DAI (Migration)

This matter concerned an appeal before the Administrative Appeals Tribunal regarding a Subclass 890 Business Skills (Residence) visa application. The applicant, Ms. Dai, sought to have a decision affirmed that she did not meet the visa requirements. The Tribunal was tasked with determining whether Ms. Dai, and by extension her husband and daughter who were secondary applicants, satisfied the criteria for the visa.

The central legal issue was whether Ms. Dai met the residency requirement stipulated in clause 890.217 of Schedule 2 to the Migration Regulations 1994. This clause mandates that an applicant must have been in Australia for at least 365 days in the two years immediately preceding their visa application, while holding one of the specified visas. The Tribunal also considered whether the secondary applicants, Mr. Cheng and Ms. Cheng, met the family unit criteria, which depended on Ms. Dai satisfying the primary criteria.

The Tribunal's reasoning focused on a strict interpretation of the legislative requirement. It calculated Ms. Dai's presence in Australia during the relevant two-year period (14 March 2015 to 13 March 2017) to be 271 days, falling short of the required 365 days. Despite Ms. Dai's submissions about her overall time in Australia and her daughter's presence, the Tribunal emphasised that the legislation specifically targets the two years immediately before the application and that it had no discretion to waive this requirement on compassionate or compelling grounds. The Tribunal also found that neither Mr. Cheng nor Ms. Cheng met the primary criteria, as Mr. Cheng had only been in Australia for 86 days in the relevant period, and Ms. Cheng, while present for the requisite time, did not hold shares in the business and could not have maintained the required direct and continuous involvement in its management due to her age.

Consequently, the Tribunal affirmed the decision not to grant the Subclass 890 visas to Ms. Dai, Mr. Cheng, and Ms. Cheng, as they failed to meet the essential primary and secondary criteria for the visa.