Guruji Group Pty Ltd (Migration)

The Administrative Appeals Tribunal considered the case of Guruji Group Pty Ltd concerning applications for Temporary Business Entry (Class UC) visas, Subclass 457 (Temporary Work (Skilled)). The primary issue before the Tribunal was whether the first named visa applicant satisfied criterion 3004 of Schedule 3 of the Migration Regulations 1994, which is applicable to applicants who do not hold a substantive visa at the time of decision. The applicant was offshore at the date of application, and the Tribunal was required to determine if the applicant met the specified requirements for the visa, particularly in light of not holding a substantive visa at the time of the decision.

The legal issues before the Tribunal were whether the first named visa applicant met the requirements of criterion 3004 of Schedule 3, which necessitates satisfaction that the applicant is not the holder of a substantive visa due to factors beyond their control, that there are compelling reasons for granting the visa, and that the applicant has substantially complied with the conditions of their previous visas. Furthermore, the Tribunal had to assess whether the applicant would have been entitled to the visa on the day they last held a substantive visa, and whether they intended to comply with the visa conditions. The Tribunal also considered the contention that the applicant did not hold a substantive visa due to factors beyond her control and that the Department’s decision was unfair.

The Tribunal reasoned that for visa applications made on or after 14 September 2009, an applicant outside Australia at the time of application must either hold a substantive visa at the time of decision or, if not, meet specific requirements including those in Schedule 3. The Tribunal found that the first named applicant did not hold a substantive visa at the time of decision and had not held a Subclass 771 or special purpose visa. While criterion 3003 was not applicable, the Tribunal examined criterion 3004. The Tribunal noted that it was conceded that the applicant did not hold a substantive visa at the time of application and that on 30 September 2016, there was no approved nomination. Ultimately, the Tribunal concluded that the applicant had not met the requirements for the grant of a Subclass 457 visa.

Consequently, the Tribunal affirmed the decision not to grant the Temporary Business Entry (Class UC) visas to the applicants. The Tribunal found that as the first named applicant did not meet the requirements for the Subclass 457 visa, the second and third named applicants, whose eligibility was dependent on the first applicant, also did not satisfy the relevant criteria.