Reid (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, subclass 457, made by an applicant who was in Australia at the time of application. The Tribunal was required to determine whether the applicant met the requirements of clause 457.211 of the Migration Regulations 1994.

The central legal issue was whether the applicant satisfied clause 457.211, which requires an applicant in Australia to hold a substantive visa, or, if not, that their last substantive visa was not a transit or special purpose visa and they satisfied Schedule 3 criteria 3003, 3004, and 3005. The Tribunal specifically considered whether the applicant met criterion 3005 of Schedule 3.

The Tribunal found that the applicant did not hold a substantive visa at the time of application, having previously held a Working Holiday (Subclass 417) visa which expired, and subsequently being granted a bridging visa. The applicant had been in Australia without a substantive visa for approximately six months before applying for the subclass 457 visa. The Tribunal noted that the applicant had previously been granted a visa when he was not the holder of a substantive visa. Crucially, the Tribunal found that the applicant did not meet the requirements of item 3005 of Schedule 3, which states that a visa or entry permit has not previously been granted to the applicant on the basis of satisfying the criteria in Schedule 3. As a result, the Tribunal concluded that the applicant did not meet the requirements of clause 457.211(b)(ii) and therefore did not meet the requirements of clause 457.211.

The Tribunal affirmed the decision not to grant the applicant the subclass 457 visa. The Tribunal noted that it had no discretion to waive the mandatory criteria and that the applicant's circumstances might be relevant to potential ministerial intervention under section 351 of the Migration Act 1958, but did not provide a basis for the Tribunal to find in the applicant's favour.