Yi (Migration)

This matter concerned an application for review by a Chinese national of the Department's decision to refuse her a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) Subclass 461 visa. The applicant had lodged her application on 1 November 2019. A key issue was whether the applicant met the Schedule 3 criteria, specifically the requirement that she had held a substantive visa for at least 12 months prior to lodging her application.

The Tribunal was required to determine whether the applicant met the criteria under clause 461.213(b)(ii) of the Migration Regulations 1994, which mandates that an applicant must have held a substantive visa for at least 12 months immediately before the date of the application. This criterion was relevant due to the applicant's withdrawal of a previous, substantially similar visa application lodged on 22 November 2017.

The Tribunal found that the applicant had withdrawn her earlier visa application on 4 November 2019, based on advice from the Department due to the breakdown of her relationship with her previous partner. As a result, when she lodged her subsequent application on 1 November 2019, she had not held a substantive visa since 6 December 2017, thus failing to meet the 12-month requirement. The Tribunal acknowledged the applicant's explanation for the withdrawal, attributing it to confusion or potentially inadequate advice, and noted that had she not withdrawn the earlier application, she would likely have met the Schedule 3 criteria. Despite this, the Tribunal affirmed the Department's decision.