Mahrous (Migration)

Mahrous (Migration) [2017] AATA 3142 (26 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ehab Mohamed Moustafa Kamal Mahrous
CASE NUMBER:  1621250
DIBP REFERENCE(S):  CLF2013/140586
MEMBER:Kate Timbs
DATE:26 October 2017
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 October 2017 at 3:15pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Federal Circuit Court remittal – Whether “compelling reasons” exist not to apply the Schedule 3 criteria – Witness credibility – Evidence of sponsor and applicant inconsistent – Lack of emotional support – Whether the applicant is at risk of harm in home country – Chance of applicant experiencing harm remote – Compelling reasons do not exist – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, Schedule 2, cl 820.211(2)(d)(ii), Schedule 3
CASES
Babicci v MIMIA (2005) 141 FCR 285
Minister for Immigration and Border Protection v Angkawijaya[2016] FCAFC 5
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under section 65 of the Migration Act 1958 (the Act).
Mr Mahrous applied for the visa on 20 June 2013 based on his relationship with his sponsor, Ms Agohol Deng. The delegate refused to grant the visa on 6 January 2014.
On 21 January 2014, Mr Mahrous applied for review by the Migration Review Tribunal (MRT). The MRT heard the application on 24 February 2015 and affirmed the decision under review on 26 February 2015.
On 19 December 2015, the Federal Circuit Court found the MRT made an error of law and remitted the matter to this Tribunal for reconsideration. The Tribunal heard the application again on 22 March 2016 and affirmed the decision under review on 8 August 2016.
On 2 December 2016, the Federal Circuit Court found the Tribunal made an error of law and remitted the matter for reconsideration. The Tribunal heard the application for review again on 1 May 2017.
RELEVANT LAW AND ISSUES FOR THE TRIBUNAL TO DETERMINE
To be granted the visa, Mr Mahrous must meet the criteria in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
To satisfy clause 820.211(2)(d)(ii), Mr Mahrous must meet specified criteria in Schedule 3 to the Regulations unless there are compelling reasons not to apply those criteria. (Alternative criteria in clause 820.211(2)(d)(i) are not relevant in this case.) The specified criteria include criterion 3001, which requires him to have applied for the visa before “the relevant day”. In his circumstances, the relevant day is 28 days after he last held a substantive visa.
Mr Mahrous last held a substantive visa in March 2012 and does not contend that he meets criterion 3001. In that case, the Tribunal considered whether there are compelling reasons not to apply the Schedule 3 criteria.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence considered
The Tribunal considered documents in the Department’s visa application file and documents provided to the MRT and to the Tribunal for all three hearings. It listened to recordings of the hearings in 2015 and 2016 and Mr Mahrous and Ms Deng gave evidence at third hearing. Mr Mahalingam Sutharsan, lawyer, represented Mr Mahrous at that hearing.
Compelling reasons
The expression “compelling reasons” is not defined in the Act or Regulations. 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.
Immigration history
Mr Mahrous has lived in Australia since 2007. He held substantive student visas until March 2012. Since then he held bridging visas associated a protection visa application and this visa application.
Relationship with Ms Deng
Mr Mahrous contends he and Ms Deng are a loving couple and have had a lengthy relationship. He has provided consistent evidence to the Department and at each Tribunal hearing that they met on New Year’s Eve 2010 and his evidence is that they lived together from December 2012. They married in May 2013.
If the visa is not granted, Mr Mahrous can apply for a visa offshore in his home country of Egypt. The Tribunal understands the processing time for the visa is likely to be 18 to 24 months.
Ms Deng is a Coptic Christian and, at hearing, Mr Mahrous said she would not go with him to Egypt or visit him because of persecution in Egypt of the Christian population. After the hearing, Mr Sutharsan provided country information about persecution of Christians and apostates in Egypt and claimed Ms Deng intends to visit Mr Mahrous in Egypt if the visa is not granted. Mr Sutharshan did not explain why he claimed Ms Deng would visit Mr Mahrous in Egypt when Mr Mahrous gave evidence at hearing that would not be the case. The Tribunal finds the assertion unlikely and prefers Mr Mahrous’ evidence that she would remain in Australia to ensure her safety. It is satisfied Ms Deng would not face any danger from persecution if the Schedule 3 criteria apply and the visa is not granted. However, it is satisfied that she and Mr Mahrous would live apart for a lengthy period.
