Singh (Migration)

[2020] AATA 5271

Singh (Migration) [2020] AATA 5271 (1 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurmit Singh

CASE NUMBER:  1822496

HOME AFFAIRS REFERENCE(S):          BCC2018/648218

MEMBER:Justin Owen

DATE:1 December 2020

PLACE OF DECISION:  Sydney

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 01 December 2020 at 9:33am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – application made more than 28 days after last substantive visa held – compelling reasons for not applying criteria – unlawful non-citizen for almost six years – sponsor’s awareness of applicant’s status – validly married – length and genuineness of relationship not by itself a compelling reason – best interests of Australian citizen child – applicant’s support for child and sponsor, now pregnant with second child – sponsor’s emotional fragility – financial stability – attempt to manipulate circumstances to give rise to compelling reasons – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 820.211; Schedule 3, Criterion 3001, 3003, 3004

CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Singh v MHA [2020] FCAFC 7
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 7 February 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 (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 via teleconference on 25 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor Ms Astha Saini, the applicant’s brother in law Mr Gurvinder Singh and the applicant’s brother Mr Jasbir Singh.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi 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 matter should be remitted for reconsideration.

   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.

    Criterion 3001

11. 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.

12. The applicant provided to the Tribunal a copy of the Departmental decision record.  It indicates the applicant arrived in Australia on 25 July 2008 as the holder of a subclass 573 Student visa which ceased on 15 March 2012. The applicant then became an unlawful non-citizen for almost six years until he lodged the Partner visa application currently before the Tribunal on 7 February 2018.  He was granted a Bridging Visa C in association with this application on 8 February 2018.

13. 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. 

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

    Compelling reasons

15. 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.

16. 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.

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

18. The applicant submitted a number of reasons for a waiver: namely the genuine and long-term relationship he claims to hold with the sponsor; the Australian citizen child the applicant has from his relationship with the sponsor and the fact that the applicant and sponsor have a second child due in May 2021.  The support and care the applicant claims he provides to the sponsor and their 3-year old child, along with pre- and post-natal care he states he will be providing the sponsor in relation to their second child, were all submitted as reasons for the Tribunal to exercise the waiver provisions.  The applicant spoke at some length at the hearing in support of the written submissions of his representative, written submissions that  the Tribunal found were very valuable in its deliberations in this matter. 

19. The applicant asserted that the long-standing and genuine partner relationship he claims with the sponsor was a compelling reason for the Tribunal to waive the Schedule 3 criteria.  The applicant first met the sponsor in 2014.  The applicant stated at the hearing that their relationship commenced in 2016 after they had been living together in a shared household.  On 6 September 2017 the applicant and sponsor married. On 19 November 2017 the sponsor gave birth to their first child, a son.

20. The applicant has asserted that since this time he and the sponsor have provided each other with strong emotional support.  It was submitted that the sponsor has been adversely impacted emotionally by the failure of her previous marriage that ended in 2011 and the stigma that has resulted in that from parts of her community.  It was submitted that the applicant has played an invaluable role in providing strong emotional support to the sponsor through their relationship. 

21. The applicant stated at the hearing that he supports the family financially with his full-time job as a motor mechanic whilst the sponsor has been focused on raising their young son and now is pregnant with their second child. 

22. In support of his claim concerning his relationship with the sponsor as a compelling reason for an exercise of the waiver, the applicant presented a Marriage Certificate in the name of the applicant and sponsor; 888 forms from friends attesting to the genuine and continuing nature of the relationship between the applicant and sponsor; a Victorian Birth Certificate for their son Master Subeg Singh Sajjan; numerous photographs of the applicant and sponsor with their son from birth up until his recent third birthday party as well as with other family members and friends; a Will in the name of the sponsor naming the applicant and children as beneficiaries; a Will in the name of the applicant nominating the sponsor as his beneficiary; documentation signed by the sponsor nominating the applicant as guardian of their children; joint Westpac Bank statements in the name of the sponsor; pay slips in the name of the applicant; medical evidence pertaining to the sponsor’s pregnancy; enrolment forms for the applicant’s son’s enrolment in Kindergarten in 2021; medical correspondence confirming the sponsor is due to give birth to a second child in May 2021; correspondence from the applicant’s employer attesting to his full-time employment; and written personal statements from both the applicant and sponsor. 

23. The Tribunal has considered the applicant’s relationship 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 the following year.  Since that time the applicant claims the relationship has developed to the stage where they now have a 3-year old son and a second child due next year.   The sponsor in her own oral testimony spoke in considerable detail about the applicant’s emotional support to her and how critical his ongoing presence was to her personally and the relationship on a wider level.  She spoke about being emotionally under pressure with her second child coming and the stress of the applicant potentially having to depart Australia further exacerbated her condition.  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 and the sponsor. 

