A self-represented applicant’s appeals to the MRT for the review of a partner visa decision, has failed with the member indicating that a child may have made a difference, but not a pregnancy. A delegate of the minister had refused the visa on the basis that the applicant failed to satisfy criterion 3001. On review, the Tribunal was not convinced that there were ‘compelling reasons’ to waive the requirement.

An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 of the Migration Regulations unless the Minister is satisfied that there are compelling reasons for not applying the criteria: cl.820.211(2)(d).

In this case, criterion 3001 was the main issue. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the ‘relevant day’ which is the date of the delegate’s decision. The delegate’s decision to refuse the application stated that the applicant came to Australia on a student visa and that visa was cancelled on 11 December 2012. On 11 February 2013 she lodged her partner visa application. Hence she did not satisfy criterion 3001 as the 28 days had lapsed.

Given this, the Tribunal was required to consider whether there were compelling reasons for not applying the criteria. The applicant argued as follows:

“We really hope MRT could consider about our true relationship and expecting baby's situation. We are hoping deeply MRT could give us a significant result due to the expensive visa fee we try to save for new baby as well. Because we heard the partner visa fee will go up to over $6000 from 1st July 2015. We want to be good parents like all parents in this world which give our baby a better life. We want to try our best to welcome the baby with two parents together.”

The Tribunal was not convinced and affirmed the delegate’s decision for the following reasons:

• In the view of the Tribunal the applicant was obliged to ensure that she held a valid visa to remain in Australia at all times and her explanation for not doing so was that she received incompetent advice from an Immigration Officer and the University did not inform her that her course had been cancelled. The Tribunal is not satisfied that acting on information given by an Immigration Officer and being unaware of her enrolment status constitute compelling reasons for not applying the Schedule 3 criteria.
• The Tribunal is not satisfied that the length of the applicant’s relationship with the sponsor constitutes a compelling reason for not applying the Schedule 3 criteria. This is a situation faced by all onshore Subclass 820 applicants who are required to satisfy the Schedule 3 requirements
• The Tribunal does not consider that unhappiness resulting from separation, potentially for a limited period, is a compelling reason for not applying the Schedule 3 criteria.

• The parties do not have an Australian citizen child of the relationship.

Given all the issues in the applicants case, you'll have to wonder why this applicant never sought professional migration advice from the start.