Australian Subclass 461 Processing Times Increasing

Australian Subclass 461 visas are taking more than six months for processing.

With the current 461 processing times ballooning past the six-month mark at the Auckland office, I thought it was about time that I wrote something about the issue.

For those who don’t already know, Subclass 461 Member of a New Zealand citizen’s Family Unit (MoFU) is one of the more simple temporary resident visas that Australia has to offer in their vast array of visa products. It allows a non-NZ citizen who is a MoFU of a New Zealand citizen to obtain a five year, multiple travel visa that has open work rights. Among other criteria, such as health and character, the NZ citizen must be eligible for a Special Category Visa (SCV) subclass 444 so they cannot be considered Behaviour Concern Non-Citizen (BCNC) or Health Concern Non-Citizen (HCNC).
Click HERE for more information.

Subclass 461 was designed to make it easier for NZ citizens and their family to live and work in Australia. It was necessary as Australian permanent residents were given the right to enter NZ and be granted NZ residency in the changes to the 2001 Trans-Tasman Agreement (Don’t get me started on the Trans-Tasman Agreement!) where NZ residents have no such right in Australia.

Why is processing taking so long?

The assessment of the 461 is similar to a subclass 309/100 application. The service standards set out by the DIBP for these applications are six months for low risk, and eight months for high-risk applicants. This is a more realistic time frame for the 461. However, for some reason, DIBP seem to think otherwise.

To add to the delays there are a number of issues including the fact that there are a high number of applications received by DIBP which include insufficient supporting evidence. Please note that a marriage certificate alone is not sufficient to meet the relationship criteria.

Medicals are another issue. It is recommended by DIBP that medicals are not completed until an initial assessment is completed and a case officer request for the information (see decision ready applications below). There are very valid reasons for this as if your application was to be refused there would be no refund of the medical costs. However, it slows done the process especially if there are abnormal results which can take weeks to be assessed. You can bypass this by using DIBP’s My Health Declarations but you run the risk of either the medicals expiring (they are normally valid for 12mths from the date completed) or the application not being successful and having completed the medicals for no reason.

There is also the fact that the Auckland office is continually requesting NZ citizens to prove that they are eligible for an SCV by having them provide police certificates from every country where they have spent twelve months or more in since they turned 16.

Given the large percentage of NZ citizens who were not born here are represented in the 461 caseload, this can prove a lengthy process which delays applications and frustrates the applicants.

This is a “guilty unless proven innocent” approach which to me is against DIBP policy as I read it. The PAM states that “If the NZ citizen is outside Australia, officers may accept without further enquiry the NZ citizen’s eligibility on arrival for an SCV provided” they hold a current NZ passport and there is no reason to believe the NZ citizen is BCNC or HCNC. The latter part of the statement is where the Auckland office is using their discretion to request for the police certificates.

I understand that crimes committed by NZ citizens in Australia make media headlines and it is a big political issue that receives more than its fair share of attention. I also appreciate the serious nature of the subject. However, there is no doubt that requesting NZ citizens to provide police certificates is slowing down processing times and it seems the current policy does not support the Auckland office’s approach.

We believe that there needs to be more advertising of this requirement by the department and I suspect there may also be a need for policy change if the Auckland office wants to keep their approach.

Decision ready visa applications

Now that’s another debatable subject! Yes, if your application had all the information in it, there is always possibility that the application could be processed quickly, even within a day. (This is unrealistic, and not to mention completely unfair for the applicants who have lodged their applications months previously.) But unlike a NZ visa application, it is not mandatory for you to provide your police certificates or medical results when you lodge. So, I would like to add here this scenario that, say it took five to six months for a case officer to start working on your 461 application and the case officer then requests for your police certificates and medical results, but you then find out, for example, that your police certificate will take six months to be processed! Therefore, it’s best if you do your homework on the police certificate processing times as you may need to apply for the certificate a lot earlier than you think to avoid lengthy delays.

So what are your options when you are in a hurry?

Given the close proximity and ties NZ has with Australia there will always be NZ citizens looking for opportunities in Australia. For example, your NZ partner is offered their dream job in Australia. Usually, you are given a month or two to get over there. However, the processing time is too long for you to get the 461 completed. You could be faced with living separately while you wait for your visa to come through.

What if you apply for a visitor visa and say you want to lodge the 461 onshore?

Well, it’s not the greatest of ideas really. Australia’s policy is that you must be assessed as a genuine visitor. If they have concerns that your intention is to lodge a further application while in Australia you may find that your visitor application is refused, or in the case of travelling on an ETA, find yourself with a whole lot of questions at the Australian border that can result in you being turned around at the border in extreme cases.

However, the Procedures Advice Manual (PAM) which contains advice for Australian Immigration officers, currently mentions that if an applicant for a visitor visa applies with the intention to lodge a further application in Australia it “does not necessarily indicate that the applicant does not intend a genuine temporary stay and is not a reason in and of itself to refuse the visitor visa.”

So, according to the PAM, it is possible for applicants to still be considered a genuine temporary entrant. However, this would be assessed on a case by case basis and I would be very wary of lodging a visitor visa application in this scenario. In this case, seek professional advice before considering this option.

Well, what if you lodge a visitor visa together with your 461 application and say you want to wait in Australia while the 461 application is being processed?

Again, I don’t recommend this option either as it is very difficult to meet the genuine temporary entrant criteria.

If you have lodged your 461 application outside Australia I would only ever look at applying for a visitor for a short term visit, less than a month, and a few months after the 461 application has been lodged. In their assessment, a DIBP officer will, among other things, consider the length of stay requested, your incentives depart Australia and the likelihood of you breaching the conditions of a visitor visa which is fairly normal visitor visa policy.

You can use the fact that if you lodge a 461 application outside of Australia, then by law, you need to be outside of Australia at the time of decision. This can be a bit of a hassle having to depart Australia but it can be used in support of your visitor visa application as you are more likely to depart Australia. You would also ensure that your 461 application is “air tight” so that there is nothing that would indicate that you would not be granted the 461.

But I already hold a valid visitor or other visa. Can I lodge my 461 in Australia?

If you already hold a valid Australian visa it might be possible for you to lodge your 461 while in Australia. You should check that you don’t have an 8503 No Further Stay condition which will prevent you from lodging an application while in Australia. The condition can be waived but only in certain circumstances.

If you do travel to Australia, be prepared for a few questions at the border. Remember that you still need to be assessed as a genuine temporary entrant and there are no guarantees that you will be allowed entry.

In conclusion, the 461 is a great visa given its relatively straight forward criteria and the fact that it provides open work rights. However, the processing time is overshadowing this great product and its ability to attract NZ citizens and their family to Australia.

If you ever find yourself in any of the above scenarios or just want some help, just give us a call.

Cameron Gray
Director, VisaAide – Immigration Consultant Auckland
Licence Number: 201301155

Disclaimer

The content of this blog should in no way be used to assess your eligibility to meet any visa criteria. Please ensure you seek professional advice or contact the Department of Border Protection before lodging an application.