Nguyen (Migration)

[2021] AATA 2603

Nguyen (Migration) [2021] AATA 2603 (17 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Nghia Nguyen

CASE NUMBER:  1935558

HOME AFFAIRS REFERENCE(S):          BCC2017/4862086

MEMBER:Justine Clarke

DATE:17 May 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations

Statement made on 17 May 2021 at 4:22pm

CATCHWORDS

MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – ceased to hold a substantive visa more than 28 days prior to lodging the visa application – compelling reasons for waiving the Schedule 3 criteria – sponsor relies on the applicant to help manage his medical and mental health conditions – long-standing partner relationship – decision under review remitted

LEGISLATION
Migration Act 1958, s 65, 360
Migration Regulations 1994, Schedule 2, cl 820.211, Public Interest Criterion (‘PIC’) 3001, Schedule 3

CASES
Babicci v MIMIA (2005) 141 FCR 285
Plaintiff M64/2015 v MIBP [2015] HCA
Waensila v MIBP [2016] FCAFC 32

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made on 4 December 2019 by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. At the time of this decision, the applicant is a 61-year-old national of Vietnam.

3. On 18 December 2017, the applicant applied for the visa on the basis of her relationship with her sponsor, Mr [A]. At the time of this decision, Mr [A] is [age] years of age.

4. At the time of application, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant.

5. The applicant provided the Tribunal with a copy of the primary decision. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations because she did not meet Schedule 3 criterion 3001 in that she ceased to hold a substantive visa more than 28 days prior to lodging the visa application. The delegate considered the applicant’s claims that there were compelling reasons for waiving the Schedule 3 criteria, including that:

   ·the sponsor is unable to perform daily tasks without the assistance of the applicant because the sponsor is blind in one eye, suffers from [other medical conditions];

   ·the applicant provides emotional support to the sponsor because he experiences anxiety and depression;

   ·the applicant has established a relationship with the sponsor’s son, who experiences depression and loneliness as a result of his divorce; and

   ·the applicant was apologetic for any inconvenience or misunderstanding caused.  

6. However, the delegate was not satisfied that there were compelling reasons that justified the waiver of the Schedule 3 criteria.

7. On 17 December 2019, the applicant applied to the Tribunal for review of the primary decision. The applicant was professionally represented in relation to the review.

8. On 25 March 2021, the Tribunal invited the applicant to attend an in-person hearing on 5 May 2021. The Tribunal requested that the sponsor also be available at the hearing to give oral evidence.

9. Subsequently, the applicant provided further evidence in support of her application for the visa.

10. Having reviewed the further evidence, on 3 May 2021 the Member presiding in this matter instructed an officer of the Tribunal to contact the representative to inform the applicant that the Tribunal considered that a hearing was no longer required. Pursuant to s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant’s favour based on the material before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

12. An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl 820.211(2)(d).

13. It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria. These criteria are set out in the attachment to this decision.

    Criterion 3001

14. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision.

15. In this case, the relevant day is the day the applicant last held a substantive visa, being 24 April 2013, the day her Tourist (Subclass TR 676) visa expired. On 18 December 2017, the applicant lodged the visa application which is the subject of this review.

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

    Compelling reasons

17. 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.

18. The expression ‘compelling reasons’ is not defined for these purposes. However, reasons that are compelling should ‘force or drive the decision-maker’ ‘irresistibly’ to some end: Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31]. The reasons or circumstances should be sufficiently powerful to lead a decision-maker to find that the criteria should not be applied: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.

19. The Department’s Procedures Advice Manual (PAM3) guides decision makers to consider the circumstances that resulted in the applicant becoming unlawful and whether the circumstances are beyond the applicant’s control. Notwithstanding, the Tribunal is mindful that it is not bound to follow the Government’s policy but rather it is obliged to consider all the circumstances of the case and determine, on the evidence as a whole, whether there are compelling reasons for not applying the Schedule 3 criteria.

20. The Tribunal notes that the Explanatory Statement to Statutory Rules 1996, No 75, which accompanied the introduction of the statutory provisions, gave two examples of circumstances in which a waiver may be justified. One of these examples is that there are Australian-citizen children from the relationship. However, there is no evidence that the applicant and the sponsor have any children together, so the Tribunal is unable to waive the Schedule 3 criteria for this reason. The other example is that the applicant and sponsor are already in a long-standing partner relationship which has been in existence for two years or longer. This matter is addressed below.

21. The written submissions, outlined in a document titled ‘Answers to Allegations’ that was filed with the Tribunal on 12 January 2021, essentially responded to the delegate’s criticism of the reasons that the applicant had earlier submitted to the Department as being compelling reasons why the Schedule 3 criteria should not apply.

    The sponsor’s reliance on the applicant to help manage his medical and mental health conditions 

22. When this matter was before the delegate, it was submitted that the sponsor is unable to perform daily tasks without the assistance of the applicant because the sponsor is blind in one eye, suffers from [other medical conditions] and that the applicant provides emotional support to the sponsor because he experiences anxiety and depression.

23. The delegate noted the medical evidence that had been provided but also remarked, ‘ [n]o formal documentation has been supplied to demonstrate … claims of weekly eye medical appointments, [other medical condition]’ and that no evidence had been provided to demonstrate the level of care and support that the sponsor requires or the intensity of care and support that the applicant provided to the sponsor.

24. The delegate also noted the psychological report that had been provided but noted that the report resulted from a singular visit on 13 October 2017 to the named clinical counsellor. In addition, the delegate noted that ‘[n]o convincing evidence has been provided to demonstrate that your sponsor had previously suffered from any emotional disorder that required professional intervention’ and that no evidence had been provided to indicate follow up or continuing counselling sessions. The delegate concluded:

    It appears that you and your sponsor’s attended the counselling session for the purpose of adding strength to your visa application, rather than for a significant psychological condition requiring ongoing treatment. I therefore conclude the major reason for attending this counselling sessions appears to be for the lodgement and outcome of your visa application.

25. In this review, it was submitted, in the document titled, ‘Answers to Allegations’ that was filed with the Tribunal on 12 January 2021, that:

    On our instructions Mr [A] required a number of operations on his eye. Prior to the operations, he was required to attend [a] Hospital on a weekly basis.

    Post-operatively, he was required to attend the hospital on a monthly basis.

    After that period of time, he was then required to attend the surgery of the Ophthalmic Surgeon … on a monthly basis and he continues to do so to date.

26. The representative also submitted that he had been instructed that the sponsor continues to visit the named clinical counsellor on a regular basis.

27. The submissions drew the Tribunal’s attention to a number of documents corroborating various claims that had been made in this respect.

28. The Tribunal acknowledges that, in this review, it has had the benefit of a greater volume of evidence than was before the delegate. The applicant submitted:

    ·Medical notes from [the] Hospital concerning the sponsor’s surgery/procedures on 12 March 2010; 29 March 2010; 26 July 2010; 18 February 2011; 12 August 2011; 3 December 2012; 3 May 2013; 28 June 2017 and 15 September 2017.

    ·A letter from the [Hospital] to the sponsor, dated 21 September 2017, confirming surgery on 25 September 2017.

    ·A letter from [the] Hospital to the sponsor, dated 25 September 2017, confirming an appointment on 26 September 2017.

    ·A letter from [the] Hospital to the sponsor, dated 3 October 2017, confirming an appointment on 5 October 2017.

    ·Invoice from [a named clinic], dated 27 August 2019 and 10 September 2019, in both parties’ names for spectacle frame and lenses.

    ·Invoices from a named ophthalmic surgeon to the sponsor for 17 August 2018; 24 August 2018; 22 September 2018; 20 October 2018; 17 November 2018; 5 April 2019; 1 June 2019; 29 June 2019; 24 August 2019; 15 November 2019; 13 December 2019; 11 January 2020; 8 February 2020; 17 April 2020; 25 May 2020; 26 June 2020; 3 August 2020; 31 August 2020; 28 September 2020; 26 October 2020 and 23 November 2020 in respect of ocular coherence tests (‘OCT’).

    ·Invoices from [a named] Pharmacy, in the sponsor’s name, for medication from the named prescribing doctor (being the ophthalmic surgeon) dated 5 September 2018; 14 September 2018; 19 December 2018; 29 March 2019; 24 April 2019; 24 May 2019; 20 June 2019; 15 August 2019 and 23 September 2019.

    ·A signed, ‘to whom it may concern’ letter from ‘[a named clinic]’, dated 13 December  2019, stating that the sponsor was a patient and that ‘[h]is left eye now has very poor vision. He requires regular visits to the clinic for [checks and treaments].

    ·Correspondence from a named medical clinic concerning the sponsor, dated 21 December 2019 and 6 January 2021, detailing his current medications. The latter statement also states that the sponsor [details deleted] [typographical errors in the original].

    ·Invoice from [a named clinic], dated 14 January 2021, in both parties’ names for spectacle frame and lenses.

    ·A ‘GP Mental Health Treatment Plan’ in respect of the sponsor and dated 18 January 2021.

    ·A signed letter rom a named doctor at [a named clinic] to the applicant’s representative, dated 15 February 2021, concerning the sponsor.

    ·A signed letter rom a named doctor at [a named clinic] to the applicant’s representative, dated 15 April 2021, concerning the sponsor.

    ·A private and confidential psychological report, dated 4 April 2021, which was said to be ‘additional’ to the earlier report and was made by the same clinical counsellor who had made the earlier report.

29. It was submitted that the applicant assisted the sponsor with a number of daily tasks. These were enumerated in the submissions and included preparing three meals per day; cleaning the home on a weekly basis; attending medical appointments and hospital; attending the swimming pool for therapy; visiting family and friends and so on, noting that the sponsor did not drive, has difficulties walking and is unable to clean the home. The Tribunal notes the applicant’s signed statement, made on 29 May 2018 (which was also before the delegate), where she outlines the couple’s daily routine and some of the ways in which she assists the sponsor. The Tribunal notes that some photographs were submitted showing the parties walking together, arm in arm, to a medical appointment. It appears that the applicant is assisting the sponsor to walk in the correct direction.

30. With respect to the delegate’s expressed concern at the applicant’s intention to obtain full time employment if permitted to remain in Australia, it was submitted that the applicant intended to assist the sponsor to the best of her ability and that she would only consider employment (whether full time or otherwise) if the sponsor’s condition stabilised and improved.

31. The most up to date medical information before the Tribunal concerning the sponsor’s medical conditions are the letter from the doctor at [a named clinic] dated 15 February 2021 and the letter from the doctor at [a clinic] dated 15 April 2021.

32. The named doctor from [the clinic] stated that the sponsor was under his care for his ‘ocular conditions’. The doctor stated that the sponsor has:

    [medical conditions deleted]. 

33. The doctor explained that ‘his treatments only slow down the rate of disease progression, rather than to improve his [vision]. The doctor also detailed the sponsor’s difficulty with activities of daily living, stating:

    Due to his reduced vision, he is experiencing difficulties with mobility, navigating, dressing, feeding, and attending appointments. He is at risk of falls both in and out of the home, and will certainly benefit from having a carer to assist him with these activities.

34. The named doctor from [the clinic] explained that the sponsor had presented on 15 April 2021 for a report on his eye condition. The doctor described the sponsor as ‘an unfortunate gentleman with very poor vision’, who was ‘legally blind’. The letter continued:

    [Details regarding eye conditions deleted].

    In view of his severe visual impairment Mr [A] has difficulties in performing the activities of daily living. I think the presence of a personal carer would be necessary for Mr [A] to maintain a relatively independent life and avoid institutionalisation in an Aged Care facility. Mr [A] would not be able to maintain any level of independence without the assistance of his [wife].  

35. The Tribunal also notes the evidence, in the document from a named medical clinic dated 6 January 2021, that the sponsor ‘presents with his [other medical conditions] for years’.

36. With respect to the sponsor’s claimed mental health conditions, the Tribunal notes the psychological report dated 4 April 2021. The named clinical counsellor details that the sponsor experiences anxiety, post-traumatic stress disorder (PTSD) and depression. The counsellor noted that the sponsor ‘has a catalogue of gradient medical conditions that further amplify his anxiety and depression, as first identified in my report, 13th of October 2017’. The counsellor noted that the sponsor had told him that his lack of vision meant that he is unable to walk a ‘fair distance’, without the assistance of his wife and that she helps him dress, often bathes him, assists him with using the toilet, cooks all his meals and cleans after him. The counsellor also remarked that he had observed the applicant calm the sponsor and reassure him by holding his hand and ‘whispering gently in his ear of assurance and safety’.

37. The counsellor also remarked:

    Ms Nguyen reminds Mr [A] to take his medication and remembers in minute detail of when and how often the required medication needs to be administered. Ms Nguyen reminds her husband of all the necessary medical appointments and generally aids him in his limited mobility.

38. The counsellor noted that the sponsor ‘strongly indicated that he would like to continue with our counselling sessions and has booked an appointment for the 9th of April 2021’.

39. In view of all the evidence that is before the Tribunal, the Tribunal finds that the sponsor relies on the applicant to help manage his medical and mental health conditions and that this is a compelling reason not to apply the Schedule 3 criteria.

    Long-term relationship

40. The Tribunal notes that, in this review, submissions and evidence have been filed that suggest that the applicant and the sponsor are in a long-term relationship. At the time of application, it was claimed that the parties had committed to a shared life to the exclusion of all others from 1 January 2014. Evidence was submitted that the parties had married on [date] March 2017 (for example, a decorative Certificate of Marriage) and submissions were made, dated 17 February 2021, that there had also been a traditional wedding—where ‘Vietnamese tradition was adhered to’—and reception on [date] December 2020. Other evidence was submitted, including evidence of financial arrangements such as statements for a joint bank account; utility bills in joint names; evidence of joint purchases of a diamond and a mattress as well as a will executed by the sponsor in favour of the applicant; evidence of the social aspects of the relationship such as Form 888 statutory declarations from [named individuals], both made on 29 August 2017; a statement from [a named person] made on 13 May 2017; a statement from the applicant’s daughter Ms Thai Ngoc Thanh made in May 2017 and numerous photographs of the parties together, including on the day they married and in group settings with family and friends throughout the years (much of this evidence was also before the delegate).

41. The Tribunal accepts the parties’ implied claim that they are in a long-standing partner relationship with each other and finds that this is another compelling reason to waive the Schedule 3 criteria.

    The applicant has established a relationship with the sponsor’s son, who experiences depression and loneliness as a result of his divorce

1. The delegate had been critical that the applicant had not provided any evidence of her relationship with the sponsor’s son and the level of support that she claims to offer to him. The delegate also noted that the sponsor’s son was an adult and the delegate was of the view that the sponsor’s son would have other support networks available to him, if required.

2. In the document titled, ‘Answers to Allegations’ that was filed with the Tribunal on 12 January 2021, it was submitted that the applicant sees the sponsor’s son [on] a weekly basis when [the sponsor’s son] attends the home for coffee and dinner. It was submitted:

   The relationship between Mrs Nguyen and [the sponsor’s son] is a close one.

   He has a variety of serious problems. On our instructions Mrs Nguyen has attempted to provide emotional support to him during his time of need.

3. The Tribunal notes that it is possible that [the sponsor’s son] would have been one of the witnesses to attend the Tribunal hearing to give oral evidence about these matters.

4. The Tribunal considers that it does not need to make findings in respect of this claimed compelling reason as the Tribunal considers that, in this case, there are already reasons that are sufficiently compelling to warrant the waiver of the Schedule 3 criteria.

   The applicant’s remorse and her immigration history

5. The written submissions on the Department’s file, dated 3 October 2017, relevantly state:

   Mrs Nguyen arrived in Australia on the 24th October 2012 on a six month Visitor’s Visa.

   On the 25th February 2013 she lodged an Application for a Carer Visa.

   Same was rejected in August of 2016.

   She lodged an Application to the Administrative Appeals Tribunal on the 25th August 2016.

   The said Application is currently being processed.

   Mrs Nguyen is aware that pursuant to the Requirements of Schedule 3 to the Migration Regulations she should have returned to her home country prior to lodging any further Applications.

   She wishes to apologise to the Department of Immigration for any inconvenience or misunderstanding caused thereby.

6. The delegate noted that the applicant’s representative had highlighted the applicant’s apology and remorse for inconveniencing the Department. However, the delegate appears to have given greater weight to the applicant’s immigration history.

7. The delegate noted that the applicant had lodged an application for a Carer (Residence) (BU 836) visa before the expiry of her substantive visa, but also noted that this application had been refused by the Department. The applicant sought merits review of the refusal decision with the Tribunal but later withdrew the application for review, having lodged her application for the Partner visa prior to the withdrawal being lodged. The delegate wrote, ‘I consider that your Carers [sic] visa application and your review of the decision prolonged your stay in Australia, until you could lodge a subsequent visa application’. Accordingly, the delegate stated that they did not find this claim to be a compelling reason to waive the Schedule 3 requirements.

8. In the document titled, ‘Answers to Allegations’ that was filed with the Tribunal on 12 January 2021, the applicant, by way of her representative, objected to the delegate’s statement that, ‘[t]he Schedule 3 waiver is not intended to facilitate people who have chosen to lodge unmeritorious applications in order to prolong their stay in Australia’. The Tribunal considers that there is no evidence before the Tribunal that the applicant’s application for a Carer visa, and her subsequent action in seeking review of that refusal decision, was ‘unmeritorious’.

9. The applicant lodged her application for the Carer visa before her Tourist (Subclass TR 676) visa had ceased. She then availed herself of an option available to her, namely, to seek merits review of the delegate’s refusal to grant her the Carer visa. Subsequently, she applied for the Partner visa, the subject of the current review. She then availed herself of another option available to her, namely, to withdraw her application for the review of the decision to refuse her a Carer visa. This is not a case where the applicant has had a period of unlawfulness, let alone a lengthy period of unlawfulness.

10. In the circumstances, the Tribunal gives greater weight to the evidence of the applicant’s remorse and the other reasons outlined above in its assessment of the waiver than it does to the applicant’s failure to meet criterion 3001.

    CONCLUSION

11. The Tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant meets cl 820.211(2)(d)(ii).

12. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

    DECISION

13. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations

    Justine Clarke
    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.