2002392 (Migration)

[2024] AATA 3828

2002392 (Migration) [2024] AATA 3828 (8 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Eugene Alexander (MARN: 9256268)

CASE NUMBER:  2002392

MEMBER:Justine Clarke

DATE OF ORAL DECISION:  8 March 2024

DATE OF WRITTEN STATEMENT:         27 March 2024

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(1) of Schedule 2 to the Regulations

·cl 820.221(1)(a) of Schedule 2 to the Regulations

·reg 2.03A

Statement made on 27 March 2024 at 1:13pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship at time of application – financial, household and social aspects relationship and nature of commitment – no financial support while applicant living with family in home country – age difference – timing, development and length of relationship – inadvertent mis-remembering of dates – limited documentation and photos but broadly consistent and credible oral evidence – supporting statements – application made more than 28 days after last substantive visa held – compelling reasons for not applying criterion – mother’s health and expenses and father’s business difficulties – previous student visa cancelled and application for judicial review made on faulty advice – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 65
Migration Regulations 1994 (Cth), rr 1.09A(3), 2.03A, Schedule 2, cls 820.211(1), (2)(a), (d), 820.221(1)(a), Schedule 3, criteria 3001, 3003, 3004

CASES
Babicci v MIMIA (2005) 141 FCR 285
He v MIBP [2017] FCAFC 206
MIEA v Pochi (1980) 4 ALD 139
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

1. This is an application for review of a decision made on 21 January 2020 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).

2. On 29 June 2018, the applicant, who is a national of Nepal, applied for the visa based on her relationship with [her sponsor]. At the time of the application for the visa, the applicant was aged [Age] years and the sponsor was aged [Age] years. At the time of this decision, the applicant is aged [Age] years and the sponsor is aged [Age] years.     

3. At the time the applicant applied for the visa, 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. Relevantly to this matter, the primary criteria include cl 820.211 and cl 820.221.

4. The applicant provided the Tribunal with a copy of the delegate’s refusal decision (the primary decision). The delegate assessed the application pursuant to cl 820.211(2), finding it to be the only subclause relevant to the applicant’s circumstances. The delegate refused to grant the applicant the visa on two bases.

5. First, the delegate considered the information and evidence, submitted in support of the application, and found that it was not sufficient to demonstrate that, at the time of application on 29 June 2018, the applicant satisfied the definition of de facto partner under s 5CB of the Act.

6. Second, the delegate found that the applicant did not meet cl 820.211(2)(d)(ii) because she did not meet criterion 3001 in Schedule 3. The delegate stated that no information or evidence had been submitted about any compelling reasons to waive the Schedule 3 criteria, so the delegate found that there were no compelling reasons to waive the Schedule 3 criteria.

7. Accordingly, the delegate found that the applicant did not meet cl 820.211(2)(a) or (d). The delegate made no findings in respect of the time of decision criterion in cl 820.221(1).

8. On 7 February 2020, the applicant applied to the Tribunal for the review of the delegate’s refusal decision. The applicant was represented in relation to the review.

9. The Tribunal gave its decision on the review at the conclusion of the hearing held on 8 March 2024. The following are the reasons for that decision.

10. On 8 March 2024, the applicant appeared, by video from Nepal, before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister, [Ms A], by video from Nepal (the same location as the applicant). The Tribunal also received oral evidence, by telephone, from two persons in two different parts of Australia: the sponsor and the parties’ friend, [Ms B]. The representative also attended the hearing, by video from Tasmania.

11. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. In this review, there are three issues for determination. First, whether at the time of application for the visa on 29 June 2018, the applicant and the sponsor were in a de facto relationship (for the purposes of cl 820.211(2)(a)). Second, whether there are compelling reasons to waive the Schedule 3 criteria (for the purposes of cl 820.211(2)(d)(ii)). Finally, whether the additional criteria for a de facto relationship (in reg 2.03A) are met.

    THE RELEVANT REQUIREMENTS IN PART 820 - WHETHER THE PARTIES ARE IN A SPOUSE OR DE FACTO RELATIONSHIP

13. The primary criteria to be satisfied at the time of application are set out in cl 820.211(1). This requires that the applicant is not the holder of a Subclass 771 (Transit) visa and that she meets one of the alternate requirements set out in cl 820.211(2), (5), (6), (7), (8) or (9).

14. The Tribunal has reviewed the applicant’s movement records which also detail her visa status at various times. The Tribunal is satisfied that, at the time of application on 29 June 2018, she was not the holder of a Subclass 771 (Transit) visa. Therefore, the Tribunal finds that cl 820.211(1)(a) is met.

15. The subclause relevant to the applicant’s circumstances is cl 820.211(2). Accordingly, in this case, the issue for determination is whether, at the time of application on 29 June 2018, the applicant and the sponsor were de facto partners for the purposes of the Act.

16. Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. In making findings about the status of the parties’ relationship at the time of application, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application.

17. In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl 820.221 (a time of decision criterion) as well.

18. Clause 820.221(1)(a) provides:

    (1)  In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:

    (a)continues to meet the requirements of the applicable subclause[.]

19. Clause 820.211(2)(a) and cl 820.221 require that, at the time the visa application was made and at the time of this decision, the applicant was and is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.

20. The applicant claims to be the de facto partner of the sponsor who is an Australian citizen. The Department’s file contains a copy of the bio-pages of the sponsor’s Australian passport. From the evidence before it, the Tribunal is satisfied that the sponsor is an Australian citizen.

    Are the parties in a de facto relationship?

21. 'De facto partner' is defined in 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2).

22. In forming an opinion whether they are in a de facto relationship, consideration must be given to all the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.09A(3) which is attached to this decision. Each specific matter contained in reg 1.09A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

23. To make the requisite findings about the reg 1.09A(3) matters and the s 5CB requirements, the Tribunal has had regard to all the documents on the Department’s file and on the Tribunal’s file and to all the oral evidence given at the hearing. The Tribunal notes that, in this review, it has had the benefit of further information and evidence than what had been before the delegate. The applicant submitted limited documents to the Tribunal. However, as will be explained, the Tribunal found the oral evidence to be of central importance.

    The financial aspects of the relationship

24. Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant matters when considering the financial aspects of the relationship.

25. The Tribunal notes the applicant’s claims about the financial aspects of the relationship as detailed in her written statement submitted on 1 March 2024. The Tribunal heard broadly consistent oral evidence about these matters from both the applicant and the sponsor at the hearing.

26. With respect to the extent of any pooling of financial resources and any sharing of day-to-day household expenses, the applicant told the Tribunal that, when she had been living in Australia and with the sponsor, he had supported her financially. In her own words, he had been her ‘biggest supporter’, had provided her with everything and had supported her ‘without hesitation’. She said she had done all she could do (other than paid work) to be a good partner to the sponsor, including cooking and cleaning and giving the sponsor massages. She said that, at the time of the hearing, she was living in Nepal as she was unable to return to Australia as she did not have the requisite visa. She said that, since she has been in Nepal, the sponsor had not provided her with financial support as she was living with her family.   

27. The sponsor gave broadly consistent oral evidence, telling the Tribunal that because the applicant had ‘no papers’ and was not allowed to work in Australia, that when the applicant had been living in Australia, he provided for the couple’s accommodation, bills and holidays. In his own words, ‘[w]hatever I have that she wants, she can have’. He said that he could not send money to the applicant overseas because he did not want to get involved with the Australian Taxation Office. He noted that the applicant’s sister’s husband had a business and that the applicant’s family could look after her in Nepal. He noted that he (the sponsor) was paying for the representative’s fees.

28. The applicant said that they had had a joint bank account so that she had access to funds if the sponsor was away in [Town 1]. She said it was also helpful when her sister was visiting Australia and she had wanted to expend money on her sister. But she said that, for the most part, she was in the marital home and did not need much. The sponsor gave broadly consistent oral evidence saying that, earlier, there had been no real point in having a joint bank account because the applicant had not been permitted to work but that when the applicant’s sister visited Australia, he decided that it was worthwhile having one as it meant that the applicant would have some freedom and would not need his card to access funds. He named the bank and said that he had put some money in there so that the applicant could spend as required when she and her sister went to Sydney.

29. There is no information or evidence before the Tribunal that there is any joint ownership of real estate or other major assets. The applicant told the Tribunal that the sponsor is the one who owns everything. She said that, now that the sponsor is divorced, she and the sponsor had discussed buying a property together. The sponsor gave oral evidence that if the Government was willing to let the applicant return to Australia, that he was more than happy to put the applicant’s name towards property or a business. Later in the hearing, the representative stated that one of the reasons the sponsor—whom he noted was a businessman—had not yet sought to buy property in the applicant’s name was because of the extra expense given that she is not a permanent resident of Australia. The Tribunal accepts the submission.

30. There is also no information or evidence before the Tribunal that there are any joint liabilities. The applicant explained that she had not had the right to work in Australia, so she had not been in the position to join the sponsor in incurring liabilities.

31. There is no information or evidence before the Tribunal that one person in the relationship owes any legal obligation in respect of the other. When asked, the applicant said that they had not made wills nominating the other as a beneficiary. She said she had not nominated the sponsor as beneficiary of her superannuation, explaining that she did not have much in her superannuation fund as she had taken funds out of it. She was unaware of whether the sponsor had nominated her as the beneficiary of his superannuation. Similarly, the sponsor said that they had not yet made wills nominating the other as a beneficiary and that he had not nominated her as the beneficiary of his superannuation.

32. The Tribunal notes that there is very limited documentary evidence in support of their claims. The primary decision details the financial documents that were before the delegate and the limitations of those particular documents—a view the Tribunal shares. In this review, the applicant submitted a photocopy of a debit card from an Australian bank[1] in the name ‘[The applicant]’ and with an expiry date in 2025 and a document from ‘[Accounting & Tax]’ dated 31 May 2020 and addressed to ‘[Family Trust]’ at the [Suburb] address. It is unclear how either of these documents support the claimed financial aspects of their relationship.   

