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A person, who is not a New Zealand citizen but is a member of a family unit of a New Zealand citizen, is eligible to apply for a Subclass 461. If granted, the visa holder can freely live, work and study for a period of 5 years and apply again in the future.

 

Criteria for grant

To qualify for this visa, the applicants must demonstrate that:

  • They are not New Zealand citizens;
  • They are members of the family unit of a New Zealand citizen;
  • Their current or most recent visa was not a Subclass 403 visa under the Domestic Worker (Diplomatic or Consular) stream;
  • They do not fail any criteria set out in Schedule 3 of the Migration Regulations.

Additional avenues exist for former partners of New Zealand citizens in renewing their 461 visas.

 

Member of Family Unit

The applicant must be a “member of the family unit” of either:

  • A New Zealand citizen who holds a Subclass 444 visa in Australia; or
  • A New Zealand citizen who will be granted a Subclass 444 visa and with whom the applicant will be traveling to Australia.

Members of the family unit include:

  • A spouse or de facto partner;
  • A child or step-child of the New Zealand citizen (subject to additional criteria); and
  • A child or step-child of the New Zealand citizen’s spouse or de facto partner (subject to additional criteria).

The criteria applicable to the children and step-children are that they must be:

  • Under the age of 18;
  • Dependent on their parent or step-parent if aged between 18 and 23 (inclusive);
  • Dependent due to total or partial impairment if aged 24 and over.

 

Schedule 3 Criteria

By operation of section 48 of the Migration Act, a person whose onshore visa application has been refused is barred from lodging another visa application whilst he or she remains in Australia. Exceptions to this bar apply to certain visas, and a Subclass 461 is one exception. Nevertheless, the additional criteria as per Schedule 3 of the Migration Regulations must be satisfied which are summarised as below:

  • The applicant applies for a Subclass 461 visa within 28 days of ceasing to hold a substantive visa;
  • The applicant does not hold a substantive visa due to circumstances beyond his or her control;
  • There are compelling and compassionate reasons why the visa should be granted;
  • The applicant has complied with the conditions of their previous substantive visa(s) and bridging visa(s);
  • The applicant would have otherwise satisfied the criteria for a Subclass 461 visa;
  • The applicant intends to comply with conditions of his or her future visa; and
  • The applicant has not previously held a visa which prevents visa applications in the future.

 

Relationship Breakdown

It is often inevitable that relationships break down. A holder of a Subclass 461 visa may still renew their visa if he or she is no longer a member of the family unit with the New Zealand citizen due to the relationship breakdown.

The applicant is eligible for a Subclass 461 visa if he or she is:

  • Either:
    • In Australia on a Subclass 461 visa; or
    • Not on a visa but had most recently held a Subclass 461 visa; and
  • No longer a member of the family unit with the relevant person; and
  • Not a member of the family unit with another person.

If the applicant is outside Australia, he or she is still eligible for a Subclass 461 visa if he or she:

  • Either:
    • Was in Australia on a Subclass 461 visa for at least 2 of the last 5 years before the application; or
    • Was absent for less than 5 years continually unless compelling reasons for absence; and
  • Held a Subclass 461 visa when he or she last departed Australia; and
  • No longer a member of the family unit with the relevant person; and
  • Not a member of the family unit with another person.

 

Subclass 461 and Citizenship

Despite being infinitely renewable, a Subclass 461 visa is not permanent residency and thus will not satisfy the criteria for citizenship. Similarly, the Subclass 444 visa held by a New Zealand citizen is also not a permanent visa despite being indefinite. To apply for citizenship, all Subclass 461 and Subclass 444 visa holders must first apply for and be granted a permanent visa.

 

Relevant Public Interest Criteria

4001, 4002, 4003, 4004, 4007, 4010, 4013, 4014, 4020, 4021, 4019 (if applicable), 4017 and 4018 (if applicable). 

 

Visa Conditions

The following conditions may be imposed:

  • 8303: The holder must not become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community.
  • 8501: The holder must maintain adequate arrangements for health insurance while the holder is in Australia.

 

Application Fee

  • Base application charge: $385
  • Additional applicant charge for an applicant who is at least 18: $195
  • Additional applicant charge for an applicant who is less than 18: $95

 

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