KAUR (Migration)

This matter concerned an application for review by a New Zealand citizen's family member of the decision not to grant them a New Zealand Citizen Family Relationship (Temporary) (Class UP) visa (subclass 461). The applicant had applied for the subclass 461 visa more than two years after their last substantive visa expired. The Tribunal was required to determine whether the applicant met the eligibility criteria for the visa, specifically concerning the timeframe for lodging the application.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 461.213 of the Migration Regulations 1994, which governs applications made in Australia. This clause requires that an applicant either hold a specified substantive temporary visa at the time of application or, if they do not, that their last substantive temporary visa was not of a specified type and that Schedule 3 criteria 3002, 3003, 3004, and 3005 are met. Crucially, criterion 3002 requires the visa application to be lodged within 28 days of the applicant's last substantive visa expiring.

The Tribunal found that the applicant's last substantive visa expired on 5 February 2016, and the subclass 461 visa application was lodged on 23 October 2018. This meant the application was lodged significantly outside the 28-day timeframe stipulated by criterion 3002. The Tribunal noted that it had no jurisdiction to waive this requirement. As the applicant failed to meet this essential criterion, they did not satisfy the requirements for the grant of the visa. Consequently, the Tribunal affirmed the decision not to grant the subclass 461 visa.