TINO (Migration)

TINO (Migration) [2020] AATA 3534 (1 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Amor Paterno TINO
CASE NUMBER:  1802876
HOME AFFAIRS REFERENCE(S):          BCC2017/874990
MEMBER:Roger Maguire
DATE:1 July 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 01 July 2020 at 3:48pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – applicant was not the holder of a substantive visa at the time of application –sponsor made a false statement regarding her citizenship status – no sufficient compelling reasons to waive the Schedule 3 criteria – decision under review affirmed
LEGISLATION
Australian Citizenship Act 2007, s 12
Migration Act 1958, ss 65,233, 235
Migration Regulations 1994, Schedule 2, cl 820.211, Schedule 3
CASES
Babicci v MIMIA (2005) 141 FCR 285
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant applied for the visa on 6 March 2017 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d)(ii) and there were no compelling reasons for not applying Schedule 3 criteria.
The applicant appeared before the Tribunal on 23 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.
The applicant was represented in relation to the review by his registered migration agent, Mr Frank Donatiello of Immigration Western Sydney.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether there are compelling reasons for not applying the Schedule 3 criteria.
SCHEDULE 3 CRITERIA (cl.820.211(2)(d))
Does the applicant meet Schedule 3 criteria, or should those criteria be waived?
An applicant, who was not the holder of a substantive visa at the time of application, must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl.820.211(2)(d).
It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in the present case is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria. These criteria are set out in the attachment to this decision.
Criterion 3001
In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in criterion 3001(2), as set out in the attachment to this decision.
The applicant’s previous substantive visa, a Temporary Work (Short Stay Specialist) (Subclass 400) visa ceased on 2 November 2014. The present visa application was lodged on 6 March 2017, over two years and three months after the relevant day.
As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.
Compelling reasons
As the Tribunal has found that the applicant does not meet the relevant Schedule 3 criteria, it is required to consider whether there are compelling reasons for not applying the criteria.
The expression ‘compelling reasons’ is not defined for these purposes. However, 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.
In order to consider whether compelling reasons exist, it is necessary to consider all relevant circumstances, and this includes the applicant’s history in Australia, and any relevant conduct of the sponsor.
The Tribunal notes that the “compelling reasons” provisions are not intended to facilitate persons who:
a.fail to comply with the visa conditions or
b.deliberately manipulate the circumstances to give rise to compelling reasons or
c.can leave Australia and apply for a Partner visa outside Australia.
Background
On 21 September 2014, the applicant first arrived in Australia on a Temporary Work (Short Stay Specialist) (Subclass 400) visa which ceased on 2 November 2014.
On 31 October 2014, the applicant lodged an application for a Temporary Work (Long Stay Activity) (Subclass 401) visa which was eventually refused on 6 March 2015 and the Bridging visa associated with this application ceased on 3 April 2015, which is the relevant day for the purposes of Schedule 3. The refusal was not the subject of an application for merit review by the applicant. Presumably, the applicant would have sought merit review if he thought such a course would have had prospects of success.
The applicant elected not to depart Australia and became an unlawful noncitizen on 4 April 2015, but made no attempt after this time (until the present application) either to depart or regularise his presence in Australia.
In failing to leave Australia before his visa expired, the applicant conducted himself in a manner which weighs against a finding of compelling circumstances.
The sponsor and the applicant met on 1 December 2015, and commenced living together in December 2015.
On 11 February 2016, the applicant was located by the NSW Compliance Field Team at a premises in Fairfield East, but absconded whilst efforts were underway to place him in immigration detention. The applicant told the Tribunal that he absconded because he had been told he was going to be placed in immigration detention. This evidence destroys any suggestion that the applicant was in any doubt as to his visa status as and from this time, and leaves little room for doubt that the applicant knew what he was doing was not legal. This evidence raises a concern that in absconding in this way, the applicant may have committed an offence under s.197A of the Act. The Tribunal notes that this offence attracts a penalty of up to five years imprisonment. Whether or not an offence has been committed in this circumstance, in absconding as he did, the applicant demonstrated a disregard for Australian law, and a preparedness to do what was necessary to maintain residence regardless of the legality of his conduct. This conduct weighs heavily against a finding of compelling circumstances in regard to the applicant.
Likewise, there is little room for doubt that the sponsor was aware of the applicant’s legal status in Australia no later than this time, and certainly before she entered into a marriage with him. The sponsor would have known that there was a constant threat of the applicant’s apprehension and deportation.