    [1] This is the same Australian bank as where she has her personal bank account.

33. Notwithstanding the paucity of documentary evidence in support of the claimed financial aspects of the relationship, the Tribunal found the applicant and the sponsor to be credible and accepts their oral evidence about the financial aspects of their relationship.

34. The Tribunal gives some weight to the evidence of the financial aspects of the relationship. The Tribunal considers that the evidence could be said to point to the parties being in a de facto relationship both at the time of application and at the time of this decision.

    The nature of the household

35. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when considering the nature of the household.

36. There is no information or evidence before the Tribunal that there is any joint responsibility for the care and support of children.

37. With respect to the living arrangements of the persons, the applicant told the Tribunal that the first place that she and the sponsor had lived together was [Address, Town 2], Tasmania. She said that there was a shop underneath and that the flat was above. After the Tribunal queried the number of the property, noting that the delegate’s decision refers to evidence of correspondence to both [Two adjacent street numbers, Address, Town 2], the applicant explained that the whole property was known as either [Two adjacent street numbers]. She said that the couple’s next home was at a stated address in [Suburb 1], Tasmania. She said that it had just been the two of them living in these properties (that is, no housemates). She said that the sponsor likes to buy property and that he also has a holiday house in [Town 1] (NSW).

38. The Tribunal asked the sponsor about the couple’s living arrangements over the years of their relationship. He explained that the first place that they lived at together was [Two adjacent street numbers, Address, Town 2]. He explained the reasons that either number could be used, and the mail would still be delivered. He also gave details about the [Suburb 1] property where they had lived. He said that [Address, Suburb 2] (an address mentioned in the primary decision) was a property given to his ex-wife in their property settlement.

39. The Tribunal notes the documentary evidence that was before the delegate as to the claimed living arrangements. The Tribunal notes the delegate’s concerns about those documents but, having had a chance to hear the parties’ oral evidence over a lengthy Tribunal hearing, the Tribunal accepts their claims that they lived together in [Two adjacent street numbers, Address, Town 2], Tasmania (there being no important difference between the numbers) and accepts the sponsor’s oral evidence that the [Suburb 2] address is associated with his ex-wife.

40. In this review, the applicant has submitted three documents evidencing the sponsor’s address as the property in [Suburb 1], Tasmania. These documents include a photocopy of his current driver licence (both sides); a copy of a typed envelope with postage markings for ‘22.02.24’ addressed to the sponsor at the address and a copy of a letter from [Insurance brokers] addressed to the sponsor at the address. The main document the applicant submitted to the Tribunal showing an Australian address for her is a pharmaceutical script addressed to her at ‘[Address, Town 2]’. A search of this address reveals that it is in [Town 1] in [City] in NSW. The Tribunal did not ask the parties about this document, but it is most likely the address of the sponsor’s holiday home in [Town 1]. The Tribunal notes the applicant’s statement in her written statement submitted on 1 March 2024 that ‘[w]e often used to go to his holiday home and used to spend quality time together’.

41. While there is limited documentary evidence corroborating the claimed living arrangements at the time of application and thereafter, the Tribunal accepts that the evidence that is available does support the parties’ claims—to some extent. The Tribunal also finds that while the parties are not living together at the time of this decision, it is their joint intention and desire to live together again and that they are awaiting a favourable outcome in this review and the grant of a visa permitting the applicant to return to Australia so that they can do so.

42. With respect to any sharing of the responsibility for housework, the Tribunal notes the applicant’s claims about the ‘household aspects’ in her written statement submitted on 1 March 2024. The Tribunal heard broadly consistent oral evidence about these matters from both the applicant and the sponsor at the hearing. The applicant told the Tribunal that when they were living in the same premises, she did all the cooking and cleaning. She said that she enjoyed it because she was a woman. She said that the sponsor would bring the groceries or, when she could, she would. She said that the responsibility was ‘balanced’. She said that she did more of the indoor chores and that the sponsor did more of the outside chores such as yard work and cutting wood. The sponsor told the Tribunal that they had shopped for groceries together and that, for the most part, the applicant had cooked and had taught him how to enjoy spicy dishes. He said that sometimes he would cook a BBQ or Greek or French dishes such as lamb on the spit. He said that the applicant had cleaned the house.

1. As is the case in many partner cases that come before the Tribunal for review, there is no photographic or third-party evidence to corroborate the parties’ claims about the sharing of the housework. Notwithstanding, given the Tribunal’s finding that both persons are credible, the Tribunal has no reason to doubt the veracity of their evidence as to this reg 1.09A(3) matter. The Tribunal finds that, when the parties were living together in the same house, they shared the responsibility for housework.

2. The Tribunal considers that the evidence of the nature of the household is suggestive of a de facto relationship both at the time of application and at the time of this decision and accordingly the Tribunal gives weight to it.

   The social aspects of the relationship

3. Whether the persons represent themselves to other people as being in a de facto relationship with each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters when considering the social aspects of the relationship.

4. The Tribunal notes the applicant’s claims about the social aspects of the relationship as detailed in her written statement submitted on 1 March 2024. She stated:

   [The sponsor] and I have a very good social life. We have a group of common friends named [Given names, including Ms B and Mr C] with whom we hang out most of the time. We also attend family functions, go to pubs for drinks and meals, travel to places together and often go to NSW and Melbourne to see our friends and families including his three grandchildren. All of our friends appreciate our relationship and love and respect for each other. Since we both are very extrovert, we have a very good social life.

5. The Tribunal heard broadly consistent oral evidence about these matters from both the applicant and the sponsor at the hearing.

6. With respect to whether the persons represent themselves to other people as being in a de facto relationship with each other, the applicant gave oral evidence that they had told their family and their good, close friends about the de facto relationship but that they had not told the news more widely. The Tribunal asked the applicant why they did not tell more people. She replied that people had not asked, and she had not considered it important to tell other people. She said that it was more important for them to tell their families, their good friends and their lawyers. She said that it was a genuine relationship and that everyone knows about the relationship.

7. The Tribunal also asked the applicant whether she had introduced the sponsor to her family in Nepal. She responded by stating that, in 2017, when her father was in Australia for a few months, he had met the sponsor. She said that they had spent time together, including at BBQs and with the sponsor having taken her father shooting and to see salmon spawning. She said that her mother had not visited Australia. However, she said that the sponsor sends birthday greetings to her mother.  

8. The Tribunal also asked the applicant whether the sponsor had introduced her to his family. The applicant said that she knew them all—the sponsor’s children as well as his grandchildren.

9. The sponsor gave broadly consistent oral evidence about these matters. He said that the applicant had met all his children and grandchildren. He told the Tribunal that, at the beginning of the relationship, they had been mindful of the age difference and that they not wanted to upset their families. He said that one of his children is the same age as the applicant and that, originally, he had not wanted to upset his children. He said that his children were not upset now. He mentioned other family members such as a nephew and cousin having visited and seen that he and the applicant were in a de facto relationship. He said that some people had asked him whether he was sure that the applicant loved him, rather than simply loving his money. He said that it was a genuine relationship. He said that a number of his [Nationality] friends in Melbourne have told him that he is ‘crazy’, but he said that they do accept his word. In his own words, the relationship is ‘no one’s business’.

10. He said that he had met the applicant’s father but that, at that time, he had not said anything to the father about his feelings for the applicant because he was too scared to. He said that he had simply shown him that he was a good man. He also noted that the applicant’s father does not speak much English but he said that he had been able to ‘feel the warmness in his heart’. He said that he would meet the applicant’s mother ‘one day’. He noted that the applicant’s sister speaks English.

11. With respect to the opinion of the persons’ friends and acquaintances about the nature of the relationship, the Tribunal notes that when the matter was before the delegate, the applicant had submitted the following evidence:

    ·Form 888 statutory declaration made by [Mr C] on 24 May 2018; and

    ·Form 888 statutory declaration made by [Ms D] on 26 June 2018.

12. The Tribunal notes that the delegate gave some weight to these declarations.

13. In this review, the applicant’s sister [Ms A] gave oral evidence at the hearing that the applicant and the sponsor had been in a relationship for seven to eight years. She said that she had visited Australia and observed that the relationship was ‘quite good’. When asked for her opinion as to whether the parties were in a genuine partner relationship, she said that she did hold that view. She said that she had been talking to the sponsor for seven to eight years, explaining that that had connected on WhatsApp. When asked whether she thought it was a long-term relationship that would continue, she replied ‘yes, definitely’. She explained that she held this view because the couple were working ‘very hard’ at their relationship. She also told the Tribunal that, in May 2023, she had visited the couple in Australia, going to different places with them such as Melbourne, their home in Tasmania and the sponsor’s holiday house. She said that having lived with them during that time, she believed that it was a genuine relationship. The Tribunal found [Ms A] to be credible and accepts and gives weight to her oral evidence.  

14. At the hearing, [Ms B] told the Tribunal that she is friends with the applicant and the sponsor having first met the applicant when they studied at the same college together ten years ago and having met the sponsor through the applicant about seven or eight years ago. She acknowledged that there was an age difference between the applicant and the sponsor, but she said that the parties were in love. She mentioned how, in 2017, she had travelled from her home in Sydney to Tasmania to attend the surprise party that the sponsor was putting on for the applicant. She said that the sponsor did lots of small things to make the applicant happy such as buying flowers for her or picking them from the garden for her. She said that the sponsor really cares for the applicant. She said that she socialised with the couple about twice a year, noting that she sometimes went to Tasmania and that they had been to see her in Sydney. She said that the sponsor knows her partner and her son. When asked whether she though the applicant and the sponsor were in a genuine and continuing relationship, she gave oral evidence that she did believe that. When asked why she held that view, she said that it was because she had seen the love each person has for the other. She spoke of the ‘purity’ of the relationship, explaining that they had met and got to know each other over time. She said that if the couple were trying to hide the truth or lie about the relationship, they could perhaps do that for two to three years but, in her view, ‘not eight years’. She also noted that the applicant and the sponsor had travelled together to many places. In her own words, ‘their relationship is genuine and really pure’. The Tribunal found Ms Shah to be credible and accepts and gives weight to her oral evidence.

15. All these persons—the declarants to the statutory declarations and the witnesses at the hearing—have known the parties for a number of years and are aware of their de facto relationship. The Tribunal considers that their reasons for considering the parties’ partner relationship to be genuine and continuing are well considered and detailed. The Tribunal accepts and gives weight to all the evidence from the parties’ family members and friends.

16. With respect to any basis on which the persons plan and undertake joint social activities, the applicant told the Tribunal that she and the sponsor had planned and undertaken a lot of different joint social activities. She mentioned that they had travelled to Melbourne to see the sponsor’s relatives (including grandchild) and his [Nationality] friends. She also talked about them having spent time with her friend [Ms B]. She told the Tribunal that, when her sister had visited Australia, the sponsor had taken them out on his boat, and she also mentioned a trip to Brisbane. Similarly, the sponsor also told the Tribunal about some joint social activities, mentioning trips to Sydney and the Gold Coast and noting that they had tried riding motorbikes.

17. While, unusually, there is no photographic evidence to corroborate the parties’ claims about having planned and undertaken many joint social activities together over the years, there is some documentary evidence of some travel and also the credible evidence from the third parties listed above. The Tribunal notes that there was some evidence before the delegate, which they accepted, that the parties had travelled together from Hobart to Melbourne on 28 September 2018 and from Hobart to Sydney on 27 June 2019. The Tribunal also accepts and gives weight to this evidence. As already noted, the Tribunal found the witnesses to the hearing to be credible and accepts their oral evidence about the times when they have socialised with the couple. In view of the evidence, the Tribunal is satisfied that the applicant and the sponsor have planned and undertaken many joint social activities.

18. The Tribunal gives weight to the evidence of the social and public recognition of the relationship. The Tribunal considers that it points to the parties being in a de facto relationship both at the time of application and at the time of this decision.

    The nature of the persons’ commitment to each other

19. The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all matters to be considered in determining the nature of the persons’ commitment to each other.

20. The Tribunal notes the applicant’s and the sponsor’s statutory declarations each made on 28 June 2018, which are on the Department’s file. The parties gave broadly consistent oral evidence about a number of these matters at the hearing.

21. At the hearing, the applicant told the Tribunal that she first met the sponsor in his store called ‘[Name]’ when she had gone in there for a [Product], and they struck up a conversation. She said that, at that time, they had both been in relationships with other people. She said that they developed a friendship, explaining that the sponsor was always very nice to her and helped her process her emotions when her relationship with her previous partner ended. She said that, in 2018, because of the deepening of their friendship, she started to develop feelings for the sponsor and wanted to be with him ‘all the time’.

22. The sponsor gave consistent oral evidence about the inception and development of the relationship. He said that they had known each other for eight years and he thought that it may have been 2016 when they first met. In his own words, the applicant was young and attractive, and they started talking when she came into his shop called [Name]. He said that in 2018, when he was going through the divorce with his former partner, he sold the shop and moved to [Town 2]. He said that he and the applicant were still talking and that their relationship developed further. He said that he loved the applicant, that she had nowhere to go, that being together made sense and was a ‘nice thing’.  

23. The Tribunal accepts the applicant’s and the sponsor’s oral evidence about the inception and development of their relationship.

24. However, the Tribunal is unsure when the parties first met and when they commenced a de facto relationship.

25. In the applicant’s statutory declaration of 28 June 2018, she declared that they had first met on 2 July 2014 and that she had left her former marital home on 9 January 2016. In her application for the visa, she declared that she first met the sponsor on 2 July 2014 and that the de facto relationship commenced on 9 January 2016—well before she applied for the visa on 29 June 2018. The sponsor gave the same information about the date that they first met and when they started living together in his statutory declaration of 28 June 2018, although he just stated ‘July 2014’ and ‘January 2016’ rather than giving specific dates. In his sponsorship form, he used the specific dates ‘2 July 2014’ and ‘9 January 2016’.

26. As has been explained, at the hearing, both parties said that they had first met in 2016 and became de facto partners in 2018.

27. Having reflected on all the evidence before the Tribunal (including the credible oral evidence from the two witnesses at the hearing that the parties had been in the relationship for seven or eight years), the Tribunal has formed the view that the applicant and the sponsor are credible and that there has been inadvertent slippage in their remembering of these key dates. Accordingly, the Tribunal accepts the claims as to timing made in the parties’ statutory declarations of 28 June 2018 and their forms made at the time the applicant applied for the visa rather than their recollection of dates at the Tribunal hearing.

28. Accordingly, the Tribunal gives weight to the evidence about the duration of their committed relationship throughout the years, specifically that, at the time of application on 29 June 2018, they had known each other for around four years (having first met in July 2014) and had been in a de facto relationship for two and a half years (having commenced that relationship in January 2016). The Tribunal also accepts and gives weight to the evidence that, at the time of this decision, they have been in a committed partner relationship for over eight years.

29. The Tribunal has taken account of the parties’ respective ages (including the notable age difference),[2] backgrounds and life experiences and accepts that both at the time of application and at the time of decision, neither party was nor is in a committed relationship with any third party.

    [2] The Tribunal asked both parties questions about the age difference. The applicant told the Tribunal that people could be judgmental and that, in the beginning, she had thought that people may talk about the age difference. She said that, later, she had come to the realisation that it does not matter. The Tribunal accepts the applicant’s and the sponsor’s oral evidence that their age difference has not caused them any problems in their relationship.

30. The Tribunal also gives weight to the length of time during which the persons have lived together, noting the claim (supported by some evidence) that they lived together from 2016 until the sponsor had dropped the applicant at the airport on 16 July 2023 so she could fly to Nepal to see her sick mother.[3] At the hearing, the sponsor told the Tribunal that he would have done ‘exactly the same thing’ as the applicant if he had found out that his mother was sick with cancer and living in a different country. The Tribunal notes here that the sponsor told the Tribunal that he could not leave Australia himself and move to Nepal because he has grandchildren and business/es in Australia.

    [3] In this review, the applicant submitted a ‘to whom it may concern’ letter dated 7 March 2023 from the [Health Care and Diagnostic Center] detailing her mother’s medical condition and that ‘her daughter will be responsible for taking care of her mother’. The Tribunal accepts this evidence.

31. When asked whose idea it had been for the two of them to start living together in a de facto relationship, the applicant said that they both had the idea. In her own words, they were both coming from divorce situations, were in love with one another and they simply wanted to do what any normal couple would do. When asked why the couple had rushed into a de facto relationship, the applicant responded that they had known each other since 2016 (again, the Tribunal notes that she used this date in error). She said that she had taken her time to get to know the sponsor over a couple of years. She said that, after living together, they came to understand each other more.

32. The Tribunal also asked the sponsor whose idea it had been for them to start living together. He replied, ‘I think it is God’. He said that his marriage was breaking up, that he had lost his mind and that ‘love is love’. 

33. With respect to the degree of companionship and emotional support that the persons draw from each other, the applicant said that the time difference and the fact that it was a ‘different world’ in Nepal made it challenging for the parties to communicate when she was in Nepal and the sponsor was in Australia. She said that they spoke every second day and that they talked on WhatsApp most of the time. She said that, when they were in contact, they would be in touch two or three times in a day and that they used calls, videos and texts. She said that the sponsor had planned to come to see her in Nepal but that it was difficult because he has a business and so he ‘could not drop everything and leave’. She suspected that the sponsor may surprise her by visiting her in Nepal for her birthday.

34. The sponsor gave broadly consistent oral evidence. He said that, while the applicant has been in Nepal, they have been talking on WhatsApp because it was easy and not too expensive. He said they talked in the afternoon. He said that they both wanted to be together again and that he was bored and was thinking of going to see the applicant in Nepal now that he has put his son-in-law into a position to help him with his business.

35. The Tribunal notes that the applicant did not submit any evidence of the parties’ claimed contact via WhatsApp.

36. With respect to any emotional support that the persons draw from each other, the applicant told the Tribunal that the sponsor had helped her emotionally while she was in Australia. She said that the sponsor had been there for her when her previous relationship had ended and when her family had not understood the cessation of that relationship. She said that the sponsor had listened to her and had understood. She said that the sponsor had never judged her and had always been there for her. She also said that she had been there for the sponsor to support him emotionally since his wife had left and his children had grown up.

37. The sponsor gave oral evidence that the applicant had helped him at the end of his marriage, telling the Tribunal that, if not for her, he would have jumped off a bridge. He said that the applicant came along at the right time in his life and had caused his life to take a different path. He said that things were easy because they were happy together and that they never fight. He said that the applicant means a lot to him.

38. With respect to whether the persons see their relationship as long-term, the applicant said that she believed ‘100%’ that it would be a long-term relationship. She said that she loved the sponsor, that she wanted to marry him and that she wanted it to be a ‘very long-term relationship’. Similarly, the sponsor said that he viewed the relationship as being for the long term. He said that he hoped that it would be until death in 20 to 30 years.

1. This is a case which would have benefitted from the submission of further documentary and photographic evidence in support of the parties’ claims. Notwithstanding, having had the opportunity of hearing the oral evidence from the applicant and the sponsor and the witnesses nominated, the Tribunal considers that it can be satisfied, considering all the evidence cumulatively, that the applicant and the sponsor have demonstrated, and continue to demonstrate, a level of commitment to one another and to their de facto relationship as contemplated in the Regulations. The Tribunal places weight on the evidence of the nature of the persons’ commitment to each other. In the Tribunal’s view, this evidence points to the parties being in a de facto relationship both at the time of application and at the time of this decision.

   Conclusion on the s 5CB(2) requirements

2. For the reasons given with respect to the reg 1.09A(3) matters, the Tribunal is satisfied that both at the time of application and at the time of this decision, the applicant and the sponsor:

   ·     were not and are not in a married relationship (for the purposes of s 5F of the Act) with each other;

   ·     had and have a mutual commitment to a shared life to the exclusion of all others, as required by s 5CB(2)(a) of the Act;

   ·     had and have a genuine and continuing relationship, as required by s 5CB(2)(b) of the Act; and

   ·     lived together or did not live separately and apart on a permanent basis (at the time of application) and do not live separately and apart on a permanent basis (at the time of this decision), as required by s 5CB(2)(c) of the Act.

3. Section 5CB(2)(d) of the Act requires that the parties not be related by family. There is nothing in the information before the Tribunal to suggest that the parties are related by family. To the contrary, both in the applicant’s record of responses for the visa application and in the sponsor’s record of responses for ‘sponsorship for a partner to migrate to Australia’, both of which are on the Department’s file, each of the parties declared that they are not related to the other by blood, marriage or adoption. The Tribunal accepts the veracity of these statements and finds that the applicant and the sponsor are not related by family. Section 5CB(2)(d) of the Act is met.

4. Based on the above, the Tribunal is satisfied that the requirements of s 5CB(2) are met both at the time the visa application was made and at the time of this decision. Therefore, the applicant meets cl 820.211(2)(a)(i).

   Time of application and time of decision requirements

5. The sponsorship requirements in cl 820.211(2)(a)(ii) and cl 820.211(2)(c) must also be satisfied, and, if the applicant was not the holder of a substantive visa at the time of application, then the requirements in cl 820.211(2)(d) must also be satisfied.

6. The Tribunal has reviewed the sponsor’s record of responses for ‘sponsorship for a partner to migrate to Australia’ that is on the Department’s file. On the basis of this documentary evidence, the Tribunal is satisfied that, at the time of application on 29 June 2018, the applicant was sponsored by the sponsor and that cl 820.211(2)(c)(i) is met. There is no information before the Tribunal to suggest that the circumstances outlined in cl 820.211(2B) apply so the Tribunal finds that the sponsor is not prohibited by that subclause from being a sponsoring partner. Accordingly, the Tribunal finds that cl 820.211(2)(a)(ii) is met.

7. The applicant’s movement records evidence her as having held a Bridging E visa upon applying for the Partner (Temporary) (Class UK) Subclass 820 visa on 29 June 2018. A bridging visa is specifically excluded from the definition of ‘substantive visa’ in s 5 of the Act. As the applicant did not hold a substantive visa at the time of application, the further requirements in cl 820.211(2)(d) must be met.

   SCHEDULE 3 CRITERIA: cl 820.211(2)(d)

   Does the applicant meet Schedule 3 criteria, or are there compelling reasons for not applying those criteria?

8. 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).

9. 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, the 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

10. 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.

11. In this case, the ‘relevant day’ is the day when the applicant last held a substantive visa. The Tribunal notes that the applicant’s last Student (Class TU) Subclass 573 visa ceased on 11 February 2016.

12. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.

    Compelling reasons

13. 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.

14. 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.

15. The Tribunal notes that the Explanatory Statement to Statutory Rules 1996, No 75 which accompanied the introduction of the provisions gave two examples of circumstances in which a waiver may be justified. One of these examples is that the applicant and sponsor are already in a long-standing partner relationship which has been in existence for two years or longer.

16. The Tribunal is mindful that it is obliged to consider all the circumstances of the case and determine, on the evidence as a whole, whether or not there are compelling reasons for not applying the Schedule 3 criteria.   

17. The Tribunal asked the applicant what compelling reasons she wanted the Tribunal to consider. The applicant responded by outlining the difficult position she found herself in. She said that her father’s business had not been doing well since the COVID-19 pandemic. She said that her mother had been ‘really sick’ and that there were no health services or help from the Government in Nepal. (Earlier in the hearing, she had detailed her mother’s medical condition and said that she had ‘not been thinking straight’ and had ‘panicked’ and departed Australia to see her mother). She said that all the health care had to be paid for from their savings. She said that her family was in a very financially difficult position. She said that she could not afford to apply for a new visa from Nepal. She said that applying for a further visa would also take an unreasonably long time, noting that she had already waited years for the Tribunal hearing in respect of the current visa application. She said that both she and the sponsor wanted to be reunited as soon as possible as ‘time is everything’, saying, ‘whatever time we have, we want to be together’. She reiterated that she wanted to live with the sponsor.  

18. The Tribunal also asked the sponsor what compelling reasons he wanted the Tribunal to consider. He said that, when the applicant applied for the visa, he had no knowledge of the Schedule 3 requirements. He said that he and the applied entered and developed their relationship in a natural way, despite the age difference.

19. The representative referred the Tribunal to the Court’s decision in Waensila v MIBP [2016] FCAFC 32 and submitted that the Tribunal needs to consider the length of the parties’ relationship at the time of this decision. He submitted that it was an eight-year relationship now.

100.   The Tribunal has reflected on the parties’ oral evidence and these submissions. The Tribunal understands the applicant’s claim to be that the relationship is long standing and that this constitutes compelling reasons for not applying the Schedule 3 criteria.

101.   As noted earlier, the Tribunal questioned the parties in depth about their claimed de facto relationship. The Tribunal has found that the parties have been in a committed, exclusive relationship since January 2016—over eight years. The Tribunal notes that there is some credible third-party evidence in support of this finding.

102.   In the circumstances of this case, where the Tribunal has undertaken a detailed examination of all the circumstances of the relationship and has found that, at the time of application and the time of this decision, the parties were and continue to be in a genuine, continuing and exclusive relationship and that it is a long-standing relationship of over eight years’ duration, the Tribunal considers this to be a compelling reason to waive the Schedule 3 criteria. 

103.   At the hearing, the representative referred to the Department’s policy, particularly its guidance to decision-makers to consider the circumstances that resulted in the applicant becoming unlawful and whether the circumstances are beyond the applicant’s control.

104.   The Tribunal notes that the primary decision outlines the applicant’s immigration history. The applicant has not sought to correct any information that was detailed in that decision.

105.   Both the representative and the applicant submitted that the applicant had been misguided by her previous migration agent. In the applicant’s words, her previous lawyer had told her ‘all the wrong information’. She said that she should have gone to see the current representative much earlier. The representative submitted that the applicant had sought the judicial review of the affirmed decision to cancel her Student (Subclass 573) visa due to ‘very faulty advice’. He described it as ‘stupid’ and ‘without proper consideration’. He reiterated that the applicant had not had ‘proper advice’. The representative submitted that, with respect to the applicant’s state of mind at the relevant time, a relationship like the one she has with the sponsor helped the applicant to get her life back together. 

106.   The Tribunal has had regard to the Department’s policy but, in this case, the Tribunal gives greater weight to the fact that there is a long-standing partner relationship of eight years’ duration than it does to the applicant’s immigration history.

107.   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).

CONCLUSION ON THE RELEVANT REQUIREMENTS IN PART 820

1. The Tribunal finds that the applicant meets the time of application requirements in cl 820.211(2). As the applicant meets the requirements of cl 820.211(2), she also meets cl 820.211(1)(b). As both cl 820.211(1)(a) and (b) are met, cl 820.211(1) is met.

2. With respect to criteria to be satisfied at the time of decision, the Tribunal finds that the applicant continues to meet the requirements of cl 820.211(2) and so meets cl 820.221(1)(a).

3. Accordingly, the Tribunal finds that the applicant meets cl 820.211(1) and cl 820.221(1)(a) of Schedule 2 to the Regulations.

   ARE THE ADDITIONAL CRITERIA FOR A DE FACTO RELATIONSHIP MET? REG 2.03A

111.   Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A.

112.   Both members of the couple must be at least 18 years old: reg 2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.

113.   The applicant must have been in the de facto relationship for at least the 12-month period ending immediately before the date of the application: reg 2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.

114.   There is no evidence that the relationship is registered under a relevant State or Territory law or that the sponsor held, holds or is applying for a permanent humanitarian visa, so the applicant must meet the 12-month requirement.

115.   At the hearing, because the Tribunal was exploring the applicant’s and the sponsor’s oral evidence that their de facto relationship had commenced in 2018—the same calendar year as when the applicant applied for the visa—the Tribunal asked the applicant to outline any compelling and compassionate circumstances that she wanted the Tribunal to consider.

116.   The applicant responded by stating that she had known the sponsor since 2016, which she said was about two and a half years before she applied for the visa. She said that by the time she applied for the visa, she knew the sponsor well and that they knew that they loved one another. She reiterated that, when she first met the sponsor, her marriage was breaking down. She said that she had been young when she married and that her husband had had an affair and that the marriage had ended in a very short period. She described herself as being ‘disturbed and lonely’ at that time. She said that the sponsor was there for her, that he had listened to her and had been helpful. She said that she had been really suffering and had felt broken, yet the sponsor offered her care. (It will be recalled that the representative had submitted that a relationship like the one the applicant has with the sponsor had helped the applicant to get her life back together).

117.   Subsequently, as has already been noted, having reflected on all the evidence before the Tribunal, the Tribunal accepts the claims made at the time of application that the de facto relationship commenced in January 2016—not some unspecified date in 2018.

118.   Accordingly, the Tribunal is satisfied that the applicant had been in the de facto relationship for at least the 12-month period ending immediately before the date of the application.

119.   Therefore, the Tribunal does not need to consider whether the applicant can establish compelling and compassionate circumstances for the grant of the visa: reg 2.03A(3).

120.   Rather, based on the evidence before the Tribunal and for the reasons given above, the Tribunal is satisfied that the applicant meets the additional criteria prescribed in reg 2.03A.

CONCLUSION

121.   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

122.   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(1) of Schedule 2 to the Regulations

·cl 820.221(1)(a) of Schedule 2 to the Regulations

·reg 2.03A

Justine Clarke
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.