Jia (Migration)

This matter concerned an application for review before the Administrative Appeals Tribunal concerning a Subclass 888 (Business Innovation and Investment (Permanent)) visa, significant investor stream. The applicants, Ms Jia and Miss Yao, were secondary applicants in a visa application lodged by Mr Yao, the primary applicant. Mr Yao's application for the Subclass 888 visa had been refused by the Department, and he did not have a right of review for that decision, nor was an application for review before the Tribunal.

The primary legal issue before the Tribunal was whether the secondary applicants satisfied clause 888.311 of Schedule 2 to the Migration Regulations 1994. This clause requires that an applicant 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 that they made a combined application with that person. The applicants conceded that as Mr Yao's visa application was unsuccessful, they could not be considered members of the family unit of a person holding the required visa, and therefore their own applications could not succeed.

The Tribunal reasoned that because the primary applicant's visa application was refused, the condition in cl 888.311(a) was not met. Consequently, the secondary applicants could not satisfy the criteria for the grant of a Subclass 888 visa. The applicants' stated purpose for seeking review was to have their case referred to the Minister for consideration under s 351 of the Migration Act 1958, which allows the Minister to substitute a more favourable decision. However, the Tribunal declined to make such a referral, noting that the applicants could make a direct request to the Minister. The Tribunal affirmed the delegate's decision not to grant the applicants the visas.