1607269 (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal concerning a decision not to grant a Partner (Provisional) (Class UF) visa to Mrs Missyunene. The applicant, Mrs Missyunene, sought to be recognised as a member of the family unit of Ms Briggs, who had applied for a Subclass 309 visa. The primary dispute revolved around whether Mrs Missyunene met the definition of a "member of the family unit" as defined in regulation 1.12(1) of the Migration Regulations 1994.

The Tribunal was required to determine whether Mrs Missyunene was a "member of the family unit" of Ms Briggs, specifically whether she was usually resident in Ms Briggs' household, as required by regulation 1.12(1)(e)(ii). This involved considering the legal principles surrounding the concept of "usually resides," which requires an examination of both physical residency and intention. The Tribunal also had to consider whether Mrs Missyunene was dependent on Ms Briggs.

The Tribunal reasoned that the concept of "usually resides" involves dual factors of physical residency and intention, requiring a continuity of association with a place and an intention to return, with the place remaining home. While acknowledging that a person can be resident in more than one place and that absence does not necessarily cease residency, the Tribunal found that Mrs Missyunene's circumstances did not satisfy this criterion. Ms Briggs stated that she lived in Spain with her husband and son, while Mrs Missyunene lived in Kazakhstan. The Tribunal noted that the family unit had been divided due to Mr Briggs' relocation for employment, and Mrs Missyunene was not relocated with them. Despite submissions that Mrs Missyunene was substantially reliant on Ms Briggs for financial support, the Tribunal concluded that the physical residency requirement was not met.

Consequently, the Tribunal affirmed the decision not to grant the visa to Mrs Missyunene, finding that she did not satisfy the criteria for the grant of the visa.