Sandhika (Migration)

The applicant, a New Zealand citizen, sought judicial review of the delegate's decision to refuse her application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa (subclass 461). The primary dispute concerned whether the applicant met the Schedule 3 criteria for the visa, which require the applicant to hold a substantive visa at the time of application, or if there were compelling reasons to waive these criteria.

The Federal Circuit Court was required to determine whether the delegate erred in finding that the applicant did not satisfy the Schedule 3 criteria, and consequently, whether the delegate was correct in refusing the visa application on that basis. The court also considered whether any compelling reasons existed that would have justified a waiver of these criteria.

In her reasoning, Judge Duffield affirmed the delegate's decision, finding that the applicant was not the holder of a substantive visa at the time she lodged her application. Consequently, she failed to satisfy the Schedule 3 criteria. The court found no compelling reasons presented by the applicant that would have warranted a waiver of these mandatory criteria. The delegate's decision to refuse the visa was therefore upheld.