Mughal (Migration)

This matter concerned an application for review by a New Zealand citizen who had applied for a New Zealand Citizen Family Relationship (Temporary) (Class UP) visa, subclass 461. The applicant had previously held a student visa (subclass 573) and subsequently applied for a temporary skilled worker (subclass 457) visa and the subclass 461 visa. The Department had cancelled the applicant's student visa and associated bridging visa. The Administrative Appeals Tribunal was asked to determine whether the applicant had substantially complied with the conditions of his last substantive visa.

The primary legal issue before the Tribunal was whether the applicant had substantially complied with the conditions attached to his student visa, specifically the requirement to maintain enrolment in a registered course. The applicant argued that his focus had shifted to his employment and his intention to obtain a skilled worker visa, and later the subclass 461 visa, which led him to cease his studies. The Tribunal considered the applicant's explanation for not maintaining enrolment, his employment history, and his marriage to an Australian permanent resident who was also pregnant.

The Tribunal acknowledged that the applicant had not maintained enrolment in a registered course, which was a condition of his student visa. However, it considered the applicant's stated reasons for this, including his pursuit of employment and the advice received from his migration agent regarding his prospects for a subclass 457 visa. The Tribunal also took into account the applicant's marriage and his wife's advanced pregnancy, noting that she had never lived in New Zealand. Having regard to these circumstances and the ministerial guidelines concerning the Minister's discretionary power under section 351 of the Migration Act 1958 (Cth), the Tribunal concluded that the case warranted referral to the Minister for consideration of the exercise of that discretion.

Despite the referral for ministerial consideration, the Tribunal affirmed the decision not to grant the applicant the subclass 461 visa. The Tribunal found that the applicant had not substantially complied with the conditions of his last substantive visa.