Ta (Migration)

This matter concerned an application for an Aged Parent (Residence) (Class BP) visa, subclass 804, made by a parent whose sponsor was their child, Tracy Nhung Ngoc Nguyen. The decision under review affirmed the refusal of the visa. The Tribunal was required to determine whether the applicant satisfied the "balance of family test" as defined in regulation 1.05 of the Migration Regulations 1994.

The primary legal issue was the interpretation and application of the "balance of family test" under regulation 1.05. This test requires an applicant to have either an equal or 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. The Tribunal considered the applicant's five children: one Australian citizen, one US citizen, and three Vietnamese citizens.

The Tribunal reasoned that for the purposes of the balance of family test, an "eligible child" is one who is an Australian citizen, an Australian permanent resident usually resident in Australia, or an eligible New Zealand citizen usually resident in Australia. All other children are considered "ineligible children" and are taken to be resident overseas. In this case, only one child, Tracy Nhung Ngoc Nguyen, was an Australian citizen and therefore an eligible child. The remaining four children, being citizens of the USA and Vietnam, were classified as ineligible children. As the number of ineligible children (four) exceeded the number of eligible children (one), the applicant did not satisfy the balance of family test under regulation 1.05(2C).

Consequently, the Tribunal found that the applicant did not meet the criteria for the Subclass 804 visa. The decision under review was affirmed, meaning the visa was not granted.