T.S. & W. M. RIVETT PTY LTD ATF TS RIVETTS FAMILY TRUST (Migration)

This matter concerned an application for review of a decision not to grant a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The applicant, Mr. Singh, had last held a substantive visa, a Subclass 573 visa, which expired on 30 August 2017. He subsequently applied for a Student visa, which was refused, and had held bridging visas in connection with his review applications. The decision under review was affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether the visa applicant satisfied the relevant Schedule 3 criteria for the grant of the visa, specifically in circumstances where the applicant did not hold a substantive visa at the time of the decision. This required consideration of whether the applicant met the requirements of criteria 3003 and 3004 of Schedule 3 of the Migration Regulations 1994.

The Tribunal reasoned that for visa applications made on or after 14 September 2009, clause 457.221A of the Migration Regulations requires an applicant who is in Australia at the time of decision, but who applied from outside Australia, to either hold a substantive visa (other than a Subclass 771 or special purpose visa) or, if not holding a substantive visa, to meet specified requirements. 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 found that criterion 3003 was not applicable as the applicant did not fit the description of persons to whom it applied. Regarding criterion 3004, the Tribunal noted that it applies to applicants who ceased to hold a substantive visa on or after 1 September 1994 and requires satisfaction that the applicant is not the holder of a substantive visa due to factors beyond their control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with visa conditions. Crucially, it also requires satisfaction that the applicant would have been able to satisfy the criteria for the visa on the day they last held a substantive visa. As Mr. Singh last held a substantive visa on 30 August 2017, and his subsequent Student visa application was refused, he did not meet this requirement.

Consequently, the Tribunal concluded that the visa applicant did not satisfy the applicable criteria for the grant of a Subclass 457 visa. Accordingly, the decision under review was affirmed.