Zhang (Migration)

Zhang (Migration) [2021] AATA 3938 (23 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ping Zhang
CASE NUMBER:  1832972
HOME AFFAIRS REFERENCE(S):          BCC2017/1112104
MEMBER:Stephen Conwell
DATE:23 July 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 23 July 2021 at 5:47pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – Schedule 3 criteria – application lodged outside of relevant timeframe – waiver of requirement – compelling reasons – financial hardship – immigration history – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221; Schedule 3, Criterion 3001
CASES
Babicci v MIMIA (2005) 141 FCR 285
He v MIBP [2017] FCAFC 206
MZYPZ v MIAC [2012] FCA 478
Plaintiff M64/2015 v MIBP [2015] HCA 50
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 (Cth) (the Act).
The applicant applied for the visa on 21 April 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 (Cth) (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 applicant failed to meet the criteria in cl.820.211(2)(d)(ii). That provision requires the applicant to satisfy Schedule 3 criteria 3001, 3003 and 3004. The delegate found that the applicant failed to meet criterion 3001 and therefore did not consider criteria 3003 and 3004.
The hearing was held during the coronavirus (COVID-19) pandemic. Having regard to the nature of the review and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of telephone hearing. The Tribunal exercised its discretion to hold a telephone hearing. The parties raised no objections as to conducting the hearing by telephone.
The applicant participated in the hearing by telephone on 22 July 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Ms Alyce Collette McEwan and from three witnesses, Ms CM, Mr ZC and Mr ZQL.
The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review. The applicant was represented in relation to the review by his registered migration agent (representative), who attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The decision record briefly sets out the applicant’s immigration history as follows. At the hearing it was agreed by the applicant to be correct:
·   on 23 October 2002 the applicant first arrived in Australia holding a Student (Subclass 571) visa; this Student visa expired on 10 December 2002. On the same day he applied for another Subclass 571 Student visa and was granted an extension until 15 March 2005;
·   From 16 March 2005 to 22 March 2017 the applicant did not have a visa whilst remaining onshore in Australia. He was therefore residing in Australia as an unlawful non-citizen for more than 12 years;
·   according to the decision record, the applicant’s last substantive visa ceased on 15 March 2005;
·   he lodged a valid application for a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa on 21 April 2017 on the basis of his spousal relationship with an Australian citizen, Ms Alyce Collette McEwan.
CONSIDERATION OF CLAIMS AND EVIDENCE
Whether the parties are in a spouse or de facto relationship
Clause 820.211.(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the de facto partner of the sponsor who is an Australian citizen.
‘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 husband and wife 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). 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.
The parties claim to have married on 27 February 2015 in Victoria and provided a marriage certificate in evidence (Department file fol. 35). On the basis of this evidence, the Tribunal accepts 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 other requirements for a spousal relationship met?
The applicant claims he and the sponsor commenced their relationship sometime in June 2014, before marrying eight months later.
The Tribunal notes that the parties have provided limited documentary evidence in support of the in r.1.15A(3) criteria . Regarding financial aspects of the relationship, the parties claim they share their finances and have used a joint bank account for several years. Copies of bank statements of a Westpac Bank joint account from 2015 and another Westpac Bank joint account for the period 31 March 2020 – 30 June 2020 form part of the evidence before the Tribunal. Both accounts are in the joint names of the sponsor and applicant and show the same home address. Some current utility bills were also submitted in evidence; these show the sponsor and applicant listed jointly on each account and sharing the same home address.
An ASIC company statement for PYP Pty Ltd shows the applicant to be an office-holder for the company; he and the sponsor are also joint shareholders in it and they share the same residential address. There is also a Contract of Sale dated 21 June 2019 for the purchase of real estate, with the sponsor and applicant listed jointly as the purchasers in their personal capacities. The applicant stated at the hearing that the property purchased is a townhouse which the parties hope to move into within the next year. Also submitted in evidence is part of the applicant’s Australian tax return for FY-19 confirming his name and residential address.
