Schedule 3 — Additional criteria applicable to unlawful non-citizens and certain bridging visa holders

Schedule 3—Additional criteria applicable to unlawful non-citizens and certain bridging visa holders (regulation 1.03)

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 ART 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 the day when that last substantive visa ceased to be in effect and the day when:

(i) if the ART’s decision is given to the applicant orally—the applicant is taken, under subsection 368(7) of the Act, to have been notified of the decision; or

(ii) otherwise—the applicant is taken, under section 379C of the Act, to have received the notification of the ART’s decision.

3002 The application is validly made within 12 months after the relevant day (within the meaning of subclause 3001(2)). 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

Schedule 3 Additional criteria applicable to unlawful non-citizens and certain bridging visa holders

(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

Additional criteria applicable to unlawful non-citizens and certain bridging visa holders Schedule 3

(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.

3005 A visa or entry permit has not previously been granted to the applicant on the basis of the satisfaction of any of the criteria set out in:

(a) this Schedule; or

(b) Schedule 6 of the Migration (1993) Regulations; or

(c) regulation 35AA or subregulation 42(1A) or (1C) of the Migration (1989) Regulations.

Note: Section 10 of the Act provides that a child who was born in the migration zone and was a non-citizen when he or she was born shall be taken to have entered Australia when he or she was born.

Schedule 4 Public interest criteria and related provisions Part 1 Public interest criteria