1913777 (Migration)

This matter concerned an application for judicial review of a decision by the Administrative Appeals Tribunal (AAT) to affirm refusals to grant subclass 188 Business Innovation and Investment (Provisional) visas to a primary applicant and his family unit. The primary applicant had his visa application refused by the Department of Home Affairs on the grounds that he did not satisfy the net asset value requirement under clause 188.245 of the Migration Regulations 1994. His wife and children, as secondary applicants, had their visa applications refused on the basis that they were not members of the family unit of a person who held a subclass 188 visa granted on the basis of satisfying the primary criteria, as required by clause 188.311. The primary applicant’s judicial review application to the Federal Circuit Court was dismissed. The AAT subsequently affirmed the decisions to refuse the visas to the wife and children.

The legal issues before the Tribunal were whether the secondary applicants could satisfy clause 188.311, which required them to be members of the family unit of a person who held a subclass 188 visa granted on the basis of satisfying the primary criteria. This necessitated an examination of whether the primary applicant's visa refusal was reviewable by the AAT, and if so, whether the primary applicant could satisfy the primary criteria for the visa. A further issue was whether the first applicant, the wife, could satisfy the primary criteria in her own right.

The Tribunal reasoned that the primary applicant's visa refusal was an MRT-reviewable decision under section 338(2) of the Migration Act 1958. However, section 347(3) barred the primary applicant from applying to the AAT for review as he was outside the migration zone at the relevant times. While the AAT had the power under section 349(1) to exercise the powers of the original decision-maker, the Tribunal found that the first applicant and her children did not meet clause 188.311 because the primary applicant did not hold a subclass 188 visa granted on the basis of satisfying the primary criteria. Furthermore, the Tribunal determined that the first applicant could not satisfy the primary criteria herself, specifically clause 188.241(1), as she had not been invited by the Minister to apply for the visa, unlike the primary applicant. Consequently, it was unnecessary to consider other primary criteria for the first applicant.

The Tribunal affirmed the decisions to refuse to grant the applicants Class EB subclass 188 (Business Innovation and Investment – Provisional) visas. The Tribunal noted that section 351 of the Act confers a personal power on the Minister for Immigration to intervene and grant a visa in exceptional circumstances, and it was open to the applicants to make a request for such intervention if they believed their case warranted it.