THORPE (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), made by Mr Thorpe. The Administrative Appeals Tribunal was required to determine whether the decision to refuse the visa should be affirmed. Mr Thorpe did not hold a substantive visa at the time of his application, having been in Australia unlawfully for over four years following the expiry of his Electronic Travel Authority (Visitor) Subclass 976 visa.

The primary legal issue before the Tribunal was whether Mr Thorpe satisfied Schedule 3 criterion 3004, which is applicable to applicants who do not hold a substantive visa at the time of application. This criterion requires the Tribunal to be satisfied of several matters, including that the applicant ceased to hold a substantive visa due to factors beyond their control, that there are compelling reasons for granting the visa, that the applicant has substantially complied with the conditions of their previous visa, and that they would have been eligible for the visa had they applied on the day they last held a substantive visa or entered Australia unlawfully.

The Tribunal noted that Mr Thorpe accepted he did not hold a substantive visa when he applied for the Subclass 457 visa and had been an unlawful non-citizen for over four years. While submissions were made regarding factors beyond his control and compelling reasons for granting the visa, the Tribunal's decision indicates that Mr Thorpe failed to satisfy the applicable Schedule 3 criteria. Consequently, the Tribunal affirmed the decision not to grant the visa.