Yamaguchi (Migration)

[2020] AATA 2796

Yamaguchi (Migration) [2020] AATA 2796 (25 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Nanako Yamaguchi

CASE NUMBER:  1730017

HOME AFFAIRS REFERENCE(S):          BCC2017/978850

MEMBER:James Lambie

DATE:25 May 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 25 May 2020 at 4:25pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 –applicant was not the holder of a substantive visa – mental health condition –no sufficient compelling reasons to waive the Schedule 3 criteria – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 11 March 2017 on the basis of her relationship with her sponsor. At that time, Class UK contained only one Subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(d)(ii) because she did not satisfy Schedule 3 criterion 3004.

4. The applicant appeared before the Tribunal on 2 December 2019 and 23 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Anura Suresh Perera Makawitage, who is the applicant’s sponsor.  The Tribunal hearing was conducted with the assistance of an interpreter in the Japanese and English languages.

5. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the Schedule 3 criteria, for the purposes of satisfying cl.820.211(2)(d).

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

8. 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).

9. 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

10. 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.

11. Ms Yamaguchi’s RN 187 visa was cancelled on 13 February 2017. She applied for the UK 820 visa on 11 March 2017.

12. As the visa application was made within 28 days of the relevant day, the applicant satisfies criterion 3001.

    Criterion 3003

13. Criterion 3003 only applies to applicants who have not, on or after 1 September 1994, been the holder of a substantive visa, and on 31 August 1994 was either an illegal entrant or the holder of an entry permit that was not valid beyond that date. The Tribunal is satisfied that the applicant was not such a person, and accordingly criterion 3003 does not apply.

    Criterion 3004

14. Criterion 3004 of Schedule 3 requires that the Minister be satisfied that the applicant is not the holder of a substantive visa because of factors beyond his or her control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with the conditions applicable to the last of any substantive visas and any subsequent bridging visa held by the applicant. In addition, the Minister must be satisfied that the applicant would have been able to be granted the visa if the applicant had applied on the day he or she last held a substantive or criminal justice visa; or would have satisfied the criteria when he or she last entered Australia unlawfully; that the applicant intends to comply with any conditions of the visa; and the last visa or entry permit held (if any) 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.

15. The applicant and the sponsor met in Singapore in 2007. Ms Yamaguchi arrived in Australia on 23 February 2008 on a TU 573 student visa. In March 2008, she travelled to Sri Lanka where she and the sponsor were married on 27 March. She returned to Australia on 31 March 2008, followed by the sponsor who arrived on a student visa on 22 June 2008. Ms Yamaguchi was granted further student visas between 28 May 2008 until 15 March 2012. She held bridging visas between 8 December 2011 and 6 March 2013, at which time she was granted a Subclass VC 485 (skilled) visa which ceased on 6 September 2014. The sponsor held a corresponding dependent visa as her spouse. On cessation of this visa she was granted a bridging visa B until 14 March 2015, when she was granted a Subclass RN 187 business visa. The sponsor again held a corresponding dependent visa as her spouse. The applicant and sponsor were granted permanent residency on the strength of the Subclass RN 187 visa and the sponsor obtained Australian citizenship on 24 October 2016.

16. On 13 February 2017, Ms Yamaguchi’s RN 187 visa was cancelled for non-compliance with section 101 (providing incorrect information) and her permanent resident visa application was cancelled. This did not affect the sponsor’s residency status because he had obtained Australian citizenship in the meantime. On 11 March 2017, the partner visa the subject of this application was lodged. The delegate refused it on 9 November 2017.

17. The application of criterion 3004 in this case turns on the question of whether the reason that Ms Yamaguchi did not hold a substantive visa at the time of application was because of factors beyond her control.

18. Ms Yamaguchi’s visa was cancelled because the delegate for that decision was satisfied that Mr Chiragkumar Patel Yoginiben, a director of the nominating employer, Hotel, Restaurant and Café Development Pty Ltd, on the execution date of the employment contract (5 August 2014), did not know who Ms Yamaguchi was and that she had not been employed by the nominating business. The delegate found that the terms of employment and confidentiality agreement provided to the Department on 14 August 2014 was contrived for the purpose of enhancing her chances of obtaining a positive immigration outcome, and that the documents were “incorrect” for the purposes of section 101. The delegate for the decision under review found that Ms Yamaguchi was without a substantive visa due to the cancellation of her previous substantive visa, which was cancelled due to the actions she took to providing correct information to the Department and, therefore, her failure to hold a substantive visa at the time of the partner visa application lodgement was not beyond her control.

19. In a submission dated 14 November 2019, Ms Yamaguchi’s representative claimed that it was the applicant’s former lawyer who was responsible for providing the incorrect information to the Department on 6 February 2017, without obtaining instructions from her. Copies of two emails dated 14 and 16 February 2017 from Ms Yamaguchi to her lawyers were provided in support of that position. It was submitted that Ms Yamaguchi did not meet Mr Patel at all and that the employment contract was initially signed by another director (Mr Jayalath) on 1 July 2014 and sent to Ms Yamauchi for her signature. It was, therefore, Ms Yamaguchi’s assertion that the confirmation of employment in the lawyers’ letter of 6 February 2017 was the relevant incorrect information and had not been provided by the applicant. The employment agreement dated 14 August 2014 is said to be genuine and supported by an ASIC historical company extract, which records that Mr Patel became sole director on 1 August 2014. Mr Patel’s statement in his email to the Department of 12 March 2016 that he did “not know the visa holder, they must be working with previous employer and owner of restaurant”, it was submitted, is correct, while it is the lawyers’ information of 6 February 2017 that was incorrect and given without instructions.

20. Tendered with this submission was a copy of a contract titled “Terms of Employment and Confidentiality Agreement” signed by Mr Jayalath, a description of the duties of restaurant manager, and a remuneration summary for the financial year 2014, all dated 1 July 2014. Apparent counterpart documents were also tendered, signed and dated by Ms Yamaguchi on 5 August 2014. Also tendered were copies of email correspondence between Ms Yamaguchi and her former lawyers for the period 8 to 16 February 2017, with a copy of the lawyers’ letter to the Department of 6 February 2017.

21. Ms Yamaguchi’s representatives submitted that she did not challenge the delegate’s findings in the cancellation decision with this material and information because she was “terrified, confused and nervous and was given incorrect and conflicting advices.”

22. At the hearing on 2 December 2019, Ms Yamauchi tendered the ASIC historical company extract referred to above, which confirms that Mr Jayalath was a director and secretary of the nominating employer for the period 4 April 2014 to 1 August 2014. Mr Patel was a director for the period 1 August 2014 to 14 August 2016, on which date the company was deregistered.

23. At this hearing, some inconsistencies and difficulties with the narrative given in the representative’s submission of 14 November 2019 were raised with Ms Yamaguchi.  At the outset, Ms Yamaguchi confirmed that she had never worked for the nominating employer. She said that it was agreed that she would work for them once her visa was granted but that the restaurant was undergoing renovations at the time. She said she waited and followed them up from time to time and was informed that, in the meantime it would be quite legal for her to work as a cleaner at the Storey Bridge Hotel in central Brisbane. I raised with her at the hearing that the apparent counterpart documents she had signed on 5 August 2014 did not correspond in certain respects with the documents signed by the employer on 1 July 2014: for example, the employment contract is differently formatted as to underlining and contains two different ABNs; there are also formatting differences between the position description and remuneration structure documents, despite which, the director’s signature is still shown on all documents. Further, the letter from her former lawyers to the Department says the following:

    The applicant has been employed by the company since June 2015 and demonstrated more than satisfactory performance in her position, hence she was offered a long-term position which included a potential opportunity for sponsorship for migration.

    The business was purchased by and transferred to Chiragkumar Patel Yoginiben as the new owner and operator. As a result of the changes in ownership, the company went through restructuring in order to increase the efficiency and aiming for a larger customer base but the applicant had resigned and ceased employment in December 2015 prior to Chiragkumar Patel Yoginiben taking over the business, consequently they did not meet and it is evident that the applicant is not known to Mr Yoginiben.

24. The statement that Ms Yamaguchi was employed by the business was, I suggested, a much more substantial misrepresentation than that relating to the identity of the directors at various times. However, in her email to her former lawyers, Ms Yamaguchi does not correct this misrepresentation. Her email of 14 February 2017 says:

    In the letter there was this sentence below.

    The applicant had resigned and ceased that employment in December 2015 prior to Chiragkumar Patel Yoginiben taking over the business.

    What is this?!

    When I went to your office this was not even written. I told many times to send the document to me to check if the information is correct before submitting but I did not even receive it.

    You did not check with Sam before submitting? Now we all know that Patel took over the business on 1 August 2014. It is clearly written on the immigration letter.

    If mistaken, December 2015 is when I started working for Story Bridge.  You have been helping me since a long time ago and I do appreciate that but this is just unprofessional… [ellipsis in original]

    You even ask immigration for extension to submit because you needed to check company situation well and give a good submission?

25. This would seem to suggest that her instructions were to provide an explanation for not knowing Mr Patel, but to maintain the fiction of having been employed by the nominator.

26. On her request, I adjourned the matter to allow her to clarify her position. The matter was relisted for 23 January 2020.

27. On 10 January 2020, Ms Yamaguchi, through her representative, forwarded additional information, chiefly comprising a chain of email correspondence between her and her former lawyers. Confusingly, it includes yet a further copy of the employment document, not signed by any party but showing the wrong ABN on the employment contract. There was no explanation as to how the ABN became corrected between the version signed by the employer on 1 July and that signed by Ms Yamauchi on 5 August 2014. The email correspondence is also complicated by the different date formats showing in the chain: some are given in the usual format, while some use the Japanese regnal year.

28. The email chain provides some additional information. On 15 February 2017 (two days after the notification of cancellation) she wrote to the delegate in the following terms:

    I am writing in regard to notification of cancellation of my class RN Subclass 187 Regional Sponsored Migration Scheme Visa.

    This is to clear up the misunderstanding about providing incorrect information.

    I decided to write to you directly for two reasons.

    1.    To correct misunderstandings which have not been cleared up. 2.  To correct the mistake in the letter created by Sam.

    (Correction 1)

    Rushan Lasantah Jayalath who I believed as a director of hotel, restaurant and café development Pty Ltd and signed my contract asked me to start working at Leo’s bistro after my visa had been granted.

    At the time I signed on my contract I did NOT know that the business was sold to Chiragkumar Patel Yoginiben.

    After I signed my contract and my migration agent submitted my application to immigration, I was waiting for the immigration’s decision to approve or refuse my Visa.

    It was after 14 March, the day my Visa was granted that I knew there were some problems happening about the business and the management was taken over by someone else.

    Although I could not start working within 6 months from the date my visa was granted, I found a new employer and work from December 2015.

    As explained above, I could not meet the conditions for my RSMS visa to work in the nominated position in a regional area for two years, hence, I understand my visa was cancelled. However, I would strongly like to state that I did not provide any fraud information.

    (Correction 2)

    In the letter created by Sam, it states that;

    The applicant has resigned and ceased that employment in December 2015 prior to Chiragkumar Patel Yoginiben taking over the business.

    As mentioned above, I did not work until December 2015 under a new employer.

    I did not know Chiragkumar Patel Yoginiben until my visa was granted.

    I do not know why Chiragkumar Patel Yoginiben did not know me either.

    I requested to send the letter to me first so that I could check the information is correct. However it did not happen. I’m sorry for providing wrong information there.

    Could you kindly let me know what is going to happen with my husband citizenship? Although we do not have any children, we have been married for nearly 9 years and we would experience serious hardship if both of us have to leave Australia.

29. On 16 February 2017, Ms Yamaguchi reiterates her request to her lawyers for a refund of her fees. The next day, lawyers maintain that they had acted on instructions at all times and remind her that she has limited time to apply for review of the cancellation.

30. With these documents, Ms Yamaguchi provides the following narrative in relation to the email of 15 February 2017 to the Department:

    ·It was after 14 March, the day my visa was granted that I knew there were some problems happening about the business and the management taken over by someone else.”

    oI contacted Manoj [the person she had been dealing with at the business] when my visa was granted and I heard the restaurant was temporarily closed for renovation and some staff would also change.

    ·“Although I could not start working within six months from the date my visa was granted, I found a new employer and work from December 2015.”

    o New employer refers to the cleaning company offered from Manoj.

    ·“In the letter created by Sam, it states that; the applicant had resigned and ceased that employment in December 2015 prior to Chiragkumar Patel Yoginiben taking over the business. As mentioned above, I did not work until December 2015 under a new employer.”

    oI did not work in the restaurant but worked for a cleaning company from December 2015.

    ·“I did not know Chiragkumar Patel Yoginiben until my visa was granted.”

    oThere is a mistake, I did not know Patel until the notice of intention to consider cancelling visa notice. I correctly mentioned this in the email to Isuru/Sam saying “now we all know that Patel took over the business on 1 August 2014. It is clearly written on the immigration letter.”

    ·“I do not know why Patel do not know me either.”

    oBecause even if the owner changed, Patel and I should have known each other’s name because I was expected to be sponsored to work as a restaurant manager.

