Kwon (Migration)

The Administrative Appeals Tribunal, through Member Warren Stooke AM, considered an application for a Temporary Business Entry (Class UC) visa, subclass 457. The applicant had applied for this visa while holding a Bridging visa, having previously held a Working Holiday visa that had expired. The applicant was not the subject of a nomination and did not hold a substantive visa at the time of application.

The primary legal issue before the Tribunal was whether the applicant would have been entitled to be granted the subclass 457 visa had they applied for it at a time when they last held a substantive visa or, alternatively, if they would have satisfied the criteria for the visa on the day they last entered Australia unlawfully. This involved interpreting the specific wording of sub-items 3004(f)(i) and 3004(f)(ii) of Schedule 3 to the Migration Regulations 1994, which distinguish between an applicant's entitlement based on their last substantive visa and their ability to satisfy criteria on the day of unlawful entry.

The Tribunal reasoned that the distinction in wording between sub-items 3004(f)(i) and 3004(f)(ii) indicated a legislative intention to apply different tests. Sub-item (f)(i) requires an assessment of entitlement to the visa when the applicant last held a substantive visa, whereas sub-item (f)(ii) requires satisfaction of the visa criteria (excluding Schedule 3 criteria) on the day of unlawful entry. The Tribunal noted that Departmental policy, as outlined in the Procedures Advice Manual (PAM 3), distinguished between these sub-items, with (f)(i) requiring an assessment of entitlement and (f)(ii) focusing on satisfying criteria. However, the Tribunal also acknowledged that such policy guidelines are advisory and cannot override the plain wording of the legislation. Ultimately, the Tribunal found that the applicant did not meet the criteria under the relevant provisions.

The Tribunal affirmed the delegate's decision not to grant the applicant the Temporary Business Entry (Class UC) visa.