Vuong (Migration)

[2020] AATA 5388

Vuong (Migration) [2020] AATA 5388 (20 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Binh Le Vuong

CASE NUMBER:  1732980

HOME AFFAIRS REFERENCE(S):          BCC2017/941420

MEMBER:Helena Claringbold

DATE:20 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl.820.211(2)(a) of Schedule 2 to the Regulations; and

·cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations; and

·cl.820.221 of Schedule 2 to the Regulations.

Statement made on 20 November 2020 at 8:53am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – validly married – financial, household, social aspects of relationship – nature of commitment – application made more than 28 after last substantive visa held – compelling reasons for not applying criteria – sponsor not biological father of child – sponsor’s role in child’s life and child’s long-term health conditions – additional burden if applicant required to apply offshore – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5F(2), 65

Migration Regulations 1998 (Cth), r 15A.(3), Schedule 2, cl 820.211(2)(a), (d)(ii), Schedule 3, criterion 3001

CASES
Babicci v MIMIA (2005) 141 FCR 285

He v MIBP [2017] FCAFC 206

MZYPZ v MIAC [2012] FCA 478

Waensila v MIBP [2016] FCAFC 32

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 9 March 2017, Mrs Binh Le Vuong, the applicant, applied for a Partner (Temporary) (Class UK) visa. The application was based on her spousal relationship with Mr Van Hiep Ho, the sponsor.

2. On 19 December 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa.  The delegate was not satisfied that the applicant and the sponsor are genuine spousal partners or that the applicant met the Schedule 3 criteria. Therefore, the applicant did not meet cl.820.211 of Schedule 2 to the Regulations and specifically cl.820.211(2)(a), cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations. On 27 December 2017, the applicant provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision.

3. On 11 November 2020, the applicant appeared before the Tribunal 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 Vietnamese and English languages. The applicant was represented in relation to the review by her registered migration agent (migration agent).

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration, individually and completely, all the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in the present case is whether the applicant is the spouse of the sponsor as defined in s.5F of the Act. In addition, whether the applicant satisfied the Schedule 3 criteria.

   BACKGROUND ON THE EVIDENCE

7. The applicant was born in 1985 in Ho Chi Minh City, Vietnam.  Her father is deceased. Her   mother and four siblings live in Vietnam. The applicant did not declare having any previous partner relationships. She entered Australia on 31 December 2013 as the holder of a Subclass 600 visitor visa which ceased on 31 March 2014. The applicant remained in Australia as an unlawful non-citizen for approximately three years. She is currently the holder of a bridging visa C. The applicant declared having a child born in 2017 who lives in Australia with the applicant and the sponsor.

8. The sponsor was born in 1969 in Saigon, Vietnam. His parents and three siblings live in Australia. On 26 July 1991, he became an Australian citizenship by grant. On 13 January 1992, he married Ms Thi Phuong Nga Tran. On 9 October 1995, Ms Tran and the sponsor divorced. On 1 March 1992, the sponsor’s relationship with Ms Wynn Thai began. On 1 December 2014, Ms Thai and the sponsor separated. There is one child from this relationship.

9. The parties met in 2015. In December 2016, the parties married. In March 2017, the applicant gave birth to her son, Adrian who is an Australian citizen.

   Are the parties validly married?

10. At the time the visa application was made, the visa applicant provided evidence of her marriage to the sponsor. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

    Are the parties in a spousal relationship?

11. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d).

    Are the other requirements for a spousal relationship met?

12. In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    The financial aspects of the parties’ relationship

13. The migration agent stated the following. Previously the sponsor’s salary was deposited into the joint bank account. However, as the applicant has engaged Bitcoin investors to partially control the parties’ funds in the joint bank account his salary, more recently has been directed to his individual bank account. He withdraws cash to give to the applicant and will transfer money to the joint bank account. The applicant’s salary for her casual employment is deposited into the joint bank account. The applicant is nominated as a 100 percent beneficiary on the sponsor’s superannuation fund and was declared as his spouse in his tax declaration forms.

