Tuilotolava (Migration)

This matter concerned an application for review of a decision to refuse a New Zealand Citizen Family Relationship (Temporary) (Subclass 461) visa. The applicant, a New Zealand citizen, sought to obtain the visa on the basis of his relationship with his New Zealand citizen spouse who held a Special Category (TY-444) visa in Australia. The applicant had arrived in Australia on various visitor visas and, after his last substantive visa expired, had been granted a series of bridging visas. He subsequently lodged his application for the Subclass 461 visa while in Australia and without holding a substantive visa.

The primary legal issue before the Tribunal was whether the applicant met the Schedule 3 criteria for the Subclass 461 visa. Specifically, the Tribunal was required to determine if the applicant satisfied the requirements of Schedule 3, given that he did not hold a substantive visa at the time of his application and had not held one for more than 12 months prior to lodging the application. The applicant conceded that he did not meet this criterion.

The Tribunal reasoned that clause 461.213(b)(ii) of the Migration Regulations 1994 required the applicant to satisfy Schedule 3 criteria 3002, 3003, 3004, and 3005 if they were in Australia at the time of application and did not hold a substantive visa. The applicant acknowledged that he did not meet Criterion 3002. As the Tribunal has no discretion in this matter and the applicant failed to satisfy a mandatory criterion, the Tribunal was compelled to affirm the decision under review.

Consequently, the Tribunal affirmed the decision to refuse to grant the applicant a New Zealand Citizen Family Relationship (Temporary) (Subclass 461) visa.