The parties married on 8 April 2016. The Tribunal considers that the marriage presents as a possible step towards deliberately manipulating circumstances to give rise to compelling circumstances. It is possible that the child which followed was another. The Tribunal notes that notwithstanding the marriage, no application for a Partner visa was made until it became a matter of urgency after the applicant was eventually located on 24 February 2017, and detained at the Villawood Immigration Detention Centre.
Two days prior to his apprehension, the applicant took advice from his migration agent. By the time that visa application was made, it would have been apparent to the applicant that his only prospect of a successful application rested in establishing compelling circumstances.
Ten days after the applicant’s incarceration, the present application was lodged on 6 March 2017. Had it not been lodged, and the ensuing Bridging visa issued, the applicant would almost certainly have been deported around this time. The Tribunal is concerned that the present visa application was made with the immediate objective of freeing the applicant from immigration detention, and providing him with what was probably his only available vehicle for maintaining residence in Australia, at least until the present visa application reached its legal conclusion. In these circumstances, the Tribunal considers the timing and circumstances of the lodgement of the present visa application to be a deliberate attempt to manipulate circumstances so as to give rise to compelling circumstances so as to waive Schedule 3 requirements.
The Tribunal notes that by the time the visa application was made, the parties had lived together in the knowledge of the applicant’s unlawful status for a period of nearly 15 months during which they took no steps to regularise his presence in Australia, and he did work, which he was not lawfully entitled to do. This is not conducive to a finding of compelling circumstances.
The application submitted by the applicant contained a warning that giving false or misleading information is a serious offence, and the applicant declared that he had read and understood the information provided in the application, and provided complete and correct information in every detail, and understood that false or misleading information might lead to the refusal of his visa application.
At folios 363 to 364 of the Departmental file, in a document submitted by the applicant’s migration agent, it was specifically stated that the sponsor was not an Australian citizen by birth or grant, was a citizen of the Philippines, and was an Australian Permanent Resident.
In correspondence of 7 March 2017, the applicant’s migration agent advised the Department of possible errors in the applicant’s application, given their inability to communicate effectively with the applicant, and undertook to adjust responses once he was out of detention, and provide a notification of any incorrect answers to questions. The Tribunal is concerned that the migration agent has effectively stated that he was submitting a document, not knowing whether what was in it was in fact true and correct.
The correspondence of 7 March 2017 also contained the following statement:
Mr Tino has overstay (sic) his visa which he regrets but he had received poor immigration advice at that time so like many others he became unlawful with no hope in obtaining a visa to remain in Australia. He is not even sure of his visa status and whether any of his visas have been refused or cancelled?
It emerged from evidence given by the applicant and the sponsor at hearing, that this expression of regret appears disingenuous as the applicant had previously escaped immigration detention, and neither of them was in any doubt that he was not lawfully in Australia.
The correspondence also contained the telling admission, “he became unlawful with no hope in obtaining a visa to remain in Australia”, which probably explains the applicant’s failure to lodge the present application until it was necessary to secure his liberty. It may also explain that the sponsor’s anxiety is a product of her conscience, and long held expectation.
In the body of the applicant Partner visa application submitted by his migration agent the following extracts appear at folios 358 and 359 of the Departmental file. At 358:
Has the applicant or any person included in this application ever been refused an entry permit or visa to Australia?
Yes
Give details: Client is unaware if he has been refused a visa or not. He believed that an application had been lodged on his behalf but it appears none was lodged FOI request is being completed to confirm
At 359:
Has any applicant ever overstayed a visa in any country (including Australia)?
Yes
Give details: Visa applicant overstayed a visa as he was unaware that an application he thought had been lodged was either lodged and refused without his knowledge or the application was never lodged in the first place. FOI request being prepared.
These statements were contradicted by the applicant at hearing, and the Tribunal considers claims of unawareness on the part of the applicant to be both false and misleading, and demonstrate an ongoing determination to do what was necessary to prolong his stay in Australia.
A few days before the scheduled hearing, a request was received for a postponement based on a claimed anxiety/panic disorder of very recent origin on the part of the sponsor. The Tribunal declined to grant the postponement. At the hearing, the sponsor did not appear to require, and did not request, any breaks to regain her composure, even though she was invited by the Tribunal to do so if necessary. She did not appear to be particularly troubled during her evidence, although she did dry her eyes once or twice, which is not unusual for parties or witnesses in cases of this type.
