Leith (Migration)

This matter concerned an application for review of a decision by the Department of Home Affairs to affirm a refusal to grant a Subclass 461 New Zealand Citizen Family Relationship (Temporary) visa. The applicant, a New Zealand citizen, sought to have the decision set aside and remitted for reconsideration. The core of the dispute revolved around whether the applicant met criterion 3004 of Schedule 3 to the Migration Regulations 1994, which applies to unlawful non-citizens and certain bridging visa holders at the time of application.

The legal issues before the Tribunal were whether the applicant had satisfied the requirements of criterion 3004, specifically concerning the timing of his visa application and the circumstances surrounding any delay. The applicant contended that while his application was lodged 33 days after his previous substantive visa expired, this delay was due to factors beyond his control, including the need to renew his passport from the United Kingdom and the subsequent postal delay of his application. He also presented evidence of his ongoing relationship with his partner, an Australian citizen, and her shared custody arrangements for her children, which prevented her from leaving Australia with him.

The Tribunal considered the applicant's explanation for the delay, noting that he had provided evidence of his passport renewal and a bank statement indicating payment for the application was made on 4 December 2019, prior to his previous visa's expiry. The applicant's partner corroborated his account, stating they believed the bridging visa would be backdated and that the delay in lodging the paper application was due to awaiting the new passport. The Tribunal accepted that the applicant had made genuine efforts to lodge his application on time, but external factors, including postal delays, contributed to the application being formally lodged after the expiry of his substantive visa. The Tribunal also acknowledged the impact of the bushfires and the applicant's partner's custody arrangements as potentially compelling reasons for the delay.

Consequently, the Tribunal concluded that the matter should be remitted for reconsideration. This decision was based on the finding that the applicant had provided sufficient evidence to suggest that the delay in lodging his application was due to circumstances beyond his control, and that there were potentially compelling reasons that warranted further consideration under criterion 3004.