Nguyen (Migration)

This matter concerned an appeal by the applicant, Ms. Nguyen, against a decision of the Department of Home Affairs to refuse her application for a Business Innovation and Investment (Permanent) (Subclass 888) visa. The primary dispute revolved around whether Ms. Nguyen satisfied clause 888.221 of Schedule 2 to the Migration Regulations 1994, which requires an applicant to have been in Australia for at least one year in the two years immediately preceding the visa application. The Tribunal was required to determine if Ms. Nguyen met this residency requirement.

The court was asked to determine whether the applicant had satisfied the residency requirement stipulated in clause 888.221, which mandates a minimum of one year spent in Australia within the two years prior to lodging the visa application. The applicant acknowledged that departmental movement records indicated she had only spent 363 days in Australia during the relevant period, falling short by one day. The applicant also argued that her former migration agent had made an error in assessing her eligibility and that she had made significant investments and commitments to living and contributing to the Australian community.

The Tribunal found that the applicant had not met the specific residency requirement of clause 888.221, as the evidence clearly showed a shortfall of one day. While acknowledging the applicant's submissions regarding her significant investments, contributions to the Australian economy, and integration into the community, the Tribunal noted that the delegate had no discretion to waive this particular requirement. The Tribunal also considered the possibility of ministerial intervention under section 351 of the Migration Act 1958, noting the applicant's detailed submissions about her substantial financial investments and proposed future developments in Victoria, which could bring significant economic benefit.

Ultimately, the Tribunal affirmed the decision under review, concluding that the applicant did not satisfy clause 888.221. Consequently, the Tribunal was not satisfied that the applicant, or the other named applicants, met the secondary requirements for the grant of the Business Innovation and Investment (Permanent) (Subclass 888) visas. The applicants' request for the case to be referred to the Minister for consideration under section 351 was noted, along with the extensive evidence of their investments and commitment to Australia.