McNamara v Minister for Immigration & Multicultural & Indigenous Affairs

(ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.' The 'Schedule 3 criteria' referred to in subpar (d)(ii) of that criterion require a visa application to be made within 28 days of an applicant becoming a person without a substantive visa. In the present case, although the applicant's substantive visa expired on 1 March 2000, her visa application was not lodged until 6 March 2001. She was thus unable to satisfy the Sch 3 criteria. 2 The applicant is a British citizen who arrived in Australia on 1 December 1999. She held a visitor's visa permitting her to remain in Australia for 3 months. The applicant claimed to have separated from her husband on 1 February 2000 and to have commenced a de facto relationship with her nominator on 15 February 2000. Her visa application (which included her four children) was lodged by her present solicitors. They were alert to the problem posed by subcl 820.211(2) and, in their covering letter, invoked the departmental guidelines on the waiver of the Sch 3 requirements. The first respondent's delegate declined to waive the Sch 3 criteria, and the visa application was accordingly refused. 3 Without the assistance of a migration agent, the applicant applied to the Tribunal for a review of the delegate's decision. Under s 359A of the Migration Act 1958 ('the Act') the Tribunal invited the applicant to comment on her failure to satisfy the Sch 3 criteria. She provided extensive comments. The applicant also appeared before the Tribunal, when she and her nominator gave evidence. The Tribunal then invited the applicant under s 359 of the Act to give additional information about the de facto relationship (which she furnished within the time requested). Almost two months later, the applicant once more retained her present solicitors, who promptly advised the Tribunal of their retainer and soon afterwards forwarded extensive submissions on behalf of their client. The information in those submissions was later updated once by the solicitors. 4 The Tribunal's statement prepared under s 430(1) of the Act comprises 10 closely typed pages divided into 51 paragraphs. After setting out the background to the review and describing the nature of the evidence and material submitted by the applicant, the Tribunal turned its attention to the waiver provision and said: '24. The term 'compelling' is not defined in the legislation. According to the Macquarie Dictionary "compel" means "to force or drive, especially to a course of action". The Shorter oxford [sic] Dictionary also defines the word compel as 'to bring about by force or moral necessity'. The Tribunal has also had regard to policy guidelines in PAM3 which also refer to the Explanatory Memorandum to the Statutory Rules 1996 No. 75 that introduced this provision.' 5 The Explanatory Statement mentioned by the Tribunal was reproduced in another case to which it referred, Boakye-Danquah v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 559 at 565 ([31]). The Explanatory Statement said: 'The Schedule 3 requirements impose certain restrictions on unlawful non-citizens who apply onshore for residence on spouse grounds. The introduction of a waiver provision recognises the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas. The waiver will provide greater flexibility for the Minister if and when compelling circumstances arise. It is expected that the waiver will be exercised only where there are reasons of a "strongly compassionate" nature such as:

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