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Dependant children over 18

Brett Slater Solicitors > Migration Case Summaries  > Dependant children over 18

Dependant children over 18

In this case our client originally came to Australia as a refugee from Vietnam.  He had been an officer in the South Vietnamese army. After the fall of Saigon he had been put into a concentration camp, from which he eventually escaped.  He was forced to leave his wife and four children in Vietnam and flee for his life.  He did, however, continue to support them by sending them money over the years.

Eventually his wife made an application for her and her four children, who were now all over the age of 18, to join our client in Australia.  Immigration refused the spouse visa because of the age of our client’s children.  It was Immigration’s contention that they could not be considered as dependants because of their age.  It was our argument, however, that Immigration had not properly taken into account the exceptional circumstances of this case.  Below is an extract from the Immigration Review Tribunal’s decision which directly quotes from our submissions in this case:

This is an unusual case, because the circumstances are most unusual. Mr Do has been separated from his wife and family for 21 years, because of dramatic political events which have had a tragic and enduring impact on all of them. This was particularly so because of the senior positions which he held in the administration that was overthrown in Vietnam in 1975. Such circumstances are clearly exceptional. It was, to begin with, an exceptional circumstance that Mr Do had such a senior position in the army and the police force. It was an exceptional circumstance that the republic was overthrown on 30 April, 1975. He was put into a re-education camp, something which might more appropriately have been described as a concentration camp, and through exceptional circumstances he escaped. The history of his various attempts to escape from Vietnam is an extraordinary one. He has shown great courage and determination. Because he was, all in all, a person in exceptional circumstances he was ultimately recognised as a refugee and obtained permanent residence and ultimately citizenship in Australia. These things explain why he has been separated from his family for 21 years, but they do not make that separation any less painful. It is obvious that these events would have impacted heavily on Mr Do’s family. Many would say that there was a necessary loss of dignity on account of the way in which they, due to his absence, had to rely on charity from others. They have obviously been living in the most reduced of circumstances and this is attested to by the photographs which Mr Do will exhibit at the hearing. They have all, in their own way, been prisoners of circumstances. It might have been Mr Do who was interned in the re-education camp, but it is no less true that his wife and children were punished by these events. It is hardly surprising that in all these circumstances this family has found it difficult to make its own way in life.

In their reduced circumstances, they have quite clearly been principally reliant on the money which Mr Do has been sending to them since 1991. This is much longer than the requisite “reasonable period” referred to in the Tran decision.

Mr Do also confirms that it is an established feature of Vietnamese custom that a parent, be it a mother or a father, has obligations to support children, including adult male children, up to the time of their marriage. The kind of support required is not merely financial but goes to the well-being of the children as well. It is in this context that not merely financial support has been provided, but psychological support as well, and in the particular circumstances of this family in the context of Vietnamese culture, it would be highly likely that the four sons are substantially dependent, in one way or another, on their mother. On top of the usual elements of Vietnamese culture, there are the highly unusual aspects of the history of the family, which are outlined above and detailed in Mr Do’s declaration. All of these things present a clear picture of dependence.

The Tribunal was persuaded that despite the fact that our client’s children were all over the age of 18, they should be considered as dependants.  This resulted in the entire family becoming eligible to be reunited in Australia with permanent residency.

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