The New Zealand Family Relationship (Subclass 461) (461) visa is a 5-year temporary visa issued to Members of the Family Unit (MoFU) of New Zealand citizens. It allows family members of New Zealand citizens to live, work, and study in Australia.
Who is eligible for the 461 visa?
Generally, visa applicants must:
- be a MoFU of a New Zealand citizen; and
- the New Zealand citizen must not be an “eligible New Zealand citizen”; and
- the New Zealand citizen must either:
- already be in Australia as the holder of the SCV, or
- will be accompanying the 461 visa applicant to Australia and so will be granted a SCV on arrival.
Visa applicants may also be eligible where:
- they are in Australia on a 461 visa or the last substantive visa held was a 461 visa, and are no longer a MoFU of the New Zealand citizen but have not become a MoFU of another person; or
- they are outside Australia and last departed Australia as a 461 visa holder, and are no longer a MoFU of the New Zealand citizen but have not become a MoFU of another person; or
- they are in Australia as a 461 holder for the last 2 years in the past 5 years, they have substantial ties to Australia and have not been absent for a continuous period of 5-years or more unless they are compelling reasons for the absence.
All visa applicants must meet health and character requirements.
The status of the New Zealander is critical
As mentioned above, the New Zealand citizen must not be an “eligible New Zealand citizen” for the MoFU to be eligible for the 461 visa. See below for the definition of an ‘eligible New Zealand citizen’ versus a ‘Special Category Visa holder’:
Eligible New Zealand Citizens
It is very important to check first whether the New Zealand citizen is an “eligible New Zealand citizen” (otherwise known as a “protected SCV holder”). If they are, the 461 visa is not appropriate. Rather, eligible New Zealand citizens can sponsor family members for:
- the Partner (Subclass 820/801 or 309/100) visa;
- the Child (Subclass 802 or 101) visa.
An eligible New Zealand citizen is someone who:
- was residing in Australia on 26 February 2001; and
- if temporarily absent from Australia on 26 February 2001, however was a SCV holder immediately before the beginning of the temporary absence; and
- was receiving a social security payment on 26 February 2001; and
- returned to Australia within 26 weeks of 26 February 2001 or an approved extended period. Realistically, the number of eligible New Zealand citizens in Australia is now dwindling and those who do have this status are likely aware of it because they arrived and settled in Australia before 26 February 2001. For those who are not sure, it is important to get some tailored advice.
Special Category Visa Holders
- have a valid New Zealand passport;
- not be a behaviour concern non-citizen;
- not be a health concern non-citizen; and
- if applying from inside Australia, not have a Condition 8503 (“no further stay”) on their current visa.
The SCV has no expiry but will cease if:
- the holder departs Australia;
- the holder obtains a permanent visa or Australian citizenship;
- the holder is no longer a New Zealand citizen; or
- the SCV is cancelled for failing to meet ongoing character requirements.
Who is a “Member of the Family Unit”?
Only a MoFU can apply for the 461 visa, which includes:
- a spouse or de facto partner; and
- certain dependent children.
We have published a separate blog which breaks down the rules around who is considered a MoFU.
Can additional family members be included in the same application?
Yes. One MoFU of the New Zealand citizen is referred to as the primary visa applicant, and additional MoFUs can be included as secondary applicants. However, they cannot be added after the visa application has been lodged.
If a dependent child is claiming to be a MoFU, they should provide evidence such as:
- birth certificates;
- adoption certificates;
- family status certificates or family books (if these documents are officially issued and maintained);
- if over 18, evidence of education enrolment and dependency.
Spousal relationships
If applying for the 461 visa based on a spousal relationship with the New Zealand citizen, they will need to show that the relationship is genuine and continuing. For this, decision-makers will consider:
- your marriage certificate;
- the nature of your household;
- your shared finances;
- your presentation socially as a couple; and
- your long-term commitment.
De facto relationships
To apply based on a de facto relationship with a New Zealand citizen, visa applicants will similarly need to show the relationship is genuine and continuing, with consideration to:
- the nature of your household;
- your shared finances;
- your presentation socially as a couple; and
- your long-term commitment.
If possible, de facto couples can also consider registering their relationship in an Australian State or Territory to further support their claims.
There is no “duration” requirement of how long the couple must have been in a de facto relationship.
Our document checklist for partner visas may be a helpful guideline on what type of documents can be included to support claims of either a spousal or de facto relationship.
What if the New Zealand citizen loses their SCV status or wants to obtain Australian citizenship?
For the 461 visa application to be successful, the New Zealand citizen must hold a SCV both at the ‘time of visa application’ and at the ‘time of visa decision’. This means that if the New Zealand citizen loses their SCV status or obtains Australian citizenship after lodgement but before a decision, the 461 visa can no longer be granted.
How do I apply for the 461 visa?
The visa applicant can be in or outside Australia to apply for the 461 visa (but not in immigration clearance).
The application itself consists of:
- evidence that the correct visa fee has been paid;
- two passport-sized photographs of the visa applicant/s;
- the Form 147 (which must be correctly completed for the visa application to be valid);
- the Form 80;
- evidence of identity for both the visa applicant and New Zealand citizen;
- evidence of the relationship;
- police clearances
As this is a paper-based application, it must be posted to the correct address listed on the Department of Home Affairs website.
When can I expect a decision on my application?
Generally, the 461 visa takes around 2 to 4 months to process. You can find the latest processing times on the Department of Home Affairs website.
What can I expect when the visa is granted?
If granted, the 461 is a temporary visa that permits the visa applicant to live, work, and study in Australia for 5-years. It is a multiple-entry visa, allowing the visa holder to travel to and from Australia during the 5-year period.
Conclusion
Our team have extensive experience assisting with 461 visa applications. If you need legal assistance or have an immigration related query, get in touch with our experienced team. Contact us by email at [email protected] or by phone at +61 3 9016 0484.
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THIS DOCUMENT DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP. PLEASE CONSULT AN IMMIGRATION PROFESSIONAL FOR UP TO DATE INFORMATION
