Saduk (Migration)

This matter concerned an application for an Aged Parent (Residence) (Class BP) visa, subclass 804, made by the applicant who is the parent of Ms Sesi McDean. The decision under review was affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the "balance of family test" as required by regulation 1.05 of the Migration Regulations 1994 at the time of the visa application. This test requires an applicant to have a greater number of eligible children than ineligible children, or a greater number of eligible children than the greatest number of ineligible children usually resident in a particular overseas country. Eligible children are defined as Australian citizens, Australian permanent residents usually resident in Australia, or eligible New Zealand citizens usually resident in Australia.

The Tribunal found that at the time of the application, the applicant had five children. Two of these children, Ms McDean and Ms Septiana, were an Australian citizen and an Australian permanent resident respectively, and were therefore eligible children. The other three children were Indonesian citizens residing in Indonesia, and one of these children was an Australian temporary resident who had since become an Australian citizen. The Tribunal determined that these three children were ineligible children for the purpose of the balance of family test. As the number of eligible children (two) was less than the number of ineligible children (three), the applicant did not satisfy the balance of family test, and therefore did not meet the criteria for the visa.

The Tribunal affirmed the decision not to grant the visa. However, it noted that the applicant could reapply considering the change in status of one of her children to an Australian citizen, and did not refer the matter for ministerial intervention.