THORPE (Migration) - [2018] AATA 2884

THORPE (Migration) [2018] AATA 2884 (27 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Alan Patrick Thorpe
CASE NUMBER:  1607783
DIBP REFERENCE(S):  BCC2016/415260
MEMBER:Katie Malyon
DATE:27 June 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.
Statement made on 27 June 2018 at 3:47 pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass (Temporary Work (Skilled)) – Schedule 3 Criteria – Ceased to hold a substantive visa – Compelling reasons – Factors beyond control – Capacity to explore other options – Ongoing shortage of trade skills – Valid nomination – Support letters – Relevant skills and experience – Failure to regularise visa status – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 457.211, Schedule 3 Criterion 3003, 3004
CASES
Minister for Immigration and Multicultural Affairs v Dunne [1999] FCA 2014
Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Migration Review Tribunal [2005] FCA 211
Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151
Su & Ors v Minister for Immigration & Anor [2007] FMCA 318
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 Immigration on 25 May 2016 to refuse to grant the visa applicant, Irish national Mr Alan Patrick Thorpe, a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).
Mr Thorpe applied for the visa on 28 January 2016. At the time the application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevant provisions of the Regulations referred to in this decision are extracted in the Attachment to this decision.
The delegate refused to grant the visa on the basis that cl.457.211 of Schedule 2 to the Regulations was not met because Mr Thorpe did not meet the requirements in Schedule 3 criterion 3004: the delegate was not satisfied that Mr Thorpe was not, when he lodged his Subclass 457 visa application, the holder of a substantive visa due to factors beyond his control. and nor was the delegate satisfied that there were compelling reasons for granting the visa. A copy of the delegate’s decision was provided to the Tribunal.
Mr Thorpe appeared before the Tribunal on 20 November 2017 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Mr Thorpe satisfies Schedule 3 criterion 3004 for the purposes of cl.457.211 of Schedule 2 to the Regulations.
Clause 457.211 of Schedule 2 to the Regulations requires that an applicant who is in Australia at the time of application must hold a substantive visa other than a Subclass 771 (Transit) visa or a special purpose visa. If they do not hold a substantive visa at this time, the applicant may still satisfy cl.457.211 of Schedule 2 to the Regulations but only if: first, the last substantive visa held was not a Subclass 771 (Transit) or special purpose visa; and second, the applicant satisfies Schedule 3 criteria 3003, 3004 and 3005.
Relevant to this case, criterion 3004 applies to applicants who ceased to hold a substantive or criminal justice visa on or after 1 September 1994, or applicants who either entered Australia unlawfully on or after that date and have not subsequently been granted a substantive visa. This criterion requires the Tribunal to be satisfied of each of the following six requirements:
·the applicant is not the holder of a substantive visa because of factors beyond his or her control (3004(c));
·there are compelling reasons for granting the visa (3004(d));
·the applicant has complied substantially with the conditions that applied to the last of any entry permit or visa held by the applicant (3004(e));
·the applicant would have been able to satisfy the criteria or be granted the visa on the day he or she last entered Australia unlawfully or last held a substantive or criminal justice visa (3004(f));
·the applicant intends to comply with any conditions of the visa (3004(g)); and,
·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 further entry permit, while the holder remained in Australia (3004(h)).
Does the applicant satisfy the relevant Schedule 3 criteria?
In the present case, Departmental records confirm - and it is accepted by Mr Thorpe both when he submitted his visa application to the Department and in evidence to the Tribunal - that he did not hold a substantive visa at the time of making his Subclass 457 visa application on 28 January 2016 and, further, he did not previously hold a Subclass 771 or special purpose visa. Mr Thorpe acknowledged at the hearing that, when he applied for his Subclass 457 visa, he had been an unlawful non-citizen in Australia for over 4 years following expiry of his multiple entry Electronic Travel Authority (Visitor) Subclass 976 visa (ETA visa) on 21 June 2011. The representative who assisted him with his Subclass 457 visa application made submissions to the delegate regarding not only the factors that caused Mr Thorpe to become a person without a substantive visa and the reasons why those factors were beyond Mr Thorpe’s control but also the compelling reasons that exist for granting the visa.
