Substantial Compliance And Living In A Regional Area

 
 

In Ismail 0903201 [2013] MRTA 1420 (3 July 2013), the applicant a subclass 495 visa holder did not live in the regional area for 6 months and was therefore in breach of condition 8539.  The subclass 887 permanent residence skilled visa required that the applicant and persons included in the application have substantially complied with the conditions of the skilled regional visa previously held, (cl.887.221).  The MRT set out the law in paragraphs 13-16:

The issue of substantial compliance will only arise in relation to those conditions which have been breached (Chowdhury v MIMIA [2005] FMCA 1243 at [37]) and to which the concept can logically apply: Jayasekara v MIMIA [2006] FCAFC 167; (2006) 156 FCR 199 at [12].

Whether the applicant has complied substantially with a visa condition is a question of fact, to be determined having regard to the particular circumstances of the case: Kim v Witton [1995] FCA 1508; (1995) 59 FCR 258 (at 271), followed in Baidakova v MIMIA [1998] FCA 1436. For example, the circumstances considered by Sackville J to be relevant in Kim v Witton included:

  • the nature of the breach of condition;
  • the significance of the breach, especially by reference to the purposes for which the visa or entry permit was granted;
  • whether or not the applicant deliberately flouted the condition; and
  • if the applicant failed to appreciate that he or she was in breach of the condition, what, if anything, contributed to that failure and, in particular, whether the Department misled the applicant.

However, there is no rigid test, and those considerations should not be regarded as exhaustive, or elevated to the status of relevant considerations in every case: see Shrestha v MIMA [2001] FCA 1578 and MIMA v Modi [2001] FCA 1656; (2001) 116 FCR 496.

The substantial compliance requirement contemplates that some degree of non-compliance with visa conditions may be permitted: Kim v Witton (1995) 59 FCR 258 (at 271). Further, the Court in Kim v Witton (at 270) held that an applicant might ‘comply substantially’ with a condition imposing a prohibition, even if the condition has been breached. However, there are some conditions to which the concept of substantial compliance has no logical application. In such cases, the Regulations are to be read as not admitting any qualification of substantial compliance: Jayasekara v MIMIA [2006] FCAFC 167; (2006) 156 FCR 199 at [12].

Here is how the MRT found in his favour (paragraphs 41-43)

 

In the present case, the evidence indicates that even before the subclass 495 visa was granted to him on 25 January 2006, the applicant was living and working in regional Victoria. This is important in the view of the Tribunal as it goes to the question of the applicant’s intentions, and lends credibility to his claim that after two years in regional Victoria he approached the Department to inquire whether he could return to Melbourne, and was apparently misled by what he was told into thinking he could do so without either breaching his visa conditions or adversely affecting his permanent visa application. That he did form this view is obvious from the fact that he openly declared in that application that after two years in regional Victoria he was now living and working in inner Melbourne. The evidence indicates that once he was informed that he was in breach of condition 8539, via the primary decision itself, he promptly took steps to rectify the situation, leaving his job and moving back to regional Victoria.

Although the purpose of the subclass 495 and other regional skilled visas (ie; to address regional labour shortages and boost regional economic activity) may not be fully served by applicants simply living and working in regional areas for the bare minimum qualifying period before returning to the city, one might well gain the impression that this is permissible from the subclass 887 visa criterion such as cl.887.212, which sets out such minimum qualifying periods.

Having regard to this information, the Tribunal is satisfied that the applicant did not deliberately flout condition 8539, and concludes that the breach of condition 8539 was not a serious one. Applying the analysis in Kim v Witton, the Tribunal finds that the applicant complied substantially with condition 8539.

Barbara Davidson