24. The Tribunal has reviewed the materials the applicant provided to the delegate and the Tribunal concerning his relationship with the sponsor and the parties’ oral testimony.  The Tribunal accepts on the evidence that the applicant and sponsor are very well known to each other and there has been a married relationship between the parties for over three years.  The applicant’s brother and brother in law both provided oral testimony to at the hearing attesting to the genuineness of the relationship.  The applicant’s brother, with whom both the applicant and sponsor reside with, attested to his own daily experiences with the applicant, sponsor and their son as a loving family unit and the genuineness of the relationship between the applicant and sponsor.   The Tribunal accepts the applicant and sponsor have lived together under the same roof since their marriage in 2017.  The Tribunal accepts that the sponsor has a degree of emotional fragility both as a result of the failure of her past marriage and, more immediately, the fear of the applicant being compelled to depart Australia during a challenging pre-natal period.   The Tribunal notes however 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 singularly.  The Tribunal is not prepared to waive the Schedule 3 criteria on the basis of the applicant’s claimed long-term relationship with his sponsor. 

25. The Tribunal furthermore notes that the applicant and sponsor’s relationship developed in Australia whilst he was here unlawfully.  The Tribunal notes that the applicant’s Student visa ceased in March 2012.  The applicant instead did not depart Australia but waited for almost a further 6 years before finally lodging his Partner visa application in March 2018 – at a time when the sponsor had been granted Australian permanent residency  - and had just given birth to their first child.  At the hearing, the Tribunal discussed the timeframe of the applicant and sponsor’s relationship with both parties.  The sponsor made it clear she was well aware of the applicant’s unlawful status in 2016.  The parties nevertheless developed their relationship over many years in Australia despite both parties being fully aware that the applicant was an unlawful non-citizen with no legal right to remain permanently in the Commonwealth.  The Tribunal has considered the length and duration of the parties’ claimed relationship. The Tribunal does not consider that the length and duration of the parties’ relationship in the circumstances of this case is a compelling reason for the waiver of the Schedule 3 criteria in the circumstances of this case. 

26. The applicant has submitted that his claimed child – Master Subeg Singh Sajjan, born November 2017- represented a compelling reason for the Tribunal to waive the Schedule 3 criteria.  The Tribunal notes the Victorian Birth Certificate that has been provided along with earlier medical evidence pertaining to the sponsor’s pregnancy.  For the purposes of this review, the Tribunal accepts that the applicant is the father of Master Subeg. 

27. The applicant both orally at hearing and through his representative’s written submissions, has asserted that any departure from Australia by the applicant to lodge a further Partner visa application from offshore will have a detrimental impact upon both the 3-year old Master Subeg and his mother, the sponsor. It is asserted that the detrimental impact on both parties is a compelling reason for the Tribunal to exercise a waiver of the Schedule 3 criteria.  The Tribunal notes that both the sponsor and Master Subeg are Australian citizens.    

28. The applicant, through his representative, wrote that it was in the best interests of the child as an Australian citizen to allow the family to remain together.  The applicant, through his representative, claimed Australia’s international obligations favour preservation of the family unit.  The applicant, through his representative’s written submissions has drawn attention to the fact the Commonwealth of Australia is a signatory to the United Nations Convention on the Rights of the Child (CROC) which states that the best interests of the child shall be a primary consideration.  The applicant has also asserted that the International Covenant on Civil and Political Rights (ICCPR) and specifically Article 23.1 that states ‘the family is the natural and fundamental group unit of society and is entitled to protection by society and the State’ should be given considerable weight by the Tribunal.  The applicant through his written submissions has stated that Australia, as a party to the ICCPR has committed to comply with these provisions of international law in good faith and the Tribunal should take care to observe the international convention when exercising a discretion. The Tribunal firmly rejects the conclusion reached by the applicant.   The requirements in relation to a Partner visa in Australia emanate from the relevant legislation in the Commonwealth of Australia’s own Migration Act and Regulations, not an international convention.The issue before the Tribunal is whether the applicant, given he is not the holder of a substantive visa at the time of application, is able to demonstrate that compelling circumstances exist for a waiver of the Schedule 3 criteria in his Partner visa application.  If he is unable to do so then he is expected to lodge a valid Partner visa application offshore on the basis of his genuine and continuing relationship with his spouse, the sponsor. The applicant retains an ability to return and migrate to Australia on the basis of his relationship with his spouse if he is in a genuine and continuing relationship.  The Tribunal is of the view that these requirements represent adherence to the legislation contained in the Act and the Regulations rather than a breach of any of Australia’s international obligations as a signatory to the UN’s Convention on the Rights of the Child.  The Tribunal does not consider these arguments concerning the Convention on the Rights of the Child and the ICCPR represent in any way a compelling reason for it to waive the Schedule 3 criteria: Singh v MHA [2020] FCAFC 7 at [62].

29. The Tribunal has considered the applicant’s more general submissions concerning the best interests of the applicant and sponsor’s child as a consideration for the waiver of the Schedule 3 criteria.  The applicant has asserted that it is in the best interests of their 3-year old son that he remains in Australia and the family remains together.  The applicant has also asserted that the imminent arrival of their second child in 2021 – and the considerable pre- and post-natal needs of both the sponsor and their unborn child – all represent compelling reasons for a waiver of the Schedule 3 criteria.

30. The Tribunal has examined the evidence submitted by the applicant concerning the care and support he provides both his young son and the sponsor.  The Tribunal accepts at 3 years of age the applicant and sponsor’s son requires a significant amount of care, attention and love from his parents.   The applicant and sponsor’s son is not currently attending childcare but with the sponsor during the day on work days and with both the applicant and sponsor during the evenings and the weekends. The Tribunal accepts that whilst the sponsor is the primary care provider to their young child, the applicant plays an important role both in providing emotional care and support to the child.  The Tribunal accepts he spends his weekends with the child and sponsor and makes a genuine contribution to parenting.  The applicant obviously is also playing a significant role as the main financial ‘breadwinner’ to the household through his full-time job as a motor mechanic.

1. The Tribunal accepts from the evidence before it that the applicant is also playing an important role in providing emotional support to the sponsor.  The Tribunal notes that outside of her brother – who lives over 100km in Ballarat – the sponsor has few family members in Australia.  Her parents and sister are offshore.  Whilst no medical evidence specifically in relation to her psychological health was provided, the Tribunal is prepared to accept that she was adversely impacted by the circumstances of her divorce in 2011, whilst more recently she is clearly suffering a degree of stress with a second child imminent and significant uncertainty due to the applicant’s migration status and his potential departure from Australia.  The Tribunal, on the basis of the testimony of the applicant, sponsor and the two family witnesses at the hearing, accepts that the applicant plays an important role in providing the sponsor with strong emotional support in such challenging circumstances – on top of the financial and practical assistance he also brings to their household. 

2. The Tribunal enquired of the applicant and as to what specific practical support he is providing both the sponsor and his son.   He is working full-time.  His salary plays an important role in assisting providing financial support to his family.  His salary looks after their household expenses and is utilised to pay rent to his brother.  The care of the applicant and sponsor’s son – whether it be supervision, cleaning, cooking for and general care and support is largely provided during the week by his mother, the sponsor.  The Tribunal does accept however that the applicant does make a meaningful contribution in relation to care and assistance he provides his wife and son both practically and emotionally.  The Tribunal furthermore accepts that the sponsor’s need for greater assistance and support – both in caring for their son and on a more general basis – will increase as her pregnancy develops and especially after their second child arrives in 2021 when they will have two young Australian citizen children to care for.  There will be considerable post-natal needs in relation to the sponsor’s new child where the applicant will play a significant role, both in supporting the sponsor and looking after their 3-year old son.  The Tribunal has considered whether the applicant’s brother and family – living under the same rood - may be able to provide the care, assistance and support the sponsor and the applicant’s son may require should the applicant have to depart Australia to lodge a further offshore Partner visa application.  Whilst some assistance is clearly possible, the Tribunal agrees with the submissions of the applicant’s representative that it is not reasonably the role of the applicant’s brother to provide daily ongoing care for his sister-in-law and her children when he also has his own young family and is operating a small business with extensive demands already.         

3. The Tribunal has considered the claims pertaining to the applicant’s 3-year old son, his unborn child and his wife, the sponsor.  The Tribunal has considered the support the applicant currently provides and the significant increase in support and assistance his family will require once their next child arrives in 2021 as compelling reasons for the exercise of the waiver.  The Tribunal on the basis of the evidence before it considers the care and support the applicant currently provides both his 3-year old son and his wife the sponsor – from a practical, financial and emotional perspective – combined with the increase in care and support that will be needed after the arrival of the applicant and sponsor’s second child, ultimately represents a compelling reason for the Tribunal to waive the Schedule 3 criteria. The Tribunal notes that the sponsor and his 3-year old son are Australian citizens.  His unborn son will be an Australian citizen at birth. The Tribunal considers that the care and support that is provided now and the post-natal care that will also be provided by the applicant to the sponsor and their children is a compelling reason for it to waive the Schedule 3 criteria.   

