1812074 (Migration)

1812074 (Migration) [2021] AATA 4485 (25 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1812074

MEMBER:Justine Clarke
DATE:25 October 2021
PLACE OF DECISION: Melbourne
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) visa:
·cl 820.211(2)(d)(ii) of Schedule 2 to the Regulations

Statement made on 25 October 2021 at 12:30pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – no substantive visa at the visa application – compelling reasons to waive the Schedule 3 criteria – immigration history – sponsor’s mental and physical health – physical and nutrition support – COVID-19 pandemic travel restrictions – undue hardship for the sponsor – economic conditions in Fiji – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 820.211; Schedule 3 Criterion 3001
CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Plaintiff M64/2015 v MIBP [2015] HCA 50
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 made on 23 April 2018 by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of Fiji. At the time of this decision, she is [age] years of age.
On 6 June 2017, the applicant applied for the visa on the basis of her relationship with her sponsor, [named]. At the time of this decision, he is [age] years of age.
At the time of application, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. The primary criteria include cl 820.211(2)(d).
The applicant provided the Tribunal with a copy of the primary decision. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211(2)(d)(ii) of Schedule 2 to the Regulations because she did not meet Schedule 3 criterion 3001 in that she ceased to hold a substantive visa more than 28 days prior to lodging the visa application. The delegate considered the applicant’s claims that there were compelling reasons for waiving the Schedule 3 criteria. However, the delegate was not satisfied that there were compelling reasons that justified the waiver of the Schedule 3 criteria.
On 27 April 2018, the applicant applied to the Tribunal for review of the primary decision. The applicant was represented in relation to the review by her registered migration agent.
On 24 June 2020, the Tribunal wrote to the applicant, by way of her representative, requesting details and evidence in support of the applicant’s claim that, in this case, there are compelling reasons that justify the waiver of the Schedule 3 criteria.
On 20 August 2020, the representative submitted detailed and lengthy written submissions, a signed statement from the applicant’s daughter [Ms A] dated 4 August 2020 as well as medical evidence from the sponsor’s gastroenterologist and hepatologist dated 12 February 2019 and 2 August 2020.
On 29 September 2021, the matter was constituted to the presiding Member. While, on 20 September 2020, the representative had submitted that a favourable decision could be made ‘on the papers’, given the passage of time since that date, the Member determined that a hearing should be held.
Due to the COVID-19 pandemic, the Tribunal did not hold an in-person hearing. On 22 October 2021, the applicant appeared, by video, before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor by video from the same location as the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Fiji) and English languages and an interpreter in the Spanish and English languages. The interpreter in the Hindi (Fiji) and English languages attended the hearing by telephone whereas the interpreter in the Spanish and English languages attended the hearing by video. The representative also attended the hearing by video from a different location to the applicant.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Does the applicant meet Schedule 3 criteria, or are there compelling reasons for not applying those criteria?
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).
In this case, it is not in dispute that the applicant 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, the issue for determination 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 this case, the relevant day is the day the applicant last held a substantive visa, being 22 October 2015, which was the day her Visitor visa ceased. As noted above, on 6 June 2017, the applicant lodged the visa application which is the subject of this review.
As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.
Compelling reasons
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, reasons that are compelling should ‘force or drive the decision-maker’ ‘irresistibly’ to some end: Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31]. The reasons or circumstances should be sufficiently powerful to lead a decision-maker to find that the criteria should not be applied: 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.
The Department’s Procedures Advice Manual (PAM3) guides decision makers to consider the circumstances that resulted in the applicant becoming unlawful and whether the circumstances are beyond the applicant’s control. Notwithstanding, the Tribunal is mindful that it is not bound to follow the Government’s policy in PAM3 but rather it is obliged to consider all the circumstances of the case and determine, on the evidence as a whole, whether there are compelling reasons for not applying the Schedule 3 criteria.
The applicant’s immigration history
The applicant’s immigration history is detailed in full in the primary decision. It states:
Departmental records indicate your immigration history is as follows:
·You travelled to Australia in 2008/09 and 2009/10 on a visitor visa.
·[In March 2015] you arrived in Australia on a visitor visa, and departed [in May 2015]. You then returned to Australia on a visitor visa, [in July 2015]. This visa was valid until [October 2015].
·On 20/10/2015 you lodged a protection (XA-866) visa application that was refused on 17/05/2017.
·On 06/06/2017 you lodged a valid application for a UK Partner (Temporary) and BS Partner (Residence) visa on the grounds of being in a partner relationship with an Australian citizen, [named] who lodged a sponsorship in support of the application.
·You currently remain the holder of a Bridging C (subclass 030) visa.
The delegate stated that they gave ‘significant weight’ to the applicant’s immigration history. The delegate continued:
You arrived in Australia as the holder of a Visitor Visa. Then you requested a waiver of the Condition 8503 attached to your Visitor visa which was refused. On 20/10/2015, you applied for a Protection visa. In your Protection visa application you claimed that you were retired, had no family support and that living alone as a woman without a partner is not conventional in your country of birth (Fiji). The decision maker found that you were not at risk as claimed, and this application was refused on 17/05/2017. One month after this refusal on 06/06/2017 you applied for a Partner visa application.
… I do not consider that the Schedule 3 waiver provisions exist to facilitate those who have sought to delay their departure by the lodgement of unmeritorious visa applications, while awaiting the circumstances which may allow them to lodge a further onshore visa application.
At the hearing, the Tribunal discussed the applicant’s immigration history with the applicant.
The Tribunal went through the delegate’s summary of the applicant’s immigration history (listed in bullet points above)—albeit in a high-level way. The applicant gave oral evidence that the summary was correct.
The Tribunal also noted the written submission that ‘[t]he applicant has always complied with her visa conditions’. The applicant stated that this was correct. She noted that she had obtained her [Qualification 1] but that she did not work because she was not permitted to work. She said that prior to the COVID-19 pandemic and associated lockdowns, she had undertaken volunteer work. The Tribunal queried whether the applicant had ever been an unlawful non-citizen and the applicant gave oral evidence that she had not been.
The applicant stated that she had first entered Australia in 2008/09 in order to help an aunt who was having an operation. She said that she travelled to Australia for the second time, in 2009/10, in order to attend the wedding of that aunt’s daughter. She said that, at the time, she had not thought of living in Australia, explaining that she was employed in a [business] in Fiji and was responsible for her daughter (who lives in Fiji).
The Tribunal notes the applicant’s [Ms A’s] written statement of 4 August 2020. [Ms A] gives details of her mother’s trips to Australia in 2008, 2009 and 2015 which corroborate the applicant’s oral evidence, and in the case of the trips in 2015, provide further detail than what was given at the hearing.
[Ms A] details her mother’s reasons for travelling to Australia in 2015 and her reasons for remaining. Essentially, her evidence is that her mother was retired and lonely so was happy to accept invitations from friend/s in Australia to visit. She stated:
While in Australia for the 3 months my mother met my step father for the first time in August her intention was not to get married but they became friends and they started to communicate with each other. Her 3 months visa was coming to an end she gave a thought of what she will do in Fiji and how she will survive alone. She then visited [a] few agencies to ask for advice of how I could extend her visa. She was advised by the agencies to visit an Immigration Lawyer for further clarification.
She then visited [a] few Immigration lawyers … The Lawyers advised her to apply a protection visa and wait for the result while staying in Australia. … While she was waiting … she dated my step father for 3 months and on her birthday which is on [date omitted] 2016 my step father proposed her for marriage. … She was on a living relationship for a year and was still waiting for a decision on her protection visa, where they both decided to get married [in] February 2017 and wait for the outcome of her protection visa. In few months after they got legally married her visa decision came in, which was a negative decision on her visa … She then decided not to appeal on her decision, by to apply for her partner migration …
The applicant gave oral evidence about a number of these matters. She told the Tribunal that she met the sponsor in August 2015, when he started renting a room in the place where she was living. She said that the sponsor’s English language skills were ‘not good’ and neither were those of the other people living in the house. She said that she took on the role of explaining things to him and told the Tribunal that she had to use actions to communicate. She said that the sponsor had wanted to know about her from the first time he saw her and that he had liked her from the beginning. She explained that their relationship developed steadily, with the sponsor adding her as a [contact on social media] in September 2015 and taking her out for a dinner date in October 2015. She said that in early 2016, on her birthday, the sponsor had proposed to her and given her a gift of ‘[brand]’ perfume. She noted that it was the first time that anyone had given her such a gift. She said that she had been afraid to get married because of her previous relationship history, which she stated had been a ‘nightmare’. (The Tribunal notes that, in her written statement, [Ms A] describes the difficulties she and her mother experienced when she was growing up in Fiji because the applicant was a single mother as well as their difficulties after the applicant married an abusive man). She said that the sponsor had responded to her hesitancy by suggesting that they simply live together until she felt more comfortable to marry.
The Tribunal also notes that the applicant referred to her application for a Protection visa. She stated that she believed that some of the information/evidence she submitted—namely a letter stating that she was retired in Fiji—had not been taken into consideration.
At the conclusion of the hearing, the representative stated that the applicant’s immigration history may cause concern if the application for the visa was dealt with purely on papers, as for example a Subclass 309 Partner visa lodged in Fiji would likely be progressed, but that a decision maker having the opportunity to hear oral evidence from the parties would likely form a different impression. The Tribunal considers that this observation is apt in this case.
Having had an opportunity to hear the applicant’s oral evidence, the Tribunal found her to be very credible. The Tribunal does not share the delegate’s view that the applicant sought to delay her departure by lodging an unmeritorious visa application, while awaiting circumstances which may allow her to lodge a further onshore visa application. Rather, the Tribunal accepts the written submission that ‘[s]he did not deliberately manipulate her circumstances to give rise to compelling reasons’. Accordingly, in this case, having considered all the evidence before it, the Tribunal gives greater weight to the evidence of the claimed compelling reasons, outlined below, than it does to the applicant’s immigration history.
The written submissions stated that there were three compelling reasons in this case: (1) the COVID-19 virus pandemic; (2) the sponsor’s mental and physical health and (3) the sponsor will suffer undue hardship.
At the hearing, the applicant told the Tribunal that she wished to pursue all three claims. She said that she also wanted to pursue a claim about her own likely circumstances if she is required to return to live in Fiji, that is, that she would be unemployed and would be all on her own without a home as her daughter is married.
The representative commented that this was a case where the various reasons warranted cumulative consideration and said that together, they constitute compelling reasons.
COVID-19 virus pandemic
The written submissions note that Australians are subject to a general ban on overseas travel; that ‘[i]t is extremely hard if not impossible, right now to coordinate flights and to get to Fiji’; and that ‘[e]ven if the applicant returns to Fiji, the onset of the COVID-19 virus pandemic could have a prejudicial effect on the applicant’s health and welfare’. Fiji was described as ‘a country under-resourced in health infrastructures’. It was submitted that:
the applicant is at a higher risk of contracting the virus because of her age and it would be unconscionable to force her to return to Fiji at this time. More so given the emotional harm to be suffered by her Australian partner in the event she contracts the virus upon her return to Fiji …
The submissions referenced a number of independent sources to corroborate various claims.
At the hearing, the applicant gave simple oral evidence that the medical system in Fiji was ‘no good’. The representative reiterated that there was independent evidence about the position in Fiji because of the COVID-19 virus pandemic. Amongst other things, he noted that tourism was banned and that the applicant was at a greater risk from the virus because of her age.
Having reflected on the evidence before the Tribunal, and noting the high daily case numbers in Melbourne at the time of this decision (1,461 new cases), the Tribunal is satisfied that this reason, together with the reasons discussed below, constitutes compelling reasons to waive the Schedule 3 criteria.
The sponsor’s mental and physical health
The written submissions state that ‘[t]he sponsor instructs that he has a history of health issues related to dyspepsia’; that ‘[t]he sponsor attends medical appointments regularly to monitor his health’; that ‘the sponsor relies heavily on the applicant to help him with his ongoing health’; and that ‘[t]he sponsor has also grown anxious upon the realization that his spouse has an indeterminate immigration status until this application is assessed according to the Schedule 3 criteria’. The submissions also drew the Tribunal’s attention to the medical evidence that was submitted and to various statements made in the letters by the sponsor’s treating specialist Gastroenterologist and Hepatologist.
At the hearing, the applicant gave oral evidence about the sponsor’s mental and physical health.
She told the Tribunal that the sponsor forgets things, including his parents’ birthdays. She also noted the effect of the sponsor’s worries upon him, explaining that he can wake in the night and then get up. She noted that he had been anxious about the Tribunal hearing and had not slept properly for the two nights before the hearing. She said that the sponsor has been ‘stressed’ and ‘depressed’. She said that he tells her that he is stressed. When the Tribunal queried whether the sponsor had discussed his mental health with his doctor, she said that the sponsor had told her that ‘he did not want to go to the doctor all the time’.
She said that the sponsor experiences stomach aches; that after breakfast he ‘vomits bubbles’; that they had seen a specialist and that the sponsor eats a special diet. She said that the sponsor loves Spanish food (saying that paella was his favourite) and red meat but that they had had to stop him eating red meat. The applicant explained that she did most of the cooking, focusing on chicken, fish and vegetable dishes. She told the Tribunal that she had observed an improvement in the sponsor’s health from the diet, explaining that he was not as tired and that he was a ‘bit healthier’. She said that the doctors had told them to continue with that diet.

At the request of the representative, the Tribunal asked the applicant what she thought would happen to the sponsor’s nutrition and diet if she were required to depart Australia and return to Fiji. She replied that the sponsor is not an experienced cook, in her own words, ‘he cannot do anything himself’.
The Tribunal notes and gives weight to the letters, dated 12 February 2019 and 2 August 2020, from the sponsor’s treating specialist Gastroenterologist and Hepatologist. In particular, the Tribunal notes the statement made in the later letter:
His symptoms improved since he has been eating more home-cooked food. It seems that since he has got married his health has improved dramatically.
The applicant told the Tribunal that they have not returned to the specialist in the last year because of the COVID-19 pandemic. Rather, she said that the appointment had been online. She told the Tribunal that the sponsor had changed his medication. She explained that the sponsor took the medication to assist his symptoms. It was apparent to the Tribunal that the applicant is very familiar with the sponsor’s medication. She said that the sponsor was ‘really trying’ to eat a healthy diet because he did not like taking the medication and hoped to be able to stop taking it.
The sponsor gave consistent and very credible oral evidence about a number of these issues.
With respect to his mental health, the sponsor said that he had been under a lot of stress. He said that he had problems sleeping. He said that he had not sought to address his anxiety or depression, rather, only his stomach issues. He said that he tried to manage his mental health issues as best he can.
With respect to his physical health, the sponsor told the Tribunal that he has stomach issues and that he had been vomiting food ‘all the time’ so he had a number of medical tests. He said that it is recommended that he eat a healthy diet and that he is not supposed to eat red meat or spicy food. He said that, so long as he follows a healthy diet, he is ‘ok’, although sometimes his condition still ‘flares up’. He noted that stress aggravated his symptoms. He said that, generally, if he eats the applicant’s diet, ‘all is good’. He said that if he didn’t eat her diet, then ‘it all goes downhill’. He said if the applicant were required to depart Australia that he would be reliant upon pre-prepared meals.
The sponsor said that his health was ‘a very big issue’ for him. He said that he could not depart Australia to live with the applicant in Fiji because it would mean ‘being dependent upon a third world health care system’.
The Tribunal accepts the evidence before it that the sponsor has a number of health challenges and that he is reliant, to a considerable extent, on the applicant to help him manage his dyspepsia. This leads the Tribunal to find that this is a compelling reason for the waiver of the Schedule 3 criteria.
The sponsor will suffer undue hardship
It was submitted, in the written submissions, that:
Given the circumstances, leaving Australia to apply for a Partner visa offshore and wait for the visa grant under the current processing time of 18 to 20 months is not a feasible option for the parties given the sponsor’s physical health status, the prevalence of the COVID-19 pandemic and the applicant’s vulnerability. …
Although the sponsor could relocate to Fiji to live with the review applicant, this will result in a loss of his employment and given his age, he would have limited to no opportunity to find any employment given the current economic crises in Fiji.
The applicant gave oral evidence that, if she were required to depart Australia and return to Fiji, the sponsor would suffer. She made claims that the sponsor would suffer physically, emotionally and financially.
The applicant told the Tribunal that she did not think that the sponsor would manage on his own in Australia. She said that her husband had no family in Australia other than her. She noted that she made medical appointments for the sponsor and went with him to the appointments. She said that in such appointments, the sponsor wanted her to be beside him because she is the person who is doing the cooking and caring for him.
The applicant said that the sponsor would not be able to support two households: his in Australia and her’s in Fiji. She said that her husband supported her financially. She said that they were waiting until she had the right to work in Australia and could make use of her [Qualification 1]. She explained that the sponsor is the income earner and that he has his own business, making [Product 1]. She said that the COVID-19 pandemic and associated lockdowns had reduced her husband’s income but that he still managed everything. She said that her husband could not afford to pay rent in Australia as well as rent in Fiji.
The applicant gave oral evidence that the sponsor would not be able to work in Fiji because of his age. She noted that he is [age] years of age, but she said that the age of retirement in Fiji is 55 years.
The sponsor told the Tribunal that the COVID-19 pandemic had impacted his livelihood. He said that, previously, he had been working in [a business]. He said that he had been full time but that changes brought about by the pandemic saw his full-time status reduce to part time until the point when it was ‘all gone’. He said that he does not receive any money from Centrelink but rather was reliant on his savings. He said also that he was thankful that he could [make Product 1]. In his own words, ‘I’m trying to survive by making [Product 1]’; ‘at least I can survive’. He told the Tribunal that he was earning about $600 a month (noting that it varies) from making the [Product 1] yet he needed to pay $1300 in rent per month, plus food. The Tribunal observed that the sponsor was clearly distressed when giving this oral evidence. For example, it was difficult for the sponsor to finish his statements. He said that it would be ‘very difficult’ for him to support two households (that is, one in Australia and one in Fiji), plus pay the cost of applying for a new Partner visa application. He concluded by stating, ‘it would be impossible for me to support my wife’.
He said that he was also concerned that if they were not living together, what would happen to each of them if something happened. In his own words, ‘if something happen to me, who will look after me and vice versa if something happens to her, who will look after her?’ He said that providing care in this way is what one does in a marriage. He noted that he had no other family in Australia. The Tribunal observed the sponsor become emotional and shed some tears when giving this oral evidence.
The Tribunal accepts the evidence that is before it in respect of this claimed compelling reason. The Tribunal finds that, in this case, the evidence that the sponsor will suffer undue hardship is a compelling reason for the waiver of the Schedule 3 criteria.
The applicant will suffer undue hardship
It will be recalled that, at the hearing, the applicant requested that the Tribunal consider this fourth claimed compelling reason. While the written submissions do not have a similar heading, the submissions nevertheless outline the applicant’s likely circumstances if she is required to return to live in Fiji. For example, it was submitted:
The review applicant has one daughter in Fiji but she is not in a position to support her as she is facing financial hardship due to the virus impacts on jobs and the economy which relied heavily on tourism. [reference omitted] The review applicant’s only daughter, [Ms A], has provided a letter outlining her mother’s plight and her lack of familial and financial support if she returned to Fiji. The review applicant instructs she would be homeless if she returned to Fiji as she has nowhere to go and she is estranged from her extended family after the death of her late mother. The review applicant would have little domestic or familial support if she returns to Fiji and if she contracts the deadly virus, that may require extensive post hospitalization rehabilitation. The review applicant is [age] years of age and finding employment in Fiji now, would be near impossible.
At the hearing, the applicant also gave oral evidence that she will suffer hardship in Fiji. She told the Tribunal that she was retired there and that she would have no job and had no house to return to. The applicant told the Tribunal that she had some family in Fiji, namely her daughter and her [siblings]. She said that she would not be able to live with her daughter as her daughter is married and because her daughter and son-in-law live in a two-bedroom house with another couple. She said that rent was very high in Fiji ($800–$1000 per month) and that that was why the two couples were sharing the house. She said that there was no room for her in the house and that she would need to sleep in the living room.
At the request of the representative, the Tribunal asked the applicant whether she received a pension or had any superannuation. The applicant replied that she had neither, in either Australia or Fiji.
At the conclusion of giving her oral evidence, the applicant appealed to the Tribunal, stating that neither she nor the sponsor were young and that they simply wanted to be together.
The Tribunal considers that it does not need to make findings in respect of this claimed compelling reason as the Tribunal considers that there are reasons that are sufficiently compelling to warrant the waiver of the Schedule 3 criteria already in this case.
CONCLUSION
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).
Given the findings above, 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) visa:
·cl 820.211(2)(d)(ii) of Schedule 2 to the Regulations
Justine Clarke
Member

ATTACHMENT - Extract from Migration Regulations 1994
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.

[2021] AATA 4485

25 October 2021

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Immigration

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