Chong (Migration)

This matter concerned an application for an Aged Parent (Residence) (Class BP) visa, subclass 804, by an 82-year-old applicant. The applicant's case was reviewed by the Tribunal after the Department's decision not to grant the visa. The primary dispute revolved around whether the applicant met the "balance of family test" at the time of application, as defined by Regulation 1.05 of the Migration Regulations 1994.

The legal issues before the Tribunal were whether the applicant satisfied the balance of family test at the time of the visa application, and if not, whether there were sufficient compassionate circumstances to warrant a recommendation for Ministerial Intervention under section 351 of the Migration Act 1958. Specifically, the Tribunal had to determine the status of the applicant's children as either "eligible" or "ineligible" based on their residency and immigration status in Australia at the time of the application.

The Tribunal found that at the time of the application, the applicant did not meet the balance of family test because two of his daughters were not Australian citizens, permanent residents, or eligible New Zealand citizens usually resident in Australia. However, the Tribunal noted that the applicant would meet the test at the time of the decision, as his daughters had since obtained Australian citizenship and permanent residency. Despite the applicant not meeting the visa criteria at the time of application, the Tribunal considered the applicant's advanced age, his dependence on his daughters for care, the death of his wife, and the potential harm to his Australian resident children if he were required to depart. Consequently, the Tribunal affirmed the decision not to grant the visa but recommended the matter to the Minister for the exercise of discretion under section 351 of the Act due to strong compassionate circumstances.