Are you a New Zealand citizen residing in Australia? As the holder of the Special Category Visa (Subclass 444), which is an automatic visa applied to New Zealand citizens on their entry into Australia, what are your options on bringing a partner or family member into Australia? What if your partner or family member does not hold a New Zealand citizenship?
The New Zealand Citizen Family Relationship (Temporary) Visa (Subclass 461) may be your answer. There are a few unique things about this visa. Unlike other family related visas, this visa does not require a formal sponsorship arrangement, does not carry any need for Assurance of Support, sponsorship obligations or limitations. This visa is valid for a substantial five years from the date of grant.
Finally, the most special thing about this visa is that its holder does not risk any cancellation of the visa even if they no longer are a member of the family unit with the New Zealand citizen. Furthermore a 461 visa holder can continue to apply for further 461 visas and stay in Australia indefinitely, even if their relationship with the 444 visa holder has ceased, and can do so even if they are not in Australia and time has lapsed between when they have last held a valid 461 visa.
Let’s take a look at the criteria that affects this visa.
New Zealand citizen
The New Zealand citizen needs to hold a Special Category 444 Visa. As previously mentioned, this is an automatic visa applied to New Zealand citizens on their entry into Australia.
That therefore necessitates that the New Zealand citizen is in Australia. If not in Australia, the New Zealand citizen must accompany the applicant into Australia or enter Australia before the applicant arrives. If the New Zealand citizen is not in Australia, evidence should be provided in the 461 application that that their arrival in Australia will be at the same time or before the applicant. Documents that would support this would include include travel itineraries, accommodation bookings, and acceptance of an offer of employment.
The applicant must:
- Not be a New Zealand citizen
- Is a Member of the Family Unit (MoFU) of the New Zealand citizen
- Cannot hold or have held a Domestic Worker (Diplomatic or Consular) 403 visa or a Domestic Worker (Diplomatic and Consular) 426 visa
- Pass health and character requirements
Member of the Family Unit (MoFU)
- Spouse or de facto partner
- Child or step child under 18 years of age of the New Zealand citizen or the partner
- Dependent child or step child of the New Zealand citizen or the partner
Evidence to the relationship must be provided. This may be in the form of marriage or relationship certificates, birth certificates and so forth which we will expand on in the sections that follow.
If the applicant is the spouse of de facto partner of the New Zealand citizen, it is required to establish that the relationship is genuine and ongoing. The Department of Home Affairs (DOHA) assesses the four main aspects of the relationship, being:
- Financial aspects of the relationship
- Nature of the household
- Social aspects of the relationship
- Nature of the commitment
The DOHA will measure these 4 aspects within the context of the couple’s circumstances, given that some factors, such as the nature of the household, may be difficult to demonstrate depending on the couple’s situation.
Yet another benefit of this visa! For the 461 visa, unlike under partner visas, de facto partners do not need to have been in a de facto relationship for 12 months before lodging the application to be eligible.
Dependent of the New Zealand citizen or applicant
Evidence will need to be provided of the child or dependent child’s relationship to the New Zealand citizen to be within the definition of a member of the family unit. The child may be of New Zealand citizen or the partner.
- Child or step child under 18 years of age
- Child or step child over 18 and under 23 who are financially dependent
- Child or step child above 23 who is dependent as they are Incapacitated for work purposes
A 461 visa holder may continue to apply for 461 visas to extend their stay in Australia. This “rollover provision” allows for applicants whose relationship with the New Zealand citizen is no longer that of member of the family unit, whether due to a breakdown in the relationship or otherwise, to also be eligible to apply for further 461 visas. They must however not become a member of the family unit with another person. In such a case the applicant would cease to be eligible as a 461 visa holder. If the applicant becomes, by marriage or de facto relationship, a member of the family unit of another person who is also a 444 visa holder, then the applicant should, when their current 461 visa ceases, apply for a new 461 visa with the new 444 visa holder. If the applicant becomes by marriage or de facto relationship, a member of the family unit of another person who is not a 444 visa holder, then they must look at other visa options.
Children who are no longer dependent are considered to no longer be a member of the family unit, but are able to use to rollover provision, if they meet requirements.
If the applicant has become a member of the family unit of another person, it is a requirement that applicants themselves notify the DOHA of changes in the family composition. The DOHA will not typically look into if a relationship is ongoing if there exists no evidence to the contrary and no significant time has passed since the visa application is made.
The applicant must either hold a 461 visa or their last substantive visa held must have been the 461 visa. In order to maintain their eligibility for the rollover, they are to be in Australia and cannot have become a member of the family unit of another person.
If the applicant becomes by marriage or de facto relationship, a member of the family with another person, and this person is not a 444 visa holder, the applicant will not face a cancellation of their 461 visa. The applicant will simply not be eligible to continue applying for the 461 visa.
If the applicant is outside Australia, and is no longer a member of the family unit of the New Zealand citizen with whom they originally gained a 461 visa in relation to, they are still eligible for the rollover provision provided:
- They can demonstrate that they have ongoing ties with Australia
- They have have not become a member of the family unit of another person
- Must have held a 461 visa when they left Australia
In demonstrating ongoing ties, this is generally satisfied if the applicant has spent a total of at least 2 years in Australia in the last 5 years before the application. If the applicant has been outside of Australia for a continuous period of 5 years or more, compelling reasons should be provided to explain this period of absence.
Compelling reasons in this situation are assessed similarly (but not exactly) to those applying for Resident Return Visas who have also not met the two year requirement. These may be compelling reasons or if the applicant is able to demonstrate substantial ties of benefit to Australia.
The close ties provision would also be similar the guidelines found in the RRV155 visa requirements.
Supporting documentation as to having left Australia on a 461 visa may be provided. An example could be the travel document on which they left Australia. The 461 visa should still have been in effect when they had left Australia.
Are you looking to bring your partner and family to Australia on this visa? As you can see there are many requirements which are very unique to this visa. We understand that it might be quite complicated and are here to help. Call +61 2 8054 2537, 0434 890 199 or book online today to speak to our migration specialists.