The Tribunal accepts that the parties have held joint bank accounts for more than five years to which they each have had access. It is satisfied that that the parties are shareholders in a private company and have some joint business and legal obligations which flow from these relationships. In light of these circumstances the Tribunal places some weight in favour of the financial aspects of the relationship.
Regarding the nature of the household, according an undated statement the applicant provided to the Department requesting a waiver of the Schedule 3 criteria (Department file fol. 56), he moved in with the sponsor in May 2015, a few months after their marriage, and upon expiry of his previous rental lease. They have lived together at this residence in South Morang since that time.
The Tribunal is satisfied that that the parties have lived together since May 2015 and they continue to live together. On the evidence presented relating to the nature of the household, the Tribunal places some weight in favour of the applicant for this consideration.
Regarding social aspects of the relationship, the parties claim to socialise with the sponsor’s family and friends as well as friends from the parties’ circle of acquaintances and also with the applicant’s work colleagues and business associates. The applicant has no immediate family of his own in Australia. His own family is comprised of his parents and an elder sister, who all reside in China. It was said that the people within these family and social groups all accept the parties as a married couple. Further, that the applicant’s family in China accept and acknowledge their relationship.
The three witnesses were two friends of the applicant and the sponsor’s sister. All three witnesses spoke to the genuineness of the relationship and of having watched the relationship develop from its inception. The applicant also stated that he had told his family in China of the relationship at its commencement; his family are aware of his marriage and he keeps in regular touch with his family via social media and video calls.
The Tribunal found the parties and all the witnesses to be credible in their testimony. Taking into account all of the evidence before it, there is no reason for the Tribunal to question the testimonies of the parties or of the witnesses regarding their claims as to the genuineness of the relationship. The Tribunal is therefore prepared to accept that the parties are recognised as a married couple by their respective families, friends and by the applicant’s work colleagues and business associates.
In responding to questions regarding the nature of the persons’ commitment to each other, the applicant states in his earlier written statement, that “As a married couple, we share everything in our live…”. The sponsor, in her written statement of 12 July 2021, writes of the emotional support the applicant gives to her. She states that they have built a strong relationship together and that the applicant ”monitors her health”. The parties’ oral testimonies echoed their written statements.
The Tribunal appreciates that the issue of a genuine spousal relationship was not considered in any depth by the delegate who refused the visa application on the sole basis that it failed to meet the Schedule 3 criteria. It is therefore not surprising that the applicant’s submissions have sought to address only the basis of the Department’s refusal. Notwithstanding the limited evidence submitted regarding this issue, the Tribunal is prepared to accept that the parties are legally married and have an ongoing commitment to each other. The Tribunal is satisfied of the existence of a genuine spousal relationship at time of application and at the time of this decision now
On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) were met at the time the visa application was made. The Tribunal places weight on the oral testimonies given at the hearing and is satisfied that the requirements of s.5F(2) are met at the time of this decision.
Therefore the Tribunal finds that the applicant meets cl.820.211(2)(a), cl.820.211(2)(c) and cl.820.221.
Given these findings, it is necessary for the Tribunal to go on to consider whether the applicant meets cl.820.211(2)(d), as the applicant was not the holder of a substantive visa at the time of application and this was the basis of the delegate’s decision.
Does the applicant meet Schedule 3 criteria, or are there compelling reasons for not applying those criteria?
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).
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.
There is nothing before the Tribunal to indicate that the applicant held an entry permit that was valid up to and including 31 August 1994. There is nothing to indicate that the applicant became an illegal entrant before 1 September 1994. There is nothing to indicate that the applicant ceased to hold a criminal justice visa on or after 1 September 1994 or that he entered Australia unlawfully on or after 1 September 1994.
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 3001(2), as set out in the attachment to this decision.
Departmental records show that the applicant last held a substantive visa on 15 March 2005, being the relevant day. The Partner visa application which is the subject of this review was lodged on 21 April 2017. The applicant therefore resided in Australia as an unlawful non-citizen for more than 12 years before lodging this application. As the visa application was not made within 28 days of the relevant day, the applicant does not satisfy criterion 3001.
