New Hampton Pty Ltd (Migration)

This matter concerned an application by New Hampton Pty Ltd for a Temporary Business Entry (Class UC) visa, subclass 457. The applicant was seeking review of a decision to refuse the visa. The case was heard by Bridget Cullen, Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of cl.457.221A of Schedule 2 to the Migration Regulations 1994. This involved determining if the applicant satisfied the relevant Schedule 3 criteria, specifically cll. 3003 and 3004, given that the applicant did not hold a substantive visa at the time of the decision and had not held a Subclass 771 or special purpose visa.

The Tribunal reasoned that for visa applications made after 14 September 2009, an applicant who is offshore at the time of application but onshore at the time of decision must either hold a substantive visa (other than a Subclass 771 or special purpose visa) or, if not, meet specific Schedule 3 criteria. The applicant did not hold a substantive visa at the time of decision and had not held a Subclass 771 or special purpose visa. Criterion 3003 was found not to apply as the applicant was not an illegal entrant or holder of an entry permit not valid beyond 31 August 1994. Criterion 3004, which requires the applicant to demonstrate that their lack of a substantive visa was due to factors beyond their control, compelling reasons for granting the visa, and substantial compliance with visa conditions, was also not met. The Tribunal noted that the applicant last held a substantive visa on 30 August 2016 and applied for the current visa on 21 December 2017. The Tribunal had invited a response under s 359A of the Migration Act 1958, with an initial due date of 3 March 2020, which was subsequently extended to 10 March 2020.

As the applicant did not satisfy the applicable criteria for the grant of a Subclass 457 visa, the Tribunal affirmed the decision under review.