Liu (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 the decision. The applicant also failed to satisfy Schedule 3 Criterion 3004. The decision under review was affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the relevant Schedule 3 criteria, specifically criteria 3003 and 3004, as required by cl.457.221A of the Migration Regulations 1994. This clause mandates that an applicant who is outside Australia at the time of application but in Australia at the time of decision must either hold a substantive visa (other than a Subclass 771 or special purpose visa) or, if not, meet specified requirements including the Schedule 3 criteria.

The Tribunal found that criterion 3003 was not applicable to the applicant. Regarding criterion 3004, the Tribunal noted that it applies to applicants who ceased to hold a substantive visa on or after 1 September 1994, or who entered Australia unlawfully and have not subsequently been granted a substantive visa. The applicant had held a student visa which ceased on 15 March 2016, and lodged a Subclass 187 visa application shortly before its expiry. However, the nomination for that visa was refused. The Tribunal concluded that the applicant did not satisfy criterion 3004, and there was no evidence that the secondary applicant met the primary visa criteria in their own right. Consequently, the Tribunal affirmed the decision not to grant the visa.