Uaisele (Migration)

This matter concerned an application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa, Subclass 461, before the Tribunal. The applicant, who did not hold a substantive visa at the time of her application, sought review of a decision concerning her eligibility for the visa.

The Tribunal was required to determine two primary legal issues: first, whether the applicant's failure to hold a substantive visa was due to factors beyond her control, and second, if so, whether there were compelling reasons for granting the visa. These criteria are stipulated in Criterion 3004 of Schedule 2 of the Migration Regulations.

The Tribunal found that the applicant's prior substantive visa expired on 15 October 2017, and her application for the Subclass 461 visa was lodged on 4 December 2017. Evidence indicated that the applicant had lodged a paper-based application via express post prior to her visa expiry, but the Department had no record of it. She was subsequently advised to re-apply, which she did. The Tribunal was satisfied that this situation arose from factors beyond the applicant's control. Furthermore, the Tribunal found compelling reasons for granting the visa, including the applicant's long-term relationship with her partner of 20 years, the settled nature of their family, the sponsor's fly-in/fly-out employment which would cause financial hardship if he had to leave his job to care for their son, and the best interests of their child who was in the process of obtaining Australian citizenship. The Tribunal also noted that a refusal could lead to a three-year exclusion period for the applicant.

Consequently, the Tribunal remitted the application for reconsideration, directing that the applicant met the requirements of Schedule 3004 (c) and (d) for the purposes of clause 461.213 of the Regulations.