Martinek (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for an Aged Parent (Residence) (Class BP) visa, subclass 804, made by an applicant whose sole eligible child resided in Australia. The Minister had intervened in the matter, and the AAT was tasked with reviewing the decision not to grant the visa.

The central legal issue before the Tribunal was whether the applicant satisfied the "balance of family test" as required for the subclass 804 visa. This test necessitates that at least half of the applicant's eligible children are settled in Australia, or that the applicant has more eligible children settled in Australia than in any other country.

The Tribunal's reasoning focused on the definition of "eligible children" and the applicant's family circumstances. It was determined that the applicant had only one child residing in Australia. As this single child constituted less than half of the applicant's total eligible children, the balance of family test was not met. Consequently, the Tribunal affirmed the decision not to grant the visa.