Zhang (Migration)

This matter concerned an application for review by Ms Yuanchu Zhang of a decision not to grant her a Subclass 188 (Business Innovation and Investment (Provisional)) visa. The applicant sought the visa as a member of the family unit of Mr Bin Zhang, who had applied for the same visa on the basis of satisfying the primary criteria. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether Ms Zhang met the secondary criteria for the visa.

The primary legal issue before the Tribunal was whether Ms Zhang satisfied clause 188.311 of the Migration Regulations 1994, which requires that an applicant be a member of the family unit of a person who holds a Subclass 188 visa granted on the basis of satisfying the primary criteria. The Tribunal noted that Mr Bin Zhang's application for the Subclass 188 visa had been refused by the Department because he was not in the migration zone at the time of his application, and this decision was not a reviewable decision under section 338(2) of the Migration Act 1958. Consequently, Mr Zhang did not hold a Subclass 188 visa.

The Tribunal reasoned that, as Mr Bin Zhang did not hold a Subclass 188 visa granted on the basis of satisfying the primary criteria, Ms Zhang could not satisfy the requirement of being a member of the family unit of such a person. The Tribunal found that, on the evidence before it, Ms Zhang was not a member of the family unit of a person who held the requisite visa. Furthermore, Ms Zhang had not claimed to satisfy the primary criteria herself. The Tribunal also determined that it lacked jurisdiction to review the Department's decisions concerning Mr Bin Zhang, Ms Tao Ren, and Ms Yinmeng Zhang, and therefore had no jurisdiction in respect of the decisions relating to the second, third, and fourth named review applicants.

The Tribunal affirmed the decision not to grant Ms Yuanchu Zhang a Business Skills (Provisional) visa. The Tribunal also stated that it did not have jurisdiction in respect of the second, third, and fourth named review applicants.