Teklemaryam (Migration)

The Administrative Appeals Tribunal reviewed a decision to refuse a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa to the applicant. The applicant had arrived in Australia on a Subclass 461 visa which ceased on 11 June 2017, after which she remained in Australia unlawfully. She subsequently applied for a further Subclass 461 visa on 1 August 2017, while holding bridging visas. The delegate refused the application, and this decision was the subject of the Tribunal's review.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for the Subclass 461 visa, specifically clause 461.213(b)(ii) of the Migration Regulations 1994, which requires an applicant not holding a substantive visa at the time of application to satisfy Schedule 3 criteria, unless there are compelling reasons for not applying those criteria. The Tribunal was therefore required to determine if the applicant met the Schedule 3 criteria, or if compelling reasons existed to waive them.

The Tribunal reasoned that the applicant did not hold a substantive visa at the time of her application. Consequently, she was required to satisfy the Schedule 3 criteria, including criterion 3004, which mandates that the Minister be satisfied of several matters, including that the applicant is not the holder of a substantive visa due to factors beyond their control, that there are compelling reasons for granting the visa, and that the applicant has complied substantially with visa conditions. The Tribunal found that the applicant failed to satisfy these criteria.

The Tribunal affirmed the decision not to grant the applicant the Subclass 461 visa, concluding that she did not meet the requirements of clause 461.213 of Schedule 2 to the Migration Regulations 1994.