1620529 (Migration) - [2018] AATA 2236

1620529 (Migration) [2018] AATA 2236 (1 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1620529
MEMBER:K. Chapman
DATE:1 June 2018
PLACE OF DECISION: Brisbane
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:
·cl.820.211(2) of Schedule 2 to the Regulations;
·cl.820.221(1) of Schedule 2 to the Regulations; and
·r.2.03A.

Statement made on 01 June 2018 at 7:30pm

CATCHWORDS
Migration – Partner (Residence) (Class BS) visa –Subclass 820 (Spouse) – Whether the Schedule 3 criteria should be waivered – Australian citizen children – Compelling reasons – Medical issues affecting the sponsor and son – Genuine De facto relationship – Religious wedding ceremony – Life together – Well known as a family unit with children – Decision under review remitted for consideration
LEGISLATION
Migration Act 1958 ss 5CB, 65, 359, 375A
Migration Regulations 1994 r 2.03A Schedule 2 cls 820.211, 820.221 Schedule 3 Criterion 3001, 3003, 3004
CASES
Babicci v MIMIA (2005) 141 FCR 285
Jayasinghe v MIMA [2006] FCA 1700
MZYPZ v MIAC [2012] FCA 478
Singh v Minister for Immigration & Anor [2015] FCCA 1196
SZOXP v MIBP FCAFC 69
SZOXP v MIBP FCAFC 69
Waensila v MIBP [2016] FCAFC 32
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration on 15 November 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (‘the Act’).
The applicant [applied] for the visa on 20 July 2015 on the basis of the relationship with his [sponsor]. The applicant is a national of [Country 1]. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211(2)(a) and cl.820.211(2)(d)(ii), not being satisfied the applicant and sponsor were in a genuine and continuing de facto relationship at the time of application. Further, the delegate determined that the applicant did not hold a substantive visa at the time of application, did not satisfy Public Interest Criterion 3001 (‘PIC 3001’), and it was not accepted there were compelling reasons for not applying that criterion.
On 3 December 2016, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with his application. On 10 January 2018, the Tribunal wrote to the applicant pursuant to subsection 359(2) of the Act inviting him to provide further information concerning whether there are compelling reasons with respect to PIC 3001, and to support his claims of having been in a de facto relationship with the sponsor. Following an extension of time, a response was received on 7 February 2018 enclosing material including a written submission, [State 1] Birth Certificates for his two Australian citizen children, residential information, medical information, third party statements in support of the relationship, and money transfer receipts. The aforementioned material has been duly considered by the Tribunal.
The applicant appeared before the Tribunal on 11 May 2018 to give evidence and present arguments. His registered migration agent did not attend the review hearing. The Tribunal also received oral evidence from the sponsor, and [Ms A] (a friend of the couple). The two young children of the applicant and sponsor also attended the review hearing. The applicant submitted documents at the review hearing including financial and employment records. The Tribunal also provided the applicant with more time following the review hearing to submit further evidence and on 11 May 2018 received medical information, with an additional Form 888 Statutory Declaration in support of the relationship being received on 14 May 2018. The aforementioned material has been duly considered by the Tribunal.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
ISSUES AND LAW
There is a two stage process for onshore Partner visas. An applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years.
Pursuant to cl.820.211(2)(d), an applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria. These criteria are set out in the attachment to this decision.
In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2). Criterion 3003 of Schedule 3 applies in a limited number of cases where the applicant has not been the holder of a substantive visa on or after 1 September 1994, and on 31 August 1994 was either an illegal entrant or the holder of an entry permit that was not valid beyond that date. Criterion 3004 of Schedule 3 requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, and that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions applicable to the last of any entry permits and subsequent bridging visa or the last of any substantive visa and bridging visa held by the applicant. Additional requirements also apply with respect to criterion 3004 however it is unnecessary for the Tribunal to expand upon them in the present matter.
Further, clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the de facto partner of the sponsor, who is an Australian citizen by birth.
The issues in the present case therefore include whether the Schedule 3 criteria are satisfied, and if they are not satisfied, whether there are compelling reasons for not applying those criteria. Further, if the applicant satisfies cl.820.211(2)(d), other issues for consideration are whether he was at the time of the visa application, and remains at the time of the making of this decision, the de facto partner of the sponsor.