4. The Tribunal recognises the particularly high demands his family in Australia will face if he is compelled to depart Australia to lodge a new offshore Partner visa application.  Whilst the Tribunal notes the sponsor can access Commonwealth Government assistance as an Australian citizen and she does also reside with her brother in law, the Tribunal notes that the sponsor’s brother in law is operating his own business and has his own young family.  His ability to provide any significant ongoing support is limited.  Notwithstanding COVID restrictions, the Tribunal notes the sponsor and her child retain the ability to apply to travel offshore to spend time with the applicant whilst his Partner visa is processed.  The Tribunal notes in October 2020 the Indian Government restored the right of Overseas Citizens of India (OCIs) and foreign nationals to travel to India (except on Tourist visas).  The sponsor and her child could potentially apply to the Department of Home Affairs in Australia for a special exemption from the Department to travel to India on compassionate grounds:  The Tribunal notes however, in the specific circumstances of the sponsor, the impracticality of such a situation given her pregnancy and her overall health.  The sponsor at the Tribunal’s hearing talked about the illnesses and allergies both she and their 3-year old son developed whilst visiting family for a month.  Given the sponsor’s pregnancy and the needs of their 3-year old son, an Australian citizen who is registered for kindergarten in 2021, the Tribunal ultimately considers any travel by the sponsor and her child to India to remain with the applicant whilst he lodged an offshore Partner visa application would be entirely impractical and a considerable impost upon multiple Australian citizens. 

5. The Tribunal notes that the applicant was unlawful in Australia for a significant period of time – almost six years between 2012 and 2018.  The Tribunal asked the applicant when he told the sponsor he was unlawful.  He replied in 2016.  The applicant apologised to the Tribunal for being unlawful for such a significant period of time.  He stated that he was concerned he would be placed into immigration detention if he presented himself to the Department.  He took responsibility for his actions and stated he didn’t want to see the sponsor and his child, Australian citizens, to suffer as a result of his actions. 

6. At the hearing the applicant stated that he waited to lodge his Partner visa application until the sponsor was pregnant with their child.  The Tribunal notes that lodging a Partner visa application when a party is now pregnant or with child - after a significant period of time an applicant has been in Australia on an unlawful basis – and claiming the respective pregnancy or child as a compelling reason for the waiver of the Schedule 3 criteria is not an unusual state of affairs.  The Tribunal notes that the Schedule 3 waiver is to enable a decision-maker to have a degree of flexibility in determining whether an onshore Partner visa application can and should in the circumstances continue to be processed onshore when the applicant fails to meet the relevant Criteria 3001, 3003 and 3004.  The Tribunal notes that it is not meant to be a ‘hall pass’ for applicants that have failed to comply with their visa conditions or have deliberately manipulated their circumstances to give rise to compelling reasons.  The Tribunal considers it is highly probable that the applicant has attempted to manipulate his circumstances by only alerting the Department and applying for a visa after he and the sponsor have a young Australian citizen child together.   The Tribunal does however agree with the applicant’s representative that the applicant’s migration record involves his last substantive visa expiring rather than being cancelled and he furthermore did not attempt to lodge multiple unmeritorious applications for review or new visa applications during his period of unlawfulness. 

7. The Tribunal nevertheless notes that the applicant was unlawful for a significant period of time.  Both the applicant and the sponsor were both well aware early into their relationship that the applicant had no lawful right to remain in Australia.  The applicant failed to notify the Department of his changed circumstances as required by the law.  The applicant whilst unlawful has started a family in Australia.  These events have become the reasons that the applicant now submits are reasons to waive the Schedule 3 criteria: the Tribunal finds such circumstances somewhat counter-intuitive.  The Tribunal however must, in current migration law, give consideration to all of the applicant’s circumstances and any other factors put forward that might be deemed compelling to waive Schedule 3 criteria from the time of application up until the time of decision: Waensila v MIBP [2016] FCAFC 32 Given this, whilst recognising the applicant’s poor migration history and the genuine possibility the long period of remaining unlawful was done to generate circumstances that might assist his claim of compelling reasons, the Tribunal considers the needs of the applicant’s imminent second child as well as those of his Australian citizen wife, the sponsor, and his three-year old Australian citizen son –to be compelling and this ultimately outweighs the Tribunal’s other concerns in this matter.

8. 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).

9. 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

10. 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

    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.