Zhang (Migration)

[2020] AATA 4199

Zhang (Migration) [2020] AATA 4199 (21 September 2020)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Yuanchu Zhang
Mr Bin Zhang
Ms Tao Ren
Ms Yinmeng Zhang

CASE NUMBER:  1725136

DIBP REFERENCE(S):  BCC2016/3872184

MEMBER:R. Skaros

DATE:21 September 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the first named review applicant a Business Skills (Provisional) visa.

The Tribunal does not have jurisdiction in respect of the second, third and fourth named review applicants.

Statement made on 21 September 2020 at 1:58pm

CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – member of family unit – primary applicant outside of migration zone at time of visa application – combined application – Tribunal’s jurisdiction – Part-5 reviewable decisions – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338
Migration Regulations 1994 (Cth), r 4.12; 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 12 October 2017 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 visa applicant applied for the visa on 17 November 2016.

3. In this case, the applicant applied for the Subclass 188 visa on the basis of being a member of the family unit of Mr Bin Zhang (the primary applicant). In the circumstances, the applicant must satisfy the secondary criteria for the grant of the visa.

4. The delegate refused to grant the visa on 12 October 2017 on the basis that cl.188.311 was not met because the delegate was not satisfied the applicant is a member of the family unit of a person who holds a Subclass 188 visa granted on the basis of satisfying the primary criteria.

5. Information before the Tribunal indicated that the primary applicant (Mr Bin Zhang) was not the holder of a Subclass 188 visa and that the Department’s decision to refuse his visa application was a non-reviewable decision as the primary applicant was not in the migration zone at the time of visa application.

6. On 5 August 2020, the Tribunal wrote to the review applicants pursuant to s.359A of the Act, inviting the review applicants to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The relevant information included Departmental records indicating that at the time of visa application, Mr Bin Zhang was not in the migration zone and therefore the decision in relation to him is not a reviewable decision under s.338(2) of the Act. The Tribunal explained the relevance of this information, namely, that as a secondary applicant, it is a requirement that Ms Yanchu Zhang is a member of a family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 188 visa: cl.188.311.  The Tribunal also explained the consequences if it were to rely on this information.

7. On 11 August 2020, the representative responded stating the application for review is a combined one which includes four members of the same family unit. It was submitted that as Mr Bin Zhang was not the review applicant, the criteria for being a review applicant is not relevant. It was submitted that Mr Zhang is part of the same combined visa application and that there is nothing in s.338(2) of the Act required a combined application to be split into different parts such that each member of the same family unit has to make his or her own separate review application. It was submitted that Miss Yuanchu Zhang is the review applicant and is applying for review of the decision made by a delegate on this combined application, which should be regarded as one single application under the Migration Regulation. It was submitted that Mr Bin Zhang is part of the combined application for review.

8. On 20 August 2020, the Tribunal wrote to the applicants’ representative informing him that the decision to refuse the grant of a Subclass 188 visa application is a reviewable decision under Part 5, s 338(2) of the Act, only if the visa applicant applied for the visa while they were in the ‘Migration Zone’. The Tribunal noted that only Ms Yuanchu Zhang appears to have been in the migration zone at all the relevant times, namely at the time of the visa application and at the time of the application for review. It was explained that Ms Yuanchu Zhang appears to be the only person who has the right to apply for review of the decision in relation to her. It was also explained that while a combined review application can be made, the Tribunal can only review the decision in respect of each applicant if that applicant has a right of review, that is, if the applicant has made a valid application for review.

9. It was explained that r. 4.12(2) provides that if two or more review applicants have combined their visa applications in Australia at the primary level as permitted by Schedule 1 to the Regulations, and the Minister's decisions to refuse the visas in respect of those applicants are Part 5-reviewable, then review applications may be combined by the visa applicants who were refused the visas. It was noted that the decisions to refuse the visas in respect of the Mr Bin Zhang, Ms Tao Ren and Ms Yinmeng Zhang are not Part-5 reviewable as they were not in the migration zone when the application for the visa was made. Consequently, the decisions in relation to Mr Bin Zhang, Ms Tao Ren and Ms Yinmeng Zhang do not meet r.4.12(2)(c) and these applicants are unable to combine their application for review with that of Ms Yuanchu Zhang.

10. On 20 August 2020, the Tribunal invited the review applicant to appear before it by telephone to give evidence and present arguments relating to the issues in the case on 4 September 2020.

11. On 30 August 2020, the representative advised that the applicants are not interested in attending the scheduled hearing as it appears that they will not receive a positive result. The applicant did not appear before the Tribunal at the schedule hearing. In the circumstances, the Tribunal has decided to proceed to a decision on the information before it.

12. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. As noted above, the only decision in respect of which the Tribunal has jurisdiction is the decision in relation to the first named review applicant, Miss Yuanchu Zhang.

14. The issue in the present case is whether the first named review applicant meets the secondary criteria for grant of the Subclass 188 visa, in particular, the requirement in cl.188.311 which requires that at the time of decision:

    188.311

    The applicant is a member 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 (the primary applicant).

15. As noted above, the applicant applied for the Subclass 188 visa on the basis of being a member of the family unit of Mr Bin Zhang.  Mr Bin Zhang’s application for a Subclass 188 visa was refused by the Department on 12 October 2017. Department records indicate that Mr Bin Zhang was not in the migration zone at the time of visa application and consequently the department’s decision in relation to him is not a reviewable decision under s.338(2) of the Act. Consequently, the Department’s decision in relation to him stands.

16. In it’s s.359A letter, the Tribunal explained to the first named review applicant that if it relied on the information relating to Mr Bin Zhang, it may conclude that she is not the member of a family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 188 visa. 

17. The evidence before the Tribunal is that Mr Bin Zhang, at the time of this decision, is not the holder of a Subclass 188 visa.

18. On the evidence before it, the Tribunal finds that the review applicant is not a member of the family unit of a person who holds a Subclass 188 visa. Therefore, the applicant does not satisfy the requirement in cl.188.311 for the grant of the visa as a secondary applicant.

19. There is also no evidence before the Tribunal, and the applicant has not claimed, that she satisfies the primary criteria for the grant of the Subclass 188 visa.

20. For the reasons discussed above, the Tribunal does not have jurisdiction to review the Department’s decision in relation to Mr Bin Zhang, Ms Tao Ren and Ms Yinmeng Zhang. Consequently, the Tribunal has no jurisdiction in respect of the decisions relating to the second, third and fourth named review applicants.

    DECISION

21. The Tribunal affirms the decision not to grant the applicant a Business Skills (Provisional) visa.

22. The Tribunal does not have jurisdiction in respect of the second, third and fourth named review applicants.

    R. Skaros
    Senior Member