Palavi (Migration)

The applicant, Palavi, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse her application for an Aged Parent (Residence) (Class BP) visa, subclass 804. The dispute concerned whether the applicant met the "balance of family test" as required for the visa. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issue before the court was whether the applicant's children, who had been customarily adopted in accordance with the laws and customs of India, should be counted as her "children" for the purposes of the balance of family test. This test requires that at least half of an applicant's children are settled in Australia, or that more of her children are settled in Australia than elsewhere.

The court considered the definition of "child" under the *Migration Act 1958* (Cth) and relevant regulations. It was determined that for the purposes of the balance of family test, a child includes a child who has been adopted in accordance with the law of a foreign country. The court found that the customary adoption of the applicant's children in India was recognised as a legal adoption under Indian law. Therefore, these adopted children were to be counted as the applicant's children for the balance of family test. As a result, the number of the applicant's children settled in Australia was greater than the number of her children settled elsewhere, meaning she met the balance of family test.

The court set aside the Minister's decision and remitted the matter to the Minister for reconsideration according to law.