Ku (Migration)

[2020] AATA 1103

Ku (Migration) [2020] AATA 1103 (26 March 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Li Chi Ku

CASE NUMBER:  1837084

HOME AFFAIRS REFERENCE(S):          CLF2014/107923

MEMBER:  Helena Claringbold

DATE:  26 March 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 26 March 2020 at 8:46am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit Court remittal – Schedule 3 criteria – not holder of substantive visa at time of application – not beyond applicant’s control – compelling reasons for waiver – source of support to the sponsor and sponsor’s mother – professional medical care available – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211; Schedule 3, Criterion 3004

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 5 August 2014, Mr Li Chi Ku, the applicant, applied for a Partner (Temporary) (Class UK) visa. The application was based on his de facto relationship with Ms Jeanette Anne Jones, the sponsor.

2. On 15 July 2016, 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 3004 in 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(2)(d)(ii) of Schedule 2 to the Regulations made under the Act.

3. On 1 August 2016, the applicant provided the Tribunal with a copy of the delegate’s decision record and requested a review of the delegate’s decision.

4. On 19 April 2017, the Tribunal differently constituted (the first Tribunal) affirmed the decision. The first Tribunal was not satisfied that the applicant met the relevant Schedule 3 criteria. In addition, the first Tribunal was not satisfied that there were compelling reasons for not applying the criteria.

5. On 16 November 2018, the Federal Circuit Court of Australia remitted the application for review to the Tribunal for reconsideration.

6. On 18 December 2019, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from Ms Jones and friends of the parties, Ms Helen Cameron and Mr Gino Cuomo. 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 his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

   ISSUES

9. The issue in this matter is whether, at the time of application, the applicant met the criterion 3004 in Schedule 3.

   BACKGROUND ON THE EVIDENCE

10. The applicant was born in 1957 in Taipei, Taiwan. His father is deceased. His mother and two siblings live in Taiwan. On 12 December 1987, he married Ms Yu-Chi Hsu. On 14 February 1997, Ms Hsu and the applicant divorced. There are two children from this relationship born in 1989 and 1991. One adult child lives in the United States of America and the other adult child lives in Australia.

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1. The applicant entered Australia on 29 January 1996 as the holder of a skilled occupation visa. He has since departed and entered Australia on various visa subclasses. The last substantive visa he held was a temporary work (long stay activity) visa which ceased on 4 August 2014. He declared being a religious worker and that his last granted permission to work ceased on 4 August 2014.

2. The sponsor was born in 1956 in Forbes, Australia. She is an Australian citizen by birth. Her father and one sibling are deceased and her mother and one sibling live in Australia. The sponsor did not declare any previous marriages or de facto relationships. She has a child born in 1990 who lives in Australia.

3. On 25 May 2008, the applicant and the sponsor (the parties) met at the Church of Scientology (COS) and they remained friends. The parties declared committing to a shared life on 12 December 2008 and they began living together about six months later. In May 2016, the applicant’s mother started living with the applicant and sponsor in Leichhardt. On 1 July 2018, the parties married.

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

4. 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).

5. 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

6. 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. Specifically and as detailed in the delegate’s decision record the applicant was granted a substantive visa which ceased on 4 August 2014. He applied for the visa under review on 5 August 2014. Therefore, the visa application was made within 28 days of the ‘relevant’ day.

7. As the visa application was made within 28 days of the relevant day, the applicant satisfies criterion 3001.

   Criterion 3003

8. Criterion 3003 only applies to an applicant who has not, on or after 1 September 1994, been the holder of a substantive visa, and on 31 August 1994 was either an illegal entrant or the holder of an entry permit that was not valid beyond that date. The Tribunal is satisfied that the applicant was not such a person, and accordingly criterion 3003 does not apply.

   Criterion 3004

9. Criterion 3004 of Schedule 3 requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions applicable to the last of any substantive visas and any subsequent

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bridging visa held by the applicant. In addition, the Minister must be satisfied that the applicant would have been able to be granted the visa if the applicant had applied on the day he or she last held a substantive or criminal justice visa; or would have satisfied the criteria when he or she last entered Australia unlawfully; that the applicant intends to comply with any conditions of the visa; and the last visa or entry permit held (if any) was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or further entry permit, while the holder remained in Australia.

1. It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. The applicant’s last substantive visa ceased on 4 August 2014 and he lodged the application under review on 5 August 2014.

   Were there factors beyond the applicant’s control?

2. In April 2017, the applicant’s migration agent wrote to the first Tribunal and provided the applicant’s immigration background and stated the following: on 4 August 2014, the applicant’s Subclass 401 (Religious Worker Stream) visa ceased. On 4 August 2014, the applicant went to the Department of Immigration’s office in Sydney to lodge the partner visa application. However, he arrived late and the partner visa application was not accepted. He returned to the Department of Immigration the next day and lodged the partner visa application. Due to the applicant’s limited understanding of immigration law and lack of legal advice at the time, the applicant’s responses to the Department were vague and limited.

3. The applicant told the first Tribunal that, he had difficulty obtaining the fee for the partner visa application and this is why he left it to the last day to lodge the visa application. Members of the COS assisted him with the fee. However because the sponsor returned from the USA ill he was reluctant to approach her. Ultimately, he had to approach the sponsor to pay the fee. He emailed the completed application and credit card details to the Department of Immigration prior to 8:00PM on the date it was due as well as hand delivering the visa application the following morning.

4. The Tribunal put information to the applicant under s.359AA of the Act. The applicant was told the relevance and consequences of the information. He was invited to comment on or respond to the information and told that he could seek additional time to do so. The information put to the applicant is as follows:

   At the first Tribunal hearing the applicant stated that he didn’t lodge an application for a partner visa prior to August 2014 because his reason for being in Australia was to work in religion. The Department issued a visa for an eight-month period. Departmental officers told the applicant that they were not going to issue another religious worker visa to the applicant. The applicant didn’t know what to do as he wanted to stay in Australia.

5. The applicant responded at the second Tribunal hearing and stated the following: because he had always worked for the COS he didn’t think that there would be a problem with his visa. He didn’t apply for a partner visa previously because he didn’t want the sponsor to think he was taking advantage of her. Someone suggested that he should apply for a partner visa and that way he would be able to continue his work at the COS.

6. The applicant told the second Tribunal that because he was busy at work and looking after a lot of people, he didn’t have much time to look after visa matters. Then someone suggested that he apply for a partner visa. However he didn’t have the fee to lodge the partner visa application. In the end he borrowed money and went to the Department of Immigration office at the last minute but they were closed. He realised he had a problem and was advised to copy the partner visa application and email it to the Department which he did at

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8:00 pm (on 4 August 2014). The following day he lodged the partner visa application with the Department of Immigration in person.

1. It is clear to the Tribunal, given the advice from the Department to the applicant that he was granted a visa for eight months, he understood that he had that amount of time to determine whether he would lodge another visa application onshore. It is obvious to the Tribunal that the applicant, knew that he was required to lodge the partner visa application within time on the relevant day with the required fee and that he understood the proper lodgement process. There is no supporting evidence about any electronic lodgement of the visa application on 4 August 2014. The Tribunal finds that it was the applicant’s responsibility to meet the requirements related to the visa application including the lodging of the visa application in time and with the relevant fee. Having considered all the evidence the Tribunal is not satisfied that the applicant was not a holder of a substantive visa because of factors beyond his control. Therefore the applicant does not meet the criterion 3004 of Schedule 3.

   Compelling reasons

2. 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.

3. 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.

4. The applicant provided information for consideration as to whether there are compelling reasons for not applying criterion 3004 as follows:

5. In April 2017, the applicant’s migration agent stated the following: the applicant is the single most important source of emotional and physical support to the sponsor. The sponsor is the sole carer and has sole responsibility for her mother who has numerous health concerns including dementia. The sponsor’s mother requires 24/7 monitoring/high care as well as the attendance of the applicant and sponsor. The applicant assists in whatever way he can, including constructing a wheelchair for the sponsor’s mother. He is involved in duties and tasks and the ongoing care of the sponsor’s mother and is singularly important to the sponsor. His departing Australia would have ongoing adverse and negative implications on the sponsor and her mother who rely on the applicant daily. The ongoing ordeal of the sponsor caring for her mother is taking a toll on the sponsor and only with the involvement of the applicant can she be expected to continue the care of her mother. In 2016 a high-care residential respite allowance through NSW Health was granted enabling the sponsor’s mother to reside for 63 days in a subsidised residential care facility. Further home care was granted. However the assistance is temporary and the sponsor relies on the applicant’s day-to-day support. The support plan confirms the duties the sponsor undertakes in caring for her mother.

6. In April 2017 the sponsor stated the following: at the end of 2013 and into 2014 she was ill with colitis and the applicant cared for her. He purchased and prepared food for her. If she had a return attack of colitis she does not know how she would manage especially looking after her mother. She would probably have to put her mother in a nursing home which is against her wishes. She does not want to be without the applicant. She relies on him for everything. She is the only senior supervisor at COS for spiritual counselling and has 20

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parishioners daily. This is stressful and requires a high level of training. In addition, she has to take care of herself and her mother and without the applicant, ‘it would be overwhelming to cope’.

1. The second Tribunal put information to the applicant under s.359AA of the Act. The applicant was told the relevance and consequences of the information. He was invited to comment on or respond to the information and told that he could seek additional time to do so. The information put to the applicant is as follows:

   At the first Tribunal hearing the applicant and the sponsor stated that the applicant provided a minimal amount of assistance in the care of the sponsor’s mother. The sponsor takes her mother to day care where she is from 8:00am to around 6:00pm when the sponsor picks her up and returns home in the evening. The applicant does not drive her to the day care or pick her up or tend to any of her high care needs. The sponsor previously placed her mother in a nursing home. Other evidence provided was the sponsor worked from 9:00am to 7:00 or 8:00pm.

2. The applicant responded at the second Tribunal hearing and stated the following: a long distance relationship would be difficult and the sponsor needed his help with her mother. The sponsor’s mother has dementia and she cannot talk or walk. She is heavy and the sponsor can’t lift her alone. For 22 years he has worked as a teacher and examiner for the COS and continues to do this work. He works Monday to Friday from 8:45am to 6:10pm and receives a payment of $150 weekly.

3. The applicant told the second Tribunal the following: the sponsor’s mother has dementia and cannot talk or walk. Because the sponsor’s mother is heavy the applicant assists the sponsor in lifting her. In the mornings the sponsor tends to her mother’s hygiene and dresses her. The sponsor feeds her mother and sometimes he assists. The parties begin work at 8:45am and finish work at 6:10pm. They drop the sponsor’s mother to the nursing home prior to beginning work and pick her up when they finish work. The applicant assists with lifting the sponsor’s mother from the bed to the wheelchair and in getting her in and out of the car and adjusting her sitting position from time to time. Even though he cannot understand the sponsor’s mother he supports the sponsor’s mother emotionally and sometimes she smiles at him. The sponsor has a lot of friends that she sees and either the applicant or the sponsor needs to be with the sponsor’s mother.

4. The sponsor told the second Tribunal the following: that the applicant has been her partner for 11 years. He provides her with comfort and helps care for her mother and she would not be able to keep her mother at home without him. It takes two people to lift her mother who is heavy. The sponsor could have a relapse of colitis because of stress and a poor diet and she could get cancer. She would not be able to manage caring for her mother without the applicant. The sponsor’s mother has been assessed by the Aged Care Assessment Team (ACAT). In the beginning ACAT sent someone but it didn’t work out very well and lasted 7 to 10 days. ACAT offered services of someone to go to the home for a short period of time. However the sponsor’s mother didn’t receive good service and things went missing. The parties then found the day care service (nursing home) which is subsidised by the Government by $50,000 per annum. The sponsor’s mother was in a nursing home previously but they couldn’t understand her. The only way the sponsor can look after her mother is with the applicant’s help. Otherwise she will have to send her to a nursing home and that nearly killed her previously.

5. Ms Cameron told the second Tribunal the following: the applicant’s role in COS is vital to the organisation and he helps stabilise the community. He helps people come off drugs and become part of society. He provides this humanitarian service 40 hours a week and sometimes more. The role the parties play is vital to society. He is an integral part of the

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sponsor’s mother’s care and it is with the joint collaboration of the sponsor and the applicant that the sponsor’s mother receives the care she needs. Mr Cuomo stated the following: that the applicant is an important part of the sponsor’s and the group’s life and he assists people with problems back into society.

1. Information provided about the sponsor’s mothers health and care needs included the following.

   ·A letter dated May 2013 is from a geriatrician who stated the following: the sponsor’s mother is an 83-year-old lady who was seen by teleconference on the same day, along with her daughter Jeanette, niece Avalon and relative and primary carer Neville. The letter goes onto to describe the sponsor’s mother’s conditions and medications and recommendations for her care. The Tribunal considered this letter and letters from the NSW Government Health and My Aged Care.

   ·A letter dated May 2016, is from community nursing. This stated that the sponsor’s mother had complex care needs. Her condition had deteriorated and she would be moving in with the sponsor on 19 May 2016.

   ·A ‘My Support Plan’ generated on 7 June 2016, stated the following: the sponsor’s mother moved in with the sponsor and her partner. The sponsor is the main carer for her mother. The sponsor has formal support via the Commonwealth Carer Respite Centre Monday-Friday for in-home respite 9am-3pm while the sponsor is at work. This is supplemented by respite provided by a family friend. Community nursing are assisting twice weekly. At that time the sponsor’s mother was on a waiting list for other services.

   ·An email dated 13 January 2020 from a support advisor of a day respite who stated the following: she confirms that the sponsor’s mother attends the centre five days a week and the parties pick her up and transport her home in the evenings.

1. A letter dated April 2017 is from a general practitioner who stated the following: the sponsor has a history of ulcerative colitis. She had episodes of inflamed bowel and hair loss and suffered fatigue. She supports that her family are in Sydney to provide her emotional and practical support. A letter dated December 2014, is from a gastroenterologist who stated the following: he saw the sponsor on the same day and from the point of view of colitis she is well. She has gained weight and her hair has come back and the colitis is in remission and she has previously suffered anaemia. The sponsor told the Tribunal the following: that the applicant helps her care for her mother and she would not be able to care for her without him. She does not want to place her mother in a nursing home because this is not what she wanted. The sponsor had colitis and just had medical tests and is not on any medication. However she could have a relapse as a result of stress and poor diet. She has also been told that she could get cancer.

2. In a post second Tribunal hearing submission the applicant’s migration agent stated the following: the parties continue to provide care for the sponsor’s mother on a daily basis each morning and evening as well as all day on the weekends and at other times of the year which is invaluable. The parties are planning renovation of the sponsor’s home to maintain a wheelchair friendly environment. They applied for governments grant funds and use them to meet ancillary care cost (for the sponsor’s mother’s care).

3. In a post second Tribunal hearing submission the applicant stated the following: as his mother-in-law is not mobile he aids the sponsor in lifting her. Without his support the sponsor will struggle and have a difficult time providing care for her mother. Given the sponsor’s age the demands of her mother will increase and it will be difficult for her to continue to care for

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her mother in his absence and while he can provide some support from overseas it is simply not the same. If he is forced to go offshore the sponsor cannot leave her mother.

1. In a third-party statement a neighbour of the applicant’s stated the following: he has lived beside the parties for 10 years. The sponsor takes care of her mother which enables her to remain living at home. He tries to get people not to park in front of their house as they need the space to get the sponsor’s mother in and out of the car and into her wheelchair.

2. 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’ to the first Tribunal and the second Tribunal about the genuine nature of the parties’ relationship and as detailed in this decision record. It also included the information in third party statements and the oral evidence of witnesses at the Tribunal hearings about the development and genuine nature of the parties’ relationship. The Tribunal accepts at face value, that the applicant and the sponsor have been in a de facto relationship since 2008 and in a married relationship since July 2018. However, a long-term relationship is not necessarily a compelling reason in every case. A compelling reason to waive the Schedule 3 criteria justifying the grant of the visa must involve something in addition to the basic prerequisite criteria for the grant of the visa. A genuine, continuing and exclusive relationship need not be, of itself, a compelling reason for not applying the Schedule 3 criteria. The Tribunal considered the evidence and the circumstances of the parties’ claimed relationship completely and is of the opinion that there is nothing in the individual or the collective circumstances (including as detailed below) in their particular case that should compel the Tribunal not to apply the Schedule 3 criteria justifying the grant of the visa.

3. The Tribunal accepts the following evidence: that the sponsor provides spiritual counselling to COS parishioners and that her position is stressful and needs a high level of training. The applicant is an educator and examiner with the COS and supports and helps the community in drug rehabilitation. The Tribunal encourages the sponsor to seek assistance from the COS in managing her responsibilities during any absence the applicant might have from Australia. It also encourages the applicant to seek solutions that would enable him to provide the community with his assistance, even if he is outside of Australia. Additionally, the COS has not provided any reasons or information about their inability to have other people fill the role of the applicant during the applicant’s absence from Australia. The Tribunal is not satisfied that these are compelling reasons not to apply the Schedule 3 criteria.

4. The Tribunal accepts the following: the sponsor has the medical conditions as claimed. The sponsor’s mother has the medical conditions as claimed. The applicant provides the sponsor with support and supports the sponsor’s mother. The departure of the applicant from Australia may present challenges for the sponsor and for the sponsor in providing care for her mother and that their preference is that the applicant remains in Australia. The Tribunal notes that the NSW Health letter dated June 2016, provided by the applicant, is in regard to the sponsor’s mother’s ACAT assessment and the approval of the following: home care level 3-4 package, high-level residential respite and permanent residential care. Referrals were made for Commonwealth Home Support Services including Occupational therapist, Physiotherapist, Podiatry, Nursing, Continence Nursing, Flexible respite, Home Modifications and Dementia Support Services. Recorded on the letter is that these approvals do not expire and can be used in the future. In addition, the applicant told the Tribunal that the sponsor’s mother’s care in a day nursing home is subsidised. The Tribunal is of the view that the applicant can continue to provide support for the sponsor through the numerous I.T.

   facilities. The Tribunal encourages the sponsor to seek the support of ‘My Aged Care’ to avail herself of the services available for her mother, to assist her in caring for her mother’s care during any time of absence of the applicant. It also encourages the sponsor to seek the assistance of her health professionals and her friends and colleagues at COS during any separation from the applicant, both to care for herself and to assist her in providing care for

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her mother. Having considered the evidence individually and as a whole, the Tribunal is not satisfied that these are compelling reasons for not applying the criterion 3004 in Schedule 3 that justify the grant of the visa.

1. On reflection, the Tribunal determined that it would confine its review and decision to the matters considered in the delegate’s decision.

2. The Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria that justify the grant of the visa. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.

3. There is no evidence that the applicant meets any of the alternative criteria for the grant of the visa.

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

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

   Helena Claringbold
   Member

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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).

1. 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.

2. 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).

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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

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(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.

Case Number 1837084  Page 12 of 12