Lovely (Migration)

[2019] AATA 5318

Lovely (Migration) [2019] AATA 5318 (28 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Hasina Ahmed Lovely
Novel Rahman
Nobi Rahman
Nokshi Rahman

CASE NUMBER:  1802855

DIBP REFERENCE(S):  BCC2017/2709021

BCC2017/3199450

BCC2018/1103421

MEMBER:Lilly Mojsin

DATE:28 November 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Business Innovation and Investment (Provisional) (subclass 188) visas

Statement made on 28 November 2019 at 12:20pm

CATCHWORDS
MIGRATION – Business Innovation and Investment (Provisional) (Class EB) visa – Subclass 188 (Business Skills (Provisional)) – Business Innovation Extension stream – member of family unit – primary visa applicant not granted visa – no application for review of that decision – decision under review affirmed

LEGISLATION

Migration Act 1959 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 188.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 January 2018 to refuse to grant the visa applicant a Business Skills (Provisional) Subclass 188 visa under s.65 of the Migration Act 1958 (the Act).

2. The primary visa applicant, Nazim Uddin Jamshed, applied for a Business Innovation and Investment (Provisional) (Renewal) (subclass 188) visa in the Business Innovation Extension stream on 30 July 2017.

3. The delegate, on 18 January 2018 was not satisfied that the visa applicant’s family met cl.188.311 in Schedule 2 of the Regulations.

4. Hasina Ahmed LOVELY [first named review applicant], Nobil RAHMAN [second named review applicant], Novel RAHMAN [third named review applicant] Nokshi RAHMAN [fourth named review applicant] hereinafter called the applicants, applied for review of the Department decision, annexing a copy of the decision to the Application for Review.

5. The first named applicant and the fourth named applicant appeared before the Tribunal in order to give evidence and present arguments today.

6. A Subclass 188 visa may be granted by to a primary visa applicant who satisfies the criteria for one of the seven visa ‘streams’. These are the:

   ·Business Innovation stream;

   ·Business Innovation Extension stream;

   ·Investor stream;

   ·Significant Investor stream;

   ·Significant Investor Extension stream;

   ·Premium Investor stream; and

   ·Entrepreneur stream.

7. The primary visa applicant applied for Business Innovation Extension Stream.  The Business Innovation Extension, stream requires the applicant to have been nominated by a State or Territory government agency.[1] The Significant Investor and Significant Investor Extension streams require the applicant to have been nominated by a State or Territory government or the CEO of Austrade.[2] The Premium Investor stream requires the applicant to have been nominated by the CEO of Austrade.[3] In some cases, the applicant must be invited by the Minister to apply

   [2] Item 1202B(6A), 1202B(6B) of Schedule 1 to the Regulations.

   [3] Item 1202B(6C) of Schedule 1 to the Regulations.

8. The primary visa applicant did not appeal the Department decision.

9. There is no evidence before the Tribunal to suggest that the primaryvisa applicant has been granted a Business Innovation and Investment (Provisional) (Renewal) (subclass 188) visa.  This was confirmed by the first named applicant at the Tribunal hearing.

10. As the primary visa applicant does not hold a Business Innovation and Investment (Provisional) (Renewal) (subclass 188) visa, the applicants are not members of the family unit of a person who holds a Subclass 188 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

11. The first named and fourth named applicants confirmed to the Tribunal that they were aware they would not meet the criteria for the grant of the visa.

12. The Tribunal finds the applicants do not meet cl. 188.311.

13. The Department decision must be affirmed.

    DECISION

14. The Tribunal affirms the decisions not to grant the applicants Business Innovation and Investment (Provisional) (subclass 188) visas.

    Lilly Mojsin
    Member