Thai (Migration) - [2019] AATA 3978

Thai (Migration) [2019] AATA 3978 (12 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Phong Nha Thai
Mr Son Thai
Ms Khanh Linh Thai
CASE NUMBER:  1727726
DIBP REFERENCE(S):  BCC2016/3067157
MEMBER:Sheridan Lee
DATE:12 August 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review.

Statement made on 12 August 2019 at 1:01pm

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 890 – applicant was only in Australia for 350 days of the relevant two year period– no power to waive or overlook this requirement – not suitable for Ministerial Intervention referral – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 1, Schedule 2, cls 890.217, 890.321

CASES
Lee v MIMAC (2013) 215 FCR 109
Potier v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 503
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 October 2017 to refuse to grant the visa applicant a Business Skills (Residence) (Class DF) Subclass 890 visa under s.65 of the Migration Act 1958 (the Act).
Mr Thai applied for the visa on 1 September 2016. The criteria for the grant of a Subclass 890 visa are set out in Schedule 2 of the Migration Regulations 1994 (the Regulations). The issue in the present case is whether the applicant meets the requirements in cl.890.217. In order to satisfy this clause, the applicant must have been in Australia as the holder of one of the visas mentioned in paragraph 1104B(3)(d) of Schedule 1 to the Regulations for a total of at least one year in the two years immediately before the application was made.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.890.217 as he was only in Australia for 350 days of the relevant two year period.
The applicants first appeared before the Tribunal on 12 December 2018 to give evidence and present arguments. However, there were some concerns with the interpretation of the hearing during the preliminary discussions and the applicant requested that the matter be adjourned until such time as a Vietnamese interpreter from the North of Vietnam could be sourced. The hearing was reconvened on 6 March 2019. The applicant indicated that he could understand the second interpreter clearly. The Tribunal also received oral evidence from the second named applicant, Mr Son Thai.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Primary applicant
The regulations make clear that at least one member of the family unit who are applicants for the visa must meet the primary criteria. Nevertheless, in an application for a Class DF made by multiple applicants, it is necessary for a ‘discriminating choice’ to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Thai (Migration) [2019] AATA 3978
Case: [2019] AATA 3978
Decision Date: 12 August 2019

CaseChat Overview and Summary

This matter concerned an application for a Business Skills (Residence) (Class DF) visa, Subclass 890, brought by Mr Phong Nha Thai. The applicant sought review of a decision that affirmed the refusal of his visa application. The core of the dispute revolved around whether the applicant had met the residency requirement for the visa.

The legal issues before the Tribunal were whether the applicant had satisfied the requirement of being in Australia for at least 365 days in the two years immediately before the application was made, and whether the Tribunal had the power to overlook or waive this requirement. The applicant also sought to argue for a broader interpretation of the phrase "two years immediately before" to accommodate his absence from Australia.

The Tribunal considered the applicant's visa history and found that he held a Subclass 165 visa prior to his application. However, departmental records indicated that during the two-year period from 1 September 2014 to 31 August 2016, the applicant was in Australia for only 350 days, falling 15 days short of the required 365 days. The applicant conceded this but argued that a different two-year period, commencing earlier, would have satisfied the requirement. The Tribunal rejected this argument, finding that the regulations clearly stipulated the relevant two-year period and that there was no power to waive or overlook the 365-day residency requirement. The Tribunal also noted that the applicant was not precluded from seeking ministerial intervention.

The Tribunal affirmed the decision under review, concluding that the applicant had not met the primary criteria for the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEPrimary applicant The regulations make clear that at least one member of the family unit who are applicants for the visa must meet the primary criteria. Nevertheless, in an application for a Class DF made by multiple applicants, it is necessary for a ‘discriminating choice’ to be made by such applicants as to which of them will be put forward as the ‘applicant seeking to satisfy the primary criteria’.[1] [1] Lee v MIMAC (2013) 215 FCR 109 at [14]. In the current matter, Mr Phong Nha Thai was selected for this purpose on the visa application form and this choice was confirmed in submissions dated 5 December 2018.Did the applicant hold the necessary visa? Departmental records show that the applicant held a State or Territory Sponsored Investor (Provisional) visa, Subclass 165, prior to submitting the current application. The Subclass 165 visa is one of the visas set out in paragraph 1104B(3)(d) of Schedule 1 of the Regulations.Was the applicant in Australia for the necessary period? Recourse to the decision of the delegate, which was provided to the Tribunal by the applicant, shows that the two year period from 1 September 2014 to 31 August 2016 was used for the purpose of calculating the applicant’s time in Australia. During that time, the applicant was in Australia for 350 days – 15 days short of the required 365. At the hearing, the applicant conceded that he was not in Australia for 365 days during the period 1 September 2014 to 31 August 2016, however he would have been in Australia for the necessary one year if a different period were used for the purpose of the assessment. The applicant suggested that the period from 10 July 2014 to 10 July 2016 be used for this purpose. The applicant gave evidence that he was required to depart Australia on 10 July 2016 to return to Vietnam in order to deal with an emergency at the construction site of the Chau Thang hydropower project in Nghe An province. At the time of his departure he had been in Australia for 368 days. He returned to Australia on 24 August 2016. Due to this relatively brief absence, he fell short of the necessary 365 days when his visa was application was lodged on 1 September 2016. The applicant outlined that he has invested more than $10 million in Australian farming and would like to continue contributing to the Australian community. He gave evidence that his son has graduated from study and now manages the farm and his daughter is currently studying law at Monash. In submissions dated 5 December 2018, the applicant’s representative contended that the term ‘immediately before’ is not defined in the Act and it is arguable that ‘2 years immediately before the Application is made’ comprises a broader period than the penultimate day. Based on an assessment of the dictionary definition, case law and departmental policy on a similarly worded provision, it was submitted that rather than the two year period ending when the visa application was lodged, the two year period ending ‘promptly before’ or ‘a reasonable time before’ or ‘a period without delay before’ the lodgement date and not necessarily the penultimate date prior to the lodgement of the application should be used.

Decision

Reasons for decision

I note that the applicant is not precluded from making a request for ministerial intervention upon receipt of this merits review decision.DECISION The Tribunal affirms the decision under review.Sheridan LeeMember

Ratio Decidendi

Legal Principle Established

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