Martin (Migration)

The Administrative Appeals Tribunal considered an application for an Aged Parent (Residence) (Class BP) visa, subclass 804, made by Mrs. Susan Irene Martin. The dispute arose because Mrs. Martin did not meet all the criteria for the visa at the time of her application, and her husband, who was also a visa applicant, died during the review period. The Tribunal was required to determine whether the assessment criteria for the visa could be considered at the time of the review hearing, rather than strictly at the time of the initial application, particularly in light of the death of one of the applicants and the applicant's subsequent eligibility as an "aged parent."

The Tribunal was tasked with determining if the applicant, Mrs. Martin, satisfied the criteria for being an "aged parent" of a settled child, and if the "balance of family test" was met. Central to this was the interpretation of when visa criteria must be satisfied, referencing the High Court's decision in *Berenguel v MIAC*. The Tribunal also had to consider the definition of "child" and "step-child" within the Migration Regulations 1994, particularly in relation to the deceased husband's children from previous marriages, who were not included in the definition of step-children.

Applying the principles from *Berenguel v MIAC*, the Tribunal found that consideration could be given to the migration criteria at the time of the review, especially as Mrs. Martin was the sole remaining applicant. The Tribunal accepted that Mrs. Martin was not an "aged parent" at the time of the visa application but had become one by the time of the review hearing. However, the Tribunal noted that the deceased husband's children from previous marriages were estranged and not included in the definition of step-children, which impacted the balance of family test.

Given these findings, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the applicant met criteria cl 804.214 and cl 804.221(a) of Schedule 2 to the Migration Regulations 1994, indicating that further assessment of the remaining criteria was necessary.