A Break in Study, Not the End of It: Overturning a Child Visa Refusal for a Young Single Mother.

The challenge

Our client was a young woman living overseas, then in her early twenties, who applied for a Child (subclass 101) visa, sponsored by her mother, an Australian citizen. The Child visa is a permanent visa that allows the dependent child of an Australian citizen, permanent resident or eligible New Zealand citizen to migrate to Australia to live with their parent. Our client applied together with her own infant daughter, who was included as a dependant in the same application. Her mother had settled in Australia years earlier, and the purpose of the application was to reunite the family by bringing her daughter and granddaughter to live with her here permanently. The Department refused the application.

The sticking point was the study requirement. For a Child visa applicant who is 18 or older, the law requires that the applicant be a dependent child and, in broad terms, that since turning 18, or within six months or a reasonable time of completing the equivalent of year 12 in the Australian school system, the applicant has been undertaking a full-time course of study, and that this continues to be satisfied at the time of decision.

Our client had been a full-time student. She completed the equivalent of year 12 shortly before turning 18 and moved straight into her tertiary studies. Then her life changed. Partway through her degree, while still a teenager, she discovered she was pregnant. Her boyfriend left as soon as she told him, and she faced raising the child alone. She deferred her studies for two semesters, gave birth, and cared for her newborn daughter as a single mother before she had turned twenty. When her daughter was nine months old she returned to full-time study, which she then continued without interruption.

The Department refused the visa on the basis that this break meant she had not been undertaking continuous full-time study since turning 18, and so did not meet the requirement. The refusal leaned on departmental policy, which treats the idea of a “reasonable time” as covering only the gap between school and the start of post-secondary study, and does not contemplate breaks once tertiary study has begun.

The consequence was significant. A single Departmental finding about a two semester break, taken for the most human of reasons, stood between a mother, her daughter and her infant grandchild and a life together in Australia.

Our approach

The clients approached us with the refusal decision, and we sought review of the refusal in the Tribunal, and built the case on two foundations.

First, the law. We drew the clear distinction between departmental policy, which is only a guide and can be applied flexibly, and case law, which is binding on the Tribunal. The leading Federal Circuit Court authority, Hussain v Minister for Immigration and Border Protection [2017] FCCA 3247, held that the study requirement does not import any requirement of continuous, unbroken study. The correct test is to look at the whole period from when study commenced to the time of decision and to ask whether, characterised as a whole, the applicant has been undertaking relevant study, having regard to the nature and length of any gap and the reason for it, and recognising that study is by its nature intermittent. The earlier decision in Opoku-Ware v Minister for Immigration and Border Protection [2015] FCCA 1638 confirmed that the applicant must still be studying at the time of decision, but Hussain made clear that this requires only that study has not ceased, not that it has been unbroken. Provided the applicant is studying at the time of decision, a pause does not defeat the criterion.

We then showed that our client fell squarely within that test. Her break was short, it was for a compelling and compassionate reason, and she had returned to full-time study and remained enrolled. We supported this with a detailed chronology and with a body of Tribunal decisions in which breaks for pregnancy and childbirth, illness, caring for family and the COVID-19 pandemic had all been accepted as consistent with the study requirement.

Second, dependence. We placed clear evidence before the Tribunal that our client had been, and remained, wholly dependent on her mother for her financial support, including regular remittances covering her and her daughter’s basic needs. This went to the heart of the visa, the purpose of which is to provide for children who are genuinely still dependent on their parents.

We also ran an alternative argument: that even if the break were treated as preventing continuous study, her return to study was within a “reasonable time” of completing the equivalent of year 12, since policy itself recognises a break due to giving birth, and a change of institution, as reasons that can extend that period.

The outcome

The Tribunal accepted the case. By the time it came to decide the matter, several years had passed and our client was in her mid-twenties, still studying and still supported by her mother. It found that pregnancy, childbirth and early child care were a satisfactory reason for the break in study, particularly given that our client was not in a relationship and was raising her daughter alone. It was satisfied that, viewed as a whole, she had been undertaking relevant study, and that she remained dependent on her mother throughout.

The Tribunal set aside the refusal and remitted the application with the direction that the relevant criteria were met, clearing the way for the grant of the visas to both our client and her young daughter, and for the family to be reunited in Australia.

Why it matters

Departmental policy is a guide, not the law. Where policy is applied as though it were a rigid rule, and binding case law points the other way, the case law must prevail. For the Child visa in particular, the study requirement is not a test of unbroken enrolment. A young person whose studies are interrupted by life, whether by pregnancy, illness, family responsibilities or events beyond their control, can still meet the requirement if, looked at as a whole, they have continued to pursue their study and remain genuinely dependent on their parent. This case shows the value of separating policy from law, marshalling the binding authorities, and presenting the human circumstances of a break clearly and completely.

Details in this case study have been anonymised to protect our clients’ privacy.