HOSSAIN (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457, by an applicant who did not hold a substantive visa at the time of application. The Administrative Appeals Tribunal was required to determine whether the applicant met Public Interest Criterion 3004 of Schedule 3, which is an additional criterion applicable to unlawful non-citizens and certain bridging visa holders.

The primary legal issue before the Tribunal was whether the applicant would have been entitled to be granted the visa on the day they last held a substantive visa, as required by criterion 3004(f)(i). This criterion applies to applicants who ceased to hold a substantive visa on or after 1 September 1994. The Tribunal also considered whether the applicant had complied substantially with the conditions of their previous visas and whether there were compelling reasons for granting the visa, as stipulated in other parts of criterion 3004.

The Tribunal reasoned that, in accordance with established case law, including *Quan v MIMAC* and *Kaur v MIBP*, the assessment of whether an applicant would have been entitled to a visa grant must be made as at the date the applicant last held a substantive visa. In this case, the applicant did not have an approved nomination on the day they last held a substantive visa, which is a prerequisite for the grant of a Subclass 457 visa. Consequently, the Tribunal found that the applicant failed to satisfy criterion 3004(f)(i). The Tribunal also noted that the applicant did not respond to a request for further information under section 359A of the *Migration Act 1958* (Cth).

As the applicant did not satisfy the applicable criteria for the grant of a Subclass 457 visa, the Tribunal affirmed the decision under review not to grant the visa.