2301525 (Migration)

This matter concerned an application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa, Subclass 461, made by a New Zealand citizen who was not the holder of a substantive visa at the time of application. The applicant's previous Subclass 461 visa had ceased on 4 November 2021, and the current application was lodged on 5 November 2021. The review was conducted by Margie Bourke, a member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 461.213 of Schedule 2 to the Migration Regulations 1994. This clause outlines the conditions for granting a Subclass 461 visa when the application is made in Australia without the applicant holding a substantive visa at that time. Specifically, the Tribunal had to determine if the applicant satisfied the criteria relating to the last substantive visa held and the Schedule 3 criteria, including Schedule 3002 and 3003.

The Tribunal found that the applicant's last substantive visa, a Subclass 461, ceased the day before the current application was made, meaning she did not hold a substantive visa at the time of application. The Tribunal was satisfied that the applicant met the requirements of clause 461.213(b)(i) as her last substantive visa was not a Subclass 403 visa. Furthermore, the Tribunal determined that the applicant satisfied Schedule 3002, as the application was made within 12 months of her last substantive visa ceasing. Crucially, the Tribunal found that Schedule 3003 did not apply to the applicant, as she had held a substantive visa after 1 September 1994 and was not an illegal entrant.

Consequently, the Tribunal remitted the application for the Subclass 461 visa back to the Department for reconsideration, with a direction that the applicant met the criteria specified in clause 461.213 of Schedule 2 to the Regulations.