Kailay (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, subclass 457, made by an applicant who was in Australia at the time of application but did not hold a substantive visa. The applicant sought review of a decision that he failed to satisfy criterion 3004 of Schedule 3 to the Migration Regulations 1994 (Cth). The core of the dispute revolved around whether the applicant's 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 would have been entitled to the visa had he applied earlier.

The Tribunal was required to determine whether the applicant satisfied the Schedule 3 criteria, specifically criterion 3004, which applies when an applicant does not hold a substantive visa at the time of application. This criterion 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 complied with the conditions of previous visas. Furthermore, the Tribunal had to consider whether the applicant would have been able to satisfy the visa criteria if they had applied on the day they last held a substantive visa, as interpreted by the Federal Court in *Zhuang v Minister for Home Affairs* [2019] FCCA 3699.

The Tribunal found that the applicant's former migration agent had their registration cancelled by the Office of the Migration Agents’ Registration Authority (OMARA) due to serious misconduct, including failing to act in clients' interests and failing to act in accordance with instructions. The Tribunal accepted that the agent's negligent actions, specifically withdrawing the applicant's visa application without authority, constituted factors beyond the applicant's control, thereby satisfying criterion 3004(c). Regarding criterion 3004(f), the Tribunal applied the reasoning in *Zhuang*, holding that it required an assessment of whether the applicant *could have* secured a nomination had they applied earlier, rather than requiring an already approved nomination at the time of their last substantive visa. The Tribunal was satisfied that there were compelling reasons for granting the visa, considering the circumstances leading to the applicant's predicament and the employer's commitment to re-employ him.

Consequently, the Tribunal concluded that the applicant met criterion 3004 of Schedule 3. The decision under review was remitted for reconsideration, with the Tribunal finding that the applicant had satisfied the necessary criteria for the grant of the subclass 457 visa.