AN AMERICAN woman has been told by the Immigration Department to leave her Australian husband and home in Melbourne or be deported within weeks.

Alaina Gubecka, 43, who married her painter husband Marty, 42, in Melbourne in May last year, claims the department bungled her attempts to obtain a spouse visa and failed to clarify her visa status.

The couple met through the internet and Ms Gubecka, a grandmother and mother of three, came to Australia for a month four years earlier to meet Mr Gubecka.

They decided to marry but, because of family illness, put off their plans.

Ms Gubecka returned in March last year on what she believed was a six-month travel visa obtained by her US travel agent.

Two weeks after their wedding, the former emergency medical technician said she visited Immigration to have her visa changed to a spouse visa. She was told that health and security checks were required. After giving passport and other details, she was advised she could apply for an extension of her visa. A department officer assured her she would only hear back if there was a problem.

In February she was told for the first time that her original visa was only for three months and it was cancelled, she said.

Meanwhile another section of the department continued processing her spouse visa application for some months.

An appeal to the Migration Review Tribunal failed even though she had a letter from her US travel agent accepting blame for the visa mistake. The department set Ms Gubecka a deadline of November 17 to appeal to the Immigration Minister or leave.

Speaking from their Craigieburn home, the couple said they would seek ministerial intervention and would also ask the Commonwealth Ombudsman to investigate the department's handling of the case.

An angry Mrs Gubecka said that when somebody consistently checked your visa status, "you are at their mercy and you have to trust that they know what they are doing. The Department of Immigration basically holds people's lives in the palms of their hands.

"They just flippantly give information and don't think about the consequences if it is wrong and, if it is proven wrong, they just bury their heads in the sand," she said.

An Immigration spokesman said Mrs Gubecka was refused visitor and spouse visas because she had not applied within the necessary period of her three-month travel visa expiring.

As a result she would normally face a three-year wait to reapply from outside Australia, but this could be waived if there were "compelling and compassionate circumstances".

The department remained in contact with the couple, the spokesman said.

Comment by Jacqui Yang:
This was one of my cases for Ministerial intervention, which received a substantial amount of media coverage (both in print and on television). Mrs Gubecka felt that she had been treated unjustly by the Department of Immigration and after an unsuccessful appeal before the Migration Review Tribunal, I took her case to the Minister of Immigration and Multicultural and Indigenous Affairs.

We were seeking on Mrs Gubecka's behalf, her right to lodge her Partner visa application in Australia. After detailed submissions and numerous hours of work on our part, the Minister not only made a decision in Mrs Gubecka's favour, she authorised the immediate grant of Mrs Gubecka's onshore Partner visa without Mrs Gubecka having to make any further applications.

I promised Mrs Gubecka that I would do everything in my power to allow her to stay in Australia and I delivered on that promise. Accordingly, I would like to thank Alaina and Martin Gubecka for giving me the opportunity to act on their behalf.