Echoing information provided to the delegate in his representative’s submission, Mr Thorpe told the Tribunal that he first came to Australia in late 2008 as the holder of a Working Holiday Subclass 417 visa. Initially, he was living in Brisbane but couldn’t find work and so he moved to Sydney. When he ran out of money, he decided to return home to Ireland having stayed in Australia for about six months only. However, at that time, although he had 8 years’ experience as a Bricklayer he could not get any work because Ireland was in deep recession and the construction industry was especially hard hit by the Global Financial Crisis (GFC). After a year in Ireland, the choice facing him was either to stay there on social welfare (that is, the dole) or join his brother Paul in Australia with a view to finding work as Bricklayer. The Tribunal accepts the economic situation in Ireland following the GFC was dire and prompted a significant wave of emigration, especially amongst young people.[1] Mr Thorpe said he decided to return to Australia and did so on 21 March 2011 as the holder of an ETA visa to look for work. He has not left since then.
[1] >
Having regard to evidence in Departmental records, as confirmed by Mr Thorpe’s oral evidence at the hearing, the Tribunal finds that Mr Thorpe ceased to hold a substantive visa on 21 June 2011 when the three months stay permitted by his ETA visa expired: accordingly, when he lodged his application for a Subclass 457 visa on 28 January 2016, he did not hold a substantive visa. Further, his last substantive visa was not a Subclass 771(Transit) visa or a special purpose visa. In the circumstances, the Tribunal finds that Mr Thorpe must satisfy Schedule 3 criteria 3003, 3004 and 3005 consistent with cl.457.211(b) of Schedule 2 to the Regulations.
Is criterion 3003 met?
Criterion 3003 applies to certain applicants who have not held a substantive visa since 1 September 1994 and were either an illegal entrant or, on 31 August 1994, held an entry permit that was not valid beyond that date. The Tribunal is satisfied that Mr Thorpe was not such a person and, accordingly, criterion 3003 does not apply.
Is criterion 3004 met?
As noted above, criterion 3004 applies to, amongst others, applicants such as Mr Thorpe who ceased to hold a substantive visa on or after 1 September 1994. As a result of the Tribunal’s finding that Mr Thorpe did not hold a substantive visa at the time of lodgement of his Subclass 457 visa application, he must meet each of the six separate requirements set out in paragraphs 3004(c) - 3004(h) of criterion 3004 in Schedule 3 to the Regulations.
Factors beyond the applicant’s control: 3004(c)
The question of whether an applicant is not the holder of a substantive visa because of factors beyond his control has been considered judicially. The decision in Su & Ors v Minister for Immigration & Anor [2007] FMCA 318 is instructive. In that judgement, Smith FM referred to a judgment of Mansfield J in Secretary, Department of Social Security v Secara & Ors (1998) 89 FCR 151 at 159‑162 and stated at para [17]:
“The first is that a test of whether something was beyond the control of a person requires a consideration of whether that person, in his or her own particular circumstances, might have been able to do something to prevent the relevant event occurring. The test is in that sense “subjective”, rather than being directed at deciding what would have been beyond the control of an abstract or “reasonable” person. A second point, is that what is “beyond control” should be tested by considering whether the happening of the event was or was not within the control of the applicant in a practical or realistic sense. A capacity to control and avoid the happening of an event which is only theoretical or impractical should not disqualify the person from the benefit of the ameliorative provision.” (Emphasis added).
His Honour Smith FM also accepts Mansfield J’s comments that a decision maker needs to examine the particular situation of the person and that it is difficult to regard as ‘beyond control’ an event caused by forgetfulness or misunderstanding on the part of a person where it was within the capacity of the person to appreciate what was needed and to perform an action which would have avoided the event occurring. (Emphasis added).
Asked by the Tribunal why he did not anticipate expiry of his three month ETA visa on 21 June 2011 and take some action before this date in an effort to regularise his visa status so that he could remain in Australia, Mr Thorpe told the Tribunal that he tried to find a business that would sponsor him as a Bricklayer but was unsuccessful: employers preferred to engage working holiday makers because they did not need to be sponsored. He added he couldn’t get an extension of his 12 month Working Holiday Subclass 417 visa (it had come to an end on 17 September 2009, that is, nearly 1½ years before his return to Australia). In short, he was not able to find a sponsor within the three months’ duration of his ETA visa. Questioned as to whether he considered other visa options, such as a Student visa which would enable him to remain in Australia after expiry of his ETA visa and which would allow him to work part-time, Mr Thorpe said that he ‘did not really know anything’ about visas for Australia.
The Tribunal observed that Mr Thorpe could have gone to the Department for advice regarding his visa options to remain in Australia. He stated that he did not approach the Department because he was ‘so afraid, and did not know anyone’ (apart from his brother) when he came back to Australia a second time because of the ‘desperate situation’ in Ireland. The Tribunal put to Mr Thorpe that he could have gone to the Department to seek advice. He replied ‘yes’.
The Tribunal acknowledges that immigration law is one of the most technical areas of law in Australia. In the circumstances, the Tribunal accepts that the multiple visa options available to persons seeking to apply for a visa to remain in Australia prompt many people to seek professional advice from a registered migration agent or, in the alternative, from an officer of the Department. The Tribunal also notes that the Department’s website itself contains considerable information for persons seeking to remain lawfully in Australia.
In assessing whether Mr Thorpe is not the holder of a substantive visa because of factors beyond his control, the Tribunal has considered the judicial authorities referred to above. Having regard to Mr Thorpe’s express acknowledgement in the course of his oral evidence to the Tribunal that he could have gone to the Department to discuss his visa options to remain in Australia, the Tribunal does not accept that he is not the holder of a substantive visa because of factors beyond his control. It was clearly within his capacity to proactively seek appropriate professional advice, either from a registered migration agent or an officer of the Department. He did not pursue either of these options. Mr Thorpe had the capacity to appreciate what was needed and to perform an action – lodge an on-shore visa application before expiry of his ETA visa - which would have avoided his becoming an unlawful non-citizen. Alternatively, he could have left Australia and either gone back to Ireland or visited another country (such as New Zealand or Fiji) and then returned to Australia for another three months on his multiple entry ETA visa to further explore sponsorship possibilities.
Having regard to evidence provided, the Tribunal does not accept that, in the particular circumstances of this case, Mr Thorpe was not the holder of a substantive visa because of factors beyond his control at the time of application of his Subclass 457 visa. Accordingly, the Tribunal finds that Mr Thorpe does not satisfy paragraph 3004(c) of Schedule 3.
Compelling reasons for granting the visa: 3004(d)
In light of the Tribunal’s findings in respect of paragraph 3004(c) above, it is strictly not necessary for the Tribunal to consider whether Mr Thorpe meets the requirements of paragraph 3004(d) since the requirements of each of the six separate paragraphs 3004(c) - 3004(h) of criterion 3004 in Schedule 3 to the Regulations outlined above at para [8] must be satisfied before the Tribunal can find that the applicant meets criterion 3004. However, Mr Thorpe made a number of submissions during the hearing as to why there are compelling reasons for granting his Subclass 457 visa and supported this oral evidence with assorted documents lodged with the Tribunal after the hearing. The Tribunal also notes submissions made by Mr Thorpe’s former representative to the Department and reproduced in full in the delegate’s decision, a copy of which was provided to the Tribunal.
