Gurung (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered the case of an applicant seeking review of a decision not to grant a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The applicant had failed to provide a requested response within the prescribed period and did not hold a substantive visa at the time of application.

The central legal issue before the Tribunal was whether the applicant satisfied criterion 3004 of Schedule 3 of the Migration Regulations 1994, as required by clause 457.211 for applicants in Australia who do not hold a substantive visa. Specifically, the Tribunal had to determine if the applicant would have been entitled to be granted the Subclass 457 visa had they applied on the day they last held a substantive or criminal justice visa.

The Tribunal reasoned that for an applicant in the applicant's circumstances, clause 457.211 requires satisfaction of Schedule 3 criteria, including criterion 3004. Criterion 3004(f)(i) mandates that the applicant would have been entitled to the visa if they had applied on the day they last held a substantive or criminal justice visa. Applying the principles from *Quan v MIMAC* and *Kaur v MIBP*, the Tribunal held that the assessment of entitlement, including any time-of-decision criteria, must be made as at the date the applicant last held a substantive visa. As the applicant failed to satisfy this requirement, they did not meet the applicable criteria for the grant of the visa.

Consequently, the Tribunal affirmed the decision under review, meaning the applicant was not granted the Temporary Business Entry (Class UC) visa.