Gimini (Migration)

This matter concerned an application for review of a decision not to grant a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) (subclass 461) visa. The applicant, a citizen of Papua New Guinea, was seeking review before the Tribunal. The core of the dispute revolved around whether the applicant met the essential criteria for the visa, specifically clause 461.212 of the Migration Regulations, which requires the applicant to be in the migration zone at the time of the visa application and the review application.

The Tribunal was required to determine if the applicant satisfied clause 461.212 of Schedule 2 of the Migration Regulations. This involved assessing whether the applicant was physically present within the migration zone at the time of lodging her visa application on 27 October 2017, and at the time of the review application on 16 December 2017. The Tribunal also considered the implications of the applicant's movements under the Torres Strait Treaty and the absence of corresponding entries in departmental databases.

The Tribunal noted that departmental information indicated the applicant might have been offshore at the relevant times. To address this, the Tribunal requested a statutory declaration confirming the applicant's presence in the migration zone. While a statutory declaration from the applicant's stepmother was provided, confirming her presence, the applicant herself did not lodge a similar declaration. The Tribunal also considered advice from the applicant's migration agent regarding the applicant's residence in the Northern Territory and the limitations of departmental records concerning movements under the Torres Strait Treaty. Despite the lack of departmental records and the applicant's travel beyond the permitted area under the Treaty, the Tribunal proposed to accept, based on the stepmother's statutory declaration, that the applicant was physically present in the migration zone at both critical times. However, the Tribunal ultimately found that the applicant did not meet subclauses (2), (3), or (4) of clause 461.212.

Consequently, the Tribunal found that the applicant did not meet clause 461.212 and therefore did not satisfy an essential criterion for the grant of the Subclass 461 visa. The Tribunal affirmed the decision not to grant the visa.