Kwok (Migration)

This matter concerned an application for a Subclass 888 (Business Innovation and Investment (Permanent)) visa by secondary applicants, Mr Victor Kar Chun Kwok and Miss Trini Kar Poh Kwok. They applied as members of the family unit of their father, Mr Kim Tam Kwok, who was the primary applicant. The dispute arose when the delegate of the Department refused to grant Mr Kim Tam Kwok the visa, a decision which he did not appeal. Consequently, the secondary applicants' eligibility for the visa was challenged.

The primary legal issue before the Tribunal was whether the secondary applicants satisfied the requirements of clause 888.311 of the Migration Regulations 1994. This clause mandates that secondary applicants must be members of the family unit of a person who holds a Subclass 888 visa granted on the basis that they satisfied the primary visa criteria. The Tribunal was required to determine if the secondary applicants met this criterion, given that the primary applicant had not been granted the visa.

The Tribunal reasoned that the secondary applicants' eligibility was contingent on their father, Mr Kim Tam Kwok, holding a Subclass 888 visa. Departmental records confirmed that Mr Kim Tam Kwok had not been granted this visa and had departed Australia. Although the secondary applicants' representative provided information about Mr Kim Tam Kwok's investment in a fraudulent company, leading to financial loss and an inability to satisfy the 'complying investment' definition, the Tribunal found it had no jurisdiction to review the decision made in relation to the primary applicant. As Mr Kim Tam Kwok did not hold the required visa, the Tribunal concluded that the secondary applicants could not be considered members of the family unit of a Subclass 888 visa holder.

Consequently, the Tribunal found that the applicants did not satisfy the criteria in clause 888.311 and affirmed the decision not to grant them the Business Skills (Permanent) visas.