Singh (Migration)

Singh (Migration) [2021] AATA 2561 (31 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gursahib Singh
CASE NUMBER:  1809142
HOME AFFAIRS REFERENCE(S): BCC2018/3999090 BCC2018/70484
MEMBER:Roger Maguire
DATE:31 May 2021
PLACE OF DECISION:  Brisbane
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)(a) of Schedule 2 to the Regulations
·cl 820.211(2)(d)(ii) of Schedule 2 to the Regulations
·reg 2.03A.

Statement made on 31 May 2021 at 2:39pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal or de facto relationship – financial aspects – nature of the household – social aspects – nature of the commitment – 12-month requirement – Schedule 3 criteria – compelling reasons – indefinite hiatus – mutual dependence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F, 65, 360
Migration Regulations 1994 (Cth), rr 1.09A, 1.15A, 2.03A; Schedule 2, cl 820.211; Schedule 3, Criterion 3001
CASES
Babicci v MIMIA (2005) 141 FCR 285
He v MIBP [2017] FCAFC 206
MZYPZ v MIAC [2012] FCA 478
Plaintiff M64/2015 v MIBP [2015] HCA 50
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 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).
The applicant applied for the visa on 5 January 2018 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 (Cth) (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.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211(2)(a) because the evidence was not sufficient to establish that the applicant was the spouse or de facto partner as defined under s 5F and s 5CB of a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The delegate also found that the applicant did not satisfy cl 820.211(2)(d)(ii) because the applicant did not satisfy criterion 3001, and there were no compelling reasons to justify a waiver of the Schedule 3 criteria.
Acting pursuant to s 360(2)(a) of the Act, the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in the present case are whether the applicant was the spouse or de facto partner of the applicant as at the date of the visa application, and remains so as at the date of this decision, and whether there are compelling reasons so as to justify a waiver of the Schedule 3 criteria.
Whether the parties are in a spouse or de facto relationship
Clause 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case, the applicant claims to be the de facto partner of the sponsor who is an Australian permanent resident.
Are the parties in a de facto relationship?
‘De facto partner’ is defined in s 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2).
‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d).
In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and sponsor’s household and their commitment to each other as set out in reg 1.09A(3) and reg 1.15A(3), as applicable, which are extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Were the parties in a spouse or de facto relationship as at the date of the visa application?
The present visa application was made on 16 March 2018. Evidence before the Tribunal establishes that the parties have lived together at an address in a Brisbane suburb since November 2015. The sponsor had two failed pregnancies between 19 November 2015 and 1 November 2016. There is no evidence so as to suggest that the parties are related by family, and the Tribunal finds that they are not. The Tribunal has had regard to various photographs including a photograph dated 31 January 2017 of an engagement ring captioned “Yes I do!”. As noted below, the parties were legally married on 17 August 2018 in Brisbane. The Tribunal has had regard to the submissions, statutory declarations and various documents provided by the parties and finds that the parties were in a de facto relationship as at the date of the visa application, 16 March 2018, as required by s 5CB(2).
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal has before it a Queensland Marriage Certificate evidencing the marriage of the parties on 17 August 2018. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).
Are the other requirements for a spouse relationship met?
Consideration of Regs 1.09A(3)(a)/1.15A(3)(a)
Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.
The parties have provided evidence which the Tribunal accepts of joint finances and shared liabilities over the period since August 2016 consistent with the claimed relationship.
Consideration of Regs 1.09A(3)(b)/1.15A(3)(b)
Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.
Evidence before the Tribunal demonstrates that the applicant does all of the housework, including laundry, gardening, cooking, cleaning and so on. The sponsor is the sole breadwinner. The parties presently have no joint responsibility for care and support of children. The Tribunal finds that overall, these arrangements are consistent with the claimed relationship.
Consideration of Regs 1.09A(3)(c)/1.15A(3)(c)
Social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.
The Tribunal has had regard for the many photographs submitted by the parties which illustrate that they have a shared social life, and have had for the duration of the relationship. In addition, the Tribunal gives significant weight to the form 888 statutory declarations all dated 11 December 2017, by Singh Grewal, John Yen Chun Liu and Shelly Sharma. The claims made in each of these statutory declarations have been borne out by the passage of time, and the Tribunal finds that the social aspects of the relationship are consistent with the claimed relationship.
Consideration of Regs 1.09A(3)(d)/1.15A(3)(d)
Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long‑term.
The Tribunal accepts that the parties have now lived together for well over 5 years, and have been married for nearly 3 years. The Tribunal accepts that the applicant has given great support to the sponsor during the testing times of her two miscarriages. The relationship is already a long-term one, and the Tribunal finds that the parties view the relationship as long‑term. Once again, this is consistent with the claimed relationship.
Consideration of Regs 1.09A(2)/1.15A(2), i.e.
Any other circumstances of the relationship.
There are no other relevant circumstances of the relationship.
For the foregoing reasons, the Tribunal concludes that the parties have a mutual commitment to a shared life to the exclusion of others, in a genuine and continuing relationship, and lived together and have done so since well before the date of the visa application.
Given these findings, the Tribunal is satisfied that the requirements of s 5CB(2) of the Act were met at the time of the visa application, and the requirements of s 5F(2) are met at the time of this decision. Therefore, the applicant met cl 820.211(2)(a)(i) at the time of application, and meets cl 820.221(1)(a) at the time of this decision.
Are the additional criteria for a de facto relationship met?
Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. Both members of the couple must be at least 18 years old: reg 2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.
The applicant must have been in the de facto relationship for at least the 12 month period ending immediately before the date of the application: reg 2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.
There is no evidence that the relationship is registered under a relevant State or Territory law or that the sponsor held, holds or is applying for a permanent humanitarian visa, so they must meet the 12 month requirement. For the reasons set out above, the Tribunal is satisfied that the applicant had been in the de facto relationship for at least the 12 month period ending immediately before the date of the application.
For these reasons, the Tribunal is satisfied that the applicant meets the additional criteria prescribed in reg 2.03A.
SCHEDULE 3 CRITERIA (cl 820.211(2)(d))
Does the applicant meet Schedule 3 criteria, or are there compelling reasons for not applying those criteria?
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.
Evidence before the Tribunal shows that the applicant’s last substantive visa ceased on 5 February 2015.
As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.
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, 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.
Clause 820.211(2)(d)(ii) requires that:
‘(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria.’
As noted above, the Regulations do not define “compelling reasons”, and neither do they provide examples of what might amount to “compelling reasons”.
Examples of what might constitute “compelling reasons” are offered in the Explanatory Statement to Statutory Rules 1996, No. 75:
Clause 10 – Schedule 2, Part 820 (Spouse)
Subclause 10.1 omits paragraph 820.211(2)(d) of the Migration Regulations and substitutes a new paragraph which includes a waiver provision regarding the Schedule 3 requirements. The Schedule 3 requirements impose certain restrictions on unlawful non-citizens who apply onshore for residence on spouse grounds. The introduction of a waiver provision recognises the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas. The waiver will provide greater flexibility for the Minister if and when compelling circumstances arise.
It is expected that the waiver will be exercised only where there are reasons of a “strongly compassionate” nature such as:
- where there are Australian-citizen children from the relationship; or
- where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer.
In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived.
In Waensila v MIBP [2016] FCAFC 32, Dowsett J said at paragraph 2 of his reasons:
I agree that the present problem is resolved by recognizing that cl 820.211 of the Migration Regulations 1994 (Cth), read with the heading, requires that, where applicable, criteria 3001, 3002 and 3003 must be satisfied as at the time of application. However that proposition says nothing about the Minister’s power to dispense with the application of those criteria or the time at which that power may be exercised. As demonstrated by Robertson and Griffiths JJ, the power is designed to provide flexibility in the operation of the legislative and regulatory scheme. That flexibility ought not be limited by limiting the circumstances which may be relevant to the exercise of the power, at least in the absence of any statutory or regulatory requirement. (Emphasis added).
The last sentence in the above extract suggest that notwithstanding the statement in the Explanatory Memorandum to the effect that ‘It is expected that the waiver will be exercised only where there are reasons of a “strongly compassionate” nature such as’ the quoted examples, those examples do not limit the circumstances in which the power may be exercised, as long as the Minister finds them to be “compelling”.
Robertson J made similar remarks at [18]:
‘Further, if, as I accept, the purpose of the Minister’s discretion in cl 820.211(2)(d)(ii) is to give the Minister greater flexibility if and when compelling circumstances arise and, for example, to avoid hardship to the visa applicant, then to my mind it would be inconsistent with that purpose to limit the circumstances the Minister may take into account to circumstances existing at some past point. The immediate purpose of the discretion is to relieve the visa applicant from being required to satisfy at the time of application Schedule 3 criteria 3001, 3003 and 3004. I see no reason to limit the circumstances, whether they favour the visa applicant or not, to the position at a time before, and often substantially before, the Minister considers the exercise of that discretion. Clause 820.211(2)(d)(ii) is an ameliorating provision and it should not, in my opinion, be given a construction which prevents the Minister, at the time of his decision, from taking into account in assessing “compelling reasons”, the circumstances which prevail at that time.’
Griffiths J also made similar remarks at [56] and [57]:
56. ‘The extracts from the Explanatory Statement (which are set out in [47] above), confirm that the purpose of the waiver power is to provide the Minister (or his or her delegate) with flexibility to respond to compelling circumstances which justify dispensing with the obligation of particular partner visa applicants to satisfy the Sch 3 criteria, such as hardship that may be occasioned if an unlawful non-citizen who wishes to remain in Australia to be with their partner has to leave Australia and apply from overseas because they do not satisfy these criteria. The Explanatory Statement gives examples of matters of a “strongly compassionate” nature, which include where there are Australian-citizen children from the couple’s relationship or the visa applicant and his or her sponsor are in a long-standing relationship which has been in existence for two years or longer. There is nothing in the Explanatory Statement which suggests that such circumstances have to exist at the time of application. Rather, the examples are expressed in a way which suggests that the decision-maker can take into account strongly compassionate circumstances which exist when consideration is given to whether or not to exercise the waiver power, even if those circumstances or “compelling reasons” post-date the time of application.
57. The point is well illustrated by the appellant’s own circumstances. It took almost three and a quarter years for the delegate to determine his partner visa application. During that period, the appellant and his wife remained married and she became dependent upon him not only financially but also concerning her various health issues. It is difficult to understand the logic or policy for denying the decision-maker the right to take these matters into account in determining whether the appellant should be required to leave Australia and make an application for a different partner visa from overseas (the appellant did not dispute that if he were required to return to Thailand he could lodge an application there for a partner (Provisional) (Class UF) partner visa). Circumstances which constitute “compelling reasons” and give rise to hardship can arise at any time, including after the application is made. Clear words are required to prevent the Minister from taking such matters into account.’