31. This narrative differs in important respects from that given in the submissions of 14 November 2019. The first set of submissions glaze over the fact that Ms Yamaguchi had never worked for the nominating company. What the submissions state is that Ms Yamaguchi’s emails of 14 and 16 February 2017 “plainly divulge what had actually taken place.” All that those emails “divulge”, to my mind, is that Ms Yamaguchi was dissatisfied with the plausibility of the explanation as to not having met Mr Patel. I am not at all certain as to why the 15 February email was not originally tendered.

32. At the hearing, I spent some time attempting to elicit from Ms Yamaguchi what had actually happened in relation to the RN 187 visa. I put to her that her immigration history was quite lengthy: since January 2008, she has been granted three different student visas, one Subclass 485 skilled visa, and has held bridging visas on five occasions in addition to the RN 187 visa. Her evidence was that, prior to the 187, the only Visa with which she had sought assistance was her first student visa, when she obtained help from a Japanese migration agent. She believes that the agents she used have manipulated her. When asked how and to what end she had been manipulated, she found it difficult to explain. She asserted that she had found the bistro job herself and was looking forward to having the job and gaining the experience. She said it was the people who had interviewed her for the job who had suggested she take the cleaning position at the Storey Bridge Hotel when the bistro renovations took longer than expected. She was aware that this was not the position for which he had been granted the visa, but says she was reassured by the bistro managers that it would be fine. When asked why she would accept complex migration advice from a bistro manager, she said that she was also reassured by her migration agents that there was no problem. There is nothing in writing to support this version of events.

1. She agreed that she was living in Woolloongabba at the time she applied for and was granted the RN 187 visa and had never moved to Caloundra in anticipation of taking up the nominated position. She said she had made plans to do so, but there is no record of this. She agreed that she, at no time, made contact with the Department as to the delay in commencing the nominated position, or its failure to materialise, until after the Visa was cancelled. She agreed that her husband was well aware that she was not working for the nominated employer but says that this never came up when he applied for citizenship.

2. Technically, I am not asked to review the decision as to whether false documents were provided: that matter has already been determined and the applicant did not exercise her rights to review the decision. However, for the avoidance of doubt, there is nothing on the evidence upon which I can be satisfied that the documents provided to the Department were anything but false. I am also satisfied that documents she now accepts to be false were presented on her behalf.

3. Viewing the applicant’s evidence as a whole, I cannot be satisfied that the circumstances giving rise to the cancellation of her visa can be said to have been due to factors beyond her control. She said that she believes she has been the subject of fraudulent conduct and that she has been manipulated by others into this position. I find this explanation very difficult to credit. For one thing, no reason has been advanced to me as to why the bistro business in Caloundra might involve itself in a fraudulent visa application when, on the face of the ASIC documents, the company barely traded. I am not prepared to make a finding of fraudulent conduct against the applicant’s former lawyers without considerably more evidence than has been presented. Further, it is not at all clear how the lawyers would benefit from manipulating their client’s immigration status contrary to her instructions and with their fees at stake. What is clear is that both Ms Yamaguchi and her husband received the benefit of permanent residency without the onus of her taking up the regional sponsorship obligations in her visa, and that her husband was able to convert that to Australian citizenship.  It is also clear that she made no effort to communicate this to the Department within the currency of the visa.

4. For the above reasons, the applicant does not satisfy criterion 3004.

   Compelling reasons

5. 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.

6. 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.

7. Departmental policy provides that these provisions are not intended to give, or be perceived to give an unfair advantage to persons who fail to comply with the Visa conditions; or deliberately manipulate their circumstances to give rise to compelling reasons; or can leave Australia and apply for a partner visa outside Australia. Further, the existence of a genuine spouse or de facto relationship between the applicant and sponsoring partner, and/or the hardship suffered from the separation if the applicant were to leave and apply for the Visa outside Australia are not, in themselves, compelling reasons not to apply the Schedule 3 criteria.

8. Ms Yamaguchi has been married to the Australian citizen sponsor for some 12 years, during which time they have lived nearly exclusively in Australia. She says she has no prospects of life without him. They say that the prospect of separation has already had a substantial mental effect on the sponsor who suffers from depression and anxiety. In support of that, they have submitted a medical certificate dated 22 November 2019 which states that Mr Makawitage is on a mental health care plan and would be seeing psychologist “very soon”. Were Ms Yamaguchi to leave Australia, they say, there is no one he can rely upon for emotional support. They claim to own a house together and the sponsor would not have the capacity to fulfil the mortgage commitment on his own will. Further, it is claimed that his ageing and sick parents in Sri Lanka are financially dependent on him. It is therefore claimed that, given the adverse mental health outcomes the applicant and sponsor are already experiencing, a longer period of marital exclusion and separation, and lack of support, would most likely result in mental harm and continuing hardship to the applicant and the sponsor. It was set on their behalf that they are particularly vulnerable to experiencing actual mental harm if the visa was denied, as opposed to mere stress or anxiety.

9. In respect of these claims, I have had regard to the material provided to the delegate as well as the documentary material they have tendered to the Tribunal. Both applicant and sponsor also provided oral evidence at the hearing. I accept that they own a mortgaged residential property together. They have provided no evidence as to their income or expenditure or the claimed stress that any separation might put them to. While I give the fact of the mortgage some weight, I have no basis upon which to be satisfied that any compelling circumstances arise from.

10. In relation to Mr Makawitage’s claimed mental health condition, I note that he first attended upon his general practitioner on 17 November 2019, 12 days after the hearing invitation was issued. He claims to now have seen a psychologist, whom he names as Ben Raymond, but no report or evidence of having seen him has been provided. Two prescriptions from his general practitioner were tendered, for one course of diazepam 2 mg dated 22 November 2019 and one course of Lexapro 10 mg dated 28 January 2020. On his own evidence, Mr Makawitage has not taken any medication and the prescriptions appear to have been unfilled. There is nothing in the medical evidence that would allow me to be satisfied of the existence of compelling circumstances, at least not in the degree claimed by the parties and in their submissions.

11. On 5 May 2020, Ms Yamaguchi forwarded a copy of a letter from her general practitioner dated 1 May 2020, which advises that Ms Yamaguchi is pregnant and that her expected date of delivery is 29 November 2020. I accept that this fact is relevant to the compelling circumstances I am asked to consider, although no submission other than this notification has been received. I accept that it is likely to be the preference of the parties for Ms Yamaguchi to be Australia when she gives birth, but note that it is not unusual for the parties to be elsewhere, particularly where their immigration status, or that of one of them, does not provide for them to remain. That said, I give this matter substantial weight.

12. I have had regard to what Ms Yamaguchi has to say about the circumstances of her 187 visa cancellation and, in particular, the equivocal and, to my mind at least, potentially misleading email to the Department of 15 February 2017. She says that she was very anxious to reassure the department that she had not provided incorrect information in her application, but at the time her father-in-law was in a critical condition following a suicide attempt. Her husband was in Sri Lanka to support him, together with her sister-in-law’s family who had come from Bangladesh. She could not be there because of her visa restrictions and was emotionally torn. Her emotional state, she says, may have affected the coherence of her attempt to clear the record. While I have given this explanation some thought, I cannot give it credence in light of the applicant’s conduct throughout the currency of the visa. I give it a little weight towards her decision not to appeal the cancellation, without accepting that it amounts to an explanation.

13. Having regard to the circumstances of the cancellation, and what appears to be a manipulation of her sponsor’s immigration status (having attained permanent residency and citizenship before the falsehoods were detected), there is insufficient evidence for me to be satisfied that the circumstances of the parties are sufficiently compelling as to justify a waiver of the Schedule 3 criteria.

14. 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).

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

    DECISION

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

    James Lambie
    Senior Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    Schedule 3

    3001

    (1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).

    (2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:

    (a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or

    (b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or

    (c)if the applicant:

    (i)       ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (ii)      entered Australia unlawfully on or after 1 September 1994;

    whichever is the later of:

    (iii)      the last day when the applicant held a substantive or criminal justice visa; or

    (iv)    the day when the applicant last entered Australia unlawfully; or

    (d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:

    (i)       the day when that last substantive visa ceased to be in effect; and

    (ii)      the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.

    3003

    If:

    (a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and

    (b)on 31 August 1994, the applicant was either:

    (i)       an illegal entrant; or

    (ii)      the holder of an entry permit that was not valid beyond 31 August 1994;

    the Minister is satisfied that:

    (c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with the conditions that apply or applied to:

    (i)       the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (ii)      any subsequent bridging visa; and

    (f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

    3004

    If the applicant:

    (a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or

    (b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;

    the Minister is satisfied that:

    (c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and

    (d)there are compelling reasons for granting the visa; and

    (e)the applicant has complied substantially with:

    (i)       the conditions that apply or applied to:

    (A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and

    (B)any subsequent bridging visa; or

    (ii)      the conditions that apply or applied to:

    (A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and

    (B)any subsequent bridging visa; and

    (f)either:

    (i)       in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or

    (ii)      in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and

    (g)the applicant intends to comply with any conditions subject to which the visa is granted; and

    (h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.