Melville (Migration)

The Administrative Appeals Tribunal considered the case of an applicant for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa, Subclass 461. The dispute centred on whether the applicant met the criteria for the visa, specifically concerning her immigration status at the time of application. The applicant had failed to hold a substantive visa when she lodged her application, meaning she was required to satisfy Schedule 3 criteria.

The primary legal issue before the Tribunal was whether the applicant satisfied criterion 3004 of Schedule 3, as required by clause 461.213(b)(ii) of the Migration Regulations 1994. This criterion applies when an applicant does not hold a substantive visa at the time of application and their last substantive temporary visa was not of a specified type. The Tribunal had to determine if the applicant's failure to lodge her application while holding a substantive visa was due to factors beyond her control and if there were compelling reasons for granting the visa.

The Tribunal noted that the applicant's substantive visa ceased on 10 November 2020, and her application was received by the Department on 19 November 2020, nine days later. The applicant provided a statutory declaration detailing several reasons for the delay, including a genuine error regarding a grace period, delays in receiving essential documents due to the COVID-19 pandemic, and an expired passport requiring renewal from a closed Irish passport office. She also highlighted significant postal delays in receiving a police clearance certificate. Furthermore, the applicant presented evidence of strong ties to the Australian community, including her long-term relationship with her Australian citizen husband, her children's Australian upbringing and schooling, and her stable employment. The Tribunal acknowledged the potential for significant financial and emotional hardship to her family, including her husband's employment and her daughter's ongoing therapy, if the visa were refused.

Despite acknowledging the applicant's circumstances and the hardship that would result from a refusal, the Tribunal concluded that the decision under review should be affirmed. The Tribunal found that the applicant did not satisfy the Schedule 3 criteria. However, the Tribunal referred the matter to the Minister under section 48B of the Migration Act 1958, indicating that there were unique and exceptional circumstances that warranted consideration for a waiver of the Schedule 3 requirements.