Tam (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Temporary Business Entry (Class UC) visa, Subclass 457. The dispute centred on whether the applicant had complied with the conditions of their previous visas, specifically condition 8547, which limits employment with any single employer to a maximum of six months. The applicant had worked for the same employer for seven months on a Subclass 417 Working Holiday visa and subsequently continued working for that same employer for an extended period while holding a Bridging visa A.

The primary legal issue before the Tribunal was whether the applicant had substantially complied with the conditions of their last substantive visa and any subsequent bridging visa, as required by clause 457.221 of the Migration Regulations. This involved determining whether the applicant's breaches of condition 8547 were significant enough to preclude them from meeting the visa grant requirements. The Tribunal was required to assess the nature and significance of the breaches, whether they were deliberate, and any contributing factors to the applicant's failure to appreciate the breach.

The Tribunal reasoned that the concept of substantial compliance, as discussed in cases like *Kim v Witton* and *Baidakova v MIMIA*, does not apply to all visa conditions. In this instance, condition 8547, which imposes a strict six-month limit with any one employer, is one where substantial compliance is not logically applicable; the condition is either satisfied or it is not. The applicant admitted to working for the same employer for seven months on their 417 visa and then continuing to work for that employer after obtaining a Bridging visa A. As the applicant had clearly exceeded the six-month limitation on two separate occasions, they had not satisfied the condition.

Consequently, the Tribunal concluded that the applicant did not meet the criteria for the grant of a Subclass 457 visa due to their failure to comply with condition 8547. The decision under review, which was not to grant the visa, was affirmed.