1514420 (Migration)

This matter concerned an appeal by a visa applicant against the Tribunal's decision to affirm the refusal of an Aged Parent (Residence) (Class BP) visa. The applicant's claim for the visa was based on being the parent of Helena Du Plessis, an Australian citizen residing in Australia. The applicant listed four other living children: one deceased, one residing in Dubai, and two residing in South Africa.

The primary legal issue before the Tribunal was whether the applicant satisfied the "balance of family test" as defined in regulation 1.05 of the Migration Regulations 1994. This test requires an applicant to have either a number of eligible children greater than or equal to their ineligible children, or a number of eligible children greater than the greatest number of ineligible children usually resident in a particular overseas country. Eligible children are defined as Australian citizens, Australian permanent residents usually resident in Australia, or eligible New Zealand citizens usually resident in Australia.

The Tribunal found that the applicant had one eligible child (Helena Du Plessis, an Australian citizen residing in Australia) and three ineligible children (the children residing in Dubai and South Africa). Applying regulation 1.05(2C), the Tribunal determined that the applicant did not satisfy the balance of family test because the number of eligible children (one) was not greater than or equal to the number of ineligible children (three). Consequently, the applicant did not meet the criteria for the Subclass 804 visa.

The Tribunal affirmed the decision not to grant the applicant an Aged Parent (Residence) (Class BP) visa.