HOSSEINIANJEDANI (Migration)

This matter concerned an application for review of a decision by the Department of Home Affairs to refuse a Subclass 188 Business Innovation and Investment (Provisional) visa. The primary applicant was the father, Mr Seyedmohammad Hosseinianjedani, with his son (the review applicant) and wife listed as secondary applicants. The Department refused the primary application on the basis that the father's net asset value did not meet the required threshold, and consequently, the secondary applicants did not meet the family unit criteria under clause 188.311. The review applicant, who was in Australia, sought review of this decision.

The legal issues before the Tribunal were whether it had jurisdiction to review the decision in relation to the secondary applicants, and if so, whether the review applicant met the criteria under clause 188.311. The Tribunal was required to determine if the review applicant could establish that he was a member of the family unit of a person who held a Subclass 188 visa granted on the basis of satisfying the primary criteria, given the primary applicant's visa had been refused.

The Tribunal reasoned that while the review applicant was in Australia and eligible to seek review, his father and mother, being offshore, did not have jurisdiction to seek review of the decision. Crucially, the review applicant could not appeal his father's application on his father's behalf, as the decision against the father remained unchallenged. Therefore, the basis for the review applicant to satisfy the family criterion under clause 188.311, by being a member of the family of a person who holds the 188 visa, could not succeed. The Tribunal affirmed the decision not to grant the review applicant a Subclass 188 visa and stated it did not have jurisdiction in relation to the second and third named applicants.