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461 visa

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The subclass 461 visa is a temporary Australian visa for family members of "non-eligible" New Zealand citizens (who themselves are not New Zealand citizens).

Contents

[edit] Background

  • On 26 February 2001, Australia imposed immigration control on New Zealand citizens
  • Under the new restrictions, New Zealanders could still freely live, work and study in Australia but would no longer gain a number of rights, including the right to sponsor family members for permanent residence.
  • The subclass 461 visa was created at the same time to allow sponsorship for temporary residence

[edit] "Eligible" versus "Non-Eligible" New Zealand citizens

  • An "eligible" New Zealand citizen is one who was exempted from the 2001 changes
  • This category comprises those:
    • physically in Australia on 26 February 2001 as the holder of a Special Category Visa
    • physically in Australia for a total of 365 days between 26 February 1999 and 25 February 2001, as the holder of a Special Category Visa
    • certain other New Zealand citizens who were granted a Certificate of Status by Centrelink. The deadline for applying for these certificates passed on 25 February 2004.
  • A "non-eligible" New Zealand citizen is one who falls outside the above criteria.
  • "Eligible" status does not expire due to subsequent absence from Australia

[edit] New Zealand citizens with Australian permanent resident status

  • Since the 2001 changes, New Zealand citizens have been eligible to apply for Australian permanent resident status under the normal rules
  • Any spouse or dependent child would be granted permanent residence at the same time
  • New Zealanders with permanent residence may sponsor relatives for permanent residence on the same basis as any other Australian permanent resident.

[edit] The subclass 461 visa

  • A person who is a spouse, dependent child or de-facto partner of a New Zealand citizen is eligible for a Subclass 461 visa
  • The 461 visa is valid for 5 years and is multiple-entry
  • 461 visa holders have full work rights.
  • Near the end of the 5 year period the visa can be renewed even if the applicant and the NZ citizen partner are not still together, provided the applicant has not started another relationship with a non-NZ citizen.

[edit] Death or separation from NZ Citizen partner

  • In this situation the 461 visa can be renewed only if
    • The applicant remains living in Australia, for at least 2 years in the preceding 5 years; and
    • The applicant has not become part of any other family unit, eg remarried
  • If a 461 holder does marry different person, that person will need to sponsor them to live in Australia.
    • If that person is not eligible to sponsor them to remain in Australia, they will have to leave when the new spouse leaves
  • The same applies when a child with a 461 visa becomes independent of the parents

[edit] Pathway to permanent residence

  • The 461 visa does not offer any automatic pathway to permanent residence
  • Both New Zealand citizens and 461 holders may be able to obtain permanent residence through:
    • the normal points tested visas, including those with an element of state or family sponsorship; or
    • after a suitable 2 year full time course of study, one of the special skilled visas for eligible Australian graduates; or
    • Employer Nominated Scheme (ENS), after 2 years of working for that employer in an occupation on the ENS-Skilled Occupations List. Both the subclass 444 and 461 visas are acceptable for ENS by this route. It is also possible to get ENS more quickly, if you can obtain a skill assessment.
    • Regional Sponsored Migration Scheme (RSMS) for those with diploma or trade certificate qualifications, and in exceptional cases with lower level qualifications. Applicants must not be in or near the four major cities.
  • As a general rule, skilled New Zealanders (or family members) who have not turned age 45 should normally be able to obtain permanent resident status. Unskilled or older New Zealanders may never be able to obtain permanent resident status under current laws.

[edit] Children born in Australia

  • Children born in Australia to "non-eligible" New Zealand citizens are not automatically Australian citizens by birth
  • If the child is a New Zealand citizen by descent, then the best option for the child is to travel on a New Zealand passport
  • If the child is not a New Zealand citizen - if the NZ parent is a citizen by descent - then the child will automatically have a 461 visa based on the other parent.
  • If child lives in Australia until age 10, child automatically becomes an Australian citizen on that date.

[edit] Other disadvantages of the 461 visa

  • There is no automatic eligibility for Medicare. A condition (condition 8501) requiring the visa holder to have private medical insurance is discretionary on this visa. The condition may not be imposed if the case officer is satisfied that adequate reciprocal Medicare cover will be available.
  • If a 461 visa wishes to study at tertiary level, overseas fees are payable. This is a particular problem for any older children with 461 visas.
  • Most, if not all, welfare payments in Australia exclude 461 visa holders, even those who have lived in Australia for many years.

[edit] A word of warning

  • If, as the spouse of a New Zealand citizen, you choose to migrate to Australia you should be aware that if your spouse was to die or you split up, you would have no automatic right to enter New Zealand.

[edit] Overview of the 461 visa

  • The visa is good for a short-term stay in Australia, or as a stopgap if there is a clear pathway to permanent residence
  • In other situations, there are serious long term issues in using it as a basis to live in Australia.

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