Zhang (Migration)

The Administrative Appeals Tribunal considered the case of Ms Zhang, who sought review of a decision to refuse her application for a Subclass 188 (Business Innovation and Investment (Provisional)) visa. Ms Zhang was a secondary applicant, relying on her husband, Mr Fei Lu, as the primary applicant. The core of the dispute involved the withdrawal of Mr Lu's visa application without Ms Zhang's knowledge or consent, and the subsequent refusal of her own application. Ms Zhang also raised concerns about her daughter's developmental delay and educational needs in Australia, as well as allegations of family violence by her husband.

The Tribunal was required to determine whether Ms Zhang satisfied the criteria for the grant of the visa, specifically cl.188.311 of Schedule 2 to the Regulations. This clause mandates that an applicant must be a member of the family unit of a primary applicant who holds a Subclass 188 visa granted on the basis of satisfying the primary criteria. The Tribunal also had to consider the impact of Mr Lu's withdrawal of his application on Ms Zhang's status as a secondary applicant and member of his family unit.

The Tribunal reasoned that for Ms Zhang to be granted the visa, she needed to be a member of the family unit of a primary applicant who held the relevant visa. As Mr Lu had withdrawn his application, he did not hold the Subclass 188 visa. Consequently, Ms Zhang could not satisfy the criterion of being a member of the family unit of a primary applicant who held the visa. The Tribunal noted that the withdrawal of a visa application by one applicant does not automatically withdraw the applications of other family members, but in this instance, Mr Lu's withdrawal meant he was no longer the primary applicant holding the required visa. The Tribunal affirmed the decision under review.