Dadiala (Migration)

This matter concerned an application for a Subclass 888 (Business Innovation and Investment (Permanent)) visa. The applicant sought to be recognised as a member of the family unit of the primary visa applicant, who was their father. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria under clause 888.311 of the Migration Regulations 1994.

The central legal issue before the Tribunal was whether the applicant qualified as a "member of the family unit" as defined by the Migration Regulations, specifically in relation to clause 888.311. This clause requires the applicant to be a member of the family unit of a person who holds a Subclass 888 visa granted on the basis of satisfying the primary criteria, and to have made a combined application with that person. The Tribunal had to consider the definitions of "member of the family unit" and "dependent child" within the Regulations, and apply them to the applicant's circumstances.

The Tribunal reasoned that while the applicant, aged 17, met the age and dependency requirements to be considered a "dependent child" of their father under regulation 1.12(2)(c) and section 5CA of the Act, a crucial prerequisite was not met. The primary visa applicant, the applicant's father, did not hold a Subclass 888 visa. He had been refused this visa because he did not satisfy the primary criteria, and the Tribunal had previously determined it lacked jurisdiction to review that refusal. Consequently, the applicant could not satisfy clause 888.311 because the condition that the family head must hold a Subclass 888 visa granted on the basis of satisfying the primary criteria was not fulfilled.

Accordingly, the Tribunal affirmed the decision under review, meaning the applicant was not granted the Subclass 888 visa.