DeLeon (Migration)

This matter concerned applications for Temporary Business Entry (Class UC) visas, subclass 457, made by Mr DeLeon and secondary applicants. The primary dispute revolved around whether Mr DeLeon satisfied the Schedule 3 criteria, specifically criterion 3004, as he did not hold a substantive visa at the time of application. The decision was made by the Tribunal.

The Tribunal was required to determine whether Mr DeLeon met the requirements of criterion 3004 of Schedule 3 of the Migration Regulations 1994. This involved assessing whether his failure to hold a substantive visa was due to factors beyond his control, whether there were compelling reasons for granting the visa, and whether he had complied substantially with the conditions of his previous visas. The Tribunal also considered whether he would have been entitled to the visa had he applied earlier, and his intention to comply with future visa conditions.

The Tribunal found that Mr DeLeon was a diligent and industrious employee, and accepted his written statements and those of his employer. While criterion 3003 was not applicable, the Tribunal was satisfied that Mr DeLeon met the requirements of criterion 3004. This satisfaction was based on evidence indicating that his lack of a substantive visa was due to factors beyond his control, coupled with compelling reasons for granting the visa, including his long residency in Australia and his family's ties to Darwin. The Tribunal also accepted his substantial compliance with previous visa conditions and his intention to comply with future conditions.

The Tribunal remitted the applications for reconsideration, directing that Mr DeLeon met criterion 457.211 of Schedule 2 to the Regulations. The Tribunal also recommended that the applications of the secondary applicants be reconsidered in light of the findings regarding the primary applicant.