Keshavarz (Migration)

This matter concerned an application for a Skilled (Residence) (Class VB) visa, Subclass 887, by Ms. Keshavarz. The applicant sought review of a decision concerning her eligibility for this visa. The Tribunal, presided over by Member Mary Sheargold, was tasked with determining whether Ms. Keshavarz had substantially complied with the conditions attached to her previous provisional skilled visa.

The central legal issue was whether Ms. Keshavarz had substantially complied with condition 8539 of her Subclass 489 Regional Skilled (Provisional) (Class SP) visa. This condition required the visa holder to live, study, and work only in an area specified by the Minister in a written instrument. The Tribunal had to consider the scope of this condition, particularly in light of the repeal of Schedule 6A and the relevance of Schedule 6D instruments, such as IMMI 12/015, which specified regional areas for study.

The Tribunal reasoned that the wording of condition 8539 was broad and that the requirement for "substantial compliance" allowed for discretion. Ms. Keshavarz had been granted her Subclass 489 visa on 26 February 2015, sponsored by New South Wales, but arrived in Melbourne on 23 May 2015. Melbourne suburbs were excluded from the postcodes listed in IMMI 12/015. While Ms. Keshavarz initially resided in Melbourne, she later relocated to Geelong West and remained in the Geelong area for the remainder of her provisional visa's validity and beyond. The Tribunal concluded that the applicant had resided and worked in a designated regional area for 74.94% of the time and that the "substantially complied" qualifier permitted a weighing of factors.

Consequently, the Tribunal remitted the application for the Subclass 887 visa for reconsideration. The direction was that the applicant met the criteria under cl.887.221(1) of Schedule 2 to the Regulations, allowing for further consideration of the remaining criteria for the visa.