Odion (Migration)

The Administrative Appeals Tribunal considered an application for a Contributory Parent (Migrant) (Class CA) visa, Subclass 143. The applicant sought review of a decision not to grant this visa.

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 is a prerequisite for the grant of the visa in circumstances where the applicant does not hold a Subclass 173 or a substituted Subclass 600 visa at the time of application.

The Tribunal reasoned that to satisfy the "balance of family" test, the number of eligible children must be greater than or equal to the number of ineligible children. An eligible child is defined as an Australian citizen, an Australian permanent resident usually resident in Australia, or an eligible New Zealand citizen usually resident in Australia. Any other child is considered ineligible and is taken to be resident overseas. The evidence before the Tribunal indicated the applicant had seven children, of whom three were Australian citizens or temporary residents usually resident in Australia, and four were citizens of other countries or not usually resident in Australia. Consequently, the number of ineligible children exceeded the number of eligible children, meaning the applicant did not satisfy the test.

As the applicant failed to meet the "balance of family" test, she did not satisfy clause 143.213 of the Migration Regulations, which is a requirement for the visa grant. Accordingly, the Tribunal affirmed the decision not to grant the applicant the Contributory Parent (Migrant) (Class CA) visa.