ALAGHEHBAND (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Mr. Alaghehband concerning his application for a Business Skills (Residence) (Class DF) visa, Subclass 890. The primary dispute revolved around whether Mr. Alaghehband met the residency requirement stipulated in clause 890.217 of Schedule 2 to the Migration Regulations.

The legal issue before the Tribunal was to determine if Mr. Alaghehband had been in Australia for a total of at least 365 days within the two years immediately preceding his visa application, while holding one of the specified visas listed in paragraph 1104B(3)(d) of Schedule 1. The Tribunal also had to consider its jurisdiction concerning the other named applicants.

The Tribunal's reasoning focused on calculating Mr. Alaghehband's physical presence in Australia during the relevant two-year period. Based on his movement records, the Tribunal found that he had spent 353 days in Australia, falling 12 days short of the required 365 days. The Tribunal noted that it had no discretion in applying the law and must make a decision in accordance with the regulations. It affirmed that Mr. Alaghehband held a Subclass 164 visa, which met the specified visa type requirement, but he failed to meet the minimum duration of stay. The Tribunal also determined it had no jurisdiction regarding the other named applicants as they were not in Australia at the time the application for review was lodged.

Consequently, the Tribunal affirmed the decision not to grant Mr. Alaghehband the Subclass 890 visa and stated it had no jurisdiction concerning the other applicants. The Tribunal noted that Mr. Alaghehband could seek ministerial intervention directly if he wished.