New Zealand citizen’s non-Australian family members (subclass 461)
An Australian citizen or Australian permanent resident who falls in love with someone from overseas can sponsor their partner or spouse for a Partner visa. They can also apply for a permanent visa for their non-Australian children.
Some New Zealand citizens that were in Australia on 26 February 2001 or were normally resident here for at least one year of the two years before that date are considered eligible New Zealand citizens. They are advantaged because they too can sponsor their partners and children for a permanent Australian visa in the same way that Australian citizens and Australian permanent residents can.
New Zealand citizens that applied for and have been granted Australian permanent residence (for example through the special stream for New Zealand citizens under subclass 189) are also eligible to take advantage of these provisions.
There are hundreds of thousands of New Zealand citizens living and working in Australia that are neither eligible New Zealand citizens nor Australian permanent residents. Almost all hold “special category” visas – subclass 444 – a temporary visa with no expiry date. Those New Zealand citizens cannot sponsor their non-Australian partner or children. What options do they have?
If their partner or child is not an Australian citizen or permanent resident nor a New Zealand citizen, then subclass 461 – New Zealand Citizen Family Relationship (Temporary) might be a wonderful solution.
The purpose of this article is to discuss general visa eligibility, and then highlight some truly remarkable and unique features of this visa. For a detailed eligibility assessment (each case is determined on its merits) please contact our Immigration Law team.
General visa eligibility
The person applying for the visa must not be a New Zealand citizen. They must be a “member of the family unit” of a New Zealand citizen. The New Zealand citizen must currently live in Australia holding a subclass 444 visa. Alternatively, if they live offshore, are eligible for a subclass 444 visa upon arrival, and they intend to come to live in Australia, that would also be fine. The visa applicant would accompany the New Zealand citizen to Australia after the visa is granted.
The New Zealand citizen must not be an “eligible New Zealand citizen” as discussed above.
Must be a member of the family unit
The term “member of the family unit” is defined in the legislation. The family member applicant could be a de facto partner or a spouse. A child or stepchild of either the New Zealand citizen or the partner or spouse can also be a member of the family unit, unless an exclusion applies.
Children under 18 are members of the family unit. If the child or stepchild has a spouse or partner of their own, or are engaged to be married, then they are not a member of the family unit. Additional requirements apply if the child is between 18 and not yet 23, or over 23. When the application is near the end of processing, the applicant must still be a member of the family unit.
Must meet various public interest criteria
The applicant must clear various ‘public interest criteria’. They must be of good character, and not be a risk to security. They cannot have unpaid debts to the Commonwealth government. They will need to be of good health (though a waiver is available in some circumstances). Applicants will need to establish that they are likely to become established in Australia without undue personal difficulty. They must not be subject to re-entry bars due to events arising from a previously held Australian visa. Holding a valid passport and not have provided false information or bogus documents on their previous Australian visa application are further public interest criteria that must be satisfied.
Applicants over 18 will need to sign the Australian Values Statement. Ones that are under 18 will meet this part of the eligibility criteria if the laws of their home country permits removal; everyone that can lawfully determine where the child can live provides consent to the grant of the visa, and that grant of the visa is consistent with any Australian child order that is in force. Generally, this means that a child of the New Zealand citizen’s spouse or partner could be eligible for a subclass 461 visa if the child’s other parent agrees for them to migrate to Australia. The decision maker would need to be satisfied that there are no compelling reasons to suggest that granting the visa would not be in the best interests of the child.
Must comply with visa conditions
The applicant will need to have substantially complied with any conditions that were imposed on their previous visa. Inadvertent, minor breaches are not likely to trigger this ground of refusal, but serious breaches could.
The decision maker must also be satisfied that the person being granted the visa will comply with any conditions imposed on the subclass 461 visa. Usually this requirement is automatically satisfied, unless there are reasons or evidence to suggest otherwise.
There are no conditions that must be imposed – many are issued with no conditions at all. A requirement to hold health insurance can be imposed (that would be a good idea, as they are not eligible for Medicare benefits). The only other condition that potentially could be imposed is a requirement to not engage in activities that would be disruptive or that threaten harm.
Remarkable and unique features of the subclass 461 visa
Subclass 461 has some remarkable features, and some that are truly unique. The first feature is the five-year validity. The visa holder may enter and remain in Australia for 5 years from the date of the visa grant and they will have unlimited re-entry rights. By comparison, a subclass 482 Temporary Skills Shortage visa can be granted for only 2 years or 4 years, depending upon the occupation upon with that visa is granted. Working Holiday visas and Work and Holiday visas are initially granted for 1 year but can be extended to up to 3 years if certain conditions relating to working in regional areas are met.
Very low cost
A spouse or partner would only pay $365 government charges for the 5 year period. That works out to about 20 cents per day. A Working Holiday visa or a Work and Holiday visa currently costs $485 for the first year, and that would also be paid for each annual extension. That is about $1.32 per day – about 6 times more expensive!
$1265 (two years maximum) or $2645 (four years maximum) would be payable by the primary applicant for a Temporary Skills Shortage 482 visa, depending upon the stream. An Australian Partner visa does not have 5-year validity but costs $7715 – that is the equivalent to applying for a 5 year subclass 461 visa about 21 times, or 105 years!
As suggested above, subclass 461 can be granted over and over again, subject to the applicant meeting the eligibility criteria. This feature differs from other temporary visas. A 4-year TSS visa holder may become eligible for a permanent visa if certain requirements are met, but otherwise that visa can only be renewed a few times.
Renewable even if relationship has ended
A person sponsored for a Partner visa by an Australian citizen, permanent resident, or by an eligible New Zealand citizen, is normally first granted a provisional visa. If the relationship breaks down before the permanent visa is granted, in most cases they will need to make arrangements to leave Australia. The subclass 461 visa holder would not!
Even more astounding is that not only will a subclass 461 visa holder not have to leave Australia if the relationship ends, they can easily be eligible to apply for a renewal of their 461 visa and be granted another 5 year term! They cannot be granted the extension if they form a new relationship with someone that is not a subclass 444 visa holder, but if they remain single, they can apply over and over again.
Renewable even if the relationship has ended and they have left Australia
Even if the former 461 visa holder is no longer in a relationship with their former New Zealand citizen partner and have left Australia, they can apply for another 461 visa. They cannot be in a new relationship (unless it is with another New Zealand citizen). They must have been in Australia for at least 2 years of the previous 5 before applying. Alternatively, if they don’t meet this requirement, they must show that they have substantial Australian business, cultural, employment, or personal ties and not have been absent from Australia for more than 5 years. If they have been away for more than 5 years, they can meet eligibility criteria if there are compelling reasons for having been away for so long. Applicants from offshore need to have left Australia while holding a valid subclass 461 visa.
What’s the hitch?
This article has considered the general eligibility criteria of the subclass 461 visa and some of its remarkable and unique features. The visa provides the holder with few or no conditions. It is really inexpensive. It can be renewed over and over. It can be renewed even when the original basis for the grant of the visa (the relationship with the New Zealand citizen) are no longer applicable. They can apply even if the relationship has ended, and they’ve left Australia. Astounding! So, what’s the hitch?
Applications for subclass 461 visas are scrutinised by the decision makers. Applications that fail to meet eligibility criteria can be refused due to minor technicalities. Invalid applications will not be processed at all. Akin to the onerous evidentiary requirements of an Australian Partner visa application, the subclass 461 visa applicant must provide the right evidence, sufficient to demonstrate their relationship according to the requirements of policy and law. Failure to satisfy the evidentiary requirements will mean that the visa application will not be approved.
For further information and for an assessment of whether Potts Lawyers can help, please contact Craig DoRozario or Tom Foran. Both Craig and Tom are Immigration Lawyers and Australian Registered Migration Agents.
To obtain a free 20 minute consultation in relation to your immigration matter, please contact our office on (07) 5532 3133. Your immigration matter will be conducted by Craig DoRozario (MARN 1910298) and/or Tom Foran (MARN 1172414).
Code of Conduct: https://www.mara.gov.au/media/553229/Code_of_Conduct_April_2017.pdf