CONSIDERATION OF CLAIMS AND EVIDENCE
Does the applicant meet the Schedule 3 criteria, or should those criteria be waived?
An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl.820.211(2)(d).
It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, an issue in the present case is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria. These criteria are set out in the attachment to this decision.
Criterion 3001
In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision. In the present matter, the relevant day is 15 February 2015 being the last day the applicant held a substantive visa. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001. It is therefore unnecessary to make findings upon criteria 3003 or 3004.
Are there compelling reasons to waive the Schedule 3 criteria?
As the Tribunal has found that the applicant does not meet the relevant Schedule 3 criteria, it is required to consider whether there are compelling reasons for not applying the criteria. The expression ‘compelling reasons’ is not defined for these purposes. However, the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.
According to the Macquarie Dictionary ‘compel’ or ‘compelling’ means ‘to force or drive, especially to a course of action’. In the context of r.1.20J of the Regulations, the Full Court of the Federal Court in Babicci v MIMIA (2005) 141 FCR 285 at [24] noted that:
there are… shades of differences between the various dictionary definitions of “compelling”. But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in Regulation 1.20J(1) should be waived.
Although these comments were made in the context of the term ‘compelling circumstances’ in regulation 1.20J, the Tribunal considers them relevant to the issue presently before it.
The requirement in cl.820.211(2)(d)(ii) for there to be compelling reasons to waive the Schedule 3 criteria is in addition to the criterion in cl.820.211(2)(a) requiring the applicant and sponsor to be in a genuine de facto relationship at the time of application. Notably, in the recent case of Singh v Minister for Immigration & Anor [2015] FCCA 1196 (27 April 2015), Jarrett J of the Federal Circuit Court of Australia at [22] stated:
As the tribunal suggests, the facts of marriage and cohabitation of themselves are not sufficient to enliven the waiver set out in clause 820.211 (2)(d)(ii). I accept the argument for the first respondent that were that so, it is difficult to see the work that might be done by the requirement to satisfy compelling circumstances in cases where parties are married and have lived, or are living together.
The Tribunal is required to apply the legislation which states that it must be satisfied there are compelling reasons for not applying the Schedule 3 criteria. As is stated in SZOXP v MIBP FCAFC 69 at paragraph 14:
Context, such as legislative history or extrinsic materials, is a guide to the meaning of the statute but it “cannot displace the meaning of the statutory text” and it is the meaning of the statutory text which is where the task of statutory construction begins and ends: Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2013) 250 CLR 503, 519.
The Tribunal is obliged to consider all the circumstances of the case including any matters put forward by an applicant and determine on the evidence as a whole whether there are compelling circumstances: MZYPZ v MIAC [2012] FCA 478 (Bromberg J, 9 May 2012) at [12].
The Tribunal has considered all of the circumstances of the present application, including the matters specifically raised by the applicant and those raised in other evidence. The Tribunal notes that in considering whether there are compelling reasons for not applying the Schedule 3 criteria, the practical effect if the criteria are not waived is that the visa applicant may be required to leave Australia and apply for a Partner visa offshore.
The applicant agreed with the following summary of his movement record provided in the Departmental delegate’s decision. He initially arrived in Australia on 21 August 2009 as the holder of a Subclass 573 Student visa. He departed and returned to Australia whilst holding that visa. On 19 March 2014 the applicant’s Student visa was cancelled due to non-attendance and he subsequently departed Australia as an unlawful non-citizen. He returned to Australia as the holder of a Subclass 600 Visitor visa on 16 September 2014, departed once more and returned on 15 November 2014. The applicant has remained onshore since that time. The applicant’s Visitor visa ceased on 15 February 2015. He applied for the onshore Partner visa on 20 July 2015. The applicant has held a succession of visas of the Bridging Visa E variety.
The evidence before the Tribunal indicates the applicant commenced a relationship with the sponsor in mid-2010. They have lived together since late 2010, other than when he has been offshore. Their first Australian citizen child was born on [date]. He is now [age] years. They conducted [a] wedding ceremony on [date] May 2015 (which is not a lawful marriage under Australian law). Their second Australian citizen child was born on [date]. She is now [age] years. The sponsor is currently pregnant with their third child. In the view of the Tribunal, the mere circumstance of having a child, in and of itself, does not automatically found compelling circumstances to waive the Schedule 3 criteria. Nor does being pregnant or having a long term relationship automatically found such circumstances. The Tribunal must consider the totality of the circumstances pertaining to the applicant’s situation and then make a careful assessment of them. Accordingly, the Tribunal has done so.
The applicant advised that at the time of application he was in financial difficulty and had to wait for money from [Country 1] in order to fund his onshore Partner visa application. His son also had medical problems at that time and was hospitalised for some weeks. Further, the sponsor was pregnant with their second child and was suffering from [a medical condition]. The sponsor confirmed these matters with the Tribunal and provided further detail of the medical issues afflicting their son at that time. He had [an operation] performed on 19 July 2015 which had an adverse outcome. The child is still receiving treatment. Medical evidence has been provided to the Tribunal confirming this adverse outcome. Medical evidence is also before the Tribunal confirming the sponsor’s [medical condition]. Both members of the couple advised the Tribunal that the applicant is the primary income earner from his work in [a certain role], with the sponsor being in receipt of Centrelink payments. They indicated that if the applicant departs Australia, the sponsor and their children will suffer financially and emotionally. The oral evidence of [Ms A] was consistent with the aforementioned matters.
When the applicant’s circumstances are considered holistically, the Tribunal is compelled to waive the Schedule 3 criteria given the interplay of the situations that the sponsor and her children will find themselves in if the applicant returns to [Country 1] in order to make an offshore Partner visa application. Whilst the Tribunal is concerned that the applicant had his Student visa cancelled due to non-attendance, he was frank in his oral evidence and the Tribunal found him to be a reliable witness. The Tribunal finds that the patchy immigration history of the applicant is outweighed by the medical issues afflicting the sponsor and their son, the pregnancy of the sponsor, and the financial and emotional hardship that would follow to them if the applicant departed Australia. Whilst the Tribunal has found that compelling reasons exist in the specific circumstances of the applicant, he should clearly understand that his permanent stage Partner visa application is likely to attract careful scrutiny by the Department. The applicant should be under no illusion that any further transgressions of immigration law by him in Australia might jeopardise his immigration status.
For the above reasons, the Tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant meets cl.820.211(2)(d)(ii).
Are the other requirements for a de facto relationship met?
In assessing whether the applicant and sponsor have been in a de facto relationship, the Tribunal has considered the documentary evidence submitted with the primary application, additional documentary evidence that was provided to the Tribunal and the oral evidence given during the review hearing. Having regard to the principles outlined in the decision of Jayasinghe v MIMA [2006] FCA 1700, when considering the circumstances of the relationship at the time of the visa application, the Tribunal has had regard to later events as they tend logically to show the existence of prior facts. The Tribunal observes this is a matter where the applicant furnished it with more extensive evidence that was unavailable to the primary decision maker.
Circumstances of the relationship
The Tribunal has considered all of the circumstances of the relationship, including the following matters, in arriving at its decision concerning the existence of a de facto relationship between the applicant and the sponsor.
Section 375A Certificate
The Tribunal notes that material in the Departmental file is covered by a certificate pursuant to s.375A of the Act dated 19 October 2017. The Tribunal provided a copy of the certificate to the applicant during the review hearing and allowed him the opportunity to comment upon its validity. The certificate cites public interest grounds for non-disclosure of information provided by the Department of Human Services which may be summarised as lack of consent for disclosure and prejudice to the effectiveness of confidential investigative methods. The Tribunal finds that the s.375A certificate is valid.
During the review hearing the Tribunal provided the applicant with the gist of the information covered by the s.375A certificate. Essentially that information is comprised of Centrelink records regarding when the couple declared their relationship to that agency. This material was put to the applicant pursuant to the s.359AA procedure. The applicant responded in oral evidence that due to financial hardship the sponsor had not declared the relationship at the appropriate time. In her oral evidence the sponsor denied this and advised that with the turmoil in their lives at the time of application she overlooked providing regular updates to Centrelink. Both members of the couple told the Tribunal that they now regularly report the income of the applicant to Centrelink. Having careful regard to the evidence, the Tribunal places no weight upon the Centrelink information with regard to the veracity of the relationship between the applicant and sponsor given the weight of evidence corroborating their relationship together. The Tribunal places the applicant upon notice that his dealings with Centrelink must be fully honest otherwise he might attract adverse attention from that agency which may affect his future visa status.
Financial aspects of the relationship
Limited documentary evidence was before the Tribunal regarding the financial aspects of the relationship at the time of application. The oral evidence of the parties is that they were in straitened financial circumstances at the time of application. The sponsor was on maternity leave and in receipt of Centrelink payments. She was the primary income earner at that time as the applicant had no work rights.

Following the time of application more extensive documentary evidence points to the couple enmeshing their finances. Financial records indicate that the applicant is the primary income earner for the family, with the sponsor in receipt of Centrelink. Oral evidence from the applicant and sponsor was consistent in that the applicant was acknowledged as the primary provider of finances for their household, that funds are shared between the parties and joint funds are put towards the care of the couple’s children. Following careful consideration, the Tribunal affords the evidence in support of the financial aspects of the relationship medium weight.
Nature of the household
The applicant and sponsor advised that they have lived together with each other since late 2010, other than when the former was offshore. The [State 1] Birth Certificate for their eldest child reflects the couple living at the same address on [date] as does that for their second child as at [date]. Official receipts from the [State 1] Residential Tenancies Authority dated [March] 2012 and [September] 2017 indicate the couple to have been living together at those times. Contemporary rental documentation and third party statements further indicate that they remain living together. The oral evidence of the applicant, sponsor and [Ms A] is also consistent with the couple having lived together, whilst raising their children and performing housework, for a significant period of time. After careful consideration, the Tribunal affords the evidence in support of the nature of the household high weight.
Social aspects of the relationship
The applicant placed before the Tribunal further documentary evidence concerning the social aspects of the relationship that was unavailable to the primary decision maker. This included additional third party statements. The oral evidence of the applicant, sponsor and [Ms A] was also consistent with the couple being well known among family and friends to be in a genuine de facto relationship. It is apparent to the Tribunal that at the time of this decision, the couple are well known as a family unit with children. Following careful consideration, the Tribunal affords the evidence in support of the social aspects of the relationship medium weight.
Nature of the persons’ commitment to each other
The documentary evidence referred to above supports the contention that the applicant and sponsor have been in a committed relationship with each other since mid-2010. [State 1] Birth Certificates corroborate that they have two Australian citizen children together. It is apparent from the documentary evidence that the couple are raising their children together and interacting as a family unit amongst family and friends. The oral evidence of the couple and [Ms A] indicates the applicant and sponsor draw a significant degree of companionship and emotional support from each other and both see the relationship as long term. In particular, the Tribunal accepts that the applicant has provided strong support to the sponsor with respect to her health conditions and in assisting her with caring for their children.
The Tribunal also notes the couple are expecting their third child together. The Tribunal also had the benefit of observing the interactions between the applicant, sponsor and their children during the review hearing, and finds them to be consistent with the couple having a significant degree of commitment to each other. After careful consideration, the Tribunal affords the evidence in support of the nature of the persons’ commitment to each other high weight.
Conclusion regarding the de facto relationship
Having regard to the matters above, the Tribunal is satisfied that [the applicant] and [the sponsor] are not married to each other, but have had, and continue to have, a mutual commitment to a shared life to the exclusion of all others, and that the relationship between them has been and remains genuine and continuing. The Tribunal is also satisfied they have lived together continuously since late 2010 (other than when the applicant has been overseas) and that they are not related by family. The Tribunal is therefore satisfied the requirements of s.5CB(2)(a)-(d) of the Act were met at the time of the visa application and continue to be met at the time of this decision.
Given these findings, the Tribunal is satisfied that at the time the visa application was made, and at the time of this decision, [the applicant] and [the sponsor] were in a de facto relationship as defined in the Act. The Tribunal is also satisfied that [the sponsor] was aged over 18 years when she sponsored [the applicant], and further that she is not prohibited from being a sponsoring partner. Therefore the Tribunal finds that [the applicant] meets the requirements of clauses 820.211(2) and 820.221(1).
Are the additional criteria for a de facto relationship met?
Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A. These are: that the couple are both at least 18 years of age; and with limited exceptions, that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application, unless he or she can establish compelling and compassionate circumstances for the grant of the visa.
The requirement that the relationship existed for 12 months prior to the application does not apply in certain circumstances where the sponsor is or was a humanitarian visa holder, or for applications made on or after 9 November 2009, where the de facto relationship has been registered under a relevant State or Territory law: r.2.03(4), (5).
The requirement in r.2.03A(3) that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of application, unless compelling or compassionate circumstances exist for the grant of the visa, does not apply if:
(a) the applicant applies on the basis of being in a de facto relationship with a person who has held a permanent humanitarian visa, and who was in a de facto relationship with the applicant and informed the Department of Immigration of the existence of the relationship before that visa was granted: r.2.03A(4)(a); or
(b) the applicant is in a de facto relationship with a person who is an applicant for a permanent humanitarian visa: r.2.03A(4)(b); or
(c)if the visa application was made on or after 9 November 2009, the de facto relationship is a relationship that is registered under a law prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008 as a kind of relationship prescribed in those Regulations.
As outlined above, the Tribunal is satisfied that the de facto relationship between the applicant and the sponsor began in late 2010 when they commenced co-habitation. This was a period of well over 12 months prior to the time of application. Accordingly, the Tribunal finds that the applicant satisfies the requirements in r.2.03A(3).
Further, the Tribunal is satisfied both the applicant and sponsor were at least 18 years of age at the time of application and therefore the requirement in r.2.03A(2) is satisfied. For these reasons, the Tribunal is satisfied that the applicant meets the additional criteria prescribed in r.2.03A.
Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.
DECISION
The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:
·cl.820.211(2) of Schedule 2 to the Regulations;
·cl.820.221(1) of Schedule 2 to the Regulations; and
·r.2.03A.
K. Chapman
Member

ATTACHMENT - Extract from Migration Regulations 1994
1.09A     De facto partner and de facto relationship
(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.
Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
Note 2 The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.
(2)If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3)The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i)       any joint ownership of real estate or other major assets; and
(ii)      any joint liabilities; and
(iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)    whether one person in the relationship owes any legal obligation in respect of the other; and
(v)     the basis of any sharing of day to day household expenses; and
(b)the nature of the household, including:
(i)       any joint responsibility for the care and support of children; and
(ii)      the living arrangements of the persons; and
(iii)     any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i)       whether the persons represent themselves to other people as being in a de facto relationship with each other; and
(ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)     any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i)       the duration of the relationship; and
(ii)      the length of time during which the persons have lived together; and
(iii)     the degree of companionship and emotional support that the persons draw from each other; and
(iv)    whether the persons see the relationship as a long term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
Schedule 3
3001
(1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
(a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or
(b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or
(c)if the applicant:
(i)       ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii)      entered Australia unlawfully on or after 1 September 1994;
whichever is the later of:
(iii)     the last day when the applicant held a substantive or criminal justice visa; or
(iv)    the day when the applicant last entered Australia unlawfully; or
(d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:
(i)       the day when that last substantive visa ceased to be in effect; and
(ii) the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.
3003
If:
(a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and
(b)on 31 August 1994, the applicant was either:
(i)       an illegal entrant; or
(ii)      the holder of an entry permit that was not valid beyond 31 August 1994;
the Minister is satisfied that:
(c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and
(d)there are compelling reasons for granting the visa; and
(e)the applicant has complied substantially with the conditions that apply or applied to:
(i)       the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(ii)      any subsequent bridging visa; and
(f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and
(g)the applicant intends to comply with any conditions subject to which the visa is granted; and
(h)the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.
3004
If the applicant:
(a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;
the Minister is satisfied that:
(c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and
(d)there are compelling reasons for granting the visa; and
(e)the applicant has complied substantially with:
(i)       the conditions that apply or applied to:
(A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(B)any subsequent bridging visa; or
(ii)      the conditions that apply or applied to:
(A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and
(B)any subsequent bridging visa; and
(f)either:
(i)       in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or
(ii) in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and
(g)the applicant intends to comply with any conditions subject to which the visa is granted; and
(h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.