14. The applicant told the Tribunal the following. Previously the sponsor managed the parties’ finances but when she discovered that he gambled she took charge of the finances. She told the sponsor that he had to pay the rent as she couldn’t afford it and at other times told him she had no money.  Slowly over time the sponsor’s gambling lessened.

15. The parties’ income is derived from their salaries and a government benefit payment.  When the applicant is not working, they are reliant on the sponsor’s salary. The parties have a joint bank account ending 9449 which was opened in November 2016.  Transactions lists from 2016 to 2020 record various cash deposits, and utility payments and debits for different goods and services.  Some are noted as being for the payment of utilities. There are various transfers and deposits noted as cash deposits and government family deposits and transfers to and from account 0880, they also record deposits noted as wages.  In or around the wages deposits dates multiple transfers are made to account ending 1767 and another bank account for amounts or approximate amounts to the value of the wages.  Other debit transactions are noted as ‘rent’ and credits are noted as ‘Aus Gov Families’.  The sponsor pays maintenance for his daughter on a monthly basis.

16. The Tribunal accepts the following. The parties do not have any joint ownership of real estate or other major assets.  Other than rental and utility payment they do not have any joint liabilities. They do not pool their financial resources, especially in relation to mayor financial commitments.  Their legal obligation in respect of each other relates to their joint bank account and rental and utility payments and the sponsor has a legal obligation relating to the applicant via his nomination on hi superannuation fund.  The parties share day-to-day household expenses.

    The nature of the parties’ household

17. The parties began living together at Gartmore Avenue July 2016 and Pringle Ave (the Pringle address) in November 2016 and Weigand Ave address (the Weigand address) in January 2020. In March 2017, the applicant declared the following. The parties needed to live together with their son. The applicant also helped care for Vi, the sponsor’s daughter who previously stayed with them on weekends. Vi lives with the sponsor’s brother who has custody of her. The sponsor is seeking full custody of his daughter.  Copies of correspondence addressed to the parties jointly and individually at the Pringle address and the Weigand address have been provided.

18. The migration agent stated the following. The sponsor supported the applicant throughout her pregnancy. Despite the DNA results excluding the sponsor as Adrian’s biological father he is committed to him as a father and has developed a parental bond with Adrian since his birth and the parties jointly care for Adrian.

19. Third party statements provide the following information. Mr Tran, a friend of the sponsor stated the following.  The applicant keeps the house running by doing the cooking, cleaning and shopping. Thiep who has been a friend of the applicant for two and a half years stated that he sees the applicant prepare food for the sponsor. Thi Hong Hue has known the applicant for two and a half years and the sponsor for one and a half years and she introduced the parties. The applicant lived with her at Pringle Avenue. They do the shopping together.  The applicant takes care of the household and the sponsor helps the applicant with cooking. 

20. The parties provided consistent information to the Tribunal about their household, including where they lived together and with whom and the sponsor’s employment and their daily routine. The sponsor told the Tribunal that his daughter lives with his brother who has custody of her. This arrangement is in place as a result of a previous ‘toxic’ relationship. Authorities became involved and he considered it better for his daughter to be with his brother who has a daughter of a similar age. His daughter does not live with the parties and he usually visits her on weekends for a short time. He attended Adrian’s birth and treats him as his son. The applicant told the Tribunal the following.  She stopped work about a month ago because Adrian, her son was hospitalised. Her son requires regular and constant care. She mainly takes care of the household but the sponsor helps and they both share in caring for her son.

21. A report dated 14 September 2020, is from Bankstown-Lidcombe Hospital emergency department.  It recorded Adrian as having an allergic reaction to nuts. A discharge referral from recorded that Adrian was admitted on 7 October 2020 and discharged on 13 October 2020. His principal diagnoses are periorbital eczema herpeticum, plus MSSA superinfection, severe eczema herpeticum, plus MSSA affecting the entirety of the skin overlying the right eye.

22. A letter dated 26 September 2019 from Dr Banan provided the following information. Adrian was brought by ‘dad’ for review of his atopic dermatitis which has been bothersome since he was little. Dr Banan suggested treatment of Dermeze ointment three times a day all over the body as well as Diprosone ointment three times a day on the eczema patches on the body and Advantan ointment three times a day on the face including the eyelids and bleach baths twice a week. On examination treatment was changed from Advantan to Hydrocortisone three times daily all over the face including the eyelids. It was explained to ‘dad’ that this is a long-term problem and Aidan would need to stay on treatment long term to address his eczema.

23. The Tribunal accepts the following. The parties share the responsibility for the care of Aidan and share some of the responsibility of housework.

    The social aspects of the parties’ relationship

24. The applicant told the Tribunal the following. The parties’ social life is restricted because of the care her son requires. She generally stays home and the sponsor goes out with his friends. Sometimes friends visit and at other times the parties may go walking.

25. The migration agent stated the following. The parties are restricted in their social activities because of the regular daily care Adrian needs. They only spend time around Sydney. Third party statements provide the following information: Mr Tran has been a friend of the sponsor for five years and met the applicant after the parties met. Mr Tran and his wife meet with the parties on weekends and attend parties or go out to dinner. His wife will often help the applicant with her child. He feels that the parties have a loving relationship and care for their son. The applicant’s mother-in-law is elderly and the applicant often helps by taking her for medical appointments. Triem has known the parties for three years.  He visits the parties every weekend and witnesses them going to birthday parties, eating and shopping. Their relationship has blossomed and they love and care for their son. The applicant appreciates her family and is determined to ensure it works well. The sponsor is very happy and appreciative of his relationship with the applicant. Thiep has been a friend of the applicant for two and a half years. He witnesses the joy of the parties’ family when he visits them. He witnessed the parties speaking positively together and cuddling and believes their relationship is genuine and continuing. Thi Hong Hue introduced the parties. She witnessed the parties’ relationship develop and said they are living together and go to parties together. Van Huy, the sponsor’s brother has the sponsor’s daughter living with his family. He met the applicant three years ago. They often meet for lunch on weekends. The parties have been living together for many years and support each other in their daily lives. The sponsor is happier and has his life together and is helping take care of his daughter financially. Photographic evidence depicts the parties together and with others at different locations. Other photographic evidence shows Adrian with a pronounced skin condition.

26. The Tribunal accepts the following. The parties represent themselves and are recognised as being in a married relationship.  As a result of Adrian’s condition, the parties plan and undertake limited social activities together.

    The nature of the parties’ commitment to each other

27. At the time of visa application, the parties provided the following information about their relationship. On 16 July 2015, the parties were introduced to each other by a mutual friend at a party in Bankstown, New South Wales, Australia. The parties maintained regular contact with each other and their relationship developed over the next five months. On 25 December 2015, they entered into a committed relationship and began living together in Bankstown, New South Wales, Australia. On 23 December 2016, the parties married in Cabramatta, New South Wales, Australia.

28. In March 2017, the applicant stated that the parties were filled with happiness when they found out she was pregnant. The parties decided to register their marriage because they could not live without each other. They helped each other through difficulties. The sponsor told his family about the parties’ relationship and they were supportive of their decision to marry. The parties needed to be together with their son. A birth certificate for Adrian recorded his birth as 26 March 2017.  It recorded the applicant Adrian’s mother and the sponsor as his father.

29. In October 2017, the Department received the results of DNA testing.  The testing demonstrated that the sponsor is excluded from identification as Adrian’s biological father.

30. The sponsor told the Tribunal the following. He was previously in a toxic relationship which resulted in his daughter being placed in the custody of his brother. The parties had an argument and during that time he was going through problems relating to his daughter’s care. He didn’t want to tell the applicant about his problems and she thought that their relationship was over. He had a lot of burdens and stress and when he found that Adrian was not his biological son, he realised that he was, in part, at fault.  However, he treats Adrian as his son. As a result of his relationship with the applicant his life has stabilised. The applicant told the Tribunal that the parties argued and the sponsor ‘went somewhere’ and she slept with someone else. However, after the DNA results the sponsor accepted their circumstances and has loved Adrian since his birth.