The Court did not see itself as constrained by the use of the word “only” in the Explanatory Statement, or the examples it provided. It is clear from the foregoing that in the absence of any statutory or regulatory “clear words” limiting the flexibility provided by cl 820.211(2)(d)(ii), no such limitation is to be inferred, and it is necessary to consider all relevant circumstances which might provide “compelling reasons”.
Were the Tribunal to fail to waive the requirement of Schedule 3, the immediate result would be an indefinite hiatus in a relationship which has now been on foot for approximately 5½ years. It would be necessary for the applicant to return to his home country of India and make a visa application from there. At the moment, India is ravaged by the pandemic and there are of course significant travel restrictions in place. The likely delay in processing an offshore visa application would be both lengthy and uncertain. The Tribunal is prepared to accept that the duration of this relationship is such that a significant degree of mutual dependence has developed over this period.
Accordingly, the Tribunal is satisfied that there are compelling reasons to waive the requirement of Schedule 3 in this instance, and the applicant therefore meets cl 820.211(2)(d)(ii).
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
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)(a) of Schedule 2 to the Regulations
·cl 820.211(2)(d)(ii) of Schedule 2 to the Regulations
·reg 2.03A.
Roger Maguire
Member

ATTACHMENT - Extract from Migration Regulations 1994
1.09A     De facto partner and de facto relationship
(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.
Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.
(2)If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3)The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i)       any joint ownership of real estate or other major assets; and
(ii)      any joint liabilities; and
(iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)    whether one person in the relationship owes any legal obligation in respect of the other; and
(v)     the basis of any sharing of day to day household expenses; and
(b)the nature of the household, including:
(i)       any joint responsibility for the care and support of children; and
(ii)      the living arrangements of the persons; and
(iii)     any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i)       whether the persons represent themselves to other people as being in a de facto relationship with each other; and
(ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)     any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i)       the duration of the relationship; and
(ii)      the length of time during which the persons have lived together; and
(iii)     the degree of companionship and emotional support that the persons draw from each other; and
(iv)    whether the persons see the relationship as a long term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
ATTACHMENT - Extract from Migration Regulations 1994
1.15A     Spouse
(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.
(2)If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3)The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i)       any joint ownership of real estate or other major assets; and
(ii)      any joint liabilities; and
(iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)    whether one person in the relationship owes any legal obligation in respect of the other; and
(v)     the basis of any sharing of day to day household expenses; and
(b)the nature of the household, including:
(i)       any joint responsibility for the care and support of children; and
(ii)      the living arrangements of the persons; and
(iii)     any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i)       whether the persons represent themselves to other people as being married to each other; and
(ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)     any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i)       the duration of the relationship; and
(ii)      the length of time during which the persons have lived together; and
(iii)     the degree of companionship and emotional support that the persons draw from each other; and
(iv)    whether the persons see the relationship as a long term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
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.

[2021] AATA 2561

31 May 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies