CHAN (Migration)

[2020] AATA 2705

CHAN (Migration) [2020] AATA 2705 (12 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs HSIAO-PING CHAN

CASE NUMBER:  1732658

HOME AFFAIRS REFERENCE(S):          BCC2017/1943345

MEMBER:Helena Claringbold

DATE:12 June 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 12 June 2020 at 1:10pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – application made more than 28 days after last substantive visa held – long period of unlawful stay after working holiday visa ceased – long-standing, genuine and continuing relationship not in itself a compelling reason not to apply criteria – parties’ family relationships – possibility of lodging new application offshore – COVID-19 travel restrictions – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211(2)(d), Schedule 3, criteria 3001(2)

CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 1 June 2017, Mrs Hsiao-Ping Chan, the applicant, applied for a Partner (Temporary) (Class UK) visa. The application was based on her spousal relationship with Mr Yau Leong Chan, the sponsor.

2. On 6 December 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The refusal was based on the applicant not meeting the criterion of Schedule 3001, 3003 and 3004 of Schedule 3 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). As a result, the applicant did not meet cl.820.211 of Schedule 2 to the Regulations. On 22 December 2017, the applicant provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision.

3. On 2 June 2020, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by her registered migration agent.

4. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

7. The issue in this matter is whether the applicant meets the criteria Schedule 3 to the Regulations and if not, whether there are compelling reasons not to apply the Schedule 3 criteria.

   BACKGROUND ON THE EVIDENCE

8. The applicant was born in 1980 in Taipei City, Taiwan. Her mother and stepfather and grandparents and sibling live in Taiwan. The applicant did not declare any previous partner relationships.

9. The applicant entered Australia on 18 October 2010 as the holder of a subclass 417 working holiday visa. The visa ceased on 18 November 2011 and it was the last substantive visa she held. The applicant remained in Australia as an unlawful non-citizen for approximately six years. She is currently the holder of a bridging visa E.

10. The sponsor was born in 1972 in Malaysia. His parents and three siblings live in Malaysia. On 18 April 2004, he married Mrs Goh. On 7 December 2015, Mrs Goh and the sponsor divorced. There are two children from this relationship born in 2004 and 2010. The two children live in Malaysia.

11. On 5 April 2013, the applicant and the sponsor (the parties) met in Campsie, NSW, Australia. On 31 December 2013, the parties’ entered into a relationship and on 1 January 2014, the parties began living together. On 16 January 2017, the parties married in Sydney, NSW, Australia.

    Does the applicant meet Schedule 3 criteria, or should those criteria be waived?

12. 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).

13. 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

14. 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 criterion 3001(2), as set out in the attachment to this decision. Specifically, and as detailed in the delegate’s Decision Record the applicant was granted a substantive visa which ceased on 18 October 2011. The applicant applied for the visa under review on 1 June 2017. Therefore, at the time of application, it was more than 28 days since the applicant held a substantive visa.

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

    Compelling reasons

16. 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.

17. The expression ‘compelling reasons’ is not defined for these purposes. However, the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.

    CLAIMS AND FINDINGS

18. In requesting a waiver to the Schedule 3 criteria, both prior to and at the Tribunal hearing, the applicant provided information in support of the parties’ relationship. The applicant also provided other information for consideration as to whether there are compelling reasons not to apply the Schedule 3 criteria. The claims and findings on the information are as follows.

19. The Tribunal considered the evidence relating to the Schedule 3 waiver and the long-term nature of the parties’ relationship. This included the information provided by the parties about the financial and social aspects of their relationship and the nature of their household and their commitment to each other and the genuine nature of their relationship and the information detailed below. It also considered information given in third-party statements about the genuine and continuing nature of the parties’ relationship. Even if the Tribunal accepts that the applicant and the sponsor have lived together since January 2014 and have been in a spousal relationship for approximately three-and-a-half years, a genuine partner relationship is the basic requirement for a partner visa application. The Tribunal is not satisfied, in this case, that the longevity of the parties’ relationship is a compelling reason that should compel the Tribunal not to apply the Schedule 3 criteria.

20. In 2017, the applicant stated the following: that she came to Australia in October 2010 to ‘get rid of the burden’ of her family who wanted her to marry. In June 2011, when she returned to Taiwan her mother introduced her to a man and expected her to marry him within six months. She didn’t want to marry the man and ‘chose to escape’ and on 23 June 2011 ‘fled to Sydney’. She knows her mother was concerned about the applicant’s future, but she shouldn’t be forced to marry. She understands that she should not have ‘overstayed’ (in Australia) but she had no other choice. In May 2015, she called her mother and told her that she had found the person she wanted to marry. Initially her mother didn’t agree to the marriage but after a year agreed to the parties’ marriage. The applicant told the Tribunal the following: that she has not seen her biological father in a long time. Her stepfather is also her uncle. He told the applicant that he was ‘into her’. She rebuffed his approaches and he abused her physically and psychologically. He spread rumours that she was a prostitute and involved with drugs and people didn’t trust her. Her mother suffered family violence perpetrated by her stepfather. Her sister and her husband and family live with her mother and stepfather. As a result of the family environment her sister, who has difficulties with her vision, has depression and her stepbrother hanged himself last year. The Tribunal does not accept the applicant’s claims about her being forced to marry or about her claims of abuse or about her family circumstances because it has not been provided any independent evidence to substantiate her claims. The Tribunal accepts that the applicant returning to Taiwan may be challenging. The Tribunal encourages the applicant to seek the support of her grandparents and the sponsor during any time she may be in Taiwan. The Tribunal is not satisfied that these circumstances are a compelling reason that should compel the Tribunal not to apply the Schedule 3 criteria.

21. In 2017, the sponsor stated the following: during his previous marriage he worked in Australia and his previous spouse continued to live in Malaysia and refused to come to Australia. The marriage ended because he was not with his ex-wife and she fell in love with other people. He has lived in Australia for a long-time and his daughters are not close to him. The applicant lives in the shadow of her parents’ divorce. Because of their history the parties cherish their marriage and long to have their own children. He is worried about the applicant going to Taiwan alone and he does not want to be separated from her. The applicant has terrible family relationships and he does not want her to go to Taiwan and suffer more. The sponsor told the Tribunal the following: the applicant not remaining in Australia could jeopardise their relationship. These circumstances would be (like) what happened with his previous spouse and their separation. Should the parties be separated then the relationship won’t be ‘as good’ and they may meet someone else. The Tribunal understands that, the parties’ previous life experience may give them reason for caution. However, the evidence before the Tribunal is that the parties’ relationship means more to them because of their previous experiences and they treasure their marriage. The Tribunal understands that the parties’ preference is that they are not separated. It is of the view that it is reasonable to expect that hardship maybe experienced if partners are separated from one another for any extended period of time. This is a particularly common experience for applicants applying from offshore to migrate to Australia based on their relationship with an Australian partner (or eligible person). The Tribunal encourages the parties to continue to support each other and their relationship during any separation via the various communication facilities that are available. Although hardship can be considered a compelling factor in relation to the Schedule 3 criteria, the parties have not satisfied the Tribunal that their temporary separation is a compelling reason not to apply the Schedule 3 criteria in this case.

22. In 2017, the parties stated the following: that the sponsor financially supports his two children (from his previous marriage) and his parents who live in Malaysia and cannot stop work and leave Australia.  The sponsor stated that he comes from a poor family and when he was 16 years old, the family needed to borrow money for his father’s medical operation and he is determined that his parents will not suffer. In his written statement of 2020, he reiterated that he must remain in Australia to make money to support his family in Malaysia.  In 2017, the applicant stated the following: that the most important thing is, that her grandparents (paternal) have been supporting her financially. They are the only ones who understand her and are her biggest financial and spiritual support. In her written statement of May 2020, the applicant stated the following:  that the sponsor supports her financially.  He does not have a steady income but has never applied for government payments and donates money to other people monthly. The sponsor has worked for many years and in 2018 took time off work to be with the applicant.  Her grandparents in Taiwan send her ‘some thousand(s) Australian dollars’ each year. They are the only people she cares about in Taiwan and she wants to go see them.

23. About the parties’ financial circumstances, the applicant told the Tribunal the following: that before she met the sponsor, she financially supported herself in Australia from her savings in Australia and Taiwan and from money given to her from her grandparents who live in Taiwan. Her grandparents are rich and have savings and a pension. They give her between $7,000 to $10,000 yearly. The parties do not have many financial problems and their expenses are minimal. The sponsor pays $1,360 in rent monthly and sends money to his family in Malaysia. The parties have $20,000 or $30,000 savings at home in cash. In addition, the sponsor has approximately $30,000 or $40,000 in his Australian bank account and other money in his Malaysian bank account. He previously earned approximately $100,000 yearly and currently earns between $600 to $700 weekly. Because of the COVID-19 pandemic and the sponsor’s desire to be with the applicant there are gaps in his employment. The applicant provided the Tribunal the sponsor’s bank statements for February 2020. These recorded a credit balance of $28,000 in his Australian bank account at that time. It also recorded a debit of $13,180 for a Rolex purchase on 21 January 2020, which the parties explained was a gift for the sponsor’s father. In 2020, the sponsor stated that the parties agreed to lodge the partner visa onshore because he needed to remain in Australia to (financially) support his family in Malaysia. The sponsor told the Tribunal the following: that he has $20,000 or $30,000 in his Australian bank account. He has 50,000 or 60,000 Malaysian dollars in his Malaysian bank account, which his father has access to. The parties stated that the credit deposits of $5,000 were probably related to money won when gambling. The Tribunal considers it admirable for the sponsor to financially support his parents and children in Malaysia. It understands that borrowing money for medical reasons may have been difficult and challenging. While the Tribunal may accept that the sponsor’s work hours are reduced, he appears to continue to obtain reasonably regular work and has savings to assist financially and the applicant’s grandparents appear willing to assist the applicant financially. Ultimately, the sponsor is not required to depart Australia, rather the applicant is required to lodge a partner visa offshore. If, the Schedule 3 criteria are not waived, the applicant would only be able to meet the criteria for a partner visa if she were to lodge an application offshore. The Tribunal is not satisfied that the parties’ financial circumstances are compelling reasons not to apply the Schedule 3 criteria in this case.

24. In her written statement of May 2020, the applicant stated the following: the sponsor travelled to Malaysia in July 2019 when his brother died. She feels that he is the only person his family can rely on. His brothers have their own families and cannot help the family (in Malaysia financially). In May 2020, the sponsor stated the following: that because of the applicant’s status in Australia he couldn’t take her to Malaysia to meet his family or take her back to Taiwan to see her grandparents. Other than her grandparents he is the only person the applicant recognises as family. He returns to Malaysia each year to see his parents and children and stays for one month. He looks forward to the applicant’s status being resolved and he will take her to meet his family and have a new year feast or even have a small wedding (in Malaysia). The applicant told the Tribunal the following: that the sponsor’s children have lived with their (paternal) grandparents since they were young. Her own grandparents live in a three bedroomed apartment in Taiwan and their son lives close by. Should she go to Taiwan to visit her grandparents she would stay in a hotel because her grandparents don’t like to have anyone else living with them. The Tribunal congratulates the sponsor on his sense of family and the support he provides them. Although the evidence is that the sponsor’s work is lessened, the other evidence is that the sponsor decided to work less to be with the applicant. The Tribunal has not been provided any information to suggest that the sponsor is unable to continue to financially support the applicant and his family. The evidence is that the parties have substantial savings and financial support from the applicant’s grandparents. There is no evidence to suggest that the applicant has been prevented from departing Australia and therefore could have met the sponsor’s family and seen her grandparents. The Tribunal is not satisfied that these circumstances are compelling reasons not to apply the Schedule 3 criteria.

25. The evidence before the Tribunal from 2017, is that the applicant has found it difficult to become pregnant. She tried Chinese traditional medicine. Other medical experts advised her that her chance of becoming pregnant was 30 per cent and that per centage reduces each year. She does not know if she will need to leave Australia and is unsure if she can complete medical examinations. She would also have to pay for the examinations as this would place a (financial) burden on the parties and she has delayed treatment. If the parties are separated, becoming pregnant will become more difficult. The parties want to complete their family and live in Australia. In their statements of May 2020, the parties explained that the cost of ‘In Vitro Fertilisation (IVF) is prohibitive, and they hope to have a child naturally. The applicant is 40 years old and her chance of becoming pregnant is not high. However, she could become pregnant at any time. A letter dated 12 July 2017 is from a medical practitioner who stated the following: He had seen the applicant on the same day, without the sponsor. The applicant had been trying to become pregnant for eight months. He recommended further investigation. The applicant understood the chances of a successful pregnancy using IVF and the decrease in successfully becoming pregnant as she aged. He planned to see the applicant in two weeks and to formulate a management plan. The applicant told the Tribunal the following: she wants to remain in Australia with the sponsor. She is 40 years old this year and the sponsor is 48 and they want to start a family. The cost of IVF is $13,000 for a treatment and this would put a financial burden on the parties. The sponsor told the Tribunal the following: because he has two children by his previous spouse, he wants to have a child with the applicant. While the Tribunal accepts that the applicant is at an age where childbearing may be less successful, it encourages the parties to seek assistance from their health professionals to further help them identify options available to them in Australia and offshore. The Tribunal is not satisfied that the parties’ possible conception of a child is a compelling reason not to apply the Schedule 3 criteria.

1. In her written statement of May 2020, the applicant stated the following: that in 2011, she committed a wrongdoing and because of that decision the parties have suffered for over two years with the possibility of being separated. Since the visa was refused and because of an unknown future, the parties suffered psychological torture and punishment. These feelings are impacted by COVID-19, when ‘they’ learnt about the vulnerability of life and importance of family. The applicant and the sponsor are the most important family to each other. In addition, the applicant previously stated that the sponsor is childlike and reliant on her. She tries to be a good wife and take care of everything in the home which leaves the sponsor with a ‘relieved heart’.  In May 2020, the sponsor stated the following: the parties circumstances affect his mind and he is a bit overwhelmed at work. He feels he should take a good break. He has some savings and the applicant’s grandparents send some money. The parties have been together for six years and rely on and support each other. He does not know how many ‘six years’ he will have in his life. He feels that the law is for punishing bad people who commit crimes and protecting law abiding citizens.  He wants a review on whether the parties are husband and wife.  The applicant told the Tribunal the following: she didn’t try to regularise her status as she didn’t know that she was unlawful prior to meeting the sponsor. She is/was not trying to be sponsored (for a partner visa) she just wanted to be with the sponsor.

2. The Tribunal explained to the applicant and the sponsor that the delegate’s decision was based on the applicant not meeting the requirements of the Schedule 3 criteria and that the Tribunal’s review would be on that basis. The Tribunal understands that the applicant’s migration status may cause the parties distress. However, their claim of psychological torture is not supported by any medical information. The applicant remained in Australia for approximately six years unlawfully and showed little regard for Australia’s immigration laws. The Tribunal does not accept that the applicant didn’t know she was unlawful. The applicant applied for and was granted a working holiday visa. The visa was granted for a stated time and the visa conditions would have been explained to her. Ultimately, it is the applicant’s responsibility to adhere to the conditions on any visa granted to her. The Tribunal considered the length of the parties’ relationship in combination with the other circumstances raised. It accepts that the parties may support and rely on each other and don’t want to be separated. Nonetheless, it is of the view that the parties can continue to support each other and their relationship during any separation. The Tribunal notes that although the sponsor feels the need for a break from work, it appears from the evidence that he has savings to support the parties and his family for a time. The Tribunal accepts that it is likely that the applicant will experience some difficulties because of the COVID-19 pandemic and that it presents added uncertainty. However, there is no evidence to suggest that the sponsor and the applicant’s grandparents would not continue to support her financially and psychologically and no evidence to suggest a reason why the applicant, eventually, would be unable to return to Taiwan. The Tribunal is not satisfied that these reasons either individually or collectively are compelling reasons not to apply the Schedule 3 criteria.

3. The Tribunal understands that there is a level of uncertainty arising from the current COVID-19 pandemic. The applicant may not be able to leave Australia to return home due to travel restrictions and/or the availability of means of travel. In such circumstances there is the likelihood that she would be granted a bridging visa, provided she is making acceptable arrangements to depart Australia. 

   Other considerations

4. The applicant’s migration agent draws the Tribunal’s attention to Departmental policy post 2014. It is argued that the Department’s policy is at odds with the explanatory memoranda relating to compelling circumstances.  She claimed that the significance of the ‘Explanatory Statement’ is that a relationship of two years is identified as constituting ‘strongly compassionate’ and the length of the parties’ relationship is on the example in the Explanatory Memorandum ‘long standing’.  An excerpt from Waensila v MIBP [2016] FCAFC 32 has been provided. Reference is particularly made as follows:

   ‘The extracts from the Explanatory Statement (which are set out in [47] above), confirm that the purpose of the waiver power is to provide the Minister (or his or her delegate) with flexibility to respond to compelling circumstances which justify dispensing with the obligation of particular partner visa applicants to satisfy the Sch 3 criteria, such as hardship that may be occasioned if an unlawful non-citizen who wishes to remain in Australia to be with their partner has to leave Australia and apply from overseas because they do not satisfy these criteria. The Explanatory Statement gives examples of matters of a “strongly compassionate” nature, which include where there are Australian-citizen children from the couple’s relationship or the visa applicant and his or her sponsor are in a long-standing relationship which has been in existence for two years or longer. There is nothing in the Explanatory Statement which suggests that such circumstances have to exist at the time of application. Rather, the examples are expressed in a way which suggests that the decision-maker can take into account strongly compassionate circumstances which exist when consideration is given to whether or not to exercise the waiver power, even if those circumstances or ‘compelling reasons’ post-date the time of application.’

5. The Tribunal is not bound by Departmental policy.  It is guided by court determinations and is not precluded in any way in considering Tribunal decisions and policy currently in force. Ultimately, the Tribunal’s responsibility is to consider the circumstances of each case before it and to make the correct or preferable decision on the evidence. The Tribunal has considered all the information before it and has progressively come to its decision having had regard to the individual and complete circumstances of this case as detailed above.

6. This decision is a synopsis of the evidence before the Tribunal. The Tribunal considered the evidence individually and as a whole and is not satisfied that there are compelling reasons, either individually or collectively, not to apply the Schedule 3 criterion.

7. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

   DECISION

8. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

   Helena Claringbold
   Member

   
   

   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.