Cordeiro Kojo (Migration)

[2020] AATA 3843

Cordeiro Kojo (Migration) [2020] AATA 3843 (24 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Luiz Eduardo Cordeiro Kojo

CASE NUMBER:  1821936

DIBP REFERENCE(S):  BCC2018/1763385

MEMBER:Peter Haag

DATE:24 August 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decision not to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa for reconsideration, with the direction that the applicant meets the following criteria for the visa:

·Public interest criteria 4021 for the purposes of cl.500.217 of Schedule 2 to the Migration Regulations.

Statement made on 24 August 2020 at 12:59pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – passport current when application made but expired before delegate’s decision – evidence of new passport provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217; Schedule 4, PIC 4021

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 11 July 2018 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 21 April 2018. The delegate refused to grant the visa on the basis that the applicant did not hold a valid passport.

3. A visa cannot be granted unless the relevant criteria set out in the Act and the Migration Regulations 1994 (Migration Regulations) are satisfied.

4. The delegate decided not to grant the Student visa because the delegate was not satisfied the applicant met the requirements of cl.500.217 of Schedule 2 to the Migration Regulations. This clause relevantly provides that:

   500.217

   (1) the applicant satisfies the public interest criteria 4021.

5. Public interest criteria 4021[1] relevantly provides that:

   (a)the applicant holds a valid passport that:

   (i)was issued to the applicant by an official source; and

   (ii)is in the form issued by the official source; and

   (iii)is not in a class of passports specified by the Minister in an instrument in writing for this clause; or

   (b)it would be unreasonable to require the applicant to hold a passport.

   [1] Conveniently referred to in this decision as PIC 4021

6. