Belshaw (Migration)

The Administrative Appeals Tribunal considered the case of Ms Belshaw, a citizen of the United Kingdom, who sought review of a decision not to grant her a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa. The dispute centred on whether Ms Belshaw met the criteria for the visa, specifically clause 461.213, which relates to holding a substantive visa or satisfying Schedule 3 criteria if a substantive visa was not held at the time of application.

The Tribunal was required to determine if Ms Belshaw satisfied clause 461.213 of the Migration Regulations 1994. This involved assessing whether she held a substantive temporary visa at the time of her application, or, if she did not, whether her last substantive temporary visa met certain conditions and if she satisfied Public Interest Criterion (PIC) 3002. PIC 3002 requires that the application be validly made within 12 months after the "relevant day," which is defined by reference to when the applicant last held a substantive visa or entered Australia unlawfully.

The Tribunal reasoned that at the time of her application on 24 January 2020, Ms Belshaw held a Bridging Visa A, which is not a substantive visa. Consequently, she did not meet the requirement under clause 461.213(a). As she did not hold a substantive visa, she was required to satisfy clause 461.213(b)(ii), which necessitates meeting PIC 3002. The Tribunal identified Ms Belshaw's last substantive visa as an e-Visitor visa, which ceased on 24 November 2018. This date was determined to be the "relevant day" for the purposes of PIC 3002. As her application was made more than 12 months after this relevant day, she failed to satisfy PIC 3002.

Accordingly, the Tribunal affirmed the decision not to grant Ms Belshaw the Subclass 461 visa.