31. The migration agent stated the following.  The applicant had a previous relationship with Mr Le which ended in August 2014. The applicant began her relationship with the sponsor in December 2015.  In June 2016, the parties fought and the applicant had a ‘one-night stand’ with Mr Le. At the end of June, the parties reconciled and on 1 July 2016, the parties began living together and married in December 2016 and committed to a shared life together to the exclusion of all others. The sponsor supported the applicant throughout her pregnancy. Despite the DNA results excluding the sponsor as Adrian’s biological father he is committed to him as a father and has developed a parental bond with Adrian since his birth.

32. The Tribunal accepts the following. The applicant was intimate with a person, other than the sponsor, prior to the parties living together and prior to the parties’ marriage. The parties began living together in July 2016 and they married in December 2016. In March 2017, Adrian was born. Although it was claimed that the sponsor was the biological father of the child DNA evidence demonstrated that he was excluded from being the child’s biological father. The parties came to terms with this realisation and continued in their spousal relationship. They have lived together in a spousal relationship for approximately four years.  During that time, they have provided companionship and emotional support to each other, particularly in the care of Adrian and in the management of the sponsor’s gambling. The parties see their relationship as long term.

33. Overall, the Tribunal is satisfied that the applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others; that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis. The applicant therefore meets the requirements of s.5F of the Act. Given these findings, the Tribunal is satisfied that the parties are in a spousal relationship.

34. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and the time of this decision.

35. Therefore, the applicant meets cl.820.211(2)(a) and cl.820.221 of Schedule 2 to the Regulations.

    Does the applicant meet Schedule 3 criteria, or should those criteria be waived?

36. An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl.820.211(2)(d).

37. 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

1. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2), as set out in the attachment to this decision. Specifically, and as detailed in the delegate’s Decision Record the applicant was granted a substantive visa which ceased on 31 March 2014. The applicant applied for the visa under review on 9 March 2017. Therefore, at the time of application, it was more than 28 days since the applicant held a substantive visa.

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

   Compelling reasons

3. 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.

4. 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.

   CLAIMS AND FINDINGS

5. In requesting a waiver to the Schedule 3 criteria, both prior to and at the Tribunal hearing, the applicant provided information in support of the parties’ relationship.  The applicant also provided other information for consideration as to whether there are compelling reasons not to apply the Schedule 3 criteria.

6. This decision is a synopsis of the evidence before the Tribunal. The Tribunal considered the following: the evidence and the full circumstances of the parties’ relationship, individually and as a whole; the information relating to the parties’ spousal relationship of more than four years and their spousal relationship of approximately four years; The DNA evidence which demonstrates that the sponsor is not the biological father of Adrian. The role the sponsor has played in Adrian’s life since his birth and the father-son bond they will have developed. It considered the medical reports about Adrian’s health and the intensive daily care he requires. It pondered the difficulties Adrian would face during a separation from the applicant or the sponsor, particularly because of the day-to-day support they provide him. It also considered the difficulties the sponsor may face if separated from the applicant, particularly as she appears to keep him balanced. It mulled over the financial circumstances of the parties and the additional burden, including financial burden, an offshore visa application would present them.  The Tribunal concluded and is satisfied that the applicant’s departure from Australia would place undue stress on Adrian and the sponsor and the Tribunal is compelled not to apply the Schedule 3 criteria in this case.

7. The Tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant meets cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations.

8. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

   DECISION

9. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

   ·cl.820.211(2)(a) of Schedule 2 to the Regulations; and

   ·cl.820.211(2)(d)(ii) of Schedule 2 to the Regulations; and

   ·cl.820.221 of Schedule 2 to the Regulations.

   Helena Claringbold
   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.