Pham (Migration)

[2020] AATA 4746

Pham (Migration) [2020] AATA 4746 (28 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nhu Nhat Pham

CASE NUMBER:  1829906

HOME AFFAIRS REFERENCE(S):          BCC2017/3230614

MEMBER:Justin Owen

DATE:28 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 28 August 2020 at 3:26pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Schedule 3 criteria – application lodged outside of relevant timeframe – compelling reasons for waiver – long-standing partner relationship – longevity of the relationship – provide support while sponsor undertakes study – cost of lodging a new offshore Partner visa application – financial hardship – temporary separation of the parties – COVID risk in Vietnam – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211; Schedule 3, Criterion 3001

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made 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 (the Act).

2. The applicant applied for the visa on 6 September 2017 on the basis of his relationship with his sponsor. 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 at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211(2).  The delegate found that the applicant was not the holder of a substantive visa at the time she lodged the partner visa application.  The delegate considered the applicant’s request to waive the Schedule 3 criteria, but after considering all the circumstances of the applicant, the delegate concluded there were not compelling reasons to waive the Schedule 3 criteria.

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

5. The applicant appeared before the Tribunal on 10 August 2020 via teleconference to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing via teleconference.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in this case is whether the applicant meets the Schedule 3 criteria (as attached to this decision), and if not, whether there are compelling reasons for not applying them. 

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

9. 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).

10. 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.

11. The applicant provided to the Tribunal a copy of the Departmental decision record.  It indicates the applicant arrived in Australia on 2 May 2013 on a subclass 573 Student visa which was cancelled on 30 July 2015.  The applicant remained unlawfully in Australia after his Student visa was cancelled.  On 5 September 2017 he was located by the NSW Police Force and subsequently detained in Villawood Immigration Centre (VIDC).  On 6 September 2017 the applicant applied for a Partner 820/801 visa and on 19 September 2017 was granted the Bridging E (subclass 050) visa he continues to hold at the time of decision.  

12. There is nothing before the Tribunal to indicate that the applicant held an entry permit that was valid up to and including 31 August 1994.  There is nothing to indicate that the applicant became an illegal entrant before 1 September 1994.  There is nothing to indicate that the applicant ceased to hold a criminal justice visa on or after 1 September 1994 or that he entered Australia unlawfully on or after 1 September 1994. 

    Criterion 3001

13. 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.

14. The Tribunal finds that the applicant last held a substantive visa on 30 July 2015.  The Tribunal finds that that date is the ‘relevant day’ within the meaning of subclause 3001(2)(c)(i) of Schedule 3.     

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

16. Clause 820.211(d)(ii) allows for this criterion to be waived if the Tribunal is satisfied that there are compelling reasons for not applying the criterion.

    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, 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.

19. The Tribunal invited the applicant to present reasons that might be considered compelling for a waiver of the Schedule 3 criteria. 

20. The applicant submitted that the long-standing partner relationship he claims with the sponsor was a compelling reason for the Tribunal to waive the Schedule 3 criteria. The applicant claims the longevity of the relationship – he claims he met the sponsor on 15 October 2016 and the relationship commenced two weeks later  – justifies the waiver of the Schedule 3 requirement.  The applicant pointed out that he married the sponsor on 12 August 2017, over three years since the date of the Tribunal’s hearing. 

21. The Tribunal asked the applicant what made his claimed long-term and genuine relationship with the sponsor a compelling reason for the Tribunal to waive the Schedule 3 criteria.  He stated that it was because the relationship and love he and the sponsor share is very genuine and sincere.  The applicant stated he felt that he needed to stay and look after the sponsor.   

22. There is evidence before the Tribunal that the applicant and sponsor have provided concerning the start of their relationship and their journey through until today. The Tribunal has considered their relationship and in its own right and its duration as a reason for the Tribunal to waive the Schedule 3 criteria.  The applicant says that he and the sponsor commenced a relationship in 2016 and became married in 2017.  The long term, genuine and continuing nature of the spousal relationship between the applicant and sponsor was articulated in support of the application and in favour of an exercise of the waiver by the applicant.  The Tribunal has reviewed a wide range of materials the applicant provided concerning his relationship with the sponsor.  The Tribunal has also taken into consideration a considerable amount of evidence pertaining to the relationship previously provided to the Department.  The evidence includes two bank statements issued to the applicant and sponsor by the Commonwealth Bank in relation to their joint bank account; three registration notices posted to the applicant by RMS; nine letters sent to the applicant from Medicare, Strathfield Medical Centre, AAMI, Australia Post, NRMA, the M5 Motorway, the Lane Cove Tunnel and West Link M7; 888 forms from friends attesting to the genuineness of the applicant and sponsor’s relationship; an invoice and issued to the sponsor by Morphe Shipping Department; a cut-out label from a parcel posted to the sponsor; photographs taken by the applicant and sponsor in their social activities and wedding with friends and relatives; and statutory declarations signed by the applicant and sponsor from October 2017.     

23. The Tribunal accepts on the evidence that the applicant and sponsor are known to each other for some years and there has been a married relationship between the parties during the last three years. The Tribunal notes that a criterion for the grant of a Partner visa is that the applicant be the spouse or de facto partner of the sponsor.  The definition of a spousal relationship relevantly requires that the relationship be “genuine and continuing”. Accordingly, the existence of a genuine and continuing spousal relationship is itself a criterion for the grant of a partner visa.  A compelling reason justifying waiver of the Schedule 3 criteria must involve something in addition to the basic prerequisite criteria for the grant of the visa.   A genuine, continuing and exclusive relationship need not be, of itself a compelling reason for not applying the Schedule 3 criteria.  The Tribunal has considered this evidence and the circumstances of the parties’ claimed relationship and is of the opinion that there is nothing in the individual circumstances of their particular case that should compel the Tribunal to not apply the Schedule 3 criteria on this basis.  The Tribunal is not prepared to waive the Schedule 3 criteria on the basis of the applicant’s claimed long-term relationship with the sponsor. 

24. The Tribunal noted that the applicant had previously asserted the sponsor’s study as a compelling reason for a waiver of the Schedule 3 criteria.  The Tribunal noted that he had previously raised with the delegate the fact that the sponsor was in her fifth year of study as a Dental Assistant and needed his assistance with household matters so she had more time for her studies.  The applicant in response to the Tribunal’s questions stated that the sponsor’s study still remained a compelling reason for a waiver of the Schedule 3 criteria.  He stated that the sponsor was now a full-time student studying a Diploma of Nursing.  An enrolment confirmation notice was provided post-hearing stating that the sponsor would finish her studies in August 2021.  The Tribunal accepts the sponsor is enrolled and participating in her course of study. 

25. The Tribunal enquired of the applicant as to what evidence he had of the support he provided the sponsor as well as the support that the sponsor actually required.  He stated that he stayed at home and was essentially a ‘house husband’.  A submission received post-hearing asserts that the applicant ‘is doing all domestic chores’ to enable the sponsor to concentrate on her study. At the hearing the applicant also stated that his family in Vietnam would regularly send he and the sponsor monies. 

26. The Tribunal is not prepared to waive the Schedule 3 criteria on the basis of what it considers is a lack of evidence as to what actual support the applicant actually provides the sponsor beyond the vague and uncorroborated claim of house work and household chores. There is no evidence before the Tribunal as to the support the applicant is providing the sponsor whilst she studies.  There is no evidence before the Tribunal to suggest the sponsor would not be able to successfully complete her studies and maintain her enrolment were it not for the assistance the applicant provides.  The Tribunal furthermore notes that there is no evidence to suggest the sponsor is unable to undertake both her studies whilst undertaking domestic household chores: a situation successfully undertaken by many individuals each and every day.  The Tribunal does not consider the sponsor’s study, and the applicant’s claimed support with household chores, is a compelling reason for it to waive the Schedule 3 criteria. 

27. The Tribunal has considered the applicant’s claim of financial hardship, specifically in the context of lodging a new offshore Partner visa application.  The Tribunal notes that the applicant had previously asserted to the delegate that he and the sponsor were not working and they did not have enough money to lodge a new offshore Partner application.  The applicant has previously claimed an onshore Partner visa application would cost over $6,000 less than the lodgement of an offshore application. 

28. At the hearing the applicant claimed his and the sponsor’s circumstances had not changed and they were both still not working and still faced financial hardship from facing an offshore Partner visa application.  The Tribunal enquired as to whether, given the ongoing regular financial support the applicant claims he currently receives from his parents and family, whether he would be able to obtain financial support from his family for the lodgement of an offshore Partner visa application.  The Tribunal considers the applicant avoided providing a direct answer and instead replied he would be far away if this was the case. 

29. The Tribunal does not consider the cost of lodging a new offshore Partner visa application – and its impact upon the applicant and sponsor – is a compelling reason for it to waive the Schedule 3 criteria.  The Tribunal recognises the cost of lodging an offshore Partner visa application is a significant burden, but notes that this offshore application fee remains the same for applicants that have complied with the Migration Act and Regulations and have lodged their Partner visa application from outside of Australia.  There is nothing in the financial and personal circumstances of the applicant and sponsor that the Tribunal considers – in the context of the cost of a new offshore Partner visa application – that is a compelling reason for the Tribunal to waive the Schedule 3 criteria.  The Tribunal notes the applicant’s claims as to the regular financial support he currently receives from his family and is not satisfied that the applicant would be abandoned by his family financially should he be compelled to return offshore to lodge a new Partner visa application. 

30. The Tribunal has considered the issue of financial hardship.  The applicant in response to the Tribunal’s question at the hearing responded in the negative when asked if he wished to raise any other financial hardship considerations beyond the cost of lodging a new offshore Partner visa application.  The Tribunal nevertheless has considered the issue of financial hardship, noting the applicant’s claim that both he and the sponsor are currently not in gainful employment but rely upon his own family for financial support to pay for costs such as rent. 

31. The Tribunal has considered financial hardship carefully but does not consider this a compelling reason to waive the Schedule 3 criteria in the circumstances of this review.  There is no evidence before the Tribunal that the applicant is incapable of seeking gainful employment should he be required to return offshore to lodge a new Partner visa application.  There is no suggestion or evidence that the applicant’s family will be unwilling to continue to provide him with financial assistance whilst he lodges a new Partner visa application.  The applicant is not giving up any paid employment if he is compelled to depart Australia to lodge a new Partner visa application.  The Tribunal is not satisfied that the applicant will face any financial hardship and subsequently rejects this as a reason to waive the Schedule 3 criteria. 

32. In relation to the sponsor, the Tribunal notes that she is currently not in paid employment and is relying upon the support of the applicant’s family and her in-laws for the payment of rent.  The Tribunal nevertheless notes that the sponsor is an Australian permanent resident: she has the ability to access government financial and welfare support.  She has the ability to seek employment alongside of her studies if she so desires.  The evidence strongly suggests she has now completed her dental assistant studies so she enjoys some degree of qualification. The Tribunal furthermore notes the applicant’s oral testimony that the sponsor’s mother lives in Australia so she can potentially seek support from her own family in Australia if she so wishes. The Tribunal accepts that financially the sponsor may not for a temporary period be as comfortably off as her current circumstances. The Tribunal however is of the firm opinion that some level of financial hardship is to be expected when one partner is making an offshore Partner visa application.  The Tribunal however does not consider this a compelling reason in its own right to waive the Schedule 3 criteria.  The Tribunal is not in these circumstances prepared to waive Schedule 3 for reasons of financial hardship. 

33. The Tribunal has considered the issue of hardship in relation to the applicant’s relationship with the sponsor.  In the context of his relationship, the applicant stated that he wouldn’t know what to do in supporting his wife the sponsor if he had to return to Vietnam to lodge a new a new offshore Partner visa application.  The Tribunal accepts that the applicant would face a degree of hardship in the context of his relationship if he has to return offshore and accepts the changed circumstances may be challenging to both parties.  The Tribunal however does not consider this situation to be either onerous, unusual or a compelling reason for it to waive the Schedule 3 criteria.  Many individuals lodge Partner visa applications from offshore whilst their partner or spouse is in Australia.  The Tribunal notes that, if the relationship between the parties is genuine, this separation will only be a temporary state of affairs.  There is nothing in the particular circumstances of the applicant and sponsor’s relationship that the Tribunal considers is a compelling reason for it to waive the Schedule 3 criteria. 

34. The Tribunal, whilst recognising the current COVID travel restrictions at the time of decision, notes that the sponsor can apply to travel offshore to see the applicant if she so desires.    The applicant stated that the sponsor wouldn’t travel offshore with him – given her studies -  should he be compelled to return offshore but the Tribunal notes that this is a decision and choice to be made by the sponsor and applicant.  There is no requirement for the sponsor to travel offshore with the applicant, this is a private decision for the applicant and sponsor to make. 

1. The Tribunal asked the applicant if he and the sponsor could remain in contact through telephonic communication and social media whilst he was offshore and continue to provide each other with emotional support.  The applicant stated that he did not wish to be away from the sponsor physically.  The Tribunal accepts the applicant would prefer to remain physically with the sponsor but it is not convinced the applicant and sponsor cannot provide each other with a degree of ongoing emotional support via the telephone and social media whilst he lodges an offshore Partner visa application.  The Tribunal considers the availability of such continued regular communication between the applicant and sponsor mitigates the emotional hardship they may each feel.  The Tribunal does not consider the temporary separation between the parties and the impact this will have on the emotional support the applicant and sponsor provide each other is a compelling reason to waive the Schedule 3 criteria. 

2. The applicant mentioned COVID at the hearing and expressed his concern as to the increased risk he may face from the pandemic should he return to Vietnam.  No evidence was provided by the applicant to support his claim.  The Tribunal noted at the hearing a current Bangkok Post article that stated there were 841 cases and 11 deaths in Vietnam due to COVID whilst in Australia, the Tribunal noted, there had been thousands of cases and over 250 deaths.  The Tribunal asked the applicant, noting the lack of corroborative evidence he provided concerning the increased COVID risk in Vietnam and noting the COVID information from the article, asked the applicant if being in Vietnam was a greater risk for COVID than being in Australia.  The applicant stated that it was impossible to predict the future and everyone is vulnerable.  The Tribunal notes the applicant’s claim concerning an increased risk he may face from COVID if he returns to Vietnam.  Given the lack of corroborative evidence before the Tribunal to support such a claim, the Tribunal gives it little weight.  The Tribunal is not prepared to consider an unsubstantiated claimed increased risk of COVID in Vietnam (as opposed to remaining in Australia) as a compelling reason for it to waive the Schedule 3 criteria. The Tribunal finds that COVID is not a compelling reason in this case.   

3. The applicant’s representative raised the matter of the uncertainty of international flights to Vietnam and various visa issues.  He stated there was an uncertainty as to when the applicant and sponsor could travel to Vietnam.  The Tribunal accepts at the time of decision there are considerable international travel restrictions in place due to the pandemic around the world which includes Vietnam. The Tribunal does not however consider this uncertainty and these restrictions are a compelling reason to waive the Schedule 3 criteria. The intention of governments is for these restrictions on international flights to be temporary and the situation remains fluid. On the evidence before the Tribunal pertaining to the applicant and the current challenges in terms of international flights, the Tribunal does not consider this to be a compelling reason to waive the Schedule 3 criteria in this case. 

4. The applicant raised the matter of the time it would take him to lodge a new Partner visa application from offshore as a compelling reason to waive the Schedule 3 criteria.  The applicant pointed out he had lodged his Partner visa application almost three years ago and it was already in the system.  He stated that if he has to lodge a new Partner visa from offshore than he would have to go back to the start again.  The applicant’s representative at the hearing stated that the waiting time for an onshore Partner visa application was now averaging over 26 months and was extending.  He said that it could be four years or more before an application was processed and completed.  He stated that if the applicant had to return to lodge a new application from offshore then he and the sponsor could be waiting for between seven and eight years.  The Tribunal has considered the additional time taken to lodge a new offshore Partner visa application but does not consider it to be a compelling reason to waive the Schedule 3 criteria.  The Tribunal accepts the delay in the processing a Partner visa application may be a frustrating process for the applicant and sponsor but notes that this is a common experience for many thousands of individuals that apply for a Partner visa.  There is nothing in the circumstances of the applicant and sponsor before the Tribunal that suggests their situation is unusual or a compelling reason for the Tribunal to waive the Schedule 3 criteria.  The Tribunal notes that the requirements governing a Partner visa application are easily accessible to any individual lodging a Partner visa application.  The applicant engaged professional legal representation at the time he lodged his Partner visa application.  The requirements of Schedule 3 and the holding of a substantive visa in the lodgement of an onshore Partner visa application were facts easily available to the applicant and his representative.  It was open to him, given at the time of application he had not held a substantive visa for over two years, to depart Australia and lodge his Partner visa application from offshore.  He made the decision not to do so.  The Tribunal appreciates this means an increased cost and an increased delay – if the relationship is genuine – in the processing of the applicant’s Partner visa application if he is unable to provide compelling reasons for the Schedule 3 criteria to be waived in his onshore Partner application.  The Tribunal is not however prepared to waive the Schedule 3 criteria for this reason.  The applicant, supported by his representative, has decided to lodge the Partner visa application from onshore despite clearly not meeting the Schedule 3 criteria.  For his application to proceed he therefore needs to provide compelling reasons for the delegate initially and now the Tribunal to waive this criteria.  On the evidence before the Tribunal he has not done so.  The Tribunal accepts that this ultimately may result in a significantly longer processing time through the lodgement of another offshore Partner visa application as well as an increased cost on the applicant.  The Tribunal does not consider these increased costs and delays due to the applicant’s decision are compelling reasons to waive the Schedule 3 criteria in this case.                    

5. The Tribunal has considered the totality of the applicant’s circumstances.  Having considered the circumstances singularly and cumulatively, the Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).

6. There is no evidence or suggestion the alternative criteria in cl.820.211 (2A), (2B), (5)-(9) apply. 

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

   DECISION

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

   Justin Owen
   Senior 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.