Chao (Migration)

This matter concerned an application for a Distinguished Talent (Residence) (Class BX) visa, Subclass 858, made by the first-named applicant, and a related application by the second-named applicant as a secondary applicant. The primary dispute before the Tribunal was whether the second-named applicant met the requirements of clause 858.321 of Schedule 2 of the relevant regulations, which pertains to being a member of the family unit of a primary visa holder. The Tribunal was constituted by Danica Buljan.

The legal issues before the Tribunal were twofold: first, whether the first-named applicant met the requirements of paragraph 858.212(2)(f) for the visa; and second, whether the second-named applicant satisfied the criteria under clause 858.321 to be considered a member of the family unit. The Tribunal noted that the first-named applicant had already been granted a Subclass 858 visa on a previous application, indicating that the primary criteria had been met.

The Tribunal reasoned that the grant of the visa to the first-named applicant on 18 October 2016 resolved the issue of her meeting the primary criteria under paragraph 858.212(2)(f). Consequently, the Tribunal was satisfied that the first-named applicant met this requirement. The central focus then shifted to the second-named applicant's eligibility as a member of the family unit under clause 858.321. The Tribunal considered the definition of "member of the family unit" as provided in regulation 1.12 of the Migration Regulations 1994, particularly subregulation 1.12(7) which addresses circumstances where a person under 18 is applying for the visa. However, the Tribunal found that the provided text did not definitively establish whether the second-named applicant met the criteria under clause 858.321, especially in light of the first-named applicant already holding the visa.

Given these findings, the Tribunal remitted the application to the Department of Immigration and Border Protection for reconsideration. The directions included confirming that the first-named applicant met clause 858.212 and that the second-named applicant met clause 858.321.