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Immigration Law - What To Do With Our Parents?

Commonly there is an expectation amongst parents of children in close knit families, particularly when a family is of humble means, that the children will grow up, gain a good education and be successful. Taking this one step further those parents of Australian citizens or Australian permanent residents expect to be able to join their children in Australia as permanent residence and eventually as Australian citizens.

Australian Migration Laws however do not allow parents of every Australian permanent resident or every foreign born Australian citizen to migrate to Australia as a permanent resident. There are a number of conditions that the parents have to fulfil or gateways that they successfully have to negotiate to migrate to Australia. Some of the more important ones are discussed below.

Balance of Family Test

The "balance of family" test is defined in Regulation 1.05 of the Australian Migration Regulations. Briefly, to pass this test a parent must have at least half of his or her children permanently residing in Australia (including eligible New Zealand citizens i.e. children with subclass 444 visas) OR they must have the greatest number of children permanently residing in Australia than in any other single overseas country. By way of an example, a parent who has 5 children and 3 of them live in country A and 2 of them live in Australia, that parent would not satisfy the balance of family test. However if the same parent has 1 child in country A, another child in country B and third child in country C and 2 children in Australia, that parent would satisfy the balance of family test. Further if the parent had 3 children in Australia and 2 in other countries then the balance of family test will be satisfied. If the parent had 4 children and 2 were permanently resident in Australia, the balance of family test would be satisfied.

A person is considered the child of a parent if the person is a child, adopted child or stepchild of the parent or of the spouse of the parent. A child can also be the child of a parent if the child is the child of a former spouse of the parent if that child was adopted by the parent before the parent became the former spouse i.e. while the parent was the spouse of the former spouse.

In assessing children for the balance of family test the following children are not to be considered the children of the parent:

- children who have been adopted by another person;

- a child who has been ordered by a Court to be removed from the exclusive custody of the parent;

- children who have been recognised by UNHCR as refugees and are in a refugee camp;

- children who are not able to be reunited in another country with their parents and who are resident in a country where they are subject of persecution and abuse of human rights;

- step children of a person if those children were born after their parent and a step parent separated;

- step children of a person if the children were over 18 years of age and their parent entered into a relationship with the step parent and relationship between the parent and the step parent has ended by death, separation or divorce.

Unless the "balance of family" test is satisfied, there is no flexibility in succeeding in an application for an Australian permanent resident visa on the basis of being a parent of an Australian citizen, permanent resident or eligible New Zealand citizen.

Submitted by:

Frank Egan - LAC Lawyers

Frank Egan is the Chief Executive Officer of LAC Immigration Lawyers Sydney and has over 27 years of experience as a lawyer.




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