Singh (Migration)

[2019] AATA 5716

Singh (Migration) [2019] AATA 5716 (29 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Azad Singh

CASE NUMBER:  1726207

HOME AFFAIRS REFERENCE(S):          BCC2017/2732234

MEMBER:Adrienne Millbank

DATE:29 November 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 29 November 2019 at 2:47pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – sponsorship limitation – two previous approved sponsorships – compelling circumstances – non-genuine student – longstanding relationship – sponsor’s disability – sponsor’s employment opportunities in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.20J

CASES

Babicci v MIMIA [2004] FCA 1645
Babicci v MIMIA [2005] FCAFC 77

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 Immigration and Border Protection on 6 October 2017 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 is a 28-year-old Indian national who first arrived in Australia on 21 January 2014 on a Student (Subclass 573) visa. He subsequently applied for and was granted a Student (Subclass 572) visa onshore. On 19 September 2016 his application for a third Student visa, a Student (Subclass 572) visa, was refused. The applicant lodged an application to review that decision with the Tribunal. He withdrew his review application on 22 August 2018.

3. The applicant did not hold a substantive visa when this application was lodged on 31 July 2017.

4. The sponsor is 43 years old and was born in Brisbane. On her application form she declared one previous marriage, and that she sponsored her former husband in his application for a Partner visa which was granted in 2011. The sponsor has no children.

5. The parties claim that they met in January 2016 in a Brisbane nightclub, and entered into a de facto relationship on 5 November 2016. They married in Brisbane in March 2018.

6. The applicant applied for the visa on the basis of his then claimed de facto relationship with his sponsor. At the time of application, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

7. The Delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(a) or cl.820.211(2)(d). The Delegate was not satisfied on the information and evidence provided that the applicant was the spouse or de facto partner of the sponsor. The Delegate further found that the applicant did not meet Schedule 3 criterion 3001, and was not satisfied that in this case there were compelling reasons to waive the Schedule 3 criteria.

8. The applicant appeared before the Tribunal on 17 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.

9. At the hearing the sponsor advised the Tribunal that she had in fact been married twice previously, and that she had sponsored both of her husbands in their applications for Partner visas. She stated that she sponsored her first husband under her then married name of Ibrahim.

10. The Tribunal advised the parties that the sponsorship for this application may not be approved, as the sponsor has sponsored more than one other person who was granted a partner visa and the regulations (r.1.20J) set a limit on the number of people that a person can sponsor in a lifetime. The Tribunal acknowledged that it had before it information and evidence regarding the genuineness of the parties’ relationship and the issue of whether the applicant met Schedule 3 criteria or whether these should be waived (that is whether the applicant met cl.820.211(2)(a) and cl.820.211(2)(d)). The Tribunal advised the applicant that it was however putting them on notice that it could affirm the decision on the basis of the sponsorship not being approved. The applicant was advised that if the sponsorship was not an approved sponsorship, the applicant would not meet criteria for the visa, in particular cl.820.211(2)(c) that the applicant is sponsored at the time of application.

11. The parties were advised that they could seek an adjournment and consider their comments in response to this information at any time during the hearing. The applicant did not seek an adjournment. The sponsor stated that she had been advised by a migration agent that the first sponsorship ‘didn’t count’ as it was so long ago, around 1996 or 1997.

12. Following the procedures of s.359A, the Tribunal wrote to the applicant on 18 October 2019 advising him that the sponsor had indicated at hearing that she has been married twice before, and that she sponsored both of her former husbands on Partner visas. The applicant was advised that from information in the Department’s client files, the Tribunal had confirmed that the sponsor had previously sponsored two partners, and that both of them were subsequently granted Partner visas. The applicant was advised that the information was relevant because under Regulation 1.20J, the sponsorship of an applicant for a Partner visa must not be approved unless the Minister, or the Tribunal on review, is satisfied that the sponsor has not sponsored more than one other person who was granted a Partner visa (or entry permit) as a result of sponsorship or nomination by the sponsor.

13. The applicant was advised that based on this information, the Tribunal may find that his sponsorship was not an approved sponsorship as required by cl.820.221(4) of the Regulations. The applicant was invited to give comments on or respond to the above information, in writing, by 1 November 2019. The applicant was also invited to provide information, in writing, by 1 November 2019, regarding any claims further to those already provided to the Tribunal about compelling circumstances affecting the sponsor.

14. Written submissions and other documents in response to this letter, which the Tribunal has considered, were received by the Tribunal on 21 October 2019 and 23 October 2019.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue before the Delegate was whether the parties were in a genuine relationship at the time of application and decision, and whether the applicant met the Schedule 3 criteria and if not, whether there were compelling reasons to waive the Schedule 3 criteria. The issue before the Tribunal is whether the applicant’s sponsorship is an approved sponsorship, and if not, whether there are compelling reasons affecting the sponsor to approve the sponsorship.

