This case study explores the visa options and potential issues that an Eligible New Zealand Citizen (ENZC) may encounter when applying for a partner visa.
Summary:
A New Zealand citizen who resides in Australia has formed a relationship with a partner from overseas. We explore the options available for him and his partner and the potential issues that can arise for New Zealand citizens.
Background:
The applicant, a New Zealand citizen is in a relationship with a partner from South East Asia.
They are in a Registered Relationship (NSW) in Australia and wanted to apply for a Partner Visa to allow his partner to remain in Australia.
His partner was lawfully in Australia on a visitor visa 600, with no conditions preventing the applicant from applying.
The NZ citizen was convinced he was a permanent resident and therefore eligible to be a sponsor for the Partner Visa.
Legal considerations:
After using the Visa Entitlement Verification Online system (VEVO), we determined his visa status was a Subclass 444 Special Category visa.
The Subclass 444 Special Category Visa (SCV) is a temporary visa allowing NZ citizens to visit, study, stay and work as long as you remain a New Zealand citizen.
It is applied for when you arrive in Australia and submit your completed incoming passenger card with your New Zealand passport.
It is important to note that this is a temporary visa that continues as long as you stay in Australia and remain a New Zealand citizen.
A SCV is granted to New Zealander passport holders upon arrival to Australia. Unlike other non-citizens, New Zealanders do not require a visa before travelling to Australia. New Zealanders arriving in Australia are not told they have a visa and ordinarily, their passports are not stamped. The SCV ceases when its holder departs Australia for any reason, but a new SCV is granted on return.
The SCV is technically classified as a temporary visa, despite its holder’s residence in Australia not being subject to any limitation as to time imposed by law.
Currently, there are two categories of SCVs: protected SCV and as non-protected SCV. New Zealanders who had entered Australia before 26 February 2001 are classified as protected SCV holders, and after that date as non-protected SCV holders. The rights of the two categories are somewhat different.
The first categories, those in Australia on, or before, 26/2/01, are called protected special category visa holders (ENZC). They are entitled to apply directly for Australian Citizen and bypass a PR pathway. They get all social security benefits and Australian born children are citizens at birth.
The other category of SCV holders are those who in Australia after 2001 and they are called unprotected SCV holders. They cannot apply for citizenship without a Permanent Residence pathway. They can only access a few social security benefits and their Australian born children (unless one parent is an Australian citizen) acquire citizenship at age 10 if they live here during that time.
The type of SCV held will determine whether our client can apply for a Partner Visa for their migrant partner or the alternate Subclass 461
New Zealand Citizen Family Relationship Visa.
Visa options explored:
Partner Visa (Subclass 820/801 or 309/100)
For all Partner visa applications, the Applicant must have a sponsor. The sponsor must be an Australian citizen, Australian permanent resident or eligible New Zealand citizen.
An eligible New Zealand citizen is:
- a New Zealand citizen who is a ‘protected SCV holder’ as described in Section 7 of the Social Security Act 1991
- protected SCV holders are those who arrived in Australia on a New Zealand passport and were:
- in Australia on 26 February 2001, or
- in Australia for 12 months in the 2 years immediately before this date, or
- otherwise assessed as ‘protected SCV holders’ under the Social Security Act 1991 – in which case they must provide us with written confirmation from Centrelink.
If you do not meet the eligibility criteria to sponsor your partner for this visa, your partner might be eligible for a New Zealand Citizen Family Relationship Visa (subclass 461).
New Zealand Citizen Family Relationship Visa (subclass 461)
This visa is for a person who is not a New Zealand citizen but is a member of a family unit of a New Zealand citizen. It lets you live and work in Australia for five years.
You must
- not be a New Zealand citizen
- be one of the members of the family unit of a New Zealand citizen or their partner
- make sure if the New Zealand citizen is in Australia that they are on a Special Category Visa (subclass 444) or they will travel with you to Australia and will be the holder of a Special Category Visa (subclass 444) on arrival.
- make sure your New Zealand citizen family member is not an Eligible New Zealand citizen
- meet certain eligibility criteria if you are no longer one of the members of the family unit of a New Zealand citizen
Therefore, it is important to understand what category of Special Category Visa (SCV) you hold before applying for a visa to ensure you are applying for the correct visa.
Being an eligible New Zealand citizen prohibits you from being a sponsor for the New Zealand Citizen Family Relationship Visa (subclass 461) but allows you to sponsor your partner in the Partner Visa pathway.
The Partner Visa application is the permanent pathway visa and as such the costs associated with this visa is significantly higher than the New Zealand Citizen Family Relationship Visa (subclass 461), together with the consideration that any incorrectly applied for visa could lead to a visa refusal (no refunds) and further complications.
Strategy:
Our client was disturbed to find that he had been living in Australia for many years under the misapprehension he was a permanent resident.
We applied for his International Travel Movements to confirm his time spent living in Australia. This would demonstrate whether the New Zealand citizen had arrived and lived in Australia prior to 26 February 2001 and that they were in Australia on that date.
Whilst we were confident that he was a protected SCV holder, based on his information received and eligible to be the sponsor for the Partner Visa for his partner, we needed to confirm this by the travel movement records to ensure we applied for the correct visa for him and his partner.
Conclusion:
Many visas are refused each year in Australia as the incorrect visa has been applied for.
New Zealand citizens need to be aware that they enter Australia on a Subclass 444 Special Category Visa which is a temporary visa allowing NZ citizens to visit, study, stay and work as long as you remain a New Zealand citizen.
Knowing what your visa status is and the category of visa is very important should you wish to sponsor any other family members to come to Australia on a visa or sponsor your partner.
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