ONOBRAKPOR (Migration)

[2019] AATA 2096

ONOBRAKPOR (Migration) [2019] AATA 2096 (7 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ejiro Onobrakpor

CASE NUMBER:  1814350

HOME AFFAIRS REFERENCE(S):           BCC2018/1827766

MEMBER:Moira Brophy

DATE:7 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 07 May 2019 at 12:11pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Tourist stream – holder of substantive visa at time of application – bridging visa – Schedule 3 criteria applies – application lodged outside of relevant timeframe – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.223; Schedule 3, Criterion 3001

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 April 2018 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 24 April 2018. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream.

3. The applicant, Mr Ejiro Onobrakpor appeared before the Tribunal on 21 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the partner of the applicant Dr Se-Inyenede Sunday Onobrakpor.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background

5. The applicant is the partner of Dr Se-Inyenede Sunday Onobrakpor (Ms Onobrakpor) and they have three children, Michelle-Asa, Mitchell-Tikristi and Jedidiah Oghenevomeerho. Dr Se-Inyenede Sunday Onobrakpor came to Australia with Michelle Asa on 29 February 2016. Ms Onobrakpor was the holder of a Higher Education Sector TU (Subclass 573) visa and was enrolled to study at the University of New South Wales. The applicant and their son Mitchell-Tikristi remained in Nigeria.

6. On 24 May 2016 Ms Onobrakpor applied for second Higher Education Sector TU (Subclass 573) visa and this was granted on 16 June 2016 to cease on 31 May 2017. On 29 August 2016 the applicant and their son were granted visas subsequent to her visa. They arrived in Australia on 6 October 2016.

7. On 19 May 2017 Ms Onobrakpor applied for a Student (Temporary) (class TU) Student (subclass 500) visa. Her husband and two children were included in the application. Ms Onobrakpor was pregnant with her third child at the time of application and on medical advice she was not able have an X-ray and was therefore not able to complete the required health checks. A Bridging visa was granted (class WA) to allow Ms Onobrakpor, her partner and two children to remain in Australia during the processing of her application.

8. On 5 October 2017 Bridging visas WB 020 were granted to allow the applicant, Ms Onobrakpor and their two children family to travel to America where on 21 November 2017 Ms Onobrakpor gave birth to their third child Jedidah Oghenevomeerho Onobrakpor. On 20 December 2017 the family returned to Australia.

9. On 2 April 2018 Ms Onobrakpor withdrew her application for a Student visa. That withdrawal followed discussions with the Department that since Ms Onobrakpor had concluded her studies she was no longer enrolled in a course of study and was therefore not able to meet the requirements of the visa.

10. On 3 April 2018 Ms Onobrakpor applied for a Temporary Graduate (Graduate Work) (subclass 485) visa. On 4 April 2018 she was advised her application was not a valid application as she was not the holder of a substantive visa at time of application.

11. On 24 April 2018 the applicant, Mr Onobrakpor applied for a Subclass 600 (Visitor) visa.

12. The delegate refused to grant the visa on the basis that Mr Onobrakpor did not satisfy cl.600.223 because at the time he applied for the visa he did hold a relevant substantive visa and he did not satisfy the criterion 3001 in Schedule 3 to the Regulations.

13. On 2 May 2018 Mr Onobrakpor sought a review of that decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case whether Mr Onobrakpor meets the requirements of cl. 600.223.

15. That clause provides:

    (1)If the applicant was in Australia at the time of application, and held a substantive temporary visa, the visa was not:

    (a)  a Subclass 426 (Domestic Worker (Temporary)—Diplomatic or Consular) visa; or

    (b)  a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream.

    (2)If the applicant was in Australia at the time of application, and did not hold a substantive  visa:

    (a)  the last substantive visa the applicant held was not:

    (i)  a Subclass 426 (Domestic Worker (Temporary)—Diplomatic or   Consular) visa; or

    (ii)  a Subclass 403 (Temporary Work (International Relations)) visa in the Domestic Worker (Diplomatic or Consular) stream; and

    (b)  the applicant satisfies Schedule 3 criteria 3001, 3003, 3004 and 3005.

16. Mr Onobrakpor was in Australia at the time he applied for the visa. He was on a Bridging visa at the time and therefore he did not hold a substantive visa at that time of application. The last substantive visa he held was attached to his partner’s Higher Education Sector (Subclass 573) visa and so it was not one of the visas specified in cl. 600.223. The issue is therefore whether Mr Onobrakpor satisfies the Schedule 3 criteria. The relevant criterion in this case is 3001 which is set out in the attachment to this decision.

17. In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The 'relevant day' is defined in 3001(2).

18. On the basis of the evidence before it, the Tribunal finds that the application was not lodged within 28 days of the relevant day, for Mr Onobrakpor’s substantive visa ceased on 31 May 2017 and the application for a Visitor visa was made on 24 April 2018.

19. As the visa application was not made within 28 days of the relevant day, Mr Onobrakpor does not satisfy criterion 3001.That being the case the Tribunal does not have jurisdiction to consider any other legislative provisions including the provisions in criterion 3004.

20. Therefore, Mr Onobrakpor does not meet the requirements of cl. 600.223.

    DECISION

21. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

    Moira Brophy
    Member