Wong (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) Subclass 457 visa. The applicant, who did not hold a substantive visa at the time of application, sought to rely on Schedule 3 criteria to satisfy the visa requirements. The Tribunal was required to determine whether the applicant met Schedule 3 criteria 3003, 3004, and 3005, particularly in circumstances where the applicant's migration agent had, without her consent, ticked a box indicating she would withdraw her visa application if the nomination application was refused.

The central legal issue was whether the applicant's failure to hold a substantive visa was due to factors beyond her control, as required by Schedule 3 criteria. Specifically, the Tribunal had to consider whether the actions of the migration agent, in ticking the withdrawal box without the applicant's consent, constituted a factor beyond the applicant's control, thereby allowing her to satisfy the Schedule 3 criteria. The Tribunal also had to assess whether there were compelling reasons for granting the visa and if the applicant had complied substantially with the conditions of her previous visas.

The Tribunal reasoned that while generally the actions of a migration agent are attributed to the applicant, the specific conduct in this case – an agent ticking a withdrawal box without consent – went beyond mere inaction and constituted an affirmative action that placed the applicant in a position of not holding a substantive visa. This action, the Tribunal found, was a factor beyond the applicant's control, aligning with the policy intention of Schedule 3 criteria to address circumstances where an applicant's visa status is affected by events outside their influence. The Tribunal noted that while policy examples often refer to deregistered agents, the principle of an agent's actions being beyond the applicant's control could extend to registered agents acting without consent. The Tribunal concluded that the applicant met Schedule 3 criteria 3003, 3004, and 3005.

Consequently, the Tribunal remitted the applications for Temporary Business Entry (Class UC) visas for reconsideration. The direction was that the first named applicant met the relevant Schedule 3 criteria for a Subclass 457 visa. The Tribunal also noted that it did not have jurisdiction to review the applications of the other named applicants as they were located outside Australia at the time of merits review and had different review rights.