Piamonte (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, Subclass 835 (Remaining Relative), made by Desyra against the decision of the Tribunal. Desyra sought to nominate her mother, Mary Jane Truloff, as her Australian relative. At the time of the application, Mrs Truloff was an Australian permanent resident, and has since become an Australian citizen, thus qualifying as an Australian relative for the purposes of the visa.

The primary legal issues before the Tribunal were whether Desyra qualified as a "remaining relative" of her Australian relative, Mary Jane Truloff, as defined by regulation 1.15 of the Migration Regulations 1994. This required determining if Mrs Truloff was a parent of Desyra, if Mrs Truloff was usually resident in Australia, and if Desyra, along with her spouse or de facto partner, had no near relatives other than those usually resident in Australia and who were Australian citizens, permanent residents, or eligible New Zealand citizens.

The Tribunal found that Desyra met the definitional requirements for a "remaining relative" under regulation 1.15, specifically that Mrs Truloff was her parent and was usually resident in Australia. The Tribunal applied the principles established in cases such as *Scargill v MIMIA*, *Ignatious v MIMIA*, and *MIMIA v Hidalgo* to interpret "usually resident," which involves considering both physical residency and intention, referencing the settled abode test from *Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation*. The Tribunal concluded that the applicant met the criteria under clauses 835.212 and 835.221 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with the direction that the applicant meets the specified criteria for a Subclass 835 (Remaining Relative) visa.