Shrestha (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking review of a decision concerning a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The central dispute revolved around whether the applicant had substantially complied with the conditions of their last substantive visa and any subsequent bridging visa while in Australia.

The legal issue before the Tribunal was to determine if the applicant had substantially complied with the conditions attached to their previous substantive visa and any subsequent bridging visa. Specifically, the Tribunal had to assess whether the applicant's failure to maintain enrolment in a registered course constituted a breach of visa conditions and, if so, whether that breach was substantial. The Tribunal also needed to consider the applicant's provided evidence of various course enrolments and the reasons for any periods of non-enrolment.

The Tribunal applied the principle that substantial compliance with visa conditions is a question of fact to be determined by reference to the specific circumstances of each case, drawing on authorities 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. However, the Tribunal acknowledged that these considerations are not exhaustive and that the concept of substantial compliance may not apply to all visa conditions. In this instance, the applicant's last substantive visa was a Subclass 573, subject to various conditions including education requirements. The delegate had found a breach of subclause 8202(2)(a) for failing to be enrolled in a registered course between January 2016 and March 2018. The applicant presented evidence of multiple course enrolments during this period, suggesting attempts to maintain study.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the applicant met the criteria under cl 457.212(3) of Schedule 2 to the Regulations, and the application for a Temporary Business Entry (Class UC) visa was remitted to the Minister for consideration of the remaining criteria.