Australian Sub Class 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).
Visit http://www.border.gov.au/Trav/Visa-1/444- 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 DIPB 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.
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Good day
We did apply for my visa 461 in February 2018 and that can take up to 13 months. But up to date nothing from them yet and no request for medical or any other certificates or clearance. Do you just have to wait or is there a way to find out what is going on, it is a little bit frustrating to wait and not to know.
Hi Kathleen,
Yes, very frustrating. Medicals, etc, will normally only be requested for once the initial assessment has been completed. Therefore, it is just a waiting game at this stage.
Thanks
Cameron
Hi I am a New Zealand citizen holder and my husband is on 461 visa.how ever I wanna go back to NZ and I was wondering do I need to apply for visa entrance for my husband to travel to NZ with me?if so how do I apply and where?
Hi Shegetu,
Yes, you will most likely need to apply for a NZ visa for your husband to enter NZ as the Australian 461 visa does not allow someone to enter NZ.
Thanks
Cameron
Hello there
I am looking for information, I applied for the 461 for my partner in March 2018 and we had assigned a case manager quickly by July 20 2018 and requested to do a medical and new Police certificates, we had already completed police certificates and completed a medical as required and sent them to the case officer.
I have rang the visa center and have been advised that it could still take up to 20 months even though we have completed all Documenation required.
So far we have not heard back from the case manager….
I’m worried we still have a huge wait on our hands,
Hi Keziah,
Sorry for the delay.
Medicals and police certificates are usually the last bit of information they request for in a 461 application. Therefore, I feel the 20mths processing time that you have been given may be incorrect. I would normally say you are looking at around 1-2mths if there are no health or character issues and security checking is not needed. If security checking is required or there are health or character issues, it could take a lot longer. Cameron
Could you please tell me how many documents I need with out marriage certificate to apply the New Zealand citizen family membership visa ?
Hi Crysal,
Every case is different and there is really no limit on how many documents you can provide. Therefore, my advice is to provide everything you have.
Cameron
Ԍreat post.
Hi what is the processing time for 461 visa. My husband applied this visa on 17 July 2017. Still there is no information regarding my file. I tracked my file online, it shows no record in result.what is this mean
Hi Amandeep,
The current processing time on the department’s website is up to 19 months. Also, the online tracking provided by the visa application centres are pretty much useless for 461 applications as it will not be updated with real progress, just when the application is completed normally.
Cameron
Hi There,
Very helpful advice so far, I just had a quick one though. My partner and I have been together for 3 years, won’t have lived together for 6 months prior to making the application, but are planning on living together when she arrives here in January. In terms of the definition of “spouse or partner”, is there a duration of time you have to have lived together before lodging the application?
Cheers,
Elliot
Hi Elliot,
There is no real set duration of living together for a subclass 461. However, I would rarely lodge an application with less than 6mths of living together. 12mths is always best. You might get away with less than 12mths with a very good application but best to have this kind of application reviewed by a professional. Thanks Cameron
Hi there, my husb is NZ citizen and I’m Indonesian who currently lives in NZ with PR visa. My husb get a job offer in Australia and want me to join him. If 461 application process take months will be impossible for us to be together, will it be fine if I just apply visitor visa all the time ?
Thank you,
Mel
Hi Meliyawati,
You should really read my blog about this which is on our website. I prefer our clients to lodge offshore for a few reasons. Firstly, the department are unlikely to approve a subclass 600 if your intention is apply for your 461 onshore. Next would be the fact that you are unlikely to receive work rights on a bridging visa. Applying for a 600 after you have lodge a 461 is equally as difficult as the department are wary of letting you wait in Australia while your 461 application is being assessed. If you are eligible for an ETA or eVisitor, or hold a current visitor visa with no 8503 condition you may be in a better situation. Contact me if you have any questions. cameron@visaaide.co.nz
Hi. I’ve been living in Aus for 12 years and recently married a Singaporean. Our advise was to have my partner and her 2 kids travel to Aus on tourist visa and apply for 461 when she arrives. A bridging visa will then automatically be granted once tourist visa runs out (3 months). Then she and kids can stay in Aus until 461 is granted. Correct me if I’m wrong here??
Hi Tony,
Yes, once the application is lodged while in Australia a bridging visa A should be approved and will sit out of effect until the visitor visa stay period expires. I gather your family will hold ETA visas. This makes life a little bit easier to be able to lodge the 461 application onshore. However, be prepared for a few questions at the border as, worst case scenario, they could be considered as non-genuine visitors and be refused entry. I prefer to have the 461 application lodged offshore in most cases but I understand that with the processing time now reaching a ridiculous points that you can’t wait. Cameron
Hi Cameron,
I have been living and working in Australia for 6 years and have been with my Japanese partner for around 9 months. He is currently in japan(previously in Aus on a working holiday visa until September 2018) but coming to live with me in Melbourne again from the start of January. We lived together previously for around 3 months but don’t have documents other than our housemates word.
My partner has enrolled in language school for when he arrives, and our plan was for him to come to Melbourne again on a 3 month tourist visa while we prepare and apply for the 461. We have lots of evidence of our relationship and photos with both our families, plus declarations from friends. We will attach a lease agreement but it will be starting from January.
We thought we could get around the cost of a student visa by using a tourist visa, but after reading your post I’m now unsure if this is a good idea. What would your advice be in this situation?
Much appreciated,
Julia
Hi Julia,
Tough one. I gather you are a NZ citizen and the holder of a 444 or Special Category Visa. I also gather that you are unable to spend any considerable time in Japan living with your partner, which is normal in these circumstances. In this case, your partner traveling to Australia as the holder of an ETA to study can be a way of being able to live together in order to meet 461 criteria. However, as you may have read in the previous comments, this has its risks. Applying for a student visa may not be any better option as your partner must satisfy the department that he is a genuine temporary entrant which can be very difficult when you are currently living in Australia, and yes, the costs are very high. There is no best way of doing this but I feel the ETA may be the better of the two. There are risks (your partner has just spent time in Australia on the Working Holiday so border can be concerned if he shows up shortly as a visitor) and you may need to extend his ETA to a subclass 600 if you need more time to meet the 461 criteria. If you want to discuss, email me – cameron@visaaide.co.nz
Thanks
Cameron
Hi Cameron,
I have applied for 461 visa 18 months ago.current processing time is 17-21 months.i was in Australia when i applied this visa. But due to certain reasons i have to go back to India for 2 months on bridging visa. Will my visa process get affected when i went out of Australia(will process stop or not).
Hi Randhir,
If you hold a bridging visa B that allows you to return to Australia then you should be ok. However, if this has expired, or you only held a bridging visa A when you departed, you may need to apply for a visitor visa in order to return to Australia which can be a tricky case sometimes. Given you have lodged an onshore 461 application, you must be onshore for the decision to be made. Email me if you need help with this – cameron@visaaide.co.nz
I’m Currently on a 461 Visa and me and my NZ partner have split up but remain good friends, my Visa is up in March 2019, I’m currently working in SouthAustralia, I can still apply for a new 461 as I have checked this out, will I go on a bridging visa as my application is in process, iv had this visa twice 10 years, I’m an Irish citizen and also got granted NZ permanent residency in 2016 but never lived there
Hi Jason,
If you make your next 461 application while you are in Australia on a valid 461, you should be approved a bridging visa A. Cameron
Hi. My husband applied for his visa renewal back in May 2017, baring in mind this is his second 461. We still haven’t heard anything. It’s becoming very frustrating as we are wanting to purchase another property. Do you think it’s worth contacting immigration? He does not require to do a medical or provide any police clearances etc… as prior to moving here he is a nz permanent resident. It doesn’t seem fair to wait almost 2 years to grant a renewal. We have been married 12 Years, have 4 children, sent more than Required evidence of our continued relationship, which by the way at times feels rather invasive requesting letters from friends and photos etc… any advise you can give us would be appreciated.
Hi Sonia,
Wow, that is a long wait for a renewal. There may be genuine reasons but I would expect that you would have at least heard from the case officer. Yes, I feel it is time you contact them. Cameron
Hey,
My younger half brother is a newzealand citizen
Am I eligible for a 461?
Cheers
Osama
Hi Osama,
I feel it will be difficult for you to meet member of a family unit in this case –
For visa purposes, you are a member of the main applicant’s family unit if you are:
the main applicant’s spouse or de facto partner
the main applicant’s child, or their partner’s child, who is not engaged, married or in a de facto relationship and is:
aged under 18 years, or
aged 18 to 23 years and dependent on the main applicant or the main applicant’s partner, or
aged 23 years or older and dependent on the main applicant or the main applicant’s partner due to a partial or total physical or mental disability
the dependent child of the child above
Thanks
Cameron
Hi Cameron,
I am NZ citizen living in Melbourne since 2010 and I have my brother in NZ with his partner in Christchurch. Is it possible for me to sponsor my brother to come over her under subclass 461, Many thanks
Maria
Hi Maria,
It may be difficult for your brother to meet member of a family unit –
For visa purposes, you are a member of the main applicant’s family unit if you are:
the main applicant’s spouse or de facto partner
the main applicant’s child, or their partner’s child, who is not engaged, married or in a de facto relationship and is:
aged under 18 years, or
aged 18 to 23 years and dependent on the main applicant or the main applicant’s partner, or
aged 23 years or older and dependent on the main applicant or the main applicant’s partner due to a partial or total physical or mental disability
the dependent child of the child above
Have you looked into whether you can become an Australian resident under subclass 189(NZ Stream)? That might open up some visa options such as subclass 115.
Thanks
Cameron