At the commencement of the hearing Mr Frank Donatiello of Immigration Western Sydney confirmed to the Tribunal that the Tribunal could treat his submission of 27 May 2020 together with a yet to be provided psychologist’s report as providing a succinct summary of the circumstances relied upon by the applicant to establish compelling circumstances.
The applicant, at the beginning of his evidence, confirmed that all statements made by him to the Department and the Tribunal were true, correct and current in every detail as at the date of the hearing, and that all submissions made to the Tribunal on his behalf had been made in accordance with his instructions.
The applicant told the Tribunal that his wife is a resident, not a citizen, and has never represented herself to anyone as being a citizen.
Likewise, at the commencement of her evidence, the sponsor confirmed that all statements made by her to the Department and the Tribunal were true, correct and current in every detail as at the date of the hearing, and that to the extent that any submissions made to the Tribunal referred to her they had been made in accordance with her instructions.
The sponsor described her legal status in Australia as a permanent resident, and said she has never described herself as having any other legal status in Australia.
The evidence of the parties in respect of the sponsor’s legal status in Australia is of particular significance, because in a submission to the Tribunal dated 27 May 2020, Mr Frank Donatiello of Immigration Western Sydney stated:
I am a registered migration agent and I am acting on behalf of Amor Paterno Tino a citizen of the Philippines and his wife Melissa Kristine Tino (nee Tobey) and their child Tyrone Tino both being Australian citizens,…
This misstatement was repeated in the body of the submission where the sponsor and child were collectively referred to as “the Australian citizens.”
A similar misstatement occurred recently before the hearing in a late submission dated 17 June 2020 by Mr Frank Donatiello of Immigration Western Sydney in which he again referred to the sponsor as “a settled Australian permanent resident citizen.” Clearly, the operative word in this phrase is “citizen.”
The sponsor is not an Australian citizen. She is the holder of a permanent resident visa class BF-102 granted on 22 March 1994. Like any other visa, it is subject to cancellation in certain circumstances. The sponsor has, through the applicant’s migration agent, made a false statement to this Tribunal regarding her citizenship status. Had this statement not been scrutinized, and accepted by the Tribunal at face value, it may have led the Tribunal to consider (subject to other statutory considerations) proceeding under s.360(2)(a) of the Act, as it was implicitly asked to in the final paragraph of that submission. This is a matter of considerable concern to the Tribunal.
At the conclusion of the hearing, the migration agent took responsibility for his description of the sponsor as a citizen, saying it was his error based on what appears to have been a cursory look at a birth certificate which he mistook for the sponsor’s. Whilst carelessness may explain Mr Donatiello’s initial error, it does not satisfactorily address his recent description of the sponsor as “a settled Australian permanent resident citizen.” This description is a legal nonsense. There is no such thing as a “permanent resident citizen”. A citizen may of course be permanently resident in Australia and thus properly described as a permanently resident citizen.
As noted above, early in their respective evidence, both the applicant and the sponsor affirmed that everything submitted to the Department and the Tribunal on their behalf was true, current and correct at the date of the hearing, and all submissions made to the Tribunal were in accordance with their instructions. The applicant specifically denied that the sponsor had ever to his knowledge described herself as a “permanent resident citizen”, and the sponsor gave evidence in the same vein. The Tribunal accepts this evidence, and regards it as a contradiction of the initial assurance given by both the applicant and the sponsor as to the correctness and currency of material submitted to the Tribunal. This raises concerns about the credibility of the remainder of the evidence of both the applicant and the sponsor.
During the hearing, the applicant was asked about the incident on 11 February 2016 when he absconded from officers. The applicant said that he was afraid that he would be incarcerated and put into prison. He confirmed that he has fought as a professional boxer. He denied striking any person at the time, and said that about 10 or 13 people turned up to apprehend him. The applicant agreed with a suggestion by the Tribunal that he knew at the time that he was liable to be incarcerated, and that he had known this since his visa expired on 4 April 2015. He agreed he made no attempt to regularise his presence in Australia, and when asked why this was the case claimed to have misunderstood the question about four times and gave evasive and unresponsive answers. During this he attempted to answer questions other than those which the Tribunal had asked, and his answers were evasive and unresponsive. He eventually gave his excuse as being that he did not know anyone he could trust.
The Tribunal asked the applicant what work he had done in Australia between 4 April 2015 and his detention on 24 February 2017. The applicant told the Tribunal that he had worked as a professional boxer before his visa expired, and that his last fight was before it expired. He told the Tribunal that after his visa expiry he worked when work was available, and that during this time he knew that he did not have work entitlement. The Tribunal is concerned that this discloses possible offences under s.235(3) of the Act.
