Overy (Migration)

The Administrative Appeals Tribunal considered an application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa. The applicant arrived in Australia on 30 November 2007 on a Subclass 461 visa and subsequently had a second Subclass 461 visa granted in 2013. The present application was lodged on 29 March 2018, after the expiry of her previous visa. The core dispute concerned whether the applicant met Schedule 3 criterion 3004, which is a prerequisite for the grant of the visa under clause 461.213 of the Migration Regulations 1994.

The Tribunal was required to determine if the applicant satisfied Schedule 3 criterion 3004, which involves a series of conditions relating to the applicant's visa status, the reasons for not holding a substantive visa, compelling reasons for granting the visa, substantial compliance with visa conditions, and entitlement to the visa had the application been made earlier. Specifically, the Tribunal had to assess whether the applicant met sub-criterion 3004(c), which requires the Minister to be satisfied that the applicant is not the holder of a substantive visa because of factors beyond their control.

The Tribunal reasoned that it had no discretion to waive any part of criterion 3004 and that all its sub-criteria must be met. While acknowledging sympathy for the applicant, the Tribunal found that she did not satisfy sub-criterion 3004(c). Consequently, she failed to meet Schedule 3 criterion 3004 and therefore did not satisfy clause 461.213. The Tribunal affirmed the decision to refuse to grant the visa.