To meet the requirements of subclause 820.211(2)(d)(ii), the applicant must satisfy each of the Schedule 3 criteria, that being criteria 3001, 3003 and 3004. The delegate found that the applicant failed to meet criterion 3001, consequently there was no requirement to assess the application against the remaining Schedule 3 criteria.
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, reasons that are compelling should ‘force or drive the decision-maker’ ‘irresistibly’ to some end: Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31]. The reasons or circumstances should be sufficiently powerful to lead a decision-maker to find that the criteria should not be applied: 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.
At the hearing the Tribunal invited the applicant to present reasons that might be considered compelling for a waiver of the Schedule 3 criteria.
The applicant’s evidence
At the hearing the applicant offered the following testimony that the following should be seen as compelling reasons for not applying the Schedule 3 criteria.
·   the applicant and spouse have been in a stable and supportive marriage for over six year; they live together as a married couple and their respective families, friends and work colleagues acknowledge and accept the relationship. They have provided evidence to the Department of their relationship and life together.
·   in Australia the sponsor’s mental health conditions means that she is emotionally and financially supported by the applicant. The sponsor works in a part-time casual basis and her shift work has been adversely affected by the pandemic. Her work shifts tend to be limited during the lockdown periods in Victoria;
·   the parties plan to start a family as soon as the sponsor’s mental health improves. Should the applicant be required to depart Australia in order to apply for a Partner visa from overseas, this would adversely affect their plans to start a family;
·   the applicant’s relationship with his spouse is genuine and ongoing; he wishes to remain in Australia and continue to support the sponsor financially, practically and emotionally;
·   the parties are paying the mortgage on their current home but they also purchased in their joint names, a townhouse in 2019. They hope to move into that property in the next 12 months and will then have two mortgages to service. The applicant’s income which he derives from two part-time jobs is therefore critical to the parties’ financial well-being;
·   the COVID-19 pandemic has led to many restrictions and complications affecting international travel, therefore the pandemic and its effects should be considered a compelling reason for waiver of the Schedule 3 criteria;
The sponsor’s evidence
The sponsor made the following statements in oral testimony:
·   she is a 34 year old Australian citizen. She agrees with all of the applicant’s oral testimony;
·   She was first diagnosed with anxiety and depression in approximately 2013 and has been on prescribed medication since that time. Her anxiety has increased during the pandemic, particularly with respect to her insecure employment and with regard to the applicant’s visa issues;
·   the applicant gives her not only financial support but also practical, emotional and psychological support in his role as her husband. She also has the support of her own family – her parents and siblings who all live in reasonable proximity to her;
·   she attested to the relationship with the applicant as being genuine and long-term;
·   if the applicant is required to go offshore to pursue a Partner visa, apart from the uncertain state of international travel due to the COVID-19 pandemic, she fears that her emotional and mental health would suffer and the parties’ plans to start a family would be postponed indefinitely.
In her written statement of 12 July 2021 the sponsor states, “I rely on my husband to help with the grocery shopping, the cooking & cleaning. He cares & looks after me & we pay the utilities together.”
The sponsor was invited to elaborate on her employment history. She stated that she had been a full-time permanent employee at an Energy company for approximately nine years, before being made redundant in 2016. She used the opportunity to return to study and completed a Security course in 2017. This enabled the sponsor to commence employment as a security officer at Melbourne Airport in 2017 on a ‘permanent casual basis. Her employment was adversely affected by the Covid-19 pandemic, however she had been working more shifts in the past six months as Victoria recovered from the previous lockdowns. Unfortunately, the return to lockdown in the past weeks has again adversely affected her work opportunities.
The sponsor told the Tribunal that she was entitled to certain government benefits which have been made available as a result off the pandemic. She would be making further enquiries on what other financial assistance she might be entitled to receive.
The Tribunal accepts on the evidence that the applicant and sponsor are known to each other and there has been a married relationship between the parties for the past six years. The Tribunal accepts that the parties have provided each other with support during their relationship and continue to do so. There are no children from the relationship.
