Song (Migration)

The Administrative Appeals Tribunal considered an application for a Parent (Migrant) (Class AX) visa, Subclass 103, made by the visa applicant. The dispute concerned whether the visa applicant met the "balance of family test" as required by the migration regulations.

The primary legal issue before the Tribunal was to determine whether the visa applicant satisfied clause 103.213 of Schedule 2 to the Migration Regulations 1994, which incorporates the balance of family test. This test requires that the applicant have at least half of their eligible children lawfully and permanently residing in Australia, or that more of their eligible children have died than are lawfully and permanently residing in Australia.

The Tribunal found that the visa applicant met the balance of family test at the time of the application. The Tribunal's reasoning, based on its findings, was that the children identified in the application form were the children of the visa applicant's husband's brother, and therefore met the criteria for the test. Consequently, the Tribunal remitted the applications for the Parent (Migrant) (Class AX) visas for reconsideration, directing that the primary visa applicant met the criteria under clause 103.213. The application of the second named visa applicant was also to be reconsidered in full.