Hayman (Migration)

The Administrative Appeals Tribunal considered the case of Mr and Mrs Hayman, citizens of South Africa, who sought review of a decision not to grant them Business Skills (Residence) (Class DF) visas, specifically Subclass 893 (State/Territory investor). The applicants had been granted a Subclass 165 visa in October 2011 and subsequently invested $750,000 in Queensland Government Bonds, with Queensland being their sponsoring State.

The primary legal issue before the Tribunal was whether the applicants satisfied the residence requirement stipulated in clause 893.212 of the Migration Regulations. This clause requires applicants to have resided in the sponsoring State or Territory for at least two years within the four years immediately preceding their visa application. The Tribunal was tasked with determining the cumulative period of the applicants' residence in Queensland during the relevant timeframe.

The Tribunal's reasoning focused on the evidence presented regarding the applicants' physical presence in Australia. The delegate's assessment, based on the Department's movement database, indicated that the applicants had spent a cumulative total of 644 days in Australia between 18 November 2011 and 18 November 2015, falling short of the required 730 days. Despite submissions attempting to include additional days, including those spent on a cruise largely in Australian waters, the applicants themselves acknowledged that their total period of residence in the sponsoring State was less than the required two years by approximately two months. The Tribunal noted the applicants' awareness of this requirement, evidenced by an email from Mr Hayman discussing the calculation of days.

Although the Tribunal affirmed the decision not to grant the visas based on the failure to meet the specific regulatory criteria, it considered the applicants' strong compassionate circumstances. These circumstances, if not recognised, would result in serious, ongoing, and irreversible harm and continuing hardship to an Australian family unit. Consequently, the Tribunal referred the case to the Department for the Minister's attention, respectfully recommending that the Minister exercise discretionary powers under section 351 of the Migration Act 1958 (Cth) in favour of both applicants.