Barden (Migration)

The Administrative Appeals Tribunal considered an application for a Temporary Business Entry (Class UC) visa, Subclass 457, made by an applicant who did not hold a substantive visa at the time of application and had a lengthy period of unlawful residence in Australia. The Tribunal was required to determine whether the applicant satisfied the relevant Schedule 3 criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant met the requirements of Schedule 3 criterion 3004, which applies to individuals who have ceased to hold a substantive visa or entered Australia unlawfully and have not subsequently been granted a substantive visa. This criterion necessitates satisfaction that the applicant's failure to hold a substantive visa was due to factors beyond their control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with visa conditions. Additionally, the Tribunal must be satisfied that the applicant would have been eligible for the visa at an earlier point and intends to comply with future visa conditions.

The Tribunal found that the applicant had last held a substantive visa in July 2009 and remained unlawful in Australia for nearly eight years before applying for the visa in June 2017. The Tribunal had notified the applicant of this information and provided an opportunity to respond, which was not taken up. Given the applicant's prolonged unlawful status and the lack of any response to the Tribunal's request for information, the Tribunal concluded that the applicant had not demonstrated that their failure to hold a substantive visa was due to factors beyond their control, nor had they established compelling reasons for the visa grant. Consequently, the Tribunal affirmed the decision not to grant the visa.