1603909 (Migration)

The Administrative Appeals Tribunal considered an application for review of a decision not to grant the applicant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa. The applicant sought to have the decision under review affirmed.

The central legal issue before the Tribunal was whether the applicant satisfied the criteria in Item 3004 of Schedule 3 to the Regulations, as required by cl.461.213(b)(ii) of Schedule 2 to the Regulations. This criterion is engaged when an applicant does not hold a substantive visa at the time of application and their last substantive visa was not of a specified type. The applicant's last substantive visa, a Student TU Subclass 572, ceased on 12 September 2015, and at the time of their application for the Subclass 461 visa on 9 October 2015, they held a Bridging Subclass 010 visa.

The Tribunal reasoned that cl.461.213(b)(ii) mandated that the applicant satisfy Schedule 3 criteria, including criterion 3004. Criterion 3004 requires the Minister to be satisfied of several matters, including that the applicant is not the holder of a substantive visa due to factors beyond their control, that there are compelling reasons for granting the visa, and that the applicant has substantially complied with visa conditions. The Tribunal found that the applicant failed to meet a mandatory requirement of cl.461.213 of Schedule 2 to the Regulations at the time of their visa application.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 461 visa.