Roperos (Migration)

This matter concerned an applicant for a Temporary Business Entry (Class UC) visa, subclass 457 (Temporary Work (Skilled)), who was employed as a Welder. The central dispute revolved around whether the applicant had substantially complied with the conditions of his last substantive visa, specifically Condition 8107, which governs employment requirements for subclass 457 visa holders. The decision was made by Sean Baker, a Member of the Tribunal.

The Tribunal was required to determine whether the applicant had substantially complied with the conditions of his last substantive visa. This involved assessing whether the applicant's actions, particularly ceasing employment with his initial sponsor and subsequently commencing employment with a new sponsor, constituted a breach of Condition 8107, and if so, whether that breach was substantial. The Tribunal also needed to consider the specific requirements of Condition 8107, including the obligation to work only in the nominated occupation and not to cease employment for more than 60 consecutive days.

The Tribunal reasoned that substantial compliance with visa conditions is a question of fact to be determined by reference to the particular circumstances of the case, drawing on principles from cases such as *Kim v Witton* and *Baidakova v MIMIA*. Relevant factors include the nature and significance of the breach, whether it was deliberate, and any contributing factors to a failure to appreciate the breach. In this instance, the applicant had ceased employment with his previous sponsor, Austal Ships Pty Ltd, on 25 August 2016, and then actively sought and commenced new employment as a Welder with MEI Group Pty Ltd in January 2017. The Tribunal accepted that the applicant had made efforts to find subsequent employment in his nominated occupation.

Given these findings, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the applicant met the criteria under clause 457.221 of Schedule 2 to the Regulations, allowing for further consideration of the remaining criteria for a Subclass 457 visa.