1420923 (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Temporary Business Entry (Class UC) visa, who had previously held a student visa that expired on 12 December 2012. The applicant alleged that their sponsor, Covina Farms Pty Ltd, had failed to lodge the necessary nomination and visa applications correctly, resulting in the applicant not holding a substantive visa from 13 December 2012. The applicant was subsequently granted a bridging visa in March 2013. The applicants applied for the 457 visa on 1 August 2014, at which time they did not hold substantive visas, triggering the application of Schedule 3 criteria.

The primary legal issue before the Tribunal was whether the applicants met the requirements of Schedule 3, specifically Criterion 3004, which applies when an applicant ceases to hold a substantive visa and does not hold a substantive visa at the time of application. The Tribunal was required to determine if the applicants satisfied subclause 3004(f)(i), which mandates that the applicant would have been entitled to be granted the visa if they had applied on the day they last held a substantive visa, namely 12 December 2012. This required the Tribunal to consider whether the applicants could have met all Schedule 1 and Schedule 2 criteria for the 457 visa on that date, as suggested by the case of *Quan v Minister for Immigration, Multicultural Affairs & Citizenship & Anor* [2013] FCCA 1254.

The Tribunal found that the applicants' substantive student visas expired on 12 December 2012, and they had not entered Australia unlawfully. Therefore, Criterion 3004(a) applied, and Criterion 3004(b) did not. The Tribunal further determined that Criterion 3004(f)(i) applied, but not 3004(f)(ii). The Tribunal's reasoning focused on the applicants' ability to meet the visa requirements on 12 December 2012. Despite finding the applicants to be sincere witnesses and noting the sponsor's continued intention to sponsor them, the Tribunal concluded that the applicants had not demonstrated they would have been entitled to the visa on the specified date.

Consequently, the Tribunal affirmed the decision not to grant the applicants Temporary Business Entry (Class UC) visas.