Sch 3 waiver: future role as father a mandatory consideration?

Federal Court. The Appellant applied for an onshore partner visa more than 28 days after he last held a substantive visa. As a result, he had to satisfy Schedule 3 criteria, unless the Minister was satisfied that there were compelling reasons for not applying those criteria. A delegate refused to grant the visa and the Appellant applied to the Tribunal for review of the delegate's decision. The Appellant submitted the sponsor was 20 weeks pregnant and argued that was a compelling reason. Did cl 820.211(2)(d)(ii) expressly or impliedly make it mandatory for the Tribunal to consider the Appellant’s future role as father to the child when born in determining whether there were compelling reasons? If not, did the Appellant, by his submissions, made his future role as a father a mandatory consideration?

The Federal Court (FCA) summarised the Appellant's arguments before the Tribunal as follows:

11    The Tribunal recorded the appellant’s submissions concerning the reasons to waive the Schedule 3 criteria at [17] and [25]. In summary, those reasons were that his wife (and sponsor) was 20 weeks pregnant and suffered from depression and would suffer emotional distress and hardship related to her health and mental wellbeing if she was separated from the appellant; his wife needed him to support her financially, emotionally and physically (helping with the cooking and cleaning); and in terms of the pregnancy, the sponsor needed the appellant in Australia because she would not be able to work in a few months and she would need him to provide for her financially.

The questions to the FCA were as follows:

Question 1: Did cl 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (Cth) expressly or impliedly make it mandatory for the Tribunal to consider the Appellant’s future role as father to the child when born in determining whether there were compelling reasons for not applying the Schedule 3 criteria?

Question 2: If the answer to Question 1 is "no", did the Appellant, by his submissions, made his future role as a father a mandatory consideration?

The FCA answered those questions as follows:

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