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Balance of Family Test

Written by Fernanda Dahlstrom

Fernanda Dahlstrom holds a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practiced law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practiced in family law after moving to Brisbane in 2016. Fernanda has strong interests in Indigenous and refugee law, human rights and law reform.

The balance of family test is integral to determining who is eligible for a parent visa. A person applying for a parent visa on a temporary or a permanent basis must pass the balance of family test, which is contained in Section 105 of the Migration Regulations and tests an applicant’s family links with Australia. It requires the applicant to demonstrate that at least half of their children and stepchildren are eligible children.

In recent years, the Australian government has prioritised skilled migration, with proportionally fewer family places available. The purpose of the balance of family test is to ensure that only those applicants with the strongest family ties to Australia are eligible for a parent visa.

Classes of visa that are subject to the test

Applicants for the following classes of visas must pass the test:

  • 103 – Parent
  • 143 – Contributory Parent
  • 173 – Contributory Parent (Temporary)
  • 804 – Aged Parent
  • 864 – Contributory Aged Parent
  • 884 – Contributory Aged Parent (Temporary)

Who is a child?

An applicant’s children and their partner’s children are counted in the balance of family test provided they are still alive and have not been:

  • Removed from their parents’ custody by adoption or court order;
  • Registered as refugees with the UNHCR and live in a UNHCR refugee camp;
  • Living in a country where they are persecuted or face human rights abuses and cannot be reunited with parents in another country.

Step-children from a previous relationship are counted in the balance of family test if they are aged under 18 and the applicant has a parenting, guardianship or custody order. Step-children from the applicant’s current relationship are counted regardless of whether they are under the age of 18. Children born outside of a partner relationship are not counted.

Who is an eligible child?

Section 105(2) of the Migration Regulations states that a child is an eligible child if he or she is an Australian citizen or a permanent resident who usually lives in Australia, or a New Zealand citizen who usually lives in Australia.

Children who are in Australia on temporary visas are not eligible children as they are taken to be resident overseas. Children whose whereabouts are unknown are taken to be living in their last known country of residence.

Children can be eligible children regardless of whether or not they are dependent.

Who meets the balance of family test?

An applicant meets the balance of family test if they have more eligible children than ineligible children or if they have more eligible children than children living in any other single country.

The Department of Home Affairs does not waive the balance of family test, even in exceptional circumstances.

What if I fail the balance of family test?

An applicant who fails the balance of family test may be able to apply for one of the following visas:

  • Aged Dependent Relatives Visa;
  • Skilled Australian-sponsored visa;
  • Business skills visas;
  • Investor Retirement Visa.

The applicant would, of course, have to satisfy all the requirements of the visa in question.

If you require legal advice or representation in an immigration matter or in any other legal matter, please contact Go To Court Lawyers.

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