As noted above, paragraph 3004(d) requires the applicant to satisfy the Tribunal that there are compelling reasons for granting the visa. The term ‘compelling’ is not defined in the legislation. The Macquarie Dictionary Online defines the term ‘compelling’ to mean:

‘demanding attention or interest; convincing’.[2] Further, the Oxford Dictionaries Online defines ‘compelling’ to mean: ‘evoking interest, attention, or admiration in a powerfully irresistible way; not able to be refuted; inspiring conviction; not able to be resisted; overwhelming’.[3]
[2]
In Minister for Immigration and Multicultural Affairs v Dunne [1999] FCA 2014 the Federal Court considered the meaning of the phrase ‘compelling reasons’ in relation to a different provision of the Regulations. The Court held in that case that ‘compelling reasons’ must involve something in addition to the basic pre-requisite criteria for the grant of the visa. Further, in Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Migration Review Tribunal [2005] FCA 211 the Federal Court held that, in the context of a different visa subclass, the ordinary meaning of ‘compelling’ is ‘forceful’.
The submission prepared by Mr Thorpe’s former representative who assisted him with his Subclass 457 visa application lodged with the Department referred to Mr Thorpe’s extensive skills and employment background as a Bricklayer as well as the recognised trades skill shortages across Australia, in particular, the identified shortage of Bricklayers in Sydney. The representative states the business intending to sponsor Mr Thorpe, Aspec Masonry Pty Ltd (Aspec Masonry), placed an advertisement to recruit an experienced Australian Bricklayer but, to its surprise, although the job advertisement had more than 400 reviews not a single applicant registered their interest for the position. Media reports of the acute shortage of qualified Bricklayers in Australia were provided including an article from the Australian Financial Review dated 27 September 2015: it confirms conditions are toughest in Sydney and opines the solution lies in increasing the number of apprentices as well as bringing in more foreign Bricklayers on Subclass 457 visas.[4] The Tribunal notes that more recent media articles confirm the shortage of trade skills continues to remain challenging for the Australian economy.[5]
[4]
At the hearing, Mr Thorpe told Tribunal that the compelling reasons for granting his Subclass 457 visa are that:
·his sponsor Aspec Masonry continues to want to employ him to help grow the business;
·his long-standing partner, Colombian national Ms Sandra Johanna Castillo, is in the process of applying for permanent residence and wishes to include him in her application; and,
·his brother Paul Thorpe is in the process of obtaining permanent residence in Australia on the basis of his relationship with his Australian de facto partner.
The Tribunal noted the absence of any witnesses at the hearing including Mr Thorpe’s sponsor and proposed employer Aspec Masonry or his de facto partner or his brother. Mr Thorpe advised they were all busy working. He added that, together, Ms Castillo and his brother Paul had fully supported him since he presented himself to the Department on 17 February 2016 and was granted a Bridging C visa without work rights. Mr Thorpe told the Tribunal that he has not worked since mid-February 2016.
In addition, the Tribunal observed that, based on its review of Departmental records and as at the date of the hearing, the nomination application by Aspec Masonry had ceased on 25 May 2017 consistent with r.2.75(2)(b) of the Regulations. Mr Thorpe indicated he was unaware of this and expressed disappointment with his former registered migration agent who had assisted him with his Subclass 457 visa application in failing to advise him that the nomination had ceased before the hearing. He indicated he would look into the matter.
After the hearing, Mr Thorpe provided the Tribunal with signed letters from:
1)Tony Berakat, Director and CEO of Aspec Masonry.
Mr Berakat’s letter dated 21 November 2017 confirms the company was unaware its nomination had expired, it still wishes to sponsor Mr Thorpe and will do whatever is needed to be done for that to happen, including lodging a new nomination.
He also states the company is busier than ever, still experiencing staff shortages and Mr Thorpe has a massive role to play in the company given the need for experienced people like him.
2)Ms Johanna Castillo, Mr Thorpe’s de facto partner.
In her letter dated 20 November 2017 Ms Castillo confirms she and Mr Thorpe have been living together as a couple since late 2015. She states that, as she works with international students every day, she knows how hard the (immigration) process can be and suggested to Mr Thorpe that he should not do anything that would go against the process (by working in breach of visa conditions). She also confirms that she has been supporting Mr Thorpe with the help of his brother every week since he has been on his Bridging C visa (without work rights).
Ms Castillo provides evidence of a joint account showing rent for the couple’s apartment coming out of their personal bank account and payment of Mr Thorpe’s bills. She also provides evidence of the electricity account in her name only for the couple’s apartment rented in Drummoyne.
3)Mr Paul Thorpe, Mr Thorpe’s older brother.
Mr Thorpe certifies that he is financially been helping his younger brother for approximately 2 years paying him $200 per week. He confirms they regularly socialise and play soccer and, during their time in Australia, they have always been close. Currently, they both live in Drummoyne in close proximity to each other. Paul Thorpe also notes that he and his Australian partner have, over the past couple of years, grown close to his younger brother Alan’s partner, Ms Castillo.
Paul Thorpe states that, a close-knit family, his brother Alan is his only immediate family in Australia so assisting him financially to enable him to remain in Australia was the right decision.

In relation to comments by Tony Berakat, Director and CEO of Aspec Masonry, that his company wishes to continue to employee Mr Thorpe, the Tribunal notes that Aspec Masonry was approved as a standard business sponsor on 25 May 2016 for five years expiring 25 May 2021. However, despite Mr Berakat’s representation that his company would lodge a new nomination to evidence its ongoing intention to employ to Mr Thorpe, Departmental records confirm that the last nomination lodged by Aspec Masonry nominating Mr Thorpe as a Bricklayer was approved on 25 May 2016. Accordingly, but for the recent passage of the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complimentary Reforms) Regulations 2018 (the Amending Regulations), the company’s nomination would have ceased on 25 May 2017 consistent with r.2.75(2)(b) of the Regulations. However, for reasons explained below, due to commencement of the Amending Regulations effective 18 March 2018, Aspec Masonry’s nomination is still valid.
The Amending Regulations introduced a range of changes to the Regulations as part of a package of reforms to the employer sponsored temporary and permanent skilled work visa programs. Effective from 18 March 2018, the changes include the repeal of the Subclass 457 visa as well as the introduction of new nomination criteria and procedures. Amendments to Schedule 13 of the Regulations made by the introduction of Item 6704(15) to Part 67 of the Amending Regulations preserve the period of validity of a nomination in circumstances where the nomination was made before 18 March 2018 if:
·the person identified in the nomination applied for a Subclass 457 visa before 18 March 2018 on the basis of the nomination; and,
·within 12 months after the day on which the nomination is approved, the person applies to the Tribunal for review of a decision to refuse the grant of the visa.
In the circumstances of this case, Aspec Masonry has not withdrawn its nomination and the company’s sponsorship is a valid to 25 May 2021. The nomination was made on 28 January 2016 (that is, before 18 March 2018) and:
·Mr Thorpe was identified in Aspec Masonry’s nomination and he applied for a Subclass 457 visa on the basis of that nomination on 28 January 2016 (that is, before 18 March 2018); and,
·on 30 May 2016 - that is, within 12 months after the day on which Aspec Masonry’s nomination was approved on 25 May 2016 - Mr Thorpe applied to the Tribunal for review of a decision to refuse the grant him the visa.
For clarity, the Tribunal notes that in circumstances where Mr Thorpe applied to the Tribunal within 12 months of the approval of the nomination on 25 May 2016 (he applied on 30 May 2016) changes to the Regulations introduced by the Amending Regulations preserve the validity of Aspec Masonry’s nomination until the Tribunal makes its decision.
The Tribunal has considered the submissions provided by Mr Thorpe’s former representative to the Department as well as the letters in support provided by his prospective employer and sponsor, Aspec Masonry, his partner Ms Castillo and his older brother Paul Thorpe. The Tribunal notes that the evidence before it indicates there are some factors that favour grant of the Subclass 457 visa to Mr Thorpe, in particular, evidence of the ongoing skill shortage of Bricklayers and Mr Berakat’s statement his business is busier than ever but he is still experiencing staff shortages. The Tribunal also accepts that Mr Thorpe has the skills, qualifications and experience as a Bricklayer and would be an asset to Aspec Masonry.
In addition, the Tribunal has taken into account the personal hardship that his partner Ms Castillo and his brother Paul Thorpe have expressed in their letters of support and their wish for Mr Thorpe to remain in Australia as part of their respective family unit. The Tribunal also acknowledges the impact that Public Interest Criterion 4014 would have on Mr Thorpe should the Tribunal affirm the delegate’s decision. As the holder of a Bridging C visa granted more than 28 days after expiry of his last substantive visa on 21 June 2011 (Mr Thorpe’s Bridging C visa was granted more than 4½ years later on 17 February 2016), he would not be able to make an application to re-enter Australia until more than three years after his departure unless the Minister is satisfied that either: there are compelling circumstances that affect the interests of Australia; or, compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen to justifying grant of the visa within three years of Mr Thorpe’s departure.
Weighed against these factors, the Tribunal notes its earlier finding that Mr Thorpe chose to remain in Australia as at unlawful non-citizen for over four years, knowing full well that he had not regularised his visa status in Australia. At the hearing, he acknowledged that he did not proactively pursue professional advice to explore his visa options to remain in Australia lawfully. In the Tribunal’s opinion, and it was not refuted by Mr Thorpe, he had the capacity to appreciate what was needed and to do something about it – such as get advice from a registered migration agent or the Department in relation to regularising his visa status, and then act of that advice - which would have avoided his becoming an unlawful non-citizen for such a lengthy period. This was not an oversight on his part.
Based on evidence provided, the Tribunal is not satisfied that the grounds advanced by Mr Thorpe constitute compelling reasons for granting the visa. Having regard to the dictionary definitions for ‘compelling’ extracted above as well as relevant case law referred to above, the Tribunal is not satisfied that the factors advanced by Mr Thorpe, either individually, or cumulatively, suggest that the reasons for granting the visa are powerfully irresistible, overwhelming or forceful.
Having regard to evidence provided, the Tribunal finds that Mr Thorpe does not satisfy paragraph 3004(c) of Schedule 3.
Conclusion
The Tribunal has found that, in respect of both paragraphs 3004(c) and 3004(d), Mr Thorpe does not meet the requirements of criterion 3004 of Schedule 3. Accordingly, the Tribunal finds that he does not satisfy criterion 3004 for the purposes of cl.457.211 of Schedule 2 to the Regulations.
It follows that, as Mr Thorpe does not satisfy the applicable criteria for the grant of a Subclass 457 visa, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.
Katie Malyon

Member
ATTACHMENT - Extracts from the igration Regulations 1994
Schedule 2Provisions with respect to the grant of Subclasses of visas
Subclass 457 – Temporary Work (Skilled)
457.21 Criteria to be satisfied at time of application
457.211 If the applicant is in Australia at the time of application:
(a)the applicant holds a substantive visa, other than a Subclass 771 (Transit) visa or a special purpose visa; or
(b) if the applicant does not hold a substantive visa at the time of application:
(i)the last substantive visa held by the applicant was not a Subclass 771 (Transit) visa or a special purpose visa; and
(ii) the applicant satisfies Schedule 3 criteria 3003, 3004 and 3005.

Note: Special purpose visa is defined in subsection 5(1) of the Act.
Schedule 3Additional criteria applicable to unlawful non-citizens and certain bridging visa
holders
…
3003If:
(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.
3004If 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.
3005A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:
(a)this Schedule; or
(b)Schedule 6 of the Migration (1993) Regulations; or
(c)regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations.
oOOo

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Citations

THORPE (Migration) [2018] AATA 2884

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Su & Ors v Minister for Immigration & Anor [2007] FMCA 318

Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211

Secretary, Department of Social Security v Secara & Ors [1998] FCA 1510