McInerney (Migration)

This matter concerned an application for Temporary Business Entry (Class UC) visas, subclass 457, by a husband and his children. The applicants had previously held subclass 457 visas as secondary applicants, which ceased on 20 February 2015. Their migration agent had lodged documents for their wife's sponsorship and nomination but failed to lodge new visa applications before their existing visas expired. The applicants subsequently applied for new subclass 457 visas on 7 April 2015, at which time they held bridging visas. The Administrative Appeals Tribunal (the Tribunal) affirmed the decision not to grant the visas.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 457.211 of the Migration Regulations 1994, specifically the Schedule 3 criteria 3003, 3004, and 3005. Clause 457.211 requires applicants in Australia without a substantive visa at the time of application to satisfy these Schedule 3 criteria. The applicants argued that their failure to hold a substantive visa was due to the migration agent's inadequate knowledge and that there were compelling reasons to grant the visa, including significant stress to the wife, loss of permanent residency opportunities, adverse impacts on employers and children, and incurred costs.

The Tribunal found that the applicant did not hold a substantive visa at the time of application and had not previously held a Subclass 771 or special purpose visa, thus triggering the requirement to meet Schedule 3 criteria. While the applicants contended that their inability to secure a substantive visa was due to factors beyond their control, specifically the migration agent's error, the Tribunal ultimately affirmed the delegate's decision. The Tribunal noted that the wife's application had been remitted as a primary applicant, but there was no evidence that she met the primary criteria for the visa in this application, nor that the remaining applicants met the primary criteria. Consequently, as the applicant did not satisfy the primary criteria, the secondary applicants also failed to satisfy clause 457.321.

The Tribunal affirmed the decision not to grant the Temporary Business Entry (Class UC) visas to the applicants.