Wang (Migration)

The Administrative Appeals Tribunal considered the case of Mr Guozhong Wang, who sought review of a decision not to grant his parents Contributory Parent (Migrant) (Class CA) visas. The central dispute concerned whether the visa applicants met the "balance of family" test as defined in regulation 1.05 of the Migration Regulations 1994.

The Tribunal was required to determine if the visa applicants satisfied the "balance of family" test at the time their visa application was lodged. This test requires the number of eligible children to be greater than or equal to the number of ineligible children. An eligible child is defined as an Australian citizen, an Australian permanent resident usually resident in Australia, or an eligible New Zealand citizen usually resident in Australia. An ineligible child is taken to be resident overseas.

The Tribunal reasoned that at the time of application, one child was an Australian citizen, another held a permanent visa but had not yet entered Australia and was therefore not "usually resident" there, and the third child was resident overseas. The Tribunal noted that the applicant's brother, who held a permanent visa, only entered Australia after the application was lodged. The Tribunal concluded that it did not have the discretion to overlook the clear criteria of the "balance of family" test, which must be met at the time of application. Consequently, the Tribunal affirmed the decision not to grant the visas.