Bi (Migration)

This matter concerned an application for a Contributory Parent (Migrant) (Class CA) visa, Subclass 143, before the Tribunal. The applicant, Ms. Xiaomei Bi, sought to satisfy the 'balance of family test' as required by the Migration Regulations 1994. The dispute centred on whether a child from a previous marriage, who had been formally adopted by the applicant's former spouse's new partner, should be counted for the purposes of this test.

The primary legal issue before the Tribunal was whether the applicant could satisfy the 'balance of family test' as defined in regulation 1.05 of the Migration Regulations 1994. This test requires an applicant to have a greater number of children lawfully and permanently resident in Australia than residing overseas, or a greater number of children in Australia than in any single overseas country. The Tribunal had to determine if a child, born during the applicant's first marriage and subsequently adopted by her second husband, was to be counted as the applicant's child for the purposes of this test, or if they were excluded by regulation 1.05(3).

The Tribunal considered the definition of 'child' in regulation 1.05(1) and the exclusions in regulation 1.05(3). Regulation 1.05(3)(a) states that no account is to be taken of a child if they have been removed from the parent's exclusive custody by court order, adoption, or operation of law. The Tribunal noted that 'child' includes an adopted child under section 5CA of the Migration Act 1958. The definition of adoption in regulation 1.04 includes formal adoption and customary adoption. In this case, the child was born during the applicant's first marriage, and the applicant and her first husband divorced. The applicant then married Mr. Wu, whose son, Mr. Mingliang Wu, was the applicant's step-son. The Tribunal found that the evidence did not establish that Mr. Mingliang Wu was adopted by the applicant, nor that he was removed from her custody by adoption or operation of law in a manner that would exclude him from the 'balance of family test' calculation.

Given the findings, the Tribunal remitted the application for a Contributory Parent (Migrant) (Class CA) visa for reconsideration by the Minister, with a direction that the visa applicant meets the criteria under cl.143.213 of Schedule 2 to the Regulations.