1409646 (Migration) [2016] AATA 3821 (26 April 2016)

Last Updated: 24 May 2016

1409646 (Migration) [2016] AATA 3821 (26 April 2016)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Manish Sharma

CASE NUMBER: 1409646

DIBP REFERENCE(S): CLF2012/64087

MEMBER: Susan Trotter

DATE: 26 April 2016

PLACE OF DECISION: Brisbane

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

Statement made on 26 April 2016 at 3:05pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 20 May 2014 to refuse to grant the applicant, Manish Sharma, a Partner (Temporary) (Class UK) visa under section 65 of the Migration Act 1958 (the Act).
2. Mr Sharma applied for the visa on 23 March 2012 on the basis of his relationship with his sponsor, Mrs Mafi Sharma (nee Feiloakitau). At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). 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 to Mr Sharma on the basis that he did not satisfy clause 820.211(2)(d) and clause 820.221 of the Regulations, because the delegate was not satisfied that he met the required Schedule 3 criteria in the Regulations, nor that there were compelling reasons to waive the Schedule 3 requirements.
4. Mr Sharma lodged an application for review of the delegate’s decision with the Tribunal on 30 May 2014. Mr Sharma appeared before the Tribunal on 13 January 2016 and 12 April 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Sharma at both hearings. The Tribunal hearings were conducted with the assistance of an interpreter in the Punjabi and English languages. Mr Sharma was represented in relation to the review by his registered migration agent.
5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

ISSUES

6. 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: clause 820.211(2)(d). These criteria are set out in the attachment to this decision.
7. The delegate’s decision record, a copy of which was submitted to the Tribunal by Mr Sharma when he made his application, states that the Department’s records show that Mr Sharma last held a substantive visa on 9 December 2011. Departmental records show that Mr Sharma did not enter Australia as the holder of a Subclass 995 visa or special purpose visa. The issue in this case is whether Mr Sharma satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria.
8. 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).
9. Criterion 3003 of Schedule 3 applies in a limited number of cases where the applicant has not been the holder of a substantive visa on or after 1 September 1994, and on 31 August 1994 was either an illegal entrant or the holder of an entry permit that was not valid beyond that date.
10. 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, and 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 entry permits and subsequent bridging visa or the last of any substantive visa and bridging visa held by the applicant. In addition, the Minister must be satisfied that the applicant would have been able to satisfy the criteria or be granted the visa on the day he or she last held a substantive or criminal justice visa or 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.
11. 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] FCAFC 77 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 (Waensila).
12. According to the Macquarie Dictionary ‘compel’ or ‘compelling’ means ‘to force or drive, especially to a course of action’. In the context of r.1.20J of the Regulations, the Full Court of the Federal Court in Babicci v MIMIA [2005] FCAFC 77; (2005) 141 FCR 285 at [24] noted that:

there are... shades of differences between the various dictionary definitions of “compelling”. But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in Regulation 1.20J(1) should be waived.

13. Although these comments were made in the context of the term ‘compelling circumstances’ in regulation 1.20J, the Tribunal considers them relevant to the issue presently before it.
14. The Tribunal is, of course, obliged to consider all the circumstances of the case including any matters put forward by an applicant and determine on the evidence as a whole whether there are compelling circumstances: MZYPZ v MIAC [2012] FCA 478 (Bromberg J, 9 May 2012) at [12].
15. It follows that the issues for the Tribunal to determine are:
    • (a) Were the Schedule 3 criteria met at the time of application?; and, if not,
    • (b) Are there compelling reasons for not applying the Schedule 3 criteria?

CONSIDERATION OF CLAIMS AND EVIDENCE

Issue 1 - Were the Schedule 3 criteria met at the time of the visa application?

16. As already noted, Mr Sharma last held a substantive visa on 9 December 2011. This visa application was lodged on 23 March 2012. The Tribunal therefore finds that Mr Sharma’s visa application was made more than 28 days after the relevant day, 9 December 2011. Criterion 3001 is not met and it is unnecessary for the Tribunal to then consider criteria 3003 and 3004. Given criterion 3001 was not met, the Schedule 3 criteria were not met at the time of the visa application.

