Zinck (Migration)

The Administrative Appeals Tribunal considered an application for a New Zealand Citizen (Family Relationship) (Temporary) (Class UP) visa, subclass 461, made by a New Zealand citizen. The applicant sought review of a decision to refuse his visa application, which had been affirmed by the Department. The core of the dispute concerned the applicant's failure to meet Schedule 3 criteria, specifically the requirement to have held a substantive visa for more than 12 months prior to lodging his application.

The Tribunal was required to determine whether the applicant's circumstances constituted "unique or exceptional circumstances" that would justify a waiver of the Schedule 3 criteria, or whether the application of the legislation would lead to "unfair or unreasonable results." The applicant contended that he was prevented from reapplying for a substantive visa due to COVID-19 lockdowns and had been misled by an unregistered agent regarding the validity of extending his Bridging Visa E as a pathway to a substantive visa. He also presented evidence of his employment, marriage to a New Zealand citizen holding a subclass 444 visa, and the potential financial and emotional impact on his family if the application were refused.

The Tribunal acknowledged the applicant's disadvantage due to poor advice and a lack of understanding of visa requirements, noting his repeated Bridging Visa E extensions as a genuine, albeit misguided, attempt to remain lawfully in Australia. However, the Tribunal found it had no discretion to waive the mandatory Schedule 3 criterion under clause 416.213(b)(ii) of the Regulations, meaning the applicant did not meet the requirements of subclass 461.213. Despite this, the Tribunal referred the matter to the Minister for Ministerial Intervention, citing the unique and exceptional circumstances, the unreasonable results of applying the legislation, and the potential for serious, ongoing, and irreversible harm and hardship to the applicant and his family if compassionate circumstances were not recognised. The Tribunal affirmed the Department's decision not to grant the visa but respectfully requested Ministerial Intervention.