Elsafi (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream, made by an applicant who did not hold a substantive visa at the time of application. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant satisfied the relevant Schedule 3 criteria, specifically criterion 3004, which applies to applicants who have ceased to hold a substantive visa or entered Australia unlawfully. The applicant contended that their failure to hold a substantive visa was due to factors beyond their control, including depression stemming from the stress of finding a sponsor or returning to their home country, and that compelling reasons existed for granting the visa.

The Tribunal considered whether the applicant met the requirements of criterion 3004. This criterion necessitates satisfaction that the applicant is not the holder of a substantive visa due to factors beyond their control, that compelling reasons exist for granting the visa, and that the applicant has complied substantially with the conditions of their previous visas. Crucially, it also requires the Tribunal to be satisfied that the applicant would have been entitled to the visa on the day they last held a substantive visa or entered Australia unlawfully, and that they intend to comply with the visa conditions. The applicant provided evidence of depression and anxiety, but the medical certificate covered a limited period and did not establish that these conditions prevented them from obtaining a substantive visa throughout the relevant timeframe.

The Tribunal found that criterion 3003 was not applicable to the applicant. Regarding criterion 3004, while acknowledging the applicant's stated difficulties, the Tribunal was not satisfied that the applicant's failure to hold a substantive visa was due to factors beyond their control for the entire period in question. Furthermore, the Tribunal noted that the applicant would not have been entitled to the visa on the day they last held a substantive visa, despite the subsequent approval of their position nomination. Consequently, the Tribunal concluded that the applicant did not satisfy the applicable criteria for the grant of the subclass 457 visa.

The Administrative Appeals Tribunal affirmed the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.