1607269 (Migration)

[2016] AATA 4495

1607269 (Migration) [2016] AATA 4495 (13 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Michael Briggs

VISA APPLICANT:  Mrs Valentina Missyunene

CASE NUMBER:  1607269

DIBP REFERENCE(S):  BCC2015/2776043

MEMBER:Glynis Bartley

DATE:13 October 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 13 October 2016 at 4:57pm
STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in the present case is whether the visa applicant, Mrs Valentina Missyunene, is a member of the family unit of her daughter, Ms Regina Briggs.

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant Mrs Missyunene a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

3. Mrs Missyunene is a 72-year-old national of Kazakhstan. The primary applicant for the visa, Ms Regina Briggs, is Mrs Missyunene’s daughter. She is married to Mr Michael Briggs, who is an Australian citizen by birth. Mr Briggs sponsored the application.

4. Ms Briggs applied for the visas on 23 September 2015 on the basis of her relationship with Mr Briggs. Mrs Missyunene was included as a dependent applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Relevantly to this matter the primary criteria include cl.309.311.

5. The delegate refused to grant Mrs Missyunene’s visa on 16 March 2016 on the basis that she was not a member of Ms Briggs’ family unit because she was not usually resident in Ms Briggs’ household. This decision was based on information provided on the application that Mrs Briggs was living in Spain with Mr Briggs whereas Mrs Missyunene was living in Kazakhstan.

6. Mrs Missyunene lodged an application for review of the decision with this Tribunal on 21 May 2016. The Tribunal registry advised Mrs Missyunene on 25 May 2016 that the application had been incorrectly completed because the wrong person had requested review (Mrs Missyunene instead of Mr Briggs). An amended application form was submitted on 27 May 2016. The second form was submitted outside of the required timeframe of 70 days and the wrong person had requested review (Ms Briggs instead of Mr Briggs). Nonetheless, the Tribunal is satisfied that it has jurisdiction to determine the application because the first application was received within the required time limit and the accompanying letter was signed by both Ms Briggs and Mr Briggs. In addition, the application lodged on 21 May 2016 included a copy of the delegate’s decision. For these reasons, the Tribunal finds that the first application was lodged on Mr Briggs’ behalf. The Tribunal notes that Mr Briggs submitted a third application form, which was correctly completed, on 3 October 2016.

7. Mr Briggs appeared before the Tribunal on 13 September 2016 by telephone from Spain to give evidence and present arguments. The Tribunal also received oral evidence by telephone from Ms Briggs in Spain, and from Mrs Missyunene in Kazakhstan. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian language.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided at the hearing.

10. Clause 309.311 of the Regulations requires that Mrs Missyunene is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21. Mr Briggs gave oral evidence that her Subclass 309 visa application has not yet been determined because she was pregnant and therefore could not undergo the required x-rays. Ms Briggs told the Tribunal that she gave birth to a son on 5 September 2016.

11. Member of the family unit is defined in r.1.12(1) as follows:

    (1)  For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head ) if the person is:

    (a)  a spouse or de facto partner of the family head; or

    (b)  a dependent child of the family head or of a spouse or de facto partner of the family head; or
    (c)  a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or

    (e)  a relative of the family head or of a spouse or de facto partner of the family head who:

    (i)  does not have a spouse or de facto partner; and
      (ii)  is usually resident in the family head's household; and
       (iii)  is dependent on the family head.

12. The delegate was not satisfied that Mrs Missyunene met r.1.12.(1)(e)(ii) on the basis that she was not usually resident in the family head’s (Ms Briggs’) household.

13. The dual factors of physical residency and intention are essential elements in the notion of ‘usually resides’: Scargill v MIMIA [2003] FCAFC 116 (‘Scargill’); Ignatious v MIMIA [2004] FCA 1395; and MIMIA v Hidalgo [2005] FCAFC 192. Generally speaking an individual’s place of residence is to be determined by reference to where he or she ‘eats and sleeps and has settled or usual abode’; Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 4 CLR 241 at 249, endorsed in Scargill at [17].

14. A person may simultaneously be resident in more than one place. However, once a person has established a home in a particular place, even involuntarily, a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place, together with an intention to return and an attitude that the place remains home: Hafza v Director General of Social Security (1985) 6 FCR 444 at [449]-[450].

15. On the application Ms Briggs stated that she lives in Spain with her husband and son, whereas Mrs Missyunene lives in Kazakhstan in an apartment owned by Ms Briggs.

16. In her submissions received prior to the hearing, Ms Briggs stated that the family unit is temporarily divided due to Mr Briggs being notified in late 2014 that his employment contract in Kazakhstan would not be extended and he was to be relocated to Spain. His employer would only relocate Mr Briggs, Ms Briggs and Ms Briggs’ eldest son, but not her mother, Mrs Missyunene. The family decided to apply for Australian visas rather than first obtain Spanish visas. Ms Briggs submitted that although the family unit is temporarily divided between two countries, Mrs Missyunene is usually with them and continues to be substantially reliant upon them for financial support to meet her basic needs.

17. Mr Briggs and Ms Briggs gave oral evidence at the hearing that Ms Briggs moved to Spain in December 2014 with her eldest son after they were granted temporary residence visas. Mrs Missyunene continues to live in Ms Briggs’ two-bedroom apartment in Kazakhstan, although she has visited the family twice in Spain after being granted three-month tourist visas. Ms Briggs said that she last visited her mother in Kazakhstan in September 2015. Each time they see Mrs Missyunene, they give her money for living expenses. Mrs Missyunene receives a modest pension from the Kazakhstan government and although she can generally afford to purchase most of her food, Mr Briggs and Ms Briggs buy her medication and clothing. They also pay for all of the expenses associated with her accommodation, including rates. Mrs Missyunene has lived in Kazakhstan all of her life. Ms Briggs said that she and her husband and intending to apply for a 12-month residence visa for Mrs Missyunene to enable her to live with them in Spain. Mr Briggs said he expects to continue working in the mining industry in Spain for another two to three years. They then hope to move the whole family to Australia. Mr Briggs’ father passed away in 2015 and his mother is alone in Australia. Mr Briggs and Ms Briggs told the Tribunal that they would like the family to be reunited in Australia.

18. Mrs Missyunene confirmed the oral evidence given by Mr Briggs and Ms Briggs. She said that she hopes to be reunited with the family, especially as her daughter has recently given birth to a baby.

19. Ms Briggs submitted that the family is living separately due to Mr Briggs’ employment. The evidence before the Tribunal is that Mrs Missyunene has lived in Kazakhstan all of her life, although she has visited Mr Briggs and Ms Briggs twice in Spain for periods of around 10 weeks. While she intends to live with the family in Spain in the future, she has not yet applied for a temporary residence visa to enable that to occur. The evidence is that Ms Briggs and Mrs Missyunene have been living in separate households since December 2014. Ms Briggs’ eldest son was enrolled in high school in Spain in 2014 and is now attending university there. There is no evidence to suggest that Ms Briggs’ absence from Kazakhstan is temporary or that she intends to return to live there at any time in the future.

20. After considering all of the evidence before it, the Tribunal finds that Mrs Missyunene is not usually resident in Ms Briggs’ household and does not satisfy r.1.12.(1)(e)(ii). Consequently, Mrs Missyunene does not meet cl.309.311.

21. For the reasons above, Mrs Missyunene does not satisfy the criteria for the grant of the visa.

    DECISION

22. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visas.

    Glynis Bartley
    Member