    Is the sponsorship an approved sponsorship?

17. Regulation 1.20J of the Regulations sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship. Under r.1.20J, a sponsor is limited to a total, in a lifetime, of two approved sponsorships or nominations that lead to a grant of a partner visa (or entry permit) or a visa (or entry permit) granted on the basis of the domestic violence provisions. If there has been one previous sponsorship or nomination, or if the sponsor was granted a visa or entry permit as a result of being sponsored, a period of 5 years must have passed since the date of the earlier visa application. These requirements apply unless the Minister, or the Tribunal on review, is satisfied there are compelling circumstances affecting the sponsor: r.1.20J(2).

18. The expression ‘compelling circumstances’ is not defined in the legislation. The Tribunal must consider whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way: Babicci v MIMIA [2004] FCA 1645 or are ‘so powerful that they lead the [Tribunal] to make a positive finding that the [provision] should be waived’: Babicci v MIMIA [2005] FCAFC 77.

19. The sponsor’s ICSE records show that, under the surname Ibrahim, she sponsored her first husband for a Partner (Subclass 820/801) visa in an application lodged in 1996, and that this visa was granted in 1999. They show that she sponsored her second husband under the surname Thomson, and that her second husband was granted a Partner (Subclass 100) visa onshore in 2011.

20. The parties did not dispute that the sponsor has sponsored two partners previously.

21. The Tribunal notes that although the limitations in r.1.20J only apply where the current visa application was lodged on or after 1 November 1996, any previous sponsorships leading to the grant of a visa, entry permit or permission (even if they occurred before that time) may count towards the limit, depending on the date of the current visa application. For visa applications lodged after 1 January 1998, all sponsorships that led to the grant of a visa, entry permit (whether permanent or temporary) or a permission (other than a visa or entry permit) granted under the Act to remain indefinitely in Australia are counted. This visa application was lodged on 31 July 2017.

22. Therefore the limitations apply, and the sponsor does not meet r.1.20J.

    Are there compelling circumstances affecting the sponsor?

23. The Minister or Tribunal on review may approve the sponsorship if there are compelling circumstances affecting the sponsor, irrespective of whether the sponsor has already entered into two approved sponsorships and therefore does not meet r.1.20J. 

24. The sponsor confirmed at hearing that the parties have no children. She stated that the applicant encouraged her to seek IVF treatment so they could have a child of the relationship, but that during counselling she was told there was a risk her child would be born with a disability. The sponsor is in her forties, and her family has a history of mental illness. The sponsor advised that her mother and older brother have been hospitalised for schizophrenia, and her sister has been diagnosed with severe depression. Evidence was provided in the form of a psychological assessment report that in November 1999, the sponsor was diagnosed in an IQ test as having ‘borderline ability’. The sponsor was assessed as having good verbal communication skills, but poor reading and writing skills.

25. The sponsor said that from her experience of living with a disability, she thought it would not be right to undergo IVF because the risk was too great. She decided not to proceed with the IVF treatment. The applicant stated that he accepted the sponsor’s decision, and that the parties could adopt a child. No claim was made or evidence provided that any steps have been taken by the parties to adopt a child.

26. A letter dated 10 October 2017 was provided by a General Practitioner stating that the sponsor was diagnosed in May 2010 as suffering from ‘mixed anxiety depression’. A letter was provided from a GP at the Inala Indigenous Health Service dated 12 October 2017 stating that the sponsor had requested a letter of support for the Partner visa application; that she has ‘several family members that suffer from schizophrenia and require her assistance on a regular basis’; that the sponsor further ‘reports that her partner is a great support for her own health issues and with the demands of her family’. No details or medical evidence were provided regarding the nature or degree of assistance required by the sponsor’s family members or by the sponsor. The Tribunal gives little weight to these letters. The information about the sponsor’s anxiety and depression is outdated and no recent reports were provided as evidence that the sponsor is suffering from anxiety and depression. The letter about the care and support needed by the sponsor and her family is in the form of the GP’s record of self-serving ‘reports’ made by the sponsor.

27. The Tribunal asked the sponsor what happened with her previous marriages. She stated that her first husband ‘just used her’ to achieve a migration outcome, and that he left her as soon as he got his visa. She stated that her second marriage lasted longer, but that her second husband was abusive, treated her badly and was unfaithful: he had another partner in Bangladesh while married to her. She confirmed that she did not withdraw her sponsorship, although she considered doing so.

28. The sponsor stated that she is happy with her current husband because he is a supportive and caring person. She stated that she knew the applicant came to Australia on a Student visa but that she didn’t know what he studied, apart from cooking. She stated that she didn’t know whether he obtained any qualifications from his studies in Australia and that she has never thought to ask him. She stated that she did not believe that the applicant entered into a relationship with her in order to obtain a visa. She said she was happy to sponsor him, but would never do anything contrary to the rules. She stated that she knew the applicant had a right to be in the country because he had a Bridging visa.

29. The Tribunal asked the applicant about his student and immigration history, and why he did not return home following his studies. The applicant claimed that he was a genuine temporary entrant while on his Student visas, and that he couldn’t return to his home country because he met and fell in love with the sponsor.

30. Following the procedures of s.359AA of the Act, the Tribunal advised the applicant that it had a copy of his Provider Registration and International Student Management System records, which showed that all of his ten course enrolments from January 2014 to August 2017 were cancelled. The Tribunal put to the applicant that one of his enrolments was cancelled for unsatisfactory attendance; two for cessation of studies; one for non-payment of fees; and six for non-commencement of studies. The applicant was advised that the information was relevant because it suggested that he was not a genuine student or a genuine temporary entrant; that he had used the Student visa program to live and work in Australia; and that the consequences of the information being relied on may suggest he was similarly using the Partner visa program to remain and work in Australia which could be the reason or part of the reason for affirming the decision under review. The applicant was advised that he could seek an adjournment and consider his response. The applicant did not seek an adjournment.

31. The applicant confirmed that he completed no courses and obtained no qualifications while on Student visas in Australia. He maintained that he was a genuine student, but that circumstances conspired against him: he was bashed and hospitalised; he became reclusive and suffered from anxiety and depression; he was in a car accident; he lost his phone; and he had to provide care for the sponsor’s ill mother. The applicant claimed that he could not return to India while he was the holder of a Student visa because he was a genuine student; and that after his final Student visa application was refused he couldn’t return to India because by this time he was in a relationship with the sponsor.

32. The Tribunal found the applicant an evasive and unconvincing witness. While acknowledging that the motivation to obtain a visa does not preclude the possibility of a genuine relationship, the Tribunal considers that the applicant instigated a relationship with the sponsor with view to achieving a migration outcome.

33. The parties claimed as compelling circumstances that:

    ·    they are in a longstanding relationship of three years and the sponsor would suffer emotionally if the applicant has to depart the country;

    ·    the sponsor has an intellectual disability and needs the support and encouragement of the applicant;

    ·    the sponsor would suffer financially if the applicant has to leave the county;

    ·    the sponsor’s work and career opportunities would be jeopardised if she leaves the country with the applicant for a lengthy period; and

    ·    the sponsor cannot leave the country for longer than two or three months because she provides care and support for her ill mother.

34. The parties provided a copy of a Queensland Marriage Certificate, certifying that they married at the Brisbane Registry Office on 16 March 2018. At hearing they confirmed that they met at a nightclub in January 2016 and claimed to have lived together since November 2016. The Tribunal accepts that the parties have lived together for nearly three years, but does not find this a longstanding relationship such as to be, in itself, compelling. The Tribunal further does not find the parties’ claim to be in a genuine spousal relationship compelling, for the reason that a claim to be in a genuine de facto or spousal (or intended spousal) relationship is the basis of all Partner visa applications.

35. The sponsor described at hearing how her problems reading and writing have caused her to be dependent on others for help, at times, and limited her work options. She stated that she worked in hospitality, in restaurants, including in her previous husband’s, before obtaining work in the disability services sector. She described how she successfully completed a Certificate III course in Disability Services, following encouragement from friends at her own disability support centre, and is now employed on a casual, on-call basis. She stated that she works virtually full-time, or as often as she wants, as she is invariably called on at short notice to work non-rostered times. She described how she has persevered and developed strategies and techniques at her workplace to overcome her disability so as to be able to handle the paperwork and produce client reports, for example, by photographing clients in different situations and selecting and copying relevant text.

36. The parties claimed at hearing that the applicant has helped and supported the sponsor by encouraging her and by assisting her to deal with emails and other technology.  The sponsor stated that she has grown in confidence since becoming a disability support worker; that she is a hard-working and conscientious employee, and that she loves her work. She described how, as someone who has learned to live with a disability, she empathises and connects with clients and enjoys being able to pass on coping strategies. The sponsor acknowledged that colleagues at her workplace are available to help her to use computers and other technology and produce reports. She acknowledged that she has grown in confidence in large part because she is a valued employee recognised for her skills and contribution. She acknowledged also that, as the holder of a Certificate III, she has succeeded in obtaining more post-school qualifications than the applicant obtained in his years of study in Australia.

37. The sponsor was articulate at hearing, and described and presented herself as a self-aware, strong-minded and determined person. The Tribunal accepts that the applicant has provided support and encouragement for the sponsor, and that the sponsor would suffer emotionally if he leaves the country. The Tribunal gives weight to this consideration, but does not find it a compelling reason to approve the sponsorship. The Tribunal considers that the sponsor is self-motivated to continue in her employment; that she has learned to live and cope with her disability; that she lived and worked independently before the applicant moved in with her; and that she has alternative sources of practical and emotional support and encouragement, including her friends, work colleagues and family.

38. The sponsor confirmed at hearing that she has maintained her own bank account, into which her salary is paid, and that she is paying off her own car. She advised that in terms of financial sharing in the relationship, she had already purchased all of her furniture and household items before the applicant moved in; that she paid for the food and grocery shopping (and did the cooking); and that the applicant paid the rent. She confirmed that before the applicant moved in she lived alone and managed to pay the rent, but argued that the cost of living has increased over the last few years.

1. The applicant claimed at hearing that he never worked more than 20 hours a week, and that he has worked as an Uber driver and in security in Australia. He advised that he obtained full-time work rights in association with this application. The sponsor stated that she was happy to support the applicant when he moved into her house in November 2016 with only two bags of possessions. The Tribunal accepts that the applicant has contributed financially while living with the sponsor, and that she might experience some financial hardship and need to make some adjustments without his rental contribution, but does not find this a compelling reason to approve the sponsorship. The Tribunal notes that the applicant has not claimed to have supported the sponsor financially; that the sponsor has a job and a car; and that she has not in the past needed the applicant’s financial support in order to be able to live independently. 

2. The sponsor stated at hearing that she was looking forward to spending time in India with the applicant’s mother who came to Brisbane for the parties’ wedding, and with his other family members. She claimed, however, that she was willing to go to India for no longer than two to three months. She also claimed that if the applicant had to live in India, she would go with him. She stated that she has worked hard to get herself into disability work; that she is in line for a permanent position depending on future vacancies; and that she doesn’t want to jeopardise the opportunities she has created for herself in Australia by being out of the country when they arise. The Tribunal gives weight to this consideration, but does not find it sufficiently compelling to justify approving the sponsorship. The Tribunal considers that the sponsor could continue working in Australia, and communicate with the applicant through the internet and visit the applicant if he leaves the country. The Tribunal also considers that the sponsor could pursue a career in the disability sector in India, should she choose to move there with the applicant.

3. The sponsor claimed that although she is the youngest of five siblings, she is the only one who provides reliable support and care for her mother. A written statement dated 23 October 2019 was provided by the sponsor’s mother, in which she states she was diagnosed with schizophrenia a long time ago; was diagnosed more recently with diabetes; and was diagnosed more recently still with ‘melanoma skin cancer’ on her face and neck. She further states that she cannot walk too far because of her bad knees, and that she is stressed and worried about the possibility of the melanoma spreading. The sponsor’s mother does not claim in her statement that she is dependent in any practical sense on the care and support of the sponsor or the applicant. When asked at hearing what sort of care he provided to the sponsor’s mother, the applicant stated that he ‘did that thingy, support, emotional support’.

4. The sponsor confirmed at hearing that her mother lives in a housing commission house; that one of her brothers lives with their mother; and that her mother is supported in her daily living by visiting health care workers. The sponsor claimed that one of her brothers has been hospitalised with schizophrenia, and that a sister lives in a coastal town some hours’ drive from Brisbane and is under treatment for severe depression. She acknowledged that her other siblings live in Brisbane, but stated that they all have problems or preoccupations of their own.

5. No medical or other documentary evidence was provided in support of the claim that the sponsor is unable to leave the country for longer than two or three months because her siblings are unable to provide care and support for their mother. The Tribunal does not find the sponsor’s mother’s illness a compelling reason to not apply the regulation, for the reason that the sponsor’s mother has alternative sources of care and support.

6. For the sake of completeness, the Tribunal has considered the fact that the first sponsorship was made over 20 years ago. The Tribunal notes that the sponsor has acknowledged that the applicant was ‘just using her’ to get a visa, and for this reason does not find the time that has elapsed since this sponsorship is a compelling reason to approve the sponsorship.

7. Having considered the claims and the circumstances of the parties, the Tribunal is not satisfied that there are compelling circumstances affecting the sponsor to approve the sponsorship irrespective of her having already entered into two approved sponsorships and therefore not meeting r.1.20J. 

8. On the evidence before the Tribunal the requirements of cl.820.211(2)(c) are not met.

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

   DECISION

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

    Adrienne Millbank
    Member

    
    

    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.