The Tribunal notes that a criterion for the grant of a Partner visa is that the applicant be the spouse or de facto partner of the sponsor. The definition of a spousal relationship relevantly requires that the relationship be “genuine and continuing”. Accordingly, the existence of a genuine and continuing spousal relationship is itself a criterion for the grant of a partner visa. A compelling reason justifying waiver of the Schedule 3 criteria must involve something in addition to the basic pre-requisite criteria for the grant of the visa. A genuine, continuing and exclusive relationship need not be, of itself a compelling reason for not applying the Schedule 3 criteria.

Whilst the Tribunal accepts that the parties are in a genuine spousal relationship, it gives weight to the fact that the relationship was embarked upon by the applicant with full awareness of his unlawful status in Australia. The Tribunal cannot rule out the possibility that the applicant has deliberately manipulated his circumstances to attempt to give rise to compelling circumstances in order to be able to remain in Australia without any valid reason. Further, whilst the Tribunal accepts that the parties are in a ‘long-term’ relationship by reason of having been married for over six years, it does not find this, of itself, to be compelling.
The applicant did not have a compelling reason to remain in the country before he entered into a relationship with the sponsor and established a migration pathway to remain in Australia. And the sponsor, on her own admission, married the applicant in the full knowledge that he did not hold a visa authorising his stay in Australia, and that he might therefore have to depart the country, at least temporarily.
The sponsor included with her written statement, several ‘medical attendance notes’ of her appointments with her General Practitioner from 2019 to the present day. The doctor’s notes record that the sponsor has been diagnosed with ‘depression/anxiety’, suffers from panic attacks and has difficulty sleeping. Her various medications and dosage are recorded in the medical notes. The medical note from 30 June 2021 records the medical advice that the parties should postpone planning for a family until the sponsor’s mental health improves.
The Tribunal accepts that the sponsor has been diagnosed with depression/anxiety, but does not accept, on the basis of the evidence, including the medical notes submitted and the oral testimonies, that she would experience ‘hardship with her mental health’ such as would require the continuing presence of the applicant and that that her mental state is a compelling reason to waive the criteria.
The Tribunal accepts that the sponsor would experience emotional distress from separation from the applicant but considers that emotional distress from separation would be common to other parties awaiting the processing of off-shore applications and does not find it compelling.
The Tribunal accepts that the sponsor is currently experiencing employment uncertainty due to the pandemic. However she remains employed, albeit her shift-work is unpredictable. Unfortunately the pandemic has adversely affected the lives and livelihoods of millions of people across Australia and indeed, the world. Whilst the Tribunal is sympathetic to the sponsor’s circumstances, they are not unique to her or to the parties’ relationship. The Tribunal does not find the sponsor’s employment issues to a compelling reason to waive the criteria.
The Tribunal is satisfied that the sponsor has, as an Australian citizen, the ability to apply for and access a range of government payments and financial support at both the Federal and State levels. She also continues to work when shifts are made available to her. In light of this the Tribunal considers any financial hardship and dependence of the sponsor on the applicant can be mitigated. On the evidence before it, the Tribunal does not consider the sponsor’s financial dependence and the financial hardship she might face are compelling reasons to waive the Schedule 3 criteria.
The Tribunal does not find the claim that the sponsor needs the applicant to be in Australia to support and care for her to be compelling. The sponsor chose to enter into a relationship and eventually marry the applicant, in full knowledge that he might have to leave the country, at least temporarily. At hearing, the sponsor stated that she has family members in close proximity to support her. The Tribunal notes that the applicant would have access to her family who live close by and with whom she is on good terms with; she also has access to her General Practitioner and other health providers and services in Australia, to whom she could also turn for support, whilst the applicant is in China.
Applicant’s immigration history
The decision record briefly sets out the applicant’s immigration history, which the applicant agreed to be accurate. The applicant’s immigration history indicates that he has remained onshore in Australia since first arriving on 23 October 2002. He has therefore been in Australia almost 19 years and for 12 of those years he remained onshore unlawfully. He confirmed at hearing that during this period he made no attempt to contact the Department to seek to regularise his visa status. He claims that he did on one occasion consult a migration agent regarding a possible return to study, however he learned that he was precluded from doing so while in an unlawful capacity. Even upon receiving this advice, the applicant was not motivated to seek to regularise his visa status.
