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Aged-Parent Visa Refusal:
Migration Tribunal Reasons
Refused Matter: Aged-Parent Visa
This decision considered the Subclass 804 visa: balance of family (BOF) test; adoption; lawfully and permanent resident.
The applicant applied for an Aged Parent (Residence) (Class BP) visa which was refused by the delegate of the Minister for Immigration and Citizenship on the basis that the applicant did not satisfy cl.804.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations), being the ‘balance of family test’, and cl.804.225 because she did not satisfy Public Interest Criterion (’PIC’) 4005.
The immigration delegate found that the applicant did not meet the ‘balance of family test’ because there was no evidence that one of the children (’the child’) claimed as her own was either an Australian citizen or an Australian permanent resident as required by the Regulations. This is not a matter our firm handled.
The delegate also found, on the basis of an opinion from a Medical Officer of the Commonwealth, that the applicant did not satisfy PIC 4005.
In relation to the child, the applicant was not listed as a parent on his birth certificate and there was no evidence of a formal adoption taking place.
The applicant claimed that she was the parent of the child by virtue of customary adoption and that the child, despite being temporarily offshore, was an Australian permanent resident.
The applicant also requested a new medical assessment by the Review Medical Officer of the Commonwealth (’RMOC’).
Held: Decision under review was set aside.
On review it was accepted that the arrangements for the child’s adoption made by the applicant were consistent with the usual practice or a recognised custom in their culture for the purposes of r.1.04 of the Regulations.
On review it was also considered whether the child was required to hold a permanent visa in order to be lawfully and permanently resident in Australia.
It was found that, since the term was undefined in the legislation and in light of the judicial interpretation of similar terms, it was sufficient that the child intended to live in Australia permanently or indefinitely.
It was also considered to be significant that the child had been resident in Australia for a period of nearly 20 years (with an absence of less then eight months) and accepted that he therefore intended to treat Australia as his home.
As the number of the applicant’s children who were lawfully and permanently resident in Australia was greater than or equal to the total number of the applicant’s children residing overseas, it was thus accepted that the applicant met the ‘balance of family test’ in cl.804.223.
Furthermore, the RMOC provided an opinion that the applicant met the prescribed health criteria and on review it was found that the applicant satisfied PIC 4005 and accordingly cl.804.225.
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