Fang (Migration)

This matter concerned an application for a New Zealand Citizen Family Relationship (Temporary) (Class UP) (Subclass 461) visa by a New Zealand citizen. The applicant lodged his application on 9 March 2018, after his previous substantive visa had ceased on 21 February 2018. The Department subsequently requested the applicant provide reasons and evidence regarding circumstances beyond his control that prevented him from holding a substantive visa at the time of application, and whether there were compelling reasons for granting the visa. The applicant did not initially respond to this request. The Administrative Appeals Tribunal (AAT) considered the applicant's appeal against the refusal of his visa application.

The primary legal issues before the Tribunal were whether the applicant failed to hold a substantive visa due to factors beyond his control, and if so, whether there were compelling reasons for granting the visa, as required by criterion 3004 of Schedule 2 to the Regulations. The Tribunal noted that the applicant had lodged his application while not holding a substantive visa. While the Department had requested further information, the applicant claimed to have responded via letter and email, though there was no evidence of the Department receiving this correspondence. The Tribunal acknowledged the difficulty in verifying the transmission and receipt of these documents.

Despite the lack of direct evidence of the Department receiving the applicant's response, the Tribunal decided to give the applicant the benefit of the doubt, accepting that system glitches could have occurred. The Tribunal found that the applicant's circumstances, including his role in his children's upbringing and education in Australia, his community ties, and potential financial hardship, constituted compelling reasons for granting the visa. Furthermore, the Tribunal accepted that the applicant's belief regarding his visa expiry date and the technical difficulties he encountered in lodging his application could be considered factors beyond his control.

Consequently, the Tribunal remitted the application for reconsideration by the Minister. The Tribunal directed that the applicant be taken to have satisfied criterion 3004 for the purposes of clause 461.213 of Schedule 2 to the Regulations, meaning the matter would proceed to assess the remaining criteria for the visa.