An applicant applying for residence under the Dependent Child category who is aged 21 to 24 must demonstrate they are “totally or substantially reliant on an adult (whether their parent or not) for financial support, whether they live with them or not.”[1] It can be challenging to meet this requirement as it is common for the personal circumstances of applicants aged 21 to 24 to change over time. Applicants can be caught out by thinking that if they simply show they are financially dependent at the time of the residence application, the requirements of immigration instructions will be met. However, where a child has previously been independent, but due to a change in personal circumstances becomes dependent, their prior independence is likely to pose a barrier to meeting the requirements. I will review several Immigration and Protection Tribunal decisions that discuss this change in status.
The appellant was a 25-year-old Fijian citizen. He had ongoing, full-time employment in Fiji for at least a year before coming to New Zealand in September 2008. He found employment here (earning $35,000 per annum) and maintained himself for three months, until he was made redundant. He then returned to Fiji for a few weeks before coming back to New Zealand as a visitor and later a student.
The Tribunal considered that past employment and the amount of income earned are factors which can reasonably be considered even though neither current nor previous employment nor earnings necessarily disqualified an applicant from being dependent. Immigration New Zealand was entitled to consider: “… the wider question of his circumstances and how [the appellant’s] current financial reliance (dependence) had arisen.”[2]
The Tribunal went on to state:
While the intent of the Family (Dependent Child) policy is not explicitly stated, it is reasonable to infer that policy does not extend to those who have for all intents and purposes been independent for a reasonable period of time and, as the result of a choice to change circumstances, become dependent.[3]
The Tribunal found that Immigration New Zealand’s decision was correct. The appellant had been independent, and his current financial dependence was the direct result of the appellant’s unemployed status and his decision to remain in New Zealand as a visitor.
Although this decision is more than 10 years old, it has frequently been cited by the Tribunal and is seen to be authority for the concept that an applicant cannot meet the requirement of immigration instructions F5.1.a.i if they were previously independent for a “reasonable period of time”, but then become dependent by choice.
The appellant was a 23-year-old Samoan national. He worked in Samoa between 2014 and 2017, predominantly as a waiter. The work was unlikely to have been full time, and while he was paid, it was erratic. He was also provided with free accommodation and had disposable income to spend on food, church tithing, telephone cards and other miscellaneous expenses.
His mother had sent him regular remittances up to August 2014, when he commenced work. Following this, remittances were “sporadic and only complementary to his independently-secured board and spending money.” [4] The appellant moved to New Zealand in October 2017 and was the holder of a visitor visa, and unable to work in New Zealand at the time the residence application was declined. He was financially supported by his parents while in New Zealand.
The Tribunal found that, while the appellant was “entirely financially dependent on his parents for the last 21 months”,[5] he did not satisfy the requirement of immigration instructions F5.1.a.i. to be totally or substantially reliant on an adult for financial support. This was because he was financially independent in Samoa from 2014 to 2017, which was a reasonable period of time, and he only became dependent through his decision to remain as a visitor in New Zealand.
The appellant was a 24-year-old citizen of Thailand. She lived with her mother in New Zealand. She held a number of different temporary visas while in New Zealand over several years, including a Fee-Paying student visa, Essential Skills work visas and a section 61 visitor visa. She had been working in full time employment for two years, before becoming “temporarily” dependent. The Tribunal held:
…She had transitioned from being independent for a reasonable period of time to being totally or substantially reliant on her mother and stepfather for financial support, but there was a paucity of evidence to demonstrate that she had no option but to live in this state of dependence.[6]
The Tribunal asserted the Dependent Child category is “protective in nature” and was not designed to cover adult children who have matured and lived financially independently, and then seek to “revert back” to living as a dependent child.[7] The Tribunal confirmed the appellant did not satisfy the requirements of immigration instructions F5.1.a.i.
Showing that an applicant under the Dependent Child category who is aged 21 to 24 is “totally or substantially reliant on an adult for financial support” can be tricky, particularly if the applicant has experienced a period of financial independence in the past. If you are representing a Dependent Child applicant, don’t get lulled into a false sense of security because they are currently dependent. A “reasonable period” of independence in the past may lead to an application being declined. It is important to explain to Immigration New Zealand the reasons for any change any circumstances, including whether a change from independence to dependence was through choice. Both logic and the integrity of the immigration system dictate that applicants cannot manufacture their circumstances such that they are financially dependent at the time of making a residence application and be considered to meet requirements.
[1] Immigration Instructions F5.1.a.i (effective 29 May 2017)
[2] AJ (Dependent Child) [2011] NZIPT 200144 at [36]
[3] At [39]
[4] HX (Dependent Child [2019] NZIPT 205406 at [32]
[5] At [33]
[6] HX (Dependent Child [2020] NZIPT 205584 at [51]
[7] At [39]
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Appley Boyd is the Academic Leader (Immigration) at Toi Ohomai Institute of Technology and a licensed immigration adviser. She completed her LLB at the University of Sydney in 2001 and was admitted as a lawyer of the Supreme Court of New South Wales in 2006. She has previously worked for the Fiji Legal Aid Commission and Immigration New Zealand. She became a licensed immigration adviser in 2014 and has been working as an adviser ever since. Along with managing the Graduate Diploma in New Zealand Immigration Advice qualification, she also runs her own business, Star Immigration.
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