Commonwealth Consolidated Regulations

MIGRATION REGULATIONS 1994 - REG 1.05

         (1)   For the purposes of this regulation:

                (a)    a person is a child of another person ( the parent ) if the person is a child, adopted child or step‑child of:

                          (i)    the parent; or

                         (ii)    a spouse of the parent; or

                         (iii)    a former spouse of the parent, if the child was born or adopted:

                                   (A)     before the parent became the spouse of the former spouse; or

                                   (B)     while the parent was the spouse of the former spouse; and

               (b)    if the whereabouts of a child of the parent are unknown, the child is taken to be resident in the usual country of residence of the parent.

         (2)   A parent satisfies the balance of family test if:

                (a)    each of the children of the parent is either:

                          (i)    lawfully and permanently resident in Australia; or

                         (ii)    a person who is:

                                   (A)     an eligible New Zealand citizen; and

                                   (B)     usually resident in Australia; or

               (b)    the number of children of the parent who are lawfully and permanently resident in Australia or are eligible New Zealand citizens usually resident in Australia is:

                          (i)    greater than, or equal to, the total number of children of the parent who are resident overseas; or

                         (ii)    greater than the greatest number of children of the parent who are resident in any single overseas country.

         (3)   In applying the balance of family test, no account is to be taken of a child of the parent:

                (a)    if the child has been removed by court order, by adoption or by operation of law (other than in consequence of marriage) from the exclusive custody of the parent; or

               (b)    if the child is resident in a country where the child suffers persecution or abuse of human rights and it is not possible to reunite the child and the parent in another country; or

                (c)    if the child is resident in a refugee camp operated by:

                          (i)    the United Nations High Commissioner for Refugees; or

                         (ii)    the government of Hong Kong;

                        and is registered by the Commissioner as a refugee; or

               (d)    if:

                          (i)    the child is a step‑child of the parent; and

                         (ii)    the child had turned 18 at the time at which the parent became the spouse of the child's other parent;

                        and one or more of the following subparagraphs applies:

                         (iii)    the other parent is deceased; or

                        (iv)    the parent is permanently separated from the other parent; or

                         (v)    the parent is divorced from the other parent.