Uro (Migration)

[2020] AATA 3944

Uro (Migration) [2020] AATA 3944 (29 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jomari Vingona Uro

CASE NUMBER:  1930137

HOME AFFAIRS REFERENCE(S):          CLF2018/356985

MEMBER:Helena Claringbold

DATE:29 July 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 29 July 2020 at 11:37am

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant has turned 18– full-time study requirements not met– applicant was not enrolled in full-time study – financial hardship – no discretion to waive the time of application requirements – decision under review affirmed

LEGISLATION

Migration Act 1958, s 360

Migration Regulations 1994, r 1.03, 1.05, Schedule 2, cl 802.214

CASES
Hussain v MIBP [2017] FCCA 3247
Moore J in Babicci v MIMIA [2004] FCA 1645
Opoku-Ware v MIBP (2015) 297 FLR 416
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
Sok v MIMIA [2005] FMCA 190

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 19 October 2018, Mr Jomari Vingona Uro, the applicant, applied for a Child (Residence) (Class BT) visa. The application was made on the basis that he is a dependent child of his father, Mr Jose Ma Belisario Uro, the sponsor.

2. On 4 October 2019, a delegate of the Minister for Home Affairs refused to grant the visa. The delegate was not satisfied that the applicant met cl.802.214(1)(c) or cl.802.214(2) of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act), which is attached to this decision. On 24 October 2019, the applicant provided the Tribunal with a copy of the delegate’s decision record. On 24 October 2019, the applicant applied to the Tribunal for review of the delegate’s decision and this is a review of the delegate’s decision.

3. On 20 June 2020, the Tribunal invited the applicant to a Tribunal hearing on 21 July 2020. On 6 July 2020, the applicant’s migration agent (migration agent) wrote to the Tribunal and requested an adjournment of the Tribunal hearing set down for 21 July 2020.  She stated the following: that her client could not attend a meeting with her on 6 July 2020 to prepare for the Tribunal hearing set down for 21 July 2020. The applicant was experiencing flu like symptoms. As a precaution for COVID-19, the applicant attended a tele-conference with his medical practitioner on 7 July 2020. He was told to self-isolate for 14 days bringing his last day of self-isolation to 21 July 2020. This means that the migration agent and the applicant could not prepare in person for the Tribunal hearing and that would result in an unsuccessful outcome for the applicant. She has not been available to her client as she was advised by her medical professionals that she needed to self-isolate for 12 weeks because of a high risk to a child. 

4. On 6 July 2020, The Tribunal wrote to the migration agent and requested that the applicant provide medical evidence to support his claim that he was required to self-isolate. On 8 July 2020, the migration agent wrote to the Tribunal and stated that the medical certificate provided to the applicant did not specify that he was required to self-isolate.  There is no evidence before the Tribunal that either the applicant or the migration agent was incapacitated and unable to prepare for the Tribunal hearing through the many communication tools available or to attend a Tribunal hearing by telephone. The Tribunal considered these circumstances along with the complexity of the case.  On the evidence the applicant had been represented by the migration agent since at least September 2019 and had already made several submissions to the Department.  The Tribunal felt that even if the applicant and the migration agent could not meet in person and needed to self-isolate, preparation for the Tribunal hearing could take place. On 9 July 2020, the Tribunal wrote to the applicant via his migration agent and stated that the Tribunal hearing set down for 21 July 2020 would be by telephone. As a result, the applicant and the sponsor and the migration agent would be able to attend the Tribunal hearing from their respective accommodation. The Tribunal notes that the migration agent provided a submission to the Tribunal on 20 July 2020; the migration agent’s submission is dated 8 July 2020.   

5. On 10 July 2020, the migration agent wrote to the Tribunal and stated that the applicant and sponsor were concerned about providing their evidence by teleconference. She submitted that a Tribunal hearing by teleconference would not be fair to the applicant. She quoted the assessment of credibility and relationship issues and the applicant’s heavy Filipino accent as potential difficulties for a telephone hearing.  The migration agent claimed that a legal basis for adjournment under s.360 of the Act is that the Tribunal must invite the applicant to appear and the appropriate meaning of ‘appear’ refers to a face-to-face Tribunal hearing.  She quoted various court decisions giving opinion about s.360 and face to face appearances. She argued that a Tribunal hearing conducted in a way that denies the applicant an opportunity to be assessed on his evidence including body language, focus, facial expressions and demeanour and does not provide the applicant the full opportunity to appear in person before the Tribunal does not satisfy the requirement of the invitation being meaningful. She stated that the applicant had waited eight months for his review and the delay of a couple of months more to allow a face to face Tribunal hearing is not unreasonable. 

