Arthanari (Migration)

The Administrative Appeals Tribunal considered the case of Mr Siva Arthanari and other applicants concerning applications for a Subclass 890 (Business Owner) visa. The primary dispute revolved around whether the applicant, Mr Arthanari, met the residency requirements for the visa, as he was offshore at the time of application and had spent minimal time in Australia during the two years prior.

The legal issue before the Tribunal was whether Mr Arthanari satisfied clause 890.217 of the Migration Regulations, which mandates that an applicant must have been in Australia for at least one year in the two years immediately preceding the visa application. This clause is a primary criterion for the Subclass 890 visa, and at least one member of the family unit applying must meet these primary criteria. The Tribunal also had to consider its jurisdiction regarding secondary applicants.

The Tribunal reasoned that Mr Arthanari, who was nominated on the visa application form as the applicant seeking to satisfy the primary criteria, had only been in Australia for 23 days in the two years before lodging his application. Despite his wife's presence in Australia for a portion of that period to manage their business, she was offshore at the time of the application, and Mr Arthanari himself was the designated primary applicant. The Tribunal accepted that Mr Arthanari failed to appreciate the visa requirements and was disappointed with the advice received from his migration agent, but this did not alter the factual circumstances regarding his compliance with the residency requirement.

Consequently, the Tribunal affirmed the decision not to grant Mr Arthanari and a third named applicant Subclass 890 visas, as the primary criteria were not met. The Tribunal also noted that it lacked jurisdiction to review the decisions concerning the second and fourth named applicants.