Zhang (Migration)

The applicant, Ms Zhang, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse her application for an Employer Nomination (Permanent) visa (Subclass 186). Ms Zhang was the primary applicant, and her partner was the second named applicant. The application was made while Ms Zhang was outside of the migration zone. The refusal was based on the second named applicant, as a member of the family unit, being unable to satisfy clause 186.311 of the Migration Regulations 1994. The matter came before Timbs J in the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the second named applicant, as a member of the family unit of the primary applicant, was required to satisfy clause 186.311 of the Migration Regulations 1994, which pertains to the primary applicant's location at the time of application. Specifically, the Court had to determine the proper construction of the relevant provisions of the Migration Act 1958 and the Migration Regulations 1994 concerning the eligibility requirements for a Subclass 186 visa when the primary applicant is offshore.

Timbs J considered the wording of clause 186.311, which states that the applicant must be outside the migration zone when the application is made. Her Honour found that this requirement applied to the primary applicant, Ms Zhang, and that she had satisfied this condition. However, the delegate had refused the application on the basis that the second named applicant, as a member of the family unit, also needed to satisfy this clause, which they had not done as they were in Australia at the time of application. Timbs J concluded that the delegate had misinterpreted the regulations. The regulations did not require a member of the family unit to satisfy clause 186.311; rather, it was a requirement for the primary applicant only. The delegate's error in applying the clause to the second named applicant meant that the decision to refuse the visa was affected by jurisdictional error.

The Court ordered that the decision of the Minister be set aside and remitted to the Minister for redetermination according to law.