Migration Regulations 1994

For the purposes of this regulation:

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

the parent; or

a current spouse or current de facto partner of the parent; and

if the whereabouts of a child of the parent are unknown, the child is taken to be resident in the child’s last known usual country of residence.

For this regulation:

a child of the parent is an eligible child if the child is:

an Australian citizen; or

an Australian permanent resident usually resident in Australia; or

an eligible New Zealand citizen usually resident in Australia; and

any other child of the parent is an ineligible child.

An ineligible child is taken to be resident overseas.

The overseas country in which an ineligible child is taken to reside is:

the overseas country in which the child is usually resident; or

the last overseas country in which the child was usually resident; or

if the child no longer has a right of return to the country mentioned in paragraph (a) or (b)—the child’s country of citizenship.

A parent satisfies the balance of family test if the number of eligible children is greater than or equal to the number of ineligible children.

However, if the greatest number of children who are:

ineligible children; and

usually resident in a particular overseas country;

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

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

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

if the child:

is resident in a refugee camp operated by the United Nations High Commissioner for Refugees; and

is registered by the Commissioner as a refugee.