Choden (Migration)

The Administrative Appeals Tribunal considered an application by Ms Choden, a New Zealand citizen, for a Subclass 461 visa. The dispute centred on whether Ms Choden met the Schedule 3 criteria, specifically criterion 3002, as required by clause 461.213 of the Migration Regulations 1994 for her visa application.

The Tribunal was required to determine if Ms Choden satisfied Schedule 3 criterion 3002, which mandates that a visa application must be validly made within 12 months of the "relevant day". The definition of the "relevant day" under subclause 3001(2) depends on the applicant's immigration history, including when they last held a substantive visa or entered Australia unlawfully.

The Tribunal found that Ms Choden ceased to hold her substantive visa on 8 September 2021. Applying subclause 3001(2)(c)(i), the "relevant day" was therefore 8 September 2021. Ms Choden confirmed that her application for the Subclass 461 visa was lodged on 30 September 2022, which was more than 12 months after the relevant day. Consequently, the Tribunal concluded that Ms Choden did not satisfy Schedule 3 criterion 3002 and, therefore, did not meet the requirements of clause 461.213.

The Tribunal affirmed the decision not to grant Ms Choden the Subclass 461 visa.