Issue 2 - Are there compelling reasons for not applying the Schedule 3 criteria?

17. When queried as to whether there are any reasons as to why he could not leave Australia to lodge a partner visa application, Mr Sharma told the Tribunal that he and his wife are in a genuine relationship and need each other. They would miss each other deeply if he had to leave Australia to apply for a visa. Further, he has a very close relationship with his wife’s daughter. He is the only father she knows. She relies upon him and it is his intention to adopt her once his visa issues are finalised. Further, more recently, his mother-in-law has suffered an ankle injury and his presence in Australia is necessary to assist her because of the injury. The Tribunal considered each of the matters raised, and others, as follows.

Genuine Relationship/ Length of Relationship

18. Mr Sharma’s agent has submitted that the parties have been married for four years and refers to Departmental Policy where “compelling reasons include reasons such as the parties having a child or an existence of a long standing relationship”. He further referred to reference to the Explanatory Statement accompanying the introduction of the relevant provisions in decisions by other members of this division of the Tribunal.
19. The Tribunal notes that the Explanatory Statement to Statutory Rules 1996, No 75, relevantly referred to the following circumstances as examples of where a waiver may be justified by the hardship that would result if the Schedule 3 criteria were not waived:
    • (a) there are Australian-citizen children from the relationship; or
    • (b) the applicant and his or her nominator are already in a long-standing spouse (partner) relationship which has been in existence for two years or longer.
20. Further, previous versions of the Department’s Policy (PAM3) mirrored the examples provided in the Explanatory Statement, as well as suggesting a range of other examples of circumstances that would amount to compelling circumstances, as noted by Mr Sharma’s representative in his written submissions. However, those examples were removed on 1 July 2014 and the policy guidance now focuses on the circumstances that resulted in the applicant becoming unlawful. The expectation of the revised policy is that the waiver provision should not be applied where it is reasonable to expect the applicant to leave Australia and apply outside Australia for a partner visa.
21. Whilst the Tribunal should have regard to policy, as a relevant consideration, policy is not binding on the Tribunal.^[1] In Re Drake and MIEA (No 2) (Re Drake No 2) (1979) 2 ALD 634 at 644, Brennan J stated that ‘the Tribunal ought not, indeed cannot, deprive itself of its freedom to give no weight to a Minister's policy in a particular case’.
22. The circumstances highlighted in PAM3 will often be relevant to the assessment of the waiver, however, the Tribunal considers that it should approach the current guidelines with some caution, and ensure that consideration of an applicant’s ‘compelling reasons’ is not limited to the circumstances surrounding their unlawful status.
23. As noted in the delegate’s decision record, a copy of which was provided by Mr Sharma to the Tribunal with his application, Mr Sharma’s last substantive visa ceased on 9 December 2011. His presence in Australia after that time was then unlawful until he was granted a bridging visa on 16 March 2012 in connection with this visa application. The Tribunal considers the period of Mr Sharma’s unlawful status in Australia to have been of a comparatively short period of time. He was only unlawful for approximately four months prior to lodgement of this visa application. In any event, as already noted, the Tribunal does not consider that a consideration of whether compelling reasons exist should be limited to the circumstances surrounding an applicant’s unlawful status.
24. Mr Sharma and Mrs Sharma first met on 14 March 2009 at a Brisbane hotel and married on 14 January 2012. Mrs Sharma’s now 9 year old daughter lives with them and her mother resides with them from time to time. Various documents have been provided by Mr Sharma as to his relationship with Mrs Sharma. Further, oral evidence was given at hearing as to the history and circumstances of their relationship. Mr Sharma and Mrs Sharma gave evidence as to the close and deep nature of their relationship and both stated they did not want to be separated.
25. The Tribunal does not consider that the existence of a genuine relationship to be a compelling reason for the waiver. Being in a spouse or de facto relationship is a requirement under cl.820.211(2)(a). The Tribunal does not accept that simply meeting other visa criteria in itself gives rise to compelling reasons to not apply the Schedule 3 criteria.
26. As regards the length and nature of the relationship, Mr Sharma and Mrs Sharma claim to have been in a relationship since 2009, to have been married since 2012 and to have a close and deep relationship. The Tribunal accepts that the length, and nature, of a relationship are factors that may be taken into account in considering whether compelling reasons exist to exercise the discretionary waiver. However, it is not unusual that couples may have to experience separation from each other, for visa or other reasons. In most situations where people apply for a partner visa offshore, one partner will generally be offshore for extended periods of time while the other will usually be in Australia. No reason was advanced in this case as to why contact, and emotional support, could not be maintained, via telephone calls, Skype, letters or otherwise, during an absence of Mr Sharma for visa purposes. The Tribunal does not consider that the claimed length or nature of the relationship in this case amounts to compelling reasons for the waiver.
27. In reaching this conclusion, the Tribunal acknowledges the reasoning in the recent matter before the Full Court of the Federal Court of Australia of Waensila and the Court’s reference to the Explanatory Statement which refers to long-term relationships constituting a compelling reason for the waiver. While the Tribunal accepts that following this judgment a consideration of whether compelling reasons exist is no longer limited to circumstances at the time of the visa application, the Tribunal does not consider that judgment to go further and direct that the existence of a long-term relationship would constitute a compelling reason for the waiver.

