Thai (Migration)

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.