The Tribunal had before it information provided by the applicant prior to the hearing that he worked from 2015 to 2017 for “Cemstrip” as a demolition worker. The applicant told the Tribunal that he commenced work in the demolition industry with other boxers when they were not fighting professionally in around 2015.

The applicant said he was paid $150 per day cash by a person named Jimmy Contontoso throughout this period, and that he had no tax file number at this stage, but was told that tax was being deducted from the cash payments, which this Tribunal finds improbable. The Tribunal asked the applicant what total tax he had paid during this period, and he said that he had not been told. The Tribunal is concerned that this evidence is suggestive of possible non-compliance with Australia’s tax laws.
The applicant also told the Tribunal that in the course of his work, he worked with asbestos without the appropriate licence. The Tribunal is concerned that this appears to be yet another instance of the applicant’s contempt for Australian law when it suits him.
The Tribunal raised with the applicant that in his marriage certificate of 8 April 2016, he had identified his occupation as “Boxer” at a time when he had not fought professionally for over a year and was working as a demolition worker. His response was “I think that’s where I made an error.”
The picture which emerges from the evidence over the period that the applicant has been in Australia is of a man desperate to remain in Australia, and who was prepared to do whatever was necessary in order to maintain residence in Australia, and along the way regularly and persistently demonstrate contempt for Australian law.
This raises a major concern with the Tribunal as to whether the applicant has shown proper respect for Australian law in the course of the current application, and the evidence provided.
The sponsor was asked when she became aware that the applicant was a not in Australia legally, and said it was January or February 2016. From that time on, she was aware that he was liable to be taken into immigration detention were he to be apprehended. The sponsor said she was shocked and worried, as she had never had to deal with that situation before. She said she did not think she suggested to him that he get in touch with authorities, but denied taking any special steps to protect him from detection by authorities. She did however give evidence that she told him “to be careful at work” to avoid detection. Informing authorities of the whereabouts of a person whom she knew was an unlawful non-citizen does not appear to have crossed her mind. The Tribunal considers that the sponsor’s protection of the applicant was by way of acts of omission and commission. The Tribunal is concerned that the sponsor’s evidence discloses a possible offence under s.233E of the Act, “Concealing and harbouring non-citizens etc.” This is a very serious offence which attracts up to 10 years imprisonment or 1000 penalty units or both.
All of this raises a concern as to whether the sponsor shares what appears to be the applicant’s apparent “do what it takes” approach to maintaining his residency, and lessens the weight which the Tribunal might otherwise have given her evidence.
The applicant gave evidence that he told the sponsor of his visa situation in December 2015. On the sponsor’s own evidence she knew no later than February 2016 that the applicant was in constant danger of deportation. Notwithstanding this, she elected to accept this risk, and not only continue the relationship, but also marry and become pregnant to the applicant, and deliver a child on 26 October 2018, some 19 months after the applicant was released from immigration detention on the basis of a Bridging visa issued in consequence of the present visa application. Before the Tribunal she was nevertheless adamant that she would not be returning to the Philippines were the applicant ultimately to fail in this application. The Tribunal accepts this evidence and finds that the sponsor has not evinced an intention that their relationship is necessarily a continuing one. It seems only to be continuing for the duration of the applicant’s residence in Australia.
The Tribunal has had regard for a birth certificate issued by the government of New South Wales for Tyrone Alan Tino, a male child born 26 October 2018. The Tribunal accepts that in consequence of s.12(1)(a) of the Australian Citizenship Act 2007, the child is an Australian citizen by birth.
The possible offence under s.233E of the Act creates a further complication in this case. The sponsor is not an Australian citizen. Her child, however, is an Australian citizen. Visa cancellation is a slow process, and it remains possible that steps may be taken (or indeed may even presently be in train) to cancel the sponsor’s visa for any reason, including in consequence of her having harboured the applicant whilst he was a fugitive and she knew him to be. Were this to happen, and the sponsor to be required to leave Australia, no doubt she would take her 18-month-old child with her. In this scenario, if the Tribunal were to rule in favour of the applicant it could result in the incongruous circumstance where the applicant was at liberty to remain in Australia, but the sponsor was not.