The Tribunal views the applicant’s immigration history with concern. It appears that he has been willing to ignore Australia’s immigration laws and work whilst unlawful, often being paid wages in cash. By his own admission he made no attempt for 12 years to quit Australia or contact the Department to seek to regularise his visa status. The Tribunal places weight on the applicant’s poor immigration history in favour of affirming the Department’s decision.
The Tribunal does not find the fact that the applicant has lived in Australia for 19 years, 12 of which he was an unlawful non-citizen, compelling. The Tribunal notes that the applicant appears to believe in his own mind that he has emigrated to Australia and built a life for himself here. He made no mention of missing his own family in China or of feeling any responsibility to return there to assist in the care of his aged parents.
The Tribunal asked the applicant why, in Australia, he did not elect at some point during his lengthy period of unlawfulness to return to China, but instead chose to remain onshore and work unlawfully and then embark upon a serious relationship with an Australian citizen. The applicant appears not to have given the consequences of his actions a great deal of thought, either for himself or for the person he eventually married.
The applicant has not seen his family in 19 years and noting the familial nature of Chinese culture the Tribunal is hopeful that the applicant might acknowledge the ‘silver lining’ of his circumstances to spend some time with his family in China. In light of the applicant’s poor immigration history, in particular his stay of 12 years as an unauthorised non-citizen, the Tribunal did not find the fact that the applicant might encounter problems re-adjusting to life in China after such a lengthy period away, to be compelling.
The Tribunal acknowledges there is a COVID-19 risk if the applicant is required to return to China, and that the COVID-19 risk in China compared to Australia is subject to constant change. However, he can significantly mitigate any risk by taking personal protective measures. Critically, the applicant has not established that he is somehow particularly vulnerable to the virus (medically) such that the anticipated risk of contracting the virus in China should somehow be a determinative consideration in the Tribunal’s considerations.
Whilst acknowledging the travel restrictions imposed globally as a result of the COVID-19 pandemic, there are no restrictions or conditions specific to the sponsor which might prevent her from travelling to see the applicant either in China or any other country to which he may wish to travel. The Tribunal is not convinced that the COVID-19 travel restrictions which are imposed nationally and globally, and are not specific to the parties, would constitute compelling reasons in the circumstances of this case.
Clearly the applicant and the sponsor do not wish to be separated, even temporarily. However the Tribunal notes that the parties would have means of electronic communication available to them including Skype, Zoom and social media. The Tribunal considered the potential consequences of the applicant temporarily departing Australia. The applicant conceded there were no reasons why he could not return to China other than the emotional stress of separation and the general disruption to the parties and their lives.
The Tribunal accepts that separation is not the preferred outcome for the parties and temporary relocation would be emotionally difficult for them. It is reasonable to expect a level of emotional hardship to be experienced if partners are separated from one another for any extended period of time. This is a common experience for a large number of applicants applying from offshore to migrate to Australia on the basis of their relationship with an Australian citizen or permanent resident. Although emotional hardship can be considered a compelling factor in relation to the Schedule 3 criteria, neither the applicant nor the sponsor has provided sufficient evidence to substantiate such a claim; nor have they persuaded the Tribunal that the severity of the anticipated hardship is such that it might be constitute a compelling factor pertaining to the Schedule 3 criteria.
The Tribunal further notes that if this relationship is genuine, the applicant would be eligible to apply for a Partner visa in the future and any period of separation is likely to be temporary. In the circumstances of this case, the Tribunal does not consider that a period of temporary separation gives rise to compelling reasons to waive the Schedule 3 criteria.
Conclusion
The Tribunal has considered the totality of the applicant’s circumstances. Having considered the circumstances singularly and cumulatively, the Tribunal is not satisfied that there are compelling reasons to waive the Schedule 3 criteria.
Accordingly, the applicant does not meet cl.820.211(2)(d)(ii). There is no evidence or suggestion that any of the alternative criteria in cl.820.211 apply.
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.
Stephen Conwell
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.

[2021] AATA 3938

23 July 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction