1605532 (Migration)

This matter concerned an application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa. The applicant sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) which remitted the application for reconsideration by the Minister's delegate. The central dispute revolved around whether the applicant met the criteria set out in clause 461.213 of the Migration Regulations 1994 (Cth) at the time of the visa application.

The legal issues before the Tribunal were whether the applicant, who did not hold a substantive visa at the time of application, met the requirements of clause 461.213(b) of the Regulations. Specifically, this involved determining if the applicant's last substantive visa was not of a specified excluded subclass, and if the applicant satisfied the Schedule 3 criteria, including Particular Interpretative Criteria (PIC) 3004. The Tribunal was required to assess the applicant's migration history to determine compliance with these criteria.

The Tribunal found that the applicant was not the holder of a substantive visa at the time of application, thus clause 461.213(a) did not apply, and clause 461.213(b) was engaged. It was satisfied that the applicant's last substantive visa was a subclass 461 visa, meeting subclause (b)(i). However, the Tribunal identified that the applicant's eligibility hinged on meeting PIC 3004 for the purposes of subclause (b)(ii). Based on the evidence, the Tribunal found that the applicant had departed Australia on a subclass 461 visa and returned on the same visa, which subsequently ceased on 1 February 2016, the day before the current application was lodged. The Tribunal concluded that the applicant met the requirement in PIC 3004 for the purposes of clause 461.213(b)(ii).

Consequently, the Tribunal remitted the visa application for reconsideration by the Minister's delegate, with a direction that the applicant meets the requirement in PIC 3004 for the purposes of clause 461.213 of Schedule 2 to the Regulations. The delegate was to consider whether the applicant met the remaining criteria for the grant of the visa.