1513997 (Migration)

The Administrative Appeals Tribunal considered an application for review of a delegate's decision to refuse a Subclass 461 New Zealand Citizen Family Relationship (Temporary) visa. The applicant had entered Australia on 29 July 2009 as the holder of this visa, which was valid until 10 July 2014. The visa application under review was lodged on 11 July 2014.

The primary legal issue before the Tribunal was whether the applicant held a substantive visa at the time of lodging his application, and if not, whether he met the criteria set out in Schedule 3 of the Migration Regulations 1994. The applicant conceded that he did not hold a substantive visa when he lodged the application. Consequently, the Tribunal was required to determine if the applicant satisfied the Schedule 3 criteria, specifically criterion 3004, which relates to circumstances beyond the applicant's control, compelling reasons for granting the visa, substantial compliance with visa conditions, and entitlement to the visa if applied for earlier.

The Tribunal found that while the applicant's wife might require his support to care for their young children, which could be considered a compelling reason for granting the visa, the applicant failed to satisfy criterion 3004(c). This criterion requires the Minister to be satisfied that the applicant is not the holder of a substantive visa because of factors beyond the applicant's control. As this criterion was not met, the Tribunal affirmed the delegate's decision to refuse the visa. The Tribunal suggested that the applicant might consider seeking ministerial intervention.