6. The Tribunal considered the full content of the migration agent’s submission and the complexity of this review. The AAT must pursue the objective of providing a mechanism of review that is fair, just, economical, informal, quick and is proportionate to the importance and complexity of the matter. In person Tribunal hearings are not being held at the Tribunal other than in exceptional circumstances and for complex matters. As a result of the COVID-19 pandemic and the ever-changing conditions, it is unknown when the Tribunal will be scheduling Tribunal hearings routinely. After considering the complexity of this review and that there appear to be no credibility or relationship issues, the Tribunal’s view is that, even with an applicant with a heavy accent, a Tribunal hearing could commence and it would ensure that the applicant had a meaningful, fair and just opportunity to provide evidence and arguments. For these reasons, a Tribunal hearing could not be delayed indefinitely.

7. On 17 July 2020, the Tribunal advised the migration agent that the Tribunal would proceed as scheduled. The migration agent was told that because of the statement made in her submission that ‘the applicant has a heavy Filipino accent’, the Tribunal will have an interpreter present at the Tribunal hearing and to advise the language for the interpreter. On the same date the migration agent advised the Tribunal of the following: that the applicant and sponsor did not require an interpreter. They feel that an interpreter would hinder their ability to speak directly to the member. The effect of a third person relaying their statements will not allow them to express themselves to the fullest capacity in addition to the concern of not being granted an appearance in person.

8. Also, on 17 July 2020, the migration agent submitted the following: that the applicant and the sponsor would like to appear before the Tribunal is person to provide their argument.  They are concerned that their accent, in addition to the phone communication, may not give them the best opportunity to provide their argument. They do not have any issues with understanding/communication, but their concern is that the phone hearing, in combination with their accent, will prevent them from providing the best argument possible. They ‘kindly request that their right to appear as per practice direction is granted’.

9. For the reasons detailed above, the Tribunal determined that the Tribunal hearing set down for 21 July 2020 would proceed and the migration agent was advised of this determination. The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant.

10. On 21 July 2020, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from Mr Jose Uro, the sponsor, Mrs Lily Uro, the applicant’s mother and Ms Mia Uro, the applicant’s sister. The applicant, the sponsor and the applicant’s mother and sister attended the Tribunal hearing from the migration agent’s office. The applicant was represented in relation to the review by his registered migration agent. The Tribunal hearing was assisted by the services of an interpreter in the English and Tagalong languages.  The applicant, Mr Jose Uro and Ms Uro provided their evidence in English and confirmed that they could hear and understand clearly.  Mrs Uro provided her evidence with the assistance of the interpreter and confirmed that she understood the interpreter clearly.  All attendees provided coherent and relevant responses to questions and gave evidence in a clear, understandable and concise manner. The Tribunal is satisfied that the applicant came formally before it and that he was provided a fair and just opportunity to present his argument and evidence and that he has been given a meaningful Tribunal hearing.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The Tribunal has taken into consideration, individually and completely, all the evidence in the Department of Home Affair’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

    ISSUE

13. The issue in this case is whether, at the relevant time, the visa applicant was a full-time student at an educational institution leading to the award of a professional, trade or vocational qualification at the time of the application and decision.

    BACKGROUND ON THE EVIDENCE

14. The applicant was born in 1997 in Marikina City, National Capital Region, the Philippines. He was 20 years of age on the date he lodged the application. His father, the sponsor, lives in Australia with his mother and one sibling. He entered Australia on 15 August 2018 as the holder of a Subclass 600 Visitor visa. He departed Australia on 13 February 2019 and returned to Australia on 19 March 2019. He is currently the holder of a Bridging visa Subclass 020.

15. The sponsor was born in 1968 in Zamboanga City, Mindanao, the Philippines. He entered Australia in November 2011 and in July 2016, he was granted permanent residency in Australia.

    Criteria for applicants over 18

16. At the time of application, the applicant was over 18 years old, therefore additional requirements relating to relationships, work and study must be satisfied as required by cl.802.214 of Schedule 2 to the Regulations. These requirements must continue to be met at the time of decision: cl.802.221(2)(b) of Schedule 2 to the Regulations.

    Full-time study (or incapacitated for work)

17. Clause 802.214(1)(c) requires that, subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

18. Under cl.802.214(2), cl.802.214(1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child: r.1.03 of the Regulations.

19. Subparagraph (b)(ii) of the definition of dependent child in r.1.03 refers to an applicant who has turned 18 but is incapacitated for work due to the total or partial loss of his or her bodily or mental functions.

20. Clause 802.214(1)(c) appears to contemplate a single full-time course of study at a particular institution (such as a degree or a technical college qualification), although it might well extend to cover a qualification that is obtained from an institution or accreditation body upon satisfaction of a variety of criteria, some of which may be fulfilled by undertaking courses at alternative institutions: Sok v MIMIA [2005] FMCA 190 at [15]-[16]. In determining what is a ‘reasonable time’ for cl.802.214(1)(c), it is relevant to consider the surrounding circumstances including the actual time involved, what activities were undertaken during that time, the purpose for which those activities were undertaken and, if no relevant activities were undertaken, the reason why: Sok v MIMIA [2005] FMCA 190 at [19]. This requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the loss of bodily or mental functions: cl.802.214(2).

21. Where cl.802.214(1)(c) of Schedule 2 to the Regulations applies, it must continue to be met at the time of decision: cl.802.221(2)(b). For this purpose, the decision-maker must look at the time period from the commencement of study until the time of decision and ask whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247. The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416.

22. Clause 802.214(2) defines that paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

23. Regulation 1.03 defines dependent child and subparagraph (b)(ii) requires that where an applicant has turned 18, the applicant is incapacitated for work due to the total or partial loss of his or her bodily or mental functions.

24. There is no evidence that the applicant was/is incapacitated for work due to the total or partial loss of his bodily or mental functions. Therefore, the applicant does not meet the definition of dependent child within the meaning of subparagraph (b)(ii).

25. Information provided in support of the visa application is as follows:

26. As detailed above, the applicant entered Australia on 15 August 2018 as the holder of a Subclass 600 Visitor visa. He departed Australia on 13 February 2019 and returned to Australia on 19 March 2019.  As detailed in the delegate’s decision record the applicant’s reasons for traveling were that he returned to the Philippines to care for his sister, who was undergoing a medical procedure.

27. The migration agent provided information about the applicant’s dependency on the sponsor and about his study and about the assistance the applicant provided his sister. On 18 September 2019, the migration agent stated that since leaving high school, the applicant did not have more than a six-month break from study. She also stated the following: in addition, cl.802.214(2) states that paragraph (1)(c) does not apply to an applicant, at the time of making the application, who is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child. She submits that the applicant was/is a dependent child.

28. In a statutory declaration dated September 2019, the sponsor stated the following: the applicant has never been employed in full time work as he is studying to better his skills and qualifications. Since the applicant’s arrival in Australia (15 August 2018) he assisted the sponsor with everyday tasks and he also assisted his sister when she needed surgery in early 2019.

29. On 20 July 2020, the Tribunal received a submission dated 8 July 2020, from the migration agent. She provided information about the sponsor’s financial circumstances and about the applicant’s study and dependency on the sponsor. She stated the following: the applicant has been wholly dependent on the sponsor since his birth. He relies on the sponsor for financial support, not only for his basic needs of food, clothing and shelter, as defined in r.1.05A, but also for medical, tuition, travel expenses, phone and internet and extra-curricular activities. The applicant satisfies the general purpose of dependency where a dependent child who has turned 18 r.1.03(b)(i) is dependent as defined in r.1.05A. She also stated that the applicant was not enrolled in full-time study from September 2018 to August 2019.

30. The migration agent stated the following: that there are compelling and compassionate circumstances to waive the time of application requirement in cl.802.214(1)(c) of the Regulations. The applicant was not enrolled in full-time study because of dire financial hardship experienced by the sponsor. He has been an active member of the community and volunteers his time through the local Filipino association. He is responsible for most of the household chores and helped his sister when she had medical surgery. Reasonable time as used in cl.802.214(1)(c) is not defined in the Regulations. The migration agent also stated: ‘Officers should consider the policy background, namely that the purpose of the visa is to provide for children who are still dependent on their parents.’ She requested that the Tribunal take the transition of study from the Northern to Southern Hemisphere into consideration as outlined by policy. She noted that separating the applicant from his family would place significant stress on the applicant, sponsor, mother and sister. Each member of the family expressed that they are a close-knit family and any separation, especially in this specific time of uncertainty with the global pandemic of Covid-19, places great stress, worry and sadness on the family.

31. The migration agent stated the following: if the applicant is required to return to the Philippines, he will be placed at great risk. Smart Traveller states that there is a ban on overseas travel from Australia with advice not to travel to the Philippines. The applicant has never lived alone and does not deal well with the thought of being separated from his family. Separation from his family and the support of the sponsor would cause great stress, panic and concern to all members of the family. She submits that the Tribunal exercise discretion regarding the extreme concerns and increasing numbers and deaths of COVID-19 cases worldwide

32. The migration agent stated the following: the general purpose of the enactment and regulation of cl.802.214 is to determine dependency of a child who has turned 18. The applicant is an adult child who has never been in a relationship or married, has never been employed, commenced full-time study immediately after completing high school in June 2015 at the age of 18, and continued full-time study through to August of 2018. The applicant has been wholly dependent on the sponsor pursuant to r.1.05A and continues his dependence through his current full-time study. The migration agent asserted that consideration should be given to the requirements satisfied pursuant to cl.802.214 and that the failure of study at the time of application should not be the determining factor of the applicant’s child migration visa. The Tribunal should exercise its discretion in consideration of the compelling circumstances submitted. Clause 802.214(1)(c) should be waived in respect to the time of application study requirement, to reconsider the literal meaning of the student requirement and apply a decision based on true dependency, which could be interpreted as the general purpose of the statute as discussed in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, and ‘what the Regulations had in mind’, as per Moore J in Babicci v MIMIA [2004] FCA 1645 (16 December 2004). The migration agent submitted that a refusal of the visa would cause emotional and mental hardship to the applicant if he was forced to depart Australia as a result of the visa refusal. The applicant has resided as an integral member of the family unit with the sponsor and his mother and his sister since 14 August 2018. A visa refusal would divide a family unit, be against the best interest of an Australian citizen sponsor, an Australian permanent resident sister and cause substantial adverse effects upon the emotional and mental well-being of applicant’s mother who is awaiting the decision of a Partner visa SC802/801 visa application. The migration agent asserted that the applicant satisfies cl.802.214 of the Regulations.

1. In a statutory declaration dated 17 July 2020, the sponsor provided information including the following: life has been challenging for him in Australia particularly because he has been separated from his family. He worked hard and paid taxes in Australia. He raised his children with discipline and respect and strong family values. He thought he was doing the right thing for the applicant.  He could not enrol the applicant in study when he came to Australia because of his financial circumstances and the applicant’s plans for study were delayed.  The applicant has been dependent on him and continues his dependency. It hurts him to think that the sacrifices he made over the years will result in the family being separated.

2. In a statutory declaration dated 17 July 2020, the applicant provided information including the following: he has always wanted to continue study, but it was bad timing as the family were struggling financially. He came to Australia because they couldn’t pay for study and he had to wait for their situation to become more stable to continue his study. He has been dependent on the sponsor for everything. The sponsor is ‘his rock’.  He cannot imagine being separated from his family. He will continue his study and find employment and help the family financially.  He will make a great contribution to the Australian community and be a law-abiding resident/citizen.  He will participate in an organisation and volunteer with the sponsor in the Australian Fire Service.

3. The applicant’s study history is as follows: -

   ·From June 2011 to March 2015, the applicant studied at Sta. Elena High School, Marikina City, Philippines. Certification has been provided. The applicant told the Tribunal that this information is correct.

   ·From June 2015 to March 2018, the applicant studied at Our Lady of Fatima University, Antipolo City, Philippines, for a Bachelor of Science in Information Technology. On the form 80 signed by the applicant in September 2018, he declared that he completed this study in March 2018. The applicant told the Tribunal that he completed three years of this course, which left one year to complete the degree.

   ·From May 2017 to August 2017, the applicant studied at Marikina Polytechnic College, in Basic Shielded Metal Arc Welding. A certification of completion has been provided for 120 hours of study. On the form 80 signed by the applicant in September 2018, he declared that he completed this study in August 2017. The applicant told the Tribunal that this information is correct.

   ·From May 2018 to August 2018, he studied at Marikina Polytechnic College, in Shielded Metal Arc Welding NCII at Marikina Polytechnic College. A certification of completion has been provided for 150 hours of study. On the form 80 signed by the applicant in September 2018, he declared that he completed this study in August 2018. The applicant told the Tribunal that this information is correct.

   ·On 18 September 2019, Kirana College, New South Wales, Australia issued an offer of admission, confirming enrolment in full-time study for a Certificate III in Aged Care.  The applicant told the Tribunal that he began this study on 18 September 2019 and attended study three hours daily and that he would complete the Certificate III in Aged Care in September 2020.

4. The applicant told the Tribunal the following: that his father came to Australia in 2011.  His sister came to Australia in 2017 and both he and his mother came to Australia on 14 August 2018. He has not worked or been in a relationship with anyone. He wanted to continue study, but financial hardship prevented him from enrolling and continuing his studies and these circumstances were out of his control.  His father owns a house in the Philippines which is looked after by a hired caretaker. His family members reside in countries other than the Philippines and family members in the Philippines live in remote areas a long distance from the family home. His immediate family are in Australia. They are a close family and their separation would be devastating. The thought of him living alone is upsetting as he has never lived alone and the COVID-19 pandemic places additional stress on being separated from his family. He meets the requirements of being a dependent on his father and has always been and continues to be dependent on his father.

5. The sponsor told the Tribunal the following: he worked for the same company in Australia as an electrician for almost 10 years.  Throughout that time, he worked hard to support his family and bring them to Australia. His wife applied for a Subclass 820 partner visa.  His daughter is a permanent resident and on completion of taking the Australian citizen pledge, he will be an Australia citizen on 22 July 2020.  The cost of air tickets and visa applications for his family resulted in him experiencing financial hardship. As a result, he asked the applicant to postpone his studies.  Had he realised the time of application requirements the applicant would have finished his degree in the Philippines. Since the applicant arrived in Australia, the sponsor has trained him in welding and basic electrical work.  He envisages that the applicant will be multi skilled. When the applicant has his qualification in aged care, he will find employment and fund the completion of his degree and contribute to the Australian community.  His son has never lived alone and has always been dependent on him. He does not want to see his family separated. The current travel restrictions make it difficult to imagine what will happen to the applicant. 

6. The applicant’s mother and sister told the Tribunal the following: the applicant is the youngest member of the family and has never been separated from his mother. It would be difficult for the applicant to live in the Philippines. Family members live a long distance away from the family home and there would be no one to live with the applicant and guide him.  He has a close relationship with his sister who wants to protect and care for him. Importantly the family should not be separated and should be together. 

7. The migration agent stated the following: it is acknowledged that the applicant does not meet the time of application criteria. His break in studies and delay in enrolling in a course of study were beyond his control and due to financial hardship. The applicant meets the definition of dependency as required by r.1.05A.

8. The Tribunals attention is drawn by the migration agent to various court and Tribunal decisions and Departmental policy. The Tribunal respects the decisions of the Tribunal; however, it feels it inappropriate to comment on those decisions. The Tribunal is not bound by Tribunal decisions or Departmental policy.  It is guided by court determinations and is not precluded in any way in considering Tribunal decisions and policy currently in force. Ultimately, the Tribunal’s responsibility is to consider the circumstances of each case before it and to make the correct or preferable decision on the evidence. The Tribunal has considered all the information before it and has progressively come to its decision having had regard to the individual and complete circumstances of this case as detailed in this decision record.

9. The evidence before the Tribunal is that the applicant finished high school education in March 2015 and in November 2015 turned 18 years of age.  In March 2018, he completed three years of a Bachelor of Science in Information degree. He also completed two components of study at night, in metal arc welding, with the last one finishing in August 2018. There is no evidence that on 19 October 2018, at the time of visa application, the applicant was undertaking any fulltime study.  The evidence is that the applicant did not undertake fulltime study from September 2018 to August 2019.

10. The Tribunal considered the reasons put forward about the applicant’s dependency on the sponsor and the reasons to waive the time of application criteria. The applicant is required to meet the relevant time of application criteria for applicants over the age of 18. The applicant has not provided any evidence that he meets cl.802.214(2) within the meaning of subparagraph (b)(ii) of Schedule 2 to the Regulations. Although the Tribunal empathises with the applicant and his family and their circumstances, unfortunately, the Tribunal does not have any discretion to waive the time of application requirements.

11. As a result, the Tribunal is not satisfied that the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

12. For the reasons above, at the time of application, the applicant does not meet cl.802.214(1)(c) of Schedule 2 to the Regulations

13. At the time of decision, the applicant continues not to meet cl.802.214(1)(c) of Schedule 2 to the Regulations. Accordingly, the applicant does not meet cl.802.221(2)(b) of Schedule 2 to the Regulations.

14. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met

15. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).

    DECISION

16. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

    Helena Claringbold
    Member

    
    

    ATTACHMENT – Migration Regulations 1994 – Schedule 2

    Clause 802.214

    (1)  If the applicant has turned 18:

    (a)  the applicant:

    (i)  is not engaged to be married; and

    (ii)  does not have a spouse or de facto partner; and

    (iii)  has never had a spouse or de facto partner; and

    (b)  the applicant is not engaged in full-time work; and

    (c)  subject to subclause (2), the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

    (2)  Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

    dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:

    (a)  has not turned 18; or

    (b)  has turned 18 and:

    (i)  is dependent on that person; or

    (ii)  is incapacitated for work due to the total or partial loss of the child’s or step-child's bodily or mental functions.