Taiweritiw (Migration)

This matter concerned an application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa, Subclass 461, by a New Zealand citizen. The applicant had not held a substantive visa at the time of lodging the application. The decision under review was made by the Administrative Appeals Tribunal, with Senior Member Ann Duffield presiding.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 461.213(b)(ii) of the Migration Regulations 1994, specifically concerning the Schedule 3 criteria. This required the Tribunal to determine if the applicant satisfied Schedule 3 criteria 3001, 3002, 3003, and 3004, or if there were compelling reasons for not applying those criteria, given the applicant did not hold a substantive visa at the time of application.

The Tribunal found that the applicant satisfied criteria 3001 and 3002, as the application was lodged within 28 days of the cessation of his previous Subclass 461 visa. Criterion 3003 was found not to apply to the applicant. Regarding criterion 3004, the Tribunal was satisfied that the applicant met its requirements, including that the failure to hold a substantive visa was due to factors beyond his control and that there were compelling reasons for granting the visa. The Tribunal concluded that the applicant met all the relevant Schedule 3 criteria.

Consequently, the Tribunal remitted the application for reconsideration with a direction that the applicant met the criteria for the Subclass 461 visa.