Naidu (Migration)

Naidu (Migration) [2020] AATA 6054 (11 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Kannen Naidu
CASE NUMBER:  1731507
HOME AFFAIRS REFERENCE(S):          BCC2017/2133312
MEMBER:Christine Kannis
DATE:11 December 2020
PLACE OF DECISION:  Perth
DECISIONThe Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Statement made on 11 December 2020 at 6:08am

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – applicant was not the holder of a substantive visa at the time of application – emotional difficulty– no Australian– citizen child of the relationship at the time of this decision – sponsor’s pregnancy – child was conceived at a time when the parties were aware that applicant may be required to depart Australia temporarily – no sufficient compelling reasons to waive the Schedule 3 criteria decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 820.211, Schedule 3
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 16 June 2017 on the basis of his relationship with his sponsor, Ms Natasha Maree Hulkes. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by the applicant.
The delegate refused to grant the visa on the basis that the applicant failed to meet the criteria in cl.820.211(2)(d)(ii). That provision requires the applicant to satisfy Schedule 3 criteria 3001, 3003 and 3004. The delegate found the applicant failed to meet criterion 3001 and therefore did not consider criteria 3003 and 3004.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal by video on 24 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Mr Jordan Hulkes, Ms Sarah Hulkes, Mr San Naidu and Mrs Loganayegee Naidu.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Does the applicant meet Schedule 3 criteria, or should those criteria be waived?
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).
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
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.
Departmental records show that the applicant last held a substantive visa on 10 May 2017, being the relevant day. This Partner visa application was lodged on 16 June 2017. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.
To meet the requirements of subclause 820.211(2)(d)(ii), the applicant must satisfy each of the Schedule 3 criteria, that being criteria 3001, 3003 and 3004.
Compelling reasons
As the Tribunal has found that the applicant does not meet the relevant Schedule 3 criteria, it is required to consider whether there are compelling reasons for not applying the criteria.
The expression ‘compelling reasons’ is not defined for these purposes. However, 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. The decision in Waensila means that a decision maker is not confined to having regard to circumstances that amount to compelling reasons only at the time of application and that the applicant’s circumstances as a whole are to be taken into account.
At the hearing the Tribunal invited the applicant to present reasons that might be considered compelling for a waiver of the Schedule 3 criteria.
As discussed with the applicant at the hearing, the focus of the original decision maker was whether there were compelling reasons to waive the Schedule 3 criteria and no formal assessment was undertaken to determine whether the applicant and the sponsor were in a genuine relationship at the time the application was lodged. Accordingly, the Tribunal has also refrained from formally considering this issue.
Prior to the hearing the Tribunal was provided with written statements made by the applicant, the sponsor and the witnesses. In his statement dated 30 October 2020 the applicant provided the following information regarding compelling reasons for not applying Schedule 3 criteria:
·He and the sponsor have undergone two IVF attempts, the second of which was successful, and the sponsor is now pregnant. He wants to provide the sponsor with support during the pregnancy and wants to be present at the birth.
·The sponsor has reduced her work hours to look after herself during the pregnancy. He has been promoted at work.
·He does not want the family to be separated as it would have a massive impact on the sponsor and her two children from previous relationships. It would cause the family financial hardship.
·His mother requires back surgery and recovery may take up to one year. He and the sponsor have been supporting her during these hard times. They have invited his parents for dinner to give them a break from cooking. His mother does not drive and he has been taking her to the shops and to medical appointments.
In her written statement dated 29 October 2020 the sponsor said:
·The applicant has helped her through difficult financial times and they are now in a much healthier position financially.
·The applicant has been a father figure to her two children from previous relationships. The applicant was instrumental in the older child’s transition to high school because she was busy with work.
·She and the applicant have been trying to have a baby since last year and the applicant helped her through the emotional impact of undergoing IVF treatment. She is now pregnant and will reduce her work hours. The applicant has been promoted at work.
·If the applicant is required to temporarily depart Australia it will send them back to square one. It will be difficult for her emotionally and financially. She wants him by her side during the pregnancy and at the delivery.
The applicant’s evidence
At hearing the applicant confirmed the contents of his written statement.
The Tribunal asked the applicant the reason he chose to conceive a child at a time when his Partner visa had been refused and there was the possibility that he would have to temporarily depart Australia. He said it had been his dream to have a child with the sponsor and after trying to conceive naturally for 12 months, they underwent IVF which was successful on the second attempt. The estimated delivery date is 13 June 2021. The applicant said they proceeded with the planned pregnancy and hoped that his current application for review would be successful. The Tribunal put it to the applicant that in effect they took the risk that he might have to temporarily leave Australia and he agreed,
The applicant told the Tribunal that if he has to temporarily leave Australia it will place the sponsor under financial pressure because she will have to pay the mortgage and the family’s living expenses without his financial assistance. He said the sponsor has taken over the mortgage on the property she owned with a previous partner. He said the sponsor has reduced her working hours and will likely stop working and “stay home for quite a bit” after the birth. The applicant said potentially he would find work in Mauritius however the wages are only about AUD$500 per month and therefore the financial assistance he could provide to the sponsor would be limited.
The applicant told the Tribunal that the sponsor depends on him for emotional and practical support and if he is required to temporarily depart Australia it would not be easy for her. In terms of practical support, he said he helps with the sponsor’s two sons from previous relationships including taking them to school and picking them up from their afterschool sporting activities. He said he makes the evening meal for the family if the sponsor has been working at her second job. He also gave the example of the sponsor needing assistance to open a can of tuna when she was at work recently. He went to her workplace with a can opener.
In relation to emotional support, the applicant said he has provided the sponsor with emotional support during the emotional IVF process and continues to be there if she needs him. The Tribunal asked him whether they could keep in regular contact by Skype and other technology. In response he said that sometimes the sponsor needs a touch on the shoulder and his physical presence.
The applicant told the Tribunal that the sponsor’s sons from previous relationships, aged 14 and 11, depend on him to prepare them for school and make them dinner if the sponsor is working. He said they have some contact with each of their biological fathers but not on a regular basis.
The applicant told the Tribunal that he is employed on a full-time basis, 8.30 am to 5 pm Monday to Friday. He is also on call on weekends for overnight shifts on a rotating basis. He has recently been promoted and has had an increase in salary.
The applicant told the Tribunal that he provides practical and emotional support to his parents. He said his sister lives in Perth and he is the only family living nearby to them in Albany. The applicant explained that his mother has been diagnosed with a spinal condition for which she requires surgery. He said following surgery she will be disabled for one year. He said his father is in in full-time employment and cannot always help his mother with shopping, gardening and transport to medical appointments. He said his mother does not drive and if his father is not available, he drives his mother to appointments or the shops. He said sometimes the sponsor also provides this assistance. The applicant said his father had prostate cancer earlier this year and although his treatment is now complete, he undergoes regular blood tests to monitor his health.
The sponsor’s evidence
At hearing the sponsor confirmed the contents of her written statement.
The Tribunal asked the sponsor the reason she chose to conceive a child at a time when the applicant’s visa had been refused and there was the possibility that he would have to temporarily depart Australia. She said it was their dream to have a child and she will be 34 this year and she couldn’t wait much longer.
The sponsor told the Tribunal that if the applicant is required to temporarily depart Australia, she will have to pay the mortgage and the household bills by herself. She said 12 months ago she took over the mortgage from a former partner. The Tribunal confirmed with her that she made this financial commitment at a time when she was aware that the applicant may have to temporarily depart Australia.
The sponsor told the Tribunal that she currently has two jobs and that she plans to take 6 to 12 months maternity leave. She said she will receive half pay for 6 months from her primary employment. She said she might return to her second job earlier to supplement her income. The sponsor said she currently receives family tax benefit (as a lump sum payment at the end of each financial year) and child support from the biological fathers of her two sons.
The sponsor told the Tribunal that the applicant is a father figure to her two sons and provides them with emotional support. She said the applicant provides her with emotional support and when asked about whether he could provide that support by Skype and other technology she said she needs “hands on” support if she needs a shoulder to cry on.
The sponsor said she needs the applicant’s financial, emotional and physical support and needs him to be in Australia with her.
Witnesses’ evidence
In a written statement dated 4 November 2020 from the sponsor’s brother, Mr Jordan Hulkes, he said even a short separation from the applicant has the dangerous potential to crush the sponsor. He referred to financial pressures the sponsor faced as a single mother and the positive influence of the applicant on the sponsor’s two children from previous relationships.
At hearing Mr Hulkes told the Tribunal that without the applicant’s financial assistance the sponsor will struggle to pay the mortgage and support her two sons. He said if she loses her house this will affect her emotional well-being. Mr Hulkes said the applicant is a male role model to the sponsor’s two sons from previous relationships and they would be devastated if they were separated from him.
A written statement dated 6 November 2020 from Ms Sarah Hulkes was provided. Ms Hulkes is married to the sponsor’s cousin. Her brother is the father of the sponsor’s older son. In her statement Ms Hulkes said the sponsor relies on the applicant and she does not think the sponsor will mentally cope if the applicant is required to depart Australia. She also said the sponsor will suffer financial hardship without the applicant’s income to support the family.
At hearing Ms Hulkes told the Tribunal that the applicant has stepped in the role of father to the sponsor’s two sons from previous relationships. She said it has been a long gap between the sponsor’s last pregnancy and her current pregnancy and she would find it hard work to look after two teenagers and a newborn. She said having the emotional and practical support of a partner would be good for the sponsor.
A written statement dated 29 October 2020 from the applicant’s father, Mr San Naidu, was provided. Mr Naidu said the applicant and the sponsor share the household expenses and chores. He said he and his wife have endeavoured to support the sponsor through her IVF treatment and have the whole family at their home as often as possible for meals. He said they offered the sponsor moral support when she has been distressed. Mr Naidu said his wife is waiting to have surgery and he had his prostate removed in August 2019. He said the applicant was supportive of him and his wife during this difficult time and they will rely on him for support when his wife has surgery. Mr Naidu said the sponsor and her sons rely on the applicant’s support and the whole family will be devastated if he has to depart Australia,
At hearing Mr Naidu told the Tribunal that the applicant and the sponsor have been in a relationship for four years. He said the applicant and the sponsor share the mortgage and household expenses. He said the applicant is involved in the sponsor’s sons’ school and sporting activities. He said it would be difficult for the sponsor and her sons to cope without the applicant. The Tribunal asked Mr Naidu whether he and his wife would provide support to the sponsor and her sons if the applicant is required to temporarily depart Australia. He said they are part of the family and they would assist them. Mr Naidu said he is 61 and his wife is 57 and they depend on the applicant. He said his wife does not drive and the applicant helps with transport if he is working.
A written statement dated 5 November 2020 from the applicant’s mother, Mrs Loganayegee Naidu, was provided. Mrs Naidu said it would be devastating for every member of the family of the applicant is required to depart Australia. She said the sponsor and her sons rely on the applicant’s support and care and he is the father in the house. She said the applicant, the sponsor and the sponsor’s sons are at her home as often as possible for lunch, dinner and to spend time together. She said the applicant supported her husband when he had surgery in 2019 and it would not have been easy for her to cope without the support of the applicant and the sponsor. She said she will be relying on the applicant’s support during her treatment for her spinal condition. She said she does not drive and if her husband is not available she will rely on the applicant for transport.
At hearing Mrs Naidu told the Tribunal that the applicant looks after the sponsor’s sons as if they were his own children. She said she is waiting to have surgery (which is likely to occur next year) and she will be relying on the applicant to drive her around if her husband is not available.
The Tribunal was provided with a letter form the applicant’s employer, Community Living Association. The employer said the applicant had recently been promoted. The employer said the disability sector in Australia is suffering from staff shortages. The employer said the organisation would suffer a great loss if the applicant is required to leave Australia.
Representative’s submissions
The representative submitted that the combination of the sponsor’s pregnancy, the birth of the child next year , the financial and emotional impact of the applicant’s departure from Australia on the sponsor and her two sons and the impact on the applicant’s parents and his employer constitute compelling reasons for waiving the requirement to meet the Schedule 3 criteria in this case.
The representative said the sponsor previously faced financial hardship in relation to keeping her house and the applicant’s departure from Australia would mean she may face losing it once again.
The representative said the applicant has provided support to the sponsor during the horrible IVF process and it is inconceivable that any parent should miss the birth of their child. She said the applicant may not be able to return for the birth on a Visitor visa due to the current border closures and the requirement to meet Public Interest Criterion 4014. The representative said given the current offshore visa processing times, the child could be 18 to 24 months old before he/she meets the applicant.
The representative submitted that the sponsor would find it difficult to be a single parent to two teenage sons. She said the applicant is a father figure to the sponsor’s sons on a consistent day-to-day basis because their biological fathers have limited involvement in their lives.
The representative submitted that the applicant’s parents, who are both Australian citizens, rely on the applicant for practical and emotional support. She said the sponsor provides them with some support however this will be more difficult for her after the birth of the baby.

The representative submitted that the impact of the applicant’s departure from Australia on his employer is demonstrated by the letter of support which states that there are staff shortages in the disability sector.
Overall assessment
The Tribunal has considered the factors relevant to the case including those raised by the applicant, the sponsor and the representative.
The applicant’s primary compelling reason for waiving the requirement to meet the Schedule 3 criteria in this case was his contention that if he is required to temporarily depart Australia to lodge an offshore visa application, the sponsor will suffer emotional and financial hardship.
The sponsor and the witnesses claimed that the applicant’s temporary departure from Australia will cause emotional hardship to the sponsor and her two sons from previous relationships. It was evident during the hearing that the applicant and the sponsor do not want to be separated, even temporarily. The Tribunal pointed out that while the applicant would not be present physically, technology would enable daily communication with each other. The Tribunal notes that they would have all forms of electronic communication available to them including Skype. The Tribunal considered the potential consequences of the applicant temporarily departing Australia. The Tribunal accepts that this is not the preferred outcome for the applicant and the sponsor, and temporary relocation would be emotionally difficult. The Tribunal does not view any emotional difficulty in this case to be a compelling reason in itself for waiving the Schedule 3 criteria.
The sponsor’s two sons from previous relationships provided written statements to the Department in July 2018 in which they referred to their close relationship with the applicant and said he has been an involved and caring member of the household. At hearing the applicant and the sponsor spoke of the good relationship the applicant has with the sponsor’s sons. The witnesses said the applicant is a father figure to the children. The Tribunal accepts that the sponsor’s sons have good relationships with the applicant and want him to stay. The Tribunal accepts that the applicant plays a positive role in the children’s lives. The Tribunal considers, however, that the applicant can continue to provide emotional support to the children whilst his offshore Partner visa is being assessed. He can remain in contact with the children via a wide range of modes of communication. The Tribunal accepts the degree of support is not the same as the current situation. There was nothing before the Tribunal to support a claim that the applicant’s uninterrupted physical presence is vital for their continuing well-being. The Tribunal consider that the impact of the applicant’s temporary absence on the two children is, on the facts before it, not significant enough to represent a compelling reason to exercise the waiver.
The applicant has submitted evidence that the sponsor is pregnant following IVF treatment. The expected delivery date is 13 June 2021. The applicant provided evidence from Fertility Great Southern and Great Southern Radiology. For the purposes of this review the Tribunal is prepared to accept that the child is the biological child of the applicant and the sponsor. The Tribunal notes that the Explanatory Statement to Statutory Rules 1996, No 75 which accompanied the introduction of the provisions gave two examples of circumstances in which a waiver may be justified (Tribunal’s emphasis). One of these examples is that there are Australian-citizen children from the relationship. From the evidence before it, the Tribunal is satisfied that the sponsor is expecting a child who will be an Australian-citizen child of the relationship. At the time of this decision, there is no Australian-citizen child of the relationship.
The Tribunal asked the applicant why, with no substantive visa; with a visa application refusal on the grounds that he did not meet the Schedule 3 criteria; and with the possibility that he might have to depart Australia temporarily, he chose to conceive a child. The applicant stated that it was his dream to have a child and he hoped his application for review would be successful. The Tribunal asked the sponsor why she chose to conceive a child when she knew the applicant had been refused a Partner visa and might have to depart Australia at least temporarily in order to lodge a Partner visa application offshore. The sponsor stated that she is 34 years old and she couldn’t wait much longer. For the reason that the parties chose to become pregnant in the full knowledge that the applicant did not hold a substantive visa and might have to depart Australia temporarily, the Tribunal does not find the sponsor’s pregnancy a compelling reason to waive the criteria.
The sponsor and the witnesses told the Tribunal that the sponsor will find it difficult to look after her two sons from previous relationships and a newborn alone if the applicant temporarily departs Australia. The Tribunal notes that sponsor’ sons are currently aged 14 and 11 and are unlikely to require constant supervision. The Tribunal is of the opinion that the sponsor, as an Australian citizen, can obtain a wide range of government and community assistance if she requires someone to physically assist her in looking after the children whilst the applicant lodges a Partner visa application offshore. This can be through programmes such as Government-sponsored childcare and family assistance provided financially by the Commonwealth. The Tribunal is of the view that some degree of hardship is to be expected when applying for an offshore Partner visa application. The Tribunal accepts that the sponsor will be taking on greater responsibility for the children if the applicant is compelled to return offshore temporarily to lodge a Partner visa application however notes that she has previously managed the care and support of her sons whilst a single parent. On the evidence before the Tribunal, the Tribunal is not satisfied that the sponsor will be unable to repeat this whilst the applicant lodges a Partner visa from offshore. In addition, the applicant’s parents are likely to continue to provide support to the sponsor and her children who they regard as part of their family.
The applicant, the sponsor and the witnesses said the sponsor needs the applicant to provide for her financially. The applicant does have the ability to seek gainful employment whilst offshore and can still provide financial support of some degree to the sponsor whilst his Partner visa application is assessed offshore if he so chooses. The Tribunal accepts that if the applicant secures employment in Mauritius his income will be less than he is currently earning in Australia. The Tribunal accepts that the applicant currently provides financial support to the sponsor and that she may have difficulty paying her mortgage repayments and bills without the applicant’s financial assistance. The Tribunal accepts that making an offshore Partner visa application involves a degree of financial sacrifice for both parties and may necessitate the applicant and sponsor having to adjust their home finances. The Tribunal accepts that an offshore Partner visa application does represent a financial burden for the sponsor and the applicant. This however is not an unusual situation for many people applying for a range of visas. The Tribunal does not view the financial disadvantages or loss (if any) arising from the applicant’s temporary absence from Australia as a compelling reason for not applying the Schedule 3 criteria.
The Tribunal accepts that the applicant provides emotional and physical support to his parents and in particular to his mother, but is not persuaded, on the evidence provided, that his temporary absence would inflict on them deprivation and suffering such as to be a compelling reason for not applying the Schedule 3 criteria. The Tribunal notes that the support provided by the applicant includes driving his mother to appointments and shops when his father is not available and doing gardening. Given that the applicant works on a full-time basis and claimed to be involved in the sponsor’s sons’ sporting activities, the Tribunal considers it unlikely that the absence of the practical support the applicant is able to provide for a temporary period would cause significant hardship to his parents. In addition, the evidence was that the sponsor provides some practical support to the applicant’s mother. For these reasons, the Tribunal does not find that the support the applicant provides to his parents is a compelling reason to waive the criteria.
The applicant referred to the likely lengthy processing time of an offshore visa application. The Tribunal is mindful that the processing times apply to each visa application. These are not specific to the applicant. The Tribunal has considered the applicant’s specific circumstances throughout these reasons and is not satisfied that in the circumstances of his case, there are compelling reasons that render the delay compelling.
Mr Jordan Hulkes said a separation could have a dangerous potential to crush the sponsor and Ms Sarah Hulkes said she does not think the sponsor will mentally cope on her own. There was no medical evidence in support of the any psychological hardship which would result to the sponsor if the applicant departs Australia.
Regarding the impact of the applicant’s departure from Australia on his employer, the Tribunal accepts that the applicant is a valued employee but does not view the hardship to the applicant’s employer (if any) arising from the applicant’s temporary absence from Australia as a compelling reason for not applying the Schedule 3 criteria.
Conclusion
The Tribunal noted that at the date of the delegate’s decision the sponsor was not pregnant. The sponsor is now expecting the parties’ child. The child was conceived after the delegate’s decision and at a time when the parties were aware that the applicant may be required to depart Australia temporarily to apply offshore for the visa. The Tribunal did not consider this to be a compelling reason in itself for waiver and was not satisfied that individually or cumulatively, the other matters raised constitute compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Christine Kannis
Member

ATTACHMENT - Extract from Migration Regulations 1994
Schedule 3
3001
(1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).
(2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:
(a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or
(b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or
(c)if the applicant:
(i)       ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(ii)      entered Australia unlawfully on or after 1 September 1994;
whichever is the later of:
(iii)      the last day when the applicant held a substantive or criminal justice visa; or
(iv)    the day when the applicant last entered Australia unlawfully; or
(d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:
(i)       the day when that last substantive visa ceased to be in effect; and
(ii)      the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.
3003
If:
(a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and
(b)on 31 August 1994, the applicant was either:
(i)       an illegal entrant; or
(ii)      the holder of an entry permit that was not valid beyond 31 August 1994;
the Minister is satisfied that:
(c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and
(d)there are compelling reasons for granting the visa; and
(e)the applicant has complied substantially with the conditions that apply or applied to:
(i)       the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(ii)      any subsequent bridging visa; and
(f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and
(g)the applicant intends to comply with any conditions subject to which the visa is granted; and
(h)the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.
3004
If the applicant:
(a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or
(b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;
the Minister is satisfied that:
(c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and
(d)there are compelling reasons for granting the visa; and
(e)the applicant has complied substantially with:
(i)       the conditions that apply or applied to:
(A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and
(B)any subsequent bridging visa; or
(ii)      the conditions that apply or applied to:
(A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and
(B)any subsequent bridging visa; and
(f)either:
(i)       in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or
(ii)      in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and
(g)the applicant intends to comply with any conditions subject to which the visa is granted; and
(h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

[2020] AATA 6054

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction