Singh (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, subclass 457, where the applicant was alleged to have breached the work limitation condition, Condition 8105. The applicant contended that they had not worked more than 40 hours a fortnight. The decision under review was made by the Tribunal, and the case was heard by Stavros Georgiadis.

The primary legal issue before the Tribunal was whether the applicant had substantially complied with the conditions of their previous visas, as required by regulation 457.221 of the Migration Regulations. This regulation mandates that an applicant in Australia must have substantially complied with the conditions of their last substantive visa and any subsequent bridging visas. The Tribunal was required to determine if the applicant's work activities, specifically working no more than 40 hours a fortnight, constituted substantial compliance with Condition 8105.

The Tribunal reasoned that the question of substantial compliance is a question of fact to be determined by the specific circumstances of each case, referencing established case law. While certain factors, such as the nature and significance of the breach, whether it was deliberate, and any departmental misinformation, are relevant, they are not exhaustive. The Tribunal noted that for some conditions, substantial compliance is not applicable, and the condition is either met or not. In this instance, the applicant's last substantive visa was a subclass 573 student visa, and they subsequently held bridging visas, both subject to Condition 8105, which limits work to 40 hours a fortnight during study periods.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the applicant be considered to meet the criteria under cl.457.221 of Schedule 2 to the Regulations, allowing for further assessment of the remaining criteria for the subclass 457 visa.