1412178 (Migration)

This matter concerned an application for a Contributory Parent (Migrant) (Class CA) visa, Subclass 143. The applicant, Ms Chau, was required to satisfy the "balance of family test" as defined in regulation 1.05 of the Migration Regulations 1994. The dispute centred on whether Ms Chau had any "ineligible children" for the purposes of this test, specifically whether her nephews, Samnang and Tararith, were to be considered her adopted children. The Administrative Appeals Tribunal, constituted by Senior Member John Billings, reviewed the decision.

The primary legal issue before the Tribunal was to determine whether Ms Chau satisfied the balance of family test. This required the Tribunal to ascertain whether Samnang and Tararith were to be considered Ms Chau's "children" under the definition of adoption in regulation 1.04, and consequently, whether they were "ineligible children" for the purposes of regulation 1.05. The balance of family test is satisfied if the number of a parent's eligible children is greater than or equal to the number of their ineligible children.

The Tribunal considered evidence including departmental records, statutory declarations, and biometrics consent forms. While these documents referred to Samnang and Tararith as "adopted nephews" and Ms Chau as "parent or guardian," the Tribunal found that the circumstances did not meet the definition of adoption under regulation 1.04. Specifically, there was no evidence of formal adoption arrangements where the legal parents ceased to be recognised, nor were the conditions for customary adoption met. The Tribunal concluded that Ms Chau had only one eligible child, Mr Hem, and therefore satisfied the balance of family test.

Consequently, the Tribunal remitted the application for a Contributory Parent (Migrant) (Class CA) visa for reconsideration. The Tribunal directed that Ms Chau met the criteria for a Subclass 143 Contributory Parent (Migrant) visa, specifically clause 143.213 of Schedule 2 to the Regulations.