Ye (Migration)

The applicant, Ms Ye, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse her application for a Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) visa. The visa subclass is for non-New Zealand citizens who are family members of a New Zealand citizen living in Australia. Ms Ye claimed to be the mother of the family head, usually resident in the household and dependent on her. The decision under review affirmed the Minister's refusal.

The central legal issue before the Federal Court was whether Ms Ye was a member of the family unit for the purposes of the Migration Regulations 1994 (Cth) at the time her visa application was assessed. Specifically, the court had to consider the impact of amendments made to the regulations that altered the definition of "member of a family unit" for this visa subclass.

Justice Meredith Jackson noted that prior to 1 July 2018, the definition of "member of a family unit" for the Subclass 461 visa included parents who were usually resident in the household and dependent on the family head. However, amendments to Regulation 1.03 of the Migration Regulations, effective from 1 July 2018, restricted the definition to only include the spouse or de facto partner and children of the family head. As Ms Ye's application was assessed after this amendment, she no longer met the definition of a member of the family unit. The court applied the principle that amendments to regulations are retrospective in their operation unless otherwise stated, and therefore the amended definition applied to Ms Ye's application.

The application for judicial review was dismissed.