Mr Sharma’s daughter

28. As noted, it was also submitted on behalf of Mr Sharma that whilst Mrs Sharma’s daughter “is not his biological child, she can be considered his child as he is and has been responsible for the child since she was four-year old”, he provides for her financial, psychological and emotional support and she treats him as a father.
29. The Tribunal notes that both Mr Sharma’s and Mrs Sharma’s evidence was consistent with these submissions. Further, a statement was provided to the Tribunal from Mrs Sharma’s daughter supporting their relationship existing since she was five years old and referring to a number of matters based upon which it can be concluded that Mr Sharma and Mrs Sharma’s daughter have a close father/ daughter type relationship and that Mrs Sharma’s daughter will be impacted emotionally if Mr Sharma were required to depart Australia.
30. Mr Sharma’s agent also refers to the Convention on the Rights of the Child (the Convention), to which Australia is a signatory, requiring that the “best interests of the child” are a primary consideration and submits that if Mr Sharma had to return to India, it would have an adverse impact not only upon Mrs Sharma but also upon Mrs Sharma’s daughter because both are dependent upon him in every respect.
31. Notably Mr Sharma’s and Mrs Sharma’s evidence was that Mrs Sharma’s daughter is a well-adjusted child who from the outset, including prior to Mr Sharma and Mrs Sharma meeting, has thrived including at school, which she commenced early, and continues to do so.
32. The Tribunal accepts that Mr Sharma has a positive and loving relationship with Mrs Sharma’s daughter however is not satisfied that a temporary physical absence of Mr Sharma from this relationship amounts to compelling reasons. The Tribunal notes that there is no reason that Mrs Sharma would be separated from her daughter, nor Mrs Sharma’s mother, who on the evidence lives with the family most of the time. Whilst the biological father is not a part of Mrs Sharma’s daughter’s life, on the evidence that has been the position since her birth.
33. The Tribunal has taken the Convention into consideration in terms of how Mrs Sharma’s daughter would be affected emotionally and psychologically^[2] by the absence of Mr Sharma. The Tribunal accepts that there will be some impact upon Mrs Sharma’s daughter and she will likely miss Mr Sharma whilst he is away and it is clear that she would prefer him to continue to be physically present with her. However, the Tribunal is not satisfied that a temporary absence of Mr Sharma from Mrs Sharma’s daughter amounts to compelling reasons in circumstances where there is no reason why Mrs Sharma, the primary care giver, need be separated from her daughter. Further, there are family including Mrs Sharma’s mother and father who live either with them or nearby, able to provide support. Further, no reason was advanced as to why contact could not be maintained between Mr Sharma and Mrs Sharma’s daughter, via telephone calls, Skype, letters or otherwise, during an absence of Mr Sharma for visa purposes. Given all of these circumstances, the Tribunal is of the view that any impact of Mr Sharma’s temporary absence upon Mrs Sharma’s daughter is likely to be minimal and is not satisfied that compelling reasons to exercise the waiver exist on this basis.

Mr Sharma assisting mother-in-law following ankle injury

34. The Tribunal acknowledges receipt of a letter from Dr Ghosh dated 5 April 2016 stating that Mr Sharma is currently assisting Mrs Sharma’s mother, Mrs Angeline Feiloakitau, with daily activities following a left ankle injury sustained in December 2015 which is currently causing her significant disability.
35. At the second hearing on 12 April 2016, Mr Sharma and Mrs Sharma both gave evidence about the circumstances of Mrs Feiloakitau’s ankle injury and the current medical appointments and assistance required by her in relation to that injury. The evidence was that Mr Sharma is employed full-time and Mrs Sharma is not currently employed. The evidence was that Mrs Feiloakitau is required to attend medical appointments at the hospital from time to time in relation to her ankle injury. Mr Sharma has accompanied Mrs Feiloakitau on some of those appointments however when he has not been available for work reasons, either Mrs Sharma or her father, Mr Feiloakitau, has either accompanied Mrs Feiloakitau to hospital via a taxi or on some occasions Mr Feiloakitau has driven her to hospital.
36. At hearing Mr Sharma initially told the Tribunal that Mr Feiloakitau is aged about 70 and was not able to drive and had not been able to take Mrs Feiloakitau to appointments. Mrs Sharma’s evidence, on the other hand, was that her father is aged 59 and sometimes has driven her mother to hospital for appointments. The Tribunal put this inconsistency to Mr Sharma at hearing^[3]. Mr Sharma told the Tribunal that as he is at work a lot of the time, he may not have been aware of instances where Mr Feiloakitau had driven Mrs Feiloakitau to hospital. Following the second hearing, Mr Sharma’s agent provided further information in relation to this issue in a letter dated 13 April 2016 received after the hearing. The Tribunal accepts the information contained therein regarding both Mr Feiloakitau’s licence status and his age.
37. In addition to attendance at appointments, Mr Sharma told the Tribunal that he also assists Mrs Feiloakitau at home with activities of daily living, particularly with lifting or bathing. Mr Sharma and Mrs Sharma told the Tribunal that Mrs Feiloakitau predominantly stays at their home but does also spend time at Mr Feiloakitau’s home at Inala, usually on weekends.
38. Having had regard to all of this evidence, the Tribunal is not satisfied that there is any necessity for Mr Sharma to assist Mrs Feiloakitau on account of her recent ankle injury which amounts to compelling reasons as to why Mr Sharma could not apply for a visa outside Australia. Whilst no doubt Mr Sharma does provide assistance to Mrs Feiloakitau, it is clear that he is not the only one that provides this assistance. When Mr Sharma is at work, she has been able to attend appointments either by taxi or by being transported by Mr Feiloakitau. Whilst Mr Sharma also no doubt assists Mrs Feiloakitau around the house, Mrs Sharma is not currently employed and also assists Mrs Feiloakitau around the house. Further, Mrs Feiloakitau does not spend all of her time at Mr Sharma and Mrs Sharma’s home, but rather often also spends time at Mr Feiloakitau’s home nearby, including on many weekends, suggesting that Mr Sharma’s assistance is not required at those times, for lifting or bathing or otherwise. Given that Mr Sharma works full-time and that Mrs Feiloakitau also lives some of the time with Mr Feiloakitau, the Tribunal is not satisfied that Mr Sharma is the only person who can, or does, provide the necessary care to Mrs Feiloakitau currently required in relation to her ankle injury.

Financial circumstances

39. Mr Sharma and Mrs Sharma also told the Tribunal that Mrs Sharma and her daughter would be impacted financially if Mr Sharma left Australia. Mrs Sharma stated that she would not have anywhere to go. They are currently renting premises for $355 per week and Mr Sharma pays the rent from his income. They depend upon Mr Sharma’s income. Whilst she had previously been renting and paying $280 rent per week from her Centrelink benefits prior to meeting Mr Sharma, those benefits are now significantly reduced because of Mr Sharma’s income and they are now renting premises with an additional bedroom. When queried, Mrs Sharma told the Tribunal that whilst her mother lives with them most of the time, she does not contribute to rent put does contribute between $100 and $150 per week to groceries. Further, she stated that if Mr Sharma did leave Australia, they would not be able to stay with her father on a temporary basis. The Tribunal accepts that Mrs Sharma and her daughter’s financial situation would likely be impacted by Mr Sharma lodging a partner visa application offshore, but it does not accept that they would have nowhere to go or would not be able to manage. If Mr Sharma was not in Australia and was not receiving income, Mrs Sharma would likely be entitled to additional Centrelink benefits, as she was before she met Mr Sharma, when she received Centrelink benefits from which she paid her and her daughter’s rent and expenses. If Mr Sharma was not in Australia but was earning income outside Australia, there is nothing to prevent him continuing to assist Mrs Sharma and her daughter financially.
40. The Tribunal considers it not unreasonable to expect couples and families to modify their lifestyle, living standards and arrangements for a temporary period of separation for visa or other reasons. The decision to separate, and related issues, is common to all persons in a genuine spousal relationship in such circumstances.
41. The Tribunal is not satisfied that any financial impact upon Mr Sharma, Mrs Sharma or her daughter amounts to compelling reasons for not applying the Schedule 3 criteria.

Not able to afford lawyer to lodge visa application/ lack of knowledge of Schedule 3 criteria

42. Mr Sharma’s agent submitted that neither Mr Sharma nor Mrs Sharma are sophisticated people and did not fully appreciate the need to address all issues fully when making his visa application. Further, Mr Sharma told the Tribunal that having just spent a lot of money on their wedding, he did not have funds to pay for assistance in lodging his visa application and was not then aware of the implications of the Schedule 3 criteria.
43. The Tribunal accepts that Mr Sharma did not fully appreciate the need to address all issues fully when making his visa application. However, Mr Sharma has now had full opportunity to raise all issues, including at two hearings before the Tribunal. The Tribunal further accepts that Mr Sharma was not aware of the Schedule 3 criteria at the time he applied for the visa. However, lack of knowledge of the legislation or its implications, does not amount to a compelling reason for not applying the required criteria.

Other Matters

44. The Tribunal observes that a number of matters were put to Mr Sharma^[4] at the first hearing, including in relation to inconsistencies in Mr Sharma’s and Mrs Sharma’s evidence as to when Mr Sharma and Mrs Sharma commenced living together, the relationship status between Mrs Sharma’s mother and father, and the circumstances in which a housemate, Ashley, lived with them for some time. Mr Sharma clarified those matters at hearing and further, subsequent to the hearing, submitted a statutory declaration to the Tribunal further clarifying those matters. The Tribunal accepts Mr Sharma’s clarification of these matters in full.

Conclusion

45. The Tribunal has considered Mr Sharma’s and Mrs Sharma’s circumstances as raised and summarised above. The Tribunal is not satisfied that any of the reasons advanced, whether considered individually or cumulatively, constitute compelling reasons for not applying the Schedule 3 criteria. Accordingly, Mr Sharma does not meet cl.820.211(2)(d)(ii).
46. The Tribunal also finds that Mr Sharma is not the holder of a subclass 771 (transit) visa. Mr Sharma last entered Australia after 19 December 1989, and has never been the holder of a subclass 300 visa; therefore Mr Sharma does not satisfy the alternate requirements of subclauses 820.211(3), (4), (5), (6), (7), (8) or (9). Accordingly he does not meet the requirements of cl.820.211.
47. Whilst the Tribunal did canvass some evidence at hearing in relation to Mr Sharma’s and Mrs Sharma’s relationship, as the delegate did not undertake a formal assessment of the relationship and made no findings as to whether the parties are in a genuine spousal relationship, the Tribunal has refrained from making a finding in relation to this issue. In any event, given the Tribunal’s findings in relation to the Schedule 3 issues, such a finding is not necessary.
48. For the reasons above, Mr Sharma does not satisfy the criteria for the grant of the visa.

DECISION

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

Susan Trotter
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.

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^[1] See, for example, Qiao v MIAC [2008] FMCA 380 (Orchiston FM, 28 March 2008) at [29].
^[2] Refer to paragraphs 42 to 44 of these Reasons as regards financial issues.
^[3] Pursant to section 359AA of the Act.
^[4] Pursuant to section 359AA of the Act