Paul (Migration)

This matter concerned an application for an Aged Parent (Residence) (Class BP) visa (Subclass 804) made by the applicant, who was the parent of an Australian citizen. The dispute centred on whether the applicant met the "balance of family test" as required by the Migration Regulations 1994. The Administrative Appeals Tribunal (AAT) was required to determine if the applicant satisfied this test, and if not, whether there were compassionate or compelling circumstances warranting referral for ministerial intervention.

The primary legal issue before the Tribunal was the interpretation and application of regulation 1.05 of the Migration Regulations 1994, specifically the definition of an "eligible child" for the purposes of the balance of family test. The applicant had three children: one an Australian citizen, one an Indian citizen residing in Portugal, and one residing in Australia on a temporary visa at the time of application. The Tribunal had to decide whether the child on the temporary visa qualified as an eligible child, which would have meant the applicant met the balance of family test.

The Tribunal reasoned that, according to regulation 1.05(2)(a), an eligible child must be an Australian citizen, an Australian permanent resident usually resident in Australia, or an eligible New Zealand citizen usually resident in Australia. The applicant's child residing in Australia held only a temporary visa at the time of application and therefore did not meet the definition of an eligible child. Consequently, the applicant did not satisfy the balance of family test. Despite this, the Tribunal found that there were compassionate or compelling circumstances, including the applicant's age (75), the death of her spouse, and the presence of children who were Australian citizens and permanent residents. The Tribunal noted that had the child on the temporary visa been considered an eligible child at the time of the Department's decision, the applicant would have met the balance of family test. Therefore, the Tribunal affirmed the decision not to grant the visa but referred the matter to the Minister for consideration under section 351 of the Migration Act 1958 due to these exceptional circumstances relating to family unity.