The sponsor was not able to enlighten the Tribunal as to her future plans as she said she is really dependent on the applicant financially and emotionally. She agreed that there is no legal prohibition on her travelling back to the Philippines with him and their baby, but contended that living over there would be quite hard for them. The Tribunal has some doubts about this, as the applicant has been working as a bookkeeper in their joint business, and gave evidence in fluent English. The Tribunal considers that these skills combined may enhance the applicant’s job prospects should she seek employment in the Philippines, but makes no findings in this regard.
The sponsor told the Tribunal that the most compelling reason for her husband to remain in Australia is that she would find it very difficult to cope without him. She has no desire to return to the Philippines with him, and could not afford to go and has nowhere to go where she would feel safe. She said she was pretty sure that in his family there is no room for them, life is not easy, and she does not want her son to go through the hard life she had over there. She agreed that she would probably stay in Australia if her husband has to return to the Philippines.
The sponsor’s evidence proceeded on the basis that she and her son would not be going to the Philippines should the applicant be required to leave Australia. The sponsor said on behalf of her son that he is very close to his father, and that she imagines her son will suffer a terrible loss and that he is at a young age and it will have a psychological effect on her son. The sponsor said that her husband can provide a better future for her and her baby than she can provide as a single parent. It is clear from this that the sponsor has no particular intention of accompanying the applicant should he be required to leave Australia. This raises a serious doubt in the mind of the Tribunal as to whether the sponsor in fact presently sees the relationship as a long-term one, or indeed did at the time of the visa application. To the extent that a compelling circumstance might arise in this context, it would do so in consequence of the decision of the sponsor.
The Tribunal has also had regard for the statutory declaration of 26 May 2020 made by the applicant, and accepts that the sponsor may well suffer some financial hardship should the applicant leave Australia, and she chooses to remain behind as a single parent. The Tribunal also notes that the sponsor is not a citizen, she is a permanent resident, and whilst she continues to hold that status, she remains entitled to remain in Australia and access its generous social welfare which would take into account her situation as a single parent.
Since the hearing, the Tribunal has received and had regard for a report dated 23 June 2020 from Mr Patrick Marando, Psychologist. The sponsor recorded her concerns as to her son growing up without a father, and her worries as to their prospects in the Phillipines. The Tribunal accepts this as evidencing the sponsor’s continuing refusal to return to the Phillipines, and preference to continue living in Australia.
There is no evidence before the Tribunal that the applicant cannot leave Australia and apply for a Partner visa outside of Australia.
Hardship occasioned by separation in circumstances such as these is not of itself regarded by policy as a compelling circumstance, as is the existence of a genuine spouse relationship.
In the circumstances of this case, the sponsor has always assumed a risk that the applicant might be required to depart Australia against his will in order to seek a Partner visa. The fact that the risk has not resolved itself as she would have wished does not amount to a compelling circumstance.
The Tribunal views with great concern that virtually from day one of their relationship, the sponsor was aware of the applicant’s status as an illegal non-citizen, and for a long time rather than take steps to remedy the situation, was a party to facilitating his ongoing presence, and unlawful working.
The applicant has a lengthy history of showing contempt for Australian law, absconding to avoid detention, and working when he was not entitled to do so. The applicant appears to have spent the best part of 15 months successfully avoiding apprehension and detention, with the assistance of the sponsor.
This raises a serious concern as to an apparent contempt for Australian law on the part of the applicant. Likewise, the sponsor has shown a similar contempt for Australian law in failing to inform authorities of the applicant’s whereabouts when she became aware that he was an unlawful non-citizen. These circumstances raise a further concern as to whether this contempt for Australian law has flowed into the evidence provided to this Tribunal in support of this application.
The Tribunal acknowledges that an affirmation of the decision under review may result in financial and emotional hardship for the sponsor should she remain in Australia – as is her present right – after the applicant departs. The decision to separate from the applicant in this event, if it happens, will be hers, just as the decision to continue the relationship when she knew the true circumstances and risks was also hers.
This Tribunal would ordinarily give considerable weight to the duration of the relationship between the parties. Likewise, it would ordinarily give considerable weight to the fact that there is a child of the relationship who is an Australian citizen. The Tribunal would have given additional weight to these considerations had the sponsor been an Australian citizen.
However, in consequence of the conduct of both parties, the Tribunal has discounted the weight it would ordinarily give to the factors which would ordinarily weigh in favour of the applicant had it not been for such conduct.
Taking all of the evidence and submissions into account, the Tribunal is not satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant does not meet cl.820.211(2)(d)(ii).
Before the Tribunal it was not contended that alternative criteria in cl.820.211 were met.
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Roger Maguire
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.

[2020] AATA 3534

1 July 2020

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