Ms Deng
Mr Mahrous told the Tribunal they are a loving couple who live together happily in a shared household. He said Ms Deng relies on him emotionally and that she “would be lost” without him. He said she is often depressed because she does not have care of her son and she sometimes drinks too much. He said that she has a good relationship with her mother but she cannot rely on other family members for emotional support because they do not approve of their relationship because of his religion and/or race.
Ms Deng has no income other than income support from Centrelink and he said she could not manage financially without him. In particular, he said she could not afford to live independently because of the cost of accommodation in Sydney and she could not live with her parents and siblings because their home is overcrowded and because of her conflict over their relationship with her siblings. However, Ms Deng said she has her own room in the family home and lives there a lot of the time. She said she has good relationships with her siblings, that her family generally supports her emotionally and that she would live with them all the time if Mr Mahrous went to Egypt.
The Tribunal invited Mr Mahrous to comment on Ms Deng’s evidence. He said her evidence is incorrect and that Ms Deng does not have her own room because there are eight family members living in a three-bedroom home. He said she has complained about overcrowding and lack of privacy and that her siblings have asked her to live with him because it is overcrowded. He said that she does not have a good relationship with her siblings and that they argue constantly and do not like him because of his race and religion.
The home might be overcrowded and she might not have as much privacy or space as at the home that she lives in with Mr Mahrous. However, the Tribunal prefers Ms Deng’s evidence that she is welcome in her family home, that she lives there for some of the time and that she would live with family if Mr Mahrous returns to Egypt (whether or not she has her own room). In that case, she would not suffer financial hardship as she would have accommodation and could meet her personal expenses from income support payments.
There is no dispute that Ms Deng has a good relationship with her mother and she did not tell the Tribunal her siblings do not approve of her relationship with Mr Mahrous. It might be that they often argue but that that is common in some loving families. Whether or not the arguments are about her relationship with him, his post-hearing submissions do not undermine Ms Deng’s evidence that her family would be a source of emotional support during any lengthy separation from Mr Mahrous.
If Mr Mahrous and Ms Deng have a long and loving relationship, they are both likely to suffer some emotional hardship during any lengthy separation. However, the evidence on that issue is also inconsistent.
At hearing, Ms Deng firstly said that she does not want Mr Mahrous to leave Australia and confirmed his evidence that he provide her with emotional support. However, when the Tribunal asked for more details, she asked to give evidence in confidence. The Tribunal explained it was not possible to take evidence without disclosing the details to Mr Mahrous and asked her why she did not want to speak in front of him. She said that she is afraid of Mr Mahrous and that he had threatened her. The Tribunal advised her she was not obliged to give evidence and she chose not to say anything further.
After the hearing, the Tribunal provided an opportunity for Mr Mahrous to comment on Ms Deng’s statements. Mr Mahrous denied she is afraid of him and restated his evidence that they have a long and loving relationship. He said Ms Deng had withdrawn a similar complaint to the NSW Police on the weekend before the hearing and he provided a statement from her withdrawing the allegations made to the Tribunal. It states Mr Mahrous has never threatened her and that she made unfounded allegations because of mental health issues and a fear of “the court”. Mr Mahrous’ statement provided the following explanation:
I believe the story she made up in the hearing about threatening her is just an act to get out of a situation that I don’t understand…I wish to further stress that my partner suffers from mental disorders (Mr Mahrous’ emphasis)…
I wish to conclude that my wife has a phobia from attending the hearings. She was suffering being a part of the application.
Mr Mahrous also pointed out that they had spent the weekend before the hearing together at a hotel in the city and provided a written statement from Ms Deng. In the ordinary case, fear and anxiety do not explain giving false evidence and the explanation provided after hearing is unlikely.
There is medical evidence that Ms Deng has issues with alcohol and has been prescribed medication for depression. It accepts those matters might have made it more difficult for Ms Deng to give evidence. However, there is no evidence she has mental health issues (with symptoms such as psychosis or serious phobia) that might explain why she would make serious allegations that were not true. The Tribunal does not accept the explanations provided and finds her statement resiling from her allegations is unconvincing. It prefers her oral evidence at hearing that she was afraid of Mr Mahrous and that he had threatened her.
Ms Deng might continue to be afraid of Mr Mahrous and she might have withdrawn her police complaint and made the statement after hearing under duress. Alternatively, they might have resolved any differences and she might have made the statement because she wished to repair any damage she has done to Mr Mahrous’ case for the grant of a visa. In either case, the Tribunal infers any relationship is troubled and that Ms Deng did not support his application for review at the time of hearing or in the previous days when she made her complaint to NSW Police. This casts significant doubt on evidence of a loving relationship, which makes it unlikely that Ms Deng would suffer emotionally during any separation from Mr Mahrous or that Mr Mahrous’ absence would have a negative impact on her mental health or her capacity to manage her alcohol intake.
The Tribunal had regard to other evidence Mr Mahrous provided about their relationship to support his contention that he “is still in love with my wife and wish that I can continue supporting her in particular her mental health problems”. This included photos of them together alone or in social situations, which might have been taken at any time. In the Tribunal’s view, they do not demonstrate a loving relationship at the time of hearing.
Mr Mahrous also provided a receipt for a hotel room in Sydney CBD for the weekend before the hearing. He told the Tribunal that he and Ms Deng stayed there and went to the Ivy Pool Club together with a housemate in the previous week. The Tribunal does not find attending a social activity together demonstrates they have a loving relationship and, given he told the Tribunal that he has financial difficulties, paying for a hotel room immediately before the hearing suggests he was manufacturing evidence to support his application for review.
Mr Mahrous also provided statements made shortly before the hearing from Ms Deng’s mother and friends of Mr Mahrous attesting to them having a loving relationship. If the statements are true, it does not follow the relationship is not troubled because family members and friends are often unaware of relationship difficulties and, in particular, of abuse in relationships. The Tribunal gives the statements little weight for that reason.
Ms Deng was afraid of Mr Mahrous on the day of the hearing and other evidence does not convince the Tribunal of his contention that they have a loving relationship and that he is a major source of emotional support for her. On the evidence available, it is not satisfied she would suffer emotional hardship if she lived apart from him for a lengthy period. It is also unlikely that a separation would exacerbate any mental health and substance abuse issues and the Tribunal finds those matters are not compelling reasons for waiving the Schedule 3 criteria.
It does not follow that Mr Mahrous and Ms Deng did not have a married relationship when Mr Mahrous applied for the visa and at the date of this decision. Married relationships are often troubled and sometimes involve intimidation or violence. The Full Federal Court in Minister for Immigration and Border Protection v Angkawijaya[1] found that:
…the existence of love and affection is not determinative of the question whether there exists a de facto [or married] relationship at the relevant time [and] its absence is not necessarily fatal to the Minister’s favourable consideration of a partner visa application.
[1] [2016] FCAFC 5
In short, it is not necessarily the case that married persons are a major source of emotional support for their spouses and it is not necessary for the Tribunal to consider whether the relationship meets the definition of spouse (in section 5F).
Ms Deng’s son
At the 2016 hearing, Mr Mahrous said he has a close relationship with, and caring responsibilities, for Ms Deng’s son, Kual. However, he told the Tribunal he was mistaken at that time and that Kual had lived with him and Ms Deng for approximately two years until mid-2015 but not afterwards. He said Kual now lives with his father in Melbourne and he sees him in the school holidays.
On his evidence, Mr Mahrous does not often see Kual or care for him and he did not suggest that Kual would be emotionally or developmentally affected if he left Australia to apply for the visa. In the circumstances, the Tribunal finds that would not be the case and his personal relationship with Kual is not a compelling reason to waive the Schedule 3 criteria.
However, Mr Mahrous said it is important for him to stay in Australia for Kual’s benefit because Ms Deng wants him to find work so that he could pay for her to get court orders that his father is to return Kual to their care. He said they both think it would be the best thing for Kual if they could live together as a family.
Ms Deng told the Tribunal she would like Kual to live with her and Mr Mahrous but he likes to live with his father and she and Mr Mahrous cannot afford to care for him. She said it would not be necessary to take legal action to have him in their care and that his father has said she “can get him back any time that I want”. She said her plan is to ask for his return when they both find work.
After the hearing, the Tribunal invited Mr Mahrous to respond to the inconsistency in the evidence. He restated that Ms Deng wants Kual to live with her and provided an April 2017 report from a general practitioner stating she wished to control her alcohol intake to help achieve that goal. He did not dispute that Kual’s father would return him voluntarily and said that Ms Deng:
…had asked me many times to find a job and to start and reunite the family. This means that I would have to get permission to work in order to find employment and earn money to provide for her and my stepson whom I love very much…
Kual might be more likely to return to Ms Deng’s care if Mr Mahrous is working and they have sufficient funds to meet his proper needs. However, that is not certain no matter how motivated Ms Deng might be. In the Tribunal’s view, it is unlikely having regard to the evidence that Kual prefers to live with his father and the evidence that her alcohol consumption was a barrier to Kual living with her shortly before the hearing.
Mr Mahrous
Mr Mahrous said that he would not rely financially on his family if he returned to Egypt. He said they are not rich, they have already paid for his education and that the cost of living is high. He said his father is not working and must support his young adult siblings who are living at home and provide support to an older sister who lives with a husband who has some financial difficulties. He said the uncle who had financed his travel and study in Australia had died.
There is no evidence that Mr Mahrous would be at any particular disadvantage in the labour market in Egypt but the Tribunal accepts he might not find work immediately. He did not say he could not live in the family home and the Tribunal infers that would be the case in the short term. It follows he would have accommodation until he found work and could establish an independent home or contribute to the family’s household expenses. He was not working at the date of hearing and he told the Tribunal Ms Deng gives him money for his living expenses. If they are in a married relationship, the Tribunal infers she would continue to do so until he found work and could meet his own living expenses. In those circumstances, the Tribunal finds that Mr Mahrous might face some financial difficulties if he returned to Egypt but that he would not be homeless or entirely without financial support. It is not satisfied that he would be in objective hardship if he returned to Egypt and, in that case, it finds that any financial difficulty he would face is not a compelling reason not to apply the Schedule 3 criteria.
The Tribunal next considered the psychological impact that applying the Schedule 3 criteria would have on Mr Mahrous.
The Tribunal accepts he prefers to live in Australia and would be unhappy if he had to return to Egypt after living here for so long. However, that is not a compelling reason to waive the relevant requirement and, for the reasons discussed above, it is not satisfied he would suffer emotional hardship if he lived apart from Ms Deng for a lengthy period.
Mr Mahrous provided a report of 18 April 2017 from Dr Abu-Arab, clinical psychologist. Dr Abu-Arab said he “qualifies for the diagnosis of Chronic Adjustment Disorder and Mixed Anxiety and Depressed Mood”. He supported his application “to apply for an Australian visa from within Australia [because] allowing Mr Mahrous to remain in Australia will have a significant positive impact on his family’s life due to the significant support he provides to her and to his step son on a day to day basis”.

The Tribunal infers Dr Abu-Arab formed his conclusions based on information given to him by Mr Mahrous. In that case, his findings are undermined because Mr Mahrous had not disclosed that he had no caring role for Kual or that his relationship with Ms Deng had any difficulties.
The report does not state returning to Egypt would exacerbate Mr Mahrous’ mental health conditions and, in particular, it does not corroborate his assertion at hearing that he would suffer “major depression”. He said he had attended monthly counselling with Dr Arab-Abu from January 2017 and the report does not recommend any other treatment. Similar treatment would be available in Egypt. In that case, the Tribunal is not satisfied returning to Egypt would have a negative impact on his mental health.
The Tribunal next considered assertions that Mr Mahrous could not live safely in Egypt if were to return to apply for a visa. Dr Abu-Arab’s report states Mr Mahrous reported to him that he was concerned about his safety in Egypt because:
…of unrest and conflict between the regime and young people who seek significant changes in their country. He added that after the coup against the former president who represented the Muslim Brotherhood and the repression his supporters were subjected to, Christian and progressive individual (sic) became the subject of retaliation by the Muslim Brotherhood.
After the hearing, Mr Sutharshan submitted:
…due to the continuing human rights abuses and his opinion against the current government in Egypt, he would face significant harm including torture, degrading, inhumane and cruel treatment if he returned to Egypt.
Mr Sutharshan provided citations for country information reporting concerns with the human rights record of the Al Sissi Government that date from 2014 to mid-2016. The Tribunal finds the sources are credible and accepts that Mr Mahrous might be at risk of harm if he were perceived to oppose the Government or chose to involve himself in activities that would give rise to such a perception. The Tribunal considered whether that would be the case.
Mr Mahrous withdrew an application for review of a decision to refuse a protection visa and the Tribunal has no information about the claims made to the Department with the protection visa application. At hearing, he said he based his claim on general unrest and “chaos” following the fall of the Morsi regime. No other documents available to the Tribunal include a claim that Mr Mahrous holds political opinions opposed to the current regime. (References to “young people who seek change” and “progressive individual” in Dr Abu-Arab’s report are vague and the Tribunal does not infer from them that Mr Mahrous reported he held any particular opinions.)
The MRT pressed Mr Mahrous about specific harm that he might face if he returned to Egypt and suggested general unrest did not necessarily make it unsafe for him. He said he would feel unsafe and that he had lived in Australia for eight years. He did not suggest that he would be unsafe because he is, or would be perceived, as holding anti-Government opinions.
At the 2016 hearing, Mr Mahrous referred to general unrest again and did not refer to his political opinions. Rather, he said he just wants to be happy and live in a country that has a reliable legal system. He confirmed that none of his family had been harmed because of the security situation in Egypt and that he would have travelled to Egypt to visit his father in 2014 if the Department had granted him permission.
At hearing, Mr Mahrous told the Tribunal again that his fears arose from general unrest and did not mention his political opinions.
It follows that Mr Mahrous has not given evidence to the MRT or the Tribunal about his political opinions. In the Tribunal’s view, he would have raised that issue at an earlier time if he feared for his safety because he holds any particular political opinions. It does not accept Mr Sutharshan’s submission that he would suffer harm in Egypt “due to the continuing human rights abuses and his opinion against the current government in Egypt” because there is no convincing evidence that Mr Mahrous holds, or would be perceived to hold, anti-Government political opinions.
Mr Mahrous has consistently claimed he and Ms Deng fear for his safety if he returned to Egypt because the country is generally unsafe. The Tribunal noted he told the Tribunal in 2016 that his family had not been harmed and suggested he would be safe if he lived with them. He did not directly respond but made further submissions about general dangers arising from the political situation. He referred to “chaos” in Egypt and to comments made by the President of the United States that war could erupt in Egypt at any time, like Syria. He provided an article published in November 2016 about an interview with the Vice President of the United States. It refers to the “influence of jihadist terrorists who are trying to destroy Egypt and to lure Egyptians into civil war” but does not suggest that civil war is immanent and the Tribunal does not find on that evidence that civil war is likely.
The Tribunal referred to recent reports of bombings of Christian churches and suggested that would not affect his safety. He then said his family knows of his marriage and that “they might abuse me” or “provoke me just to get involved in a fight or an argument” but did not suggest any greater threat because of his interfaith marriage. His family might be displeased with him but the Tribunal is also not satisfied Mr Mahrous would be at risk of harm if he returned to Egypt because of his interfaith marriage. As noted above, Ms Deng would not travel to Egypt to visit him and, unless he chose to publicise his marriage, others in the wider community would not be aware of it and perceive him as an apostate.
Dr Abu-Arab also stated, “Mr Mahrous reported in the past he applied for a refugee status and this is an additional reason for him to feel unsafe if he were deported to Egypt”. There is nothing to suggest information about his application for protection is available to any person in Egypt and no country information to indicate Mr Mahrous would be at risk if that were the case. The Tribunal is not satisfied on the evidence available that there would be any risk of harm to Mr Mahrous if he were to return to Egypt because he applied for a protection visa.
The Tribunal accepts the general population in Egypt are at marginally greater risk of harm that those in Australia for a number of reasons including the political situation and a greater risk of terrorist incidents. However, many millions live safely and there is nothing about Mr Mahrous or his family circumstances that places him at particular risk. He might genuinely fear for his safety if he returns to Egypt because of the political situation. If so, his fears are not well founded and are not a compelling reason to waive the Schedule 3 criteria.
Other matters
Mr Mahrous told the Tribunal in 2016 that it was important for him to stay in Australia because of the poor relationship between Ms Deng and Kual’s father. He did not press that matter but, for completeness, it notes Kual’s father lives in Melbourne and there is nothing to indicate that Ms Deng cannot manage any communications with him about Kual’s welfare. It does not find any current conflict between the Ms Deng and Kual’s father could give rise to a compelling reason to waive the criteria.
Mr Mahrous also told the Tribunal in 2016 that he has friends who unsuccessfully applied for a partner visa offshore. The Tribunal infers from the statement that he considered he would be in a better position to demonstrate he has a married relationship with Ms Deng if he were in Australia with her. Mr Mahrous has had the opportunity to collect relevant evidence over a lengthy period of his relationship with Ms Deng and the Tribunal does not accept he would be at any disadvantage if he applied for the partner visa offshore.
After the hearing, Mr Mahrous made submissions and about inconsistencies in evidence from him and Ms Deng given at hearing in 2015. The evidence is about whether Kual lived with them for several months in Wagga Wagga. That matter might be relevant to the issue of whether they had a married relationship at any relevant time. The Tribunal has not considered it because it has not made a finding on that issue.
CONCLUSION
Mr Mahrous has not lived in Australia at any time without a visa and the Tribunal acknowledges the evidence of a lengthy married relationship with Ms Deng. It accepts they would have would live apart for a lengthy period if the visa were not granted. However, Ms Deng could manage financially without him and would not be without emotional support while they lived apart. Importantly, it also found she did not support Mr Mahrous’ application for review on the day of hearing and was afraid of him. It inferred any continuing relationship is troubled and is not satisfied a lengthy separation would cause her significant emotional hardship or affect her mental health or capacity to control her alcohol intake. In addition, Mr Mahrous’ continued presence in Australia is not necessary for Kual’s psychological or developmental welfare and is unlikely to facilitate his return to Ms Deng’s care. Mr Mahrous could live with his family and manage financially if he returned to Egypt, his mental health would not suffer and he would not be at any particular risk of harm. These matters, his preference to remain in Australia after a lengthy period of residence and other matters raised at earlier hearings are not compelling reasons to waive the Schedule 3 criteria. That is the case whether considered on their own or together.
It follows that the Schedule 3 criteria apply and Mr Mahrous does not meet the criterion for the grant of the visa in clause 820.211(2)(d)(ii). The Tribunal will affirm the decision to refuse to grant the visa for that reason.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Kate Timbs
Member

ATTACHMENT - Extract from Migration Regulations 1994
Schedule 3
3001
(1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
(a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or
(b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or
(c)if the applicant:
(i)       ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii)      entered Australia unlawfully on or after 1 September 1994;
whichever is the later of:
(iii)     the last day when the applicant held a substantive or criminal justice visa; or
(iv)    the day when the applicant last entered Australia unlawfully; or
(d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:
(i)       the day when that last substantive visa ceased to be in effect; and
(ii)      the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

[2017] AATA 3142

26 October 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies