Buchanan (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Subclass 407 (Training) visa. The primary issue before the Tribunal was whether the applicant had genuinely intended to stay temporarily in Australia, as required by clause 407.217(a) of the Migration Regulations. This assessment involved examining the applicant's compliance with the conditions of their previous substantive and bridging visas.

The Tribunal was required to determine if the applicant had substantially complied with the conditions of their last substantive visa and any subsequent bridging visas, specifically condition 8547, which limits employment with any one employer to six months without prior written permission. The applicant's previous representative had conceded a breach of this condition due to work undertaken for two related companies, GYRO and AUGER, which shared the same Australian Business Number (ABN).

In its reasoning, the Tribunal analysed the Department's policy regarding condition 8547, including the definition of "one employer" and specific exemptions. It noted that separate businesses with different ABNs are generally considered different employers, but a new company with a new ABN would be a new employer even if duties were similar. The Tribunal also considered the policy exemption for work in certain high-demand industries in Northern Australia. After reviewing the postcodes where the applicant had worked and comparing them to the designated areas for the Northern Australia exemption, the Tribunal concluded that some of the work performed did not fall within this exemption. However, it also considered a subsequent policy provision allowing for combined work with the same end user for more than six months, provided work in any one location did not exceed six months. Based on this, the Tribunal found that the applicant had not breached condition 8547.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the criteria under clause 407.217(a).