under 18 years old at time of lodging application

 

 

If under the age of 18 the child must be:

• a natural (biological) child of the Australian relative; or

• an adopted child or a step-child of the Australian relative within the meaning of the

 

 

Migration Act 1958; or

• a child conceived through an artificial conception procedure (ACP) as provided for in the

 

 

Family Law Act 1975; or

• a child born under surrogacy arrangements, where parentage has been transferred by

court order under a prescribed state or territory law.

 

 

There is no further requirement to be met to satisfy the child’s dependence.

You'll find on P12 of http://www.immi.gov.au/allforms/booklets/1128.pdf and the logic of using age at date of lodgement as that is used for other immigration aspects, if it is not so it ought to be.

For how illogical is the other approach? ie.

Is it to be the date a CO starts work on an application or six months or whatever later when it is awaiting the final stamp of approval or somewhere in between.

 

I am awaiting a response from the department on this topic and in fact depending on who you talk to at DIAC you may get an answer it is date of lodgement as per the booklet, the response being long overdue btw.

I'll rev them up some more!

 

Meanwhile all you can do to be safe would be to keep your daughter dependant before and from when she turns 18 by having her in education [or just at home twiddling thumbs] as Sebbers says.

I think it was Gill in a post on another thread who posted that up to 18 hours a week work was acceptable to remaining dependant.

 

Maybe she can confirm that and post the link re where that information comes from.

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Wanderer I'm sorry to say that your posting of an irrelevant extract from the wrong DIAC booklet is highly misleading and will expose the owners of PiO to potential litigation if anyone goes out and relies on your advice. However I think it highlights just how difficult the legislation is, so bear with me.

 

What you've said is that you just need to be under 18 at time of application and it doesn't matter if you turn 18 during processing, you're still dependent. This is certainly true of the subclass 101 Child visa, however to get to applying for a child visa the sponsor needs to be a parent with at least permanent residence. On the other hand, DIAC in their wisdom have another criteria for almost all the General Skilled Migration visas, namely that the child must be a dependent child at time of application, and must continue to be dependent at time of decision.

 

Reasons follow:

 

 

Taking the subclass 175 for example, the criteria for a child would be, at time of application, being a "member of the family unit" of the primary applicant, and then at time of decision it says this:

 

175.321

The applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 175 visa.

 

Reg. 1.12 defines "member of the family unit" as including, inter alia, "a dependent child of the family head or of a spouse or de facto partner of the family head"

 

So the upshot is that for the General Skilled Migration visas there is a requirement that the child continues to be dependent at the time of decision.

 

For the subclass 101 visa there is a different legislative formula, ie

 

101.221

(1) In the case of an applicant who had not turned 18 at the time of application, the applicant:

(a) continues to satisfy the criterion in clause 101.211 [dependent child]; or

(b) does not continue to satisfy that criterion only because the applicant has turned 18.

 

 

In fact if you look at p.36 of Booklet 6, aka form 1119, which deals with this, this is what it says:

 

Dependent children

A dependent child may be your, or your partner’s child or step child. ‘Step-child’ means a

child of your current partner or your former partner when the child is under 18 years and

you have a legal responsibility to care for that child (for example, where your former

partner is deceased and you have legal custody of your former partner’s child). You will

need to provide a certified copy of the overseas or Australian court order which you have

in relation to the child.

A child of any age is not considered dependent if he or she is married or in a de facto

relationship or is engaged to be married.

A child aged 18 years or over will not be considered dependent unless you can show that

they are wholly or substantially reliant on you for financial support for their basic needs

of food, shelter and clothing. You must also show that you have provided that support for

a substantial period and that the child is more reliant on you than on any other person

or source. Unless you can provide evidence of this, they should apply separately. You

should also be aware that a child aged 25 years or over will generally not be considered

dependent.

Children of any age who have a total or partial loss of bodily or mental functions which

stops them earning a living are regarded as dependent and part of the family unit

(whether or not they migrate with you). Give details of such children and whether they

are in your care or in an institution.

In all cases you should attach evidence of your child’s dependency on you.

 

See http://www.immi.gov.au/allforms/booklets/1119.pdf .

 

So on this occasion I'd suggest Alan and Gill are possibly right.

 

Cheers,

 

George Lombard


George Lombard LLB(Hons) Fellow of the Migration Institute of Australia

MARN 9601056 george[at]austimmigration[dot]com[dot]au

www.austimmigration.com.au

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Guest Gollywobbler
Apologies if this has already been answered, but we are concerned that due to the new processing times given, our eldest daughter will be 19 by the time our visa is looked at. Does this mean that she will no longer be able to be included on our visa? Would really like some assurance as this will make the difference between us going or not, so would rather know now so we don't waste the next three years living in limbo!

 

Hi garynhelen

 

How old is your daughter at present? 15 or 16, I would guess?

 

Is she still at school?

 

What are her plans after she turns 16? It mainly all rests on whether she intends to remain in full time education for the foreseeable future, including after her 18th birthday.

 

There have been several cases where the visa is due to be processed and granted "soon" and the child turns 18. The plan is for the child to take a year or so out, to allow time to move to Oz and get settled before enrolling in an Aussie college or uni with a view to equipping the child with a lucrative skill. In this situation, the child might as well leave school in the UK after A levels and it is not worth starting anything else here in the UK. So the youngsters have obtained very part-time, poorly-paid casual jobs doing evening shifts in supermarkets, bars etc. They earn just enough to give them some pocket money without creating a situation in which the child could survive financially without Mum & Dad.

 

As a short term stop-gap, that will do. I wouldn't allow a child of mine even to think about it as a longer term idea, though. I'd feel that my primary duty is to do my best for my child's future and I would regard Oz as an optional extra in this situation. I would lose the Aussie option in order to protect the child's best interests if it were me.

 

The other thing to watch out for is boyfriends. If Daughter gets into a committed, serious relationship with someone, she might change her mind about moving to Oz. Also establishing a family unit of her own (which need not include a baby of her own) can break the chain of dependence on Mum & Dad, too.

 

Does this help?

 

Cheers

 

Gill

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Guest garynhelen
Hi garynhelen

 

How old is your daughter at present? 15 or 16, I would guess?

 

Is she still at school?

 

What are her plans after she turns 16? It mainly all rests on whether she intends to remain in full time education for the foreseeable future, including after her 18th birthday.

 

There have been several cases where the visa is due to be processed and granted "soon" and the child turns 18. The plan is for the child to take a year or so out, to allow time to move to Oz and get settled before enrolling in an Aussie college or uni with a view to equipping the child with a lucrative skill. In this situation, the child might as well leave school in the UK after A levels and it is not worth starting anything else here in the UK. So the youngsters have obtained very part-time, poorly-paid casual jobs doing evening shifts in supermarkets, bars etc. They earn just enough to give them some pocket money without creating a situation in which the child could survive financially without Mum & Dad.

 

As a short term stop-gap, that will do. I wouldn't allow a child of mine even to think about it as a longer term idea, though. I'd feel that my primary duty is to do my best for my child's future and I would regard Oz as an optional extra in this situation. I would lose the Aussie option in order to protect the child's best interests if it were me.

 

The other thing to watch out for is boyfriends. If Daughter gets into a committed, serious relationship with someone, she might change her mind about moving to Oz. Also establishing a family unit of her own (which need not include a baby of her own) can break the chain of dependence on Mum & Dad, too.

 

Does this help?

 

Cheers

 

Gill

 

Hi Gill,

 

My daughter is 16 and currently doing an NVQ 2 in Horse care 2 days per week, and continuing in home education for the rest of the week. She also has a casual job in a cafe as and when needed. The original plan was for her to fill this year in this way, and possible the next with level 3, then to go into an apprenticeship or traineeships when we get to Oz. But the 3 year time frame kind of throws it all into question. Really hoping something changes soon to speed things up.

 

So am I right in thinking that as long as she (and her brother who will be 18 in 2012) are still financially dependant on us, they will be ok on our visa??

 

 

many thanks,

 

Helen

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Guest wanderer

George,

Wanderer I'm sorry to say that your posting of an irrelevant extract from the wrong DIAC booklet is highly misleading and will expose the owners of PiO to potential litigation if anyone goes out and relies on your advice. However I think it highlights just how difficult the legislation is, so bear with me.

 

.

I Think if you reread what I've said you'll see that I am not advising them to rely on the DIAC booklet at all and infact

What you've said is that you just need to be under 18 at time of application and it doesn't matter if you turn 18 during processing, you're still dependent
is quite different from
What the situation is according to Gollywobbler and Alan Collett [and AI] is that the decision re age of dependants and whether that[should have been they] are to be considered a dependant or not is made at time of Visa determination rather than date of lodgement.
and
Meanwhile all you can do to be safe would be to keep your daughter dependant before and from when she turns 18 by having her in education [or just at home twiddling thumbs] as Sebbers says.

I think it was Gill in a post on another thread who posted that up to 18 hours a week work was acceptable to remaining dependant.

 

Maybe she can confirm that and post the link re where that information comes from.

My reference to "despite" what is in Booklet 2 is merely to show what I consider to be an inconsistency of DIAC regulations and an illogical approach - I have clearly stated that [and I feel that DIAC do need to address that, especially with longer processing times becoming the norm for the forseeable future.]

 

And for instance

So the upshot is that for the General Skilled Migration visas there is a requirement that the child continues to be dependent at the time of decision.

As I've stated "What date is the actual time of decision?"

What would happen? for instance if an application was being processed, a child 17&11 months and all of a sudden a CO took crook and no other CO picked up her cases for a few weeks and the child is one day over 18 when a final stamp of approval is due to be given - it is just too vague whereas date of lodgement is very specific.

So on this occasion I'd suggest Alan and Gill are possibly right.

Not possibly George - under current regs they are right.

 

I hadn't checked my emails for a couple of days and just in is

Thank you for your enquiry of 18 October 2009 to the Global Feedback

Unit within the Department of Immigration and Citizenship concerning

your query about skilled visa applicants whose dependent children have

turned 18 by the time of decision. I apologise for the delay in

responding.

 

Following clarification of your query by a departmental officer, the

information that I provide below relates to General Skilled Migration

(GSM) visas only. The information that you referred to in your email;

Booklet 2 – Child Migration does not apply to GSM visas, instead you

should refer to Booklet 6 – General Skilled Migration, which is

available on the Department’s website at:

Australian General Skilled Migration Booklet

 

Whether a secondary applicant is considered a dependent child is

determined at time of decision as directed by the Migration Regulations

in Schedule 2. If a child has turned 18 then the main applicant or the

main applicant’s partner must show that the child is wholly or

substantially reliant on their parent for financial support for their

basic needs of food, shelter and clothing.

 

For your reference I have included the relevant section of the Migration

Regulations and Procedures Advice Manual (PAM) below:

 

Reg 1.05A Dependent

 

1.05A (1) Subject to subregulation (2), a person (the first

person) is dependent on another person if:

 

(a) at the time when it is necessary to establish

whether the first person is dependent on the other

person:

(i) the first person is, and has been for a

substantial period immediately before that time,

wholly or substantially reliant on the other

person for financial support to meet the first

person’s basic needs for food, clothing and

shelter; and

(ii) the first person’s reliance on the other

person is greater than any reliance by the first

person on any other person, or source of

support, for financial support to meet the first

person’s basic needs for food, clothing and

shelter; or

(b) the first person is wholly or substantially

reliant on the other person for financial support

because the first person is incapacitated for work due

to the total or partial loss of the first person’s

bodily or mental functions.

 

 

PAM:

 

7 ONLY FINANCIAL DEPENDENCY IS RELEVANT

 

 

7.1 Other factors are irrelevant

 

 

For regulation 1.05A(1)(a) and (b), to be considered dependent, a person

must in the first instance be wholly or substantially reliant on another

person for financial support. There are no other grounds for claiming

dependency.

 

 

This requirement applies irrespective of the age of the person or their

personal circumstances and regardless of whether they have a disability.

This contrasts with the regulation 1.05A(2) definition of dependent,

which includes ‘psychological’ and ‘physical’ support as grounds for

dependency (but which applies only to the refugee/humanitarian visa

stream).

 

 

7.2 Employment

 

 

A person who is in full time employment would not normally be regarded

as dependent for financial support. There may be circumstances, however,

where a person who is employed on a part time basis could be considered

financially reliant on another person.

 

 

The key issue to be examined is whether the person is able to meet their

basic needs through that employment - see section 9 Dependency relates

only to basic needs. If this is the case, then the person should not be

considered dependent. In the case of full time employment, it should

generally be assumed that the person is able to meet their basic needs.

 

 

7.3 Government benefits

 

 

A person in receipt of government or superannuation benefits would

generally not be considered wholly or substantially reliant on another

person for basic needs. This will depend, however, on the level of

benefit provided and the cost of living in the country concerned.

Officers will need to explore the individual circumstances of cases.

 

 

Further information about including secondary applicants in an

application is available on the Department’s website at:

General Skilled Migration

 

 

I note your interest in accessing migration and citizenship policy

documents such as the relevant PAM. LEGENDcom is an online resource

library for migration and citizenship legislation and policy documents

that is accessible to the public by visiting one of the public libraries

listed on the Australian Government Information Management Office’s

website at:

Commonwealth Library Deposit and Free Issue Schemes (LDS) - Department of Finance and Deregulation

 

 

Alternatively, a paid subscription can be obtained to gain access to

LEGENDcom. Information about the types of subscription and cost is

available on the Department’s website at:

LEGENDcom

 

I hope this information is of assistance.

 

Thank you for your enquiry.

 

 

Yours sincerely

 

B Combe

Independent Skilled Migration Policy Section

Department of Immigration and Citizenship

 

 

*** PLEASE DO NOT RESPOND TO THIS EMAIL AS EMAILS TO THIS MAILBOX WILL

NOT BE RESPONDED TO ***

 

I'll certainly be responding to B. Combe for it is just a plain crazy inconsistency in my book that if addressed could fix up the situation for all the longer processing too.

 

And when you think about one of the key objectives of immigration - balance the ageing population - what does this do with a lot of young people at the prime of training years, not to mention deterring youngish families.

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We too are in the same situation, my eldest son is 17 next month

 

I thought that they are allowed to get part time jobs (not that my son has one yet, not much around)

 

Would be great to hear if anyone else has heard this?....

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I too am following this thread closely. I really will have to make a final decision as to whether we follow the Aussie dream when the new MODL is revealed. We have had to apply to a local college for next Sept already, as a back up plan. Three years is just too long to wait when you have children who are leaving school this time, as anything could change.

 

Tracey x


Family of 4, 175 MODL (non CSL) applied 27/1/09, 176 SA SS applied 23/7/09, SS granted 4/8/09, CO 17/8/09, last med finalised 18/9/09, PC uploaded 5/9/09. Category 5.VISA GRANTED 11/12/09 & flying to Adelaide 27/6/10:jiggy:

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Guest Gollywobbler

Wanderer

 

Now that you realise that the law is not as you would like it to be, please DON'T bully the DIAC Officer who answered your question. If you are not happy, lobby the Minister for Immigration, Peter Vardos (DIAC's Head of Policy) and your local Federal MP because you are asking that Parliament should alter the legislation. No public servant can do that.

 

By all means recite the information you have been given but take your quarrel to the proper arena for it, please.

 

The DIAC Officer who was tasked with explaining the law to you has no power to get the law altered. Only Parliament can alter it and for that you will need to bring political pressure to bear on the situation.

 

Thank you

 

Gill

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Guest Gollywobbler

Hi garynhelen, Kelly and TraceyT

 

All three of you - and hundreds of others - are in unenviable positions with your teenaged children.

 

At some stage a decision is likely to have to be made. I don't think the Minister for Immi has any intention of bending on this point.

 

The Minister has made it clear that there will be further announcements as he progresses with his plans for altering the entire basis of skilled migration to Oz without bothering with the lengthy process of starting again with a new Skilled Migration Policy - one that Parliament has debated thoroughly and has agreed to - with a set of new visas to match a new scheme.

 

From what he said on the radio, I think there will be another 2 or 3 announcements between now and about April 2010.

 

My inclination is to suggest that everyone should sit tight and await further developments for the time being.

 

Cheers

 

Gill

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Guest wanderer

Gill,

Wanderer

 

Now that you realise that the law is not as you would like it to be, please DON'T bully the DIAC Officer who answered your question. If you are not happy, lobby the Minister for Immigration, Peter Vardos (DIAC's Head of Policy) and your local Federal MP because you are asking that Parliament should alter the legislation. No public servant can do that.

 

By all means recite the information you have been given but take your quarrel to the proper arena for it, please.

 

The DIAC Officer who was tasked with explaining the law to you has no power to get the law altered. Only Parliament can alter it and for that you will need to bring political pressure to bear on the situation.

 

Thank you

 

Gill

 

You're correct there Gill as far as no public servant being able to change legislation and it is not as though I bully them but I do think it does no harm in letting some at the appropriate levels in DIAC know [who should be aware of inconsistencies anyway] at the same time as lobbying MPs.

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Guest gammo

I am in a similar position as well, my daughter is 18 in August and will finish her A levels in June. As she doesnt want to go to Uni she will probably look for a job, which will mean that she is no longer classed as a dependent although I very much doubt that she would be able to afford her own place and support herself and at only 18 i wouldnt want her too. Maybe 21 would be a more reasonable age to class children as non-dependent, 18 seems so young.

My only other option is to encourage her to carry on in education, but i cant do this unless its what she wants as it would be selfish of me. We have invested so much time and money and it seems that we may have to give up our dream because of this!!

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Guest Gollywobbler
I am in a similar position as well, my daughter is 18 in August and will finish her A levels in June. As she doesnt want to go to Uni she will probably look for a job, which will mean that she is no longer classed as a dependent although I very much doubt that she would be able to afford her own place and support herself and at only 18 i wouldnt want her too. Maybe 21 would be a more reasonable age to class children as non-dependent, 18 seems so young.

My only other option is to encourage her to carry on in education, but i cant do this unless its what she wants as it would be selfish of me. We have invested so much time and money and it seems that we may have to give up our dream because of this!!

 

 

Hi Gammo

 

Whatever a Parent might think about someone's maturity at the age of 18, the British and Australian Governments have both decided that a person of 18 is an adult.

 

At the meeting at the Australian Embassy in London in November 2009, I told the Aussies present that a child of 18 can't afford to live alone but may be very difficult about remaining in full-time education simply to suit the Australian Govt's delays.

 

The Principal Migration Officer for the UK was one of the Aussie contingent on the other side of the table. She is an Aussie. She merely shrugged and said, "The person concerned is an adult."

 

Technically I couldn't argue with her but it was clear that DIAC have no intention of bending on this one.

 

Cheers

 

Gill

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Hi

 

My daughter turned 18 whilst we were applying for our Visa (176) she was studying at collage and also had a part time job we had to prove is that she was still dependant on us - we did this by doing a cost out of everthing she would have to pay out if she stayed in this country v her part time wage ie rent / food / gas / elec / mobile phone etc once this was submitted they were fine and the visa was issued

 

hope this helps

 

Cheers Judy


Judy Tim & Jade

 

Day dreaming of a new life

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