Attempts to fall pregnant does not satisfy the Tribunal as a ‘compelling reason’ to waive Schedule 3 criteria for partner visa

In the case of Tran (Migration) [2018] AATA 893, the Applicant applied for the Partner (subclass 820) visa on 20 March 2017 which was subsequently refused because the delegate found that the Applicant did not satisfy criterion 3001 of the Schedule 3 criteria and there were no compelling reasons for not apply the criteria.

 

Background

 

The Applicant entered Australia in September 2008 holding a temporary visa which expired in December 2008.  The Applicant did not hold a substantive visa since that time and remained as an unlawful non-citizen.

The Sponsor and the Applicant met on 15 April 2012 and it is claimed that the Sponsor separated from her first husband just after she was granted her permanent partner visa in June 2014.  The Applicant lived with the Sponsor and her child from her previous marriage and later married in February 2017.

 

AAT Considerations

 

Attempts to conceive child

Evidence was provided that in February 2017, the parties were having IVF treatment to try to conceive a child.  No child was able to be conceived.  The tribunal is not satisfied that any fertility issues or attempts by the Sponsor to fall pregnant to the Applicant at any time provides a compelling reason for not apply the Schedule 3 criteria.

 

Sponsor’s financial dependence

The Sponsor ceased work in January 2017 due to an injury suffered to her hand at work and she was financially dependent on the Applicant to support her and her child.  There was little medical evidence which would indicate the sponsor is unable to work. Although not currently working, the Tribunal did not accept that the Sponsor was incapacitated for work or that she would be unable to find appropriate employment if required.  If such employment is not found, she would be entitled to the payment of appropriate Social Security benefits to ensure that she met all her basic costs. The sponsor’s son would also be able to access any appropriate financial assistance through the government.

 

Decision

 

The Tribunal was not satisfied that the above circumstances constituted compelling reasons for not applying the Schedule 3 criteria.  Accordingly, the Applicant did not meet cl. 820.211(2)(d)(ii).

 

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