MOUNSEY (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), heard by Senior Member R. Skaros. The applicant did not hold a substantive visa at the time of application and sought to rely on Schedule 3 criteria, specifically criterion 3004, to satisfy the requirements of clause 457.211 of the Migration Regulations 1994. The central dispute revolved around whether the applicant met the conditions of criterion 3004, particularly the requirement that they would have been entitled to the visa on the day they last held a substantive visa.

The legal issues before the Tribunal were whether the applicant satisfied the requirements of Schedule 3 criterion 3004, and specifically, whether the applicant would have been entitled to be granted the Subclass 457 visa if they had applied on the day they last held a substantive visa. This involved assessing whether the applicant's failure to hold a substantive visa was due to factors beyond their control, whether there were compelling reasons for granting the visa, and whether they had substantially complied with visa conditions. The Tribunal also had to consider the timing of the assessment for entitlement to the visa, as established in previous case law.

The Tribunal reasoned that for an applicant in the applicant's circumstances, criterion 3004(f)(i) requires satisfaction that the applicant would have been entitled to the visa on the day they last held a substantive visa. Drawing on the principles from *Quan v MIMAC* and *Kaur v MIBP*, the Tribunal affirmed that the relevant date for assessing entitlement, including time of decision criteria, is the date the applicant last held a substantive visa. As the applicant did not meet this specific requirement, the Tribunal concluded that they did not satisfy the applicable criteria for the grant of the visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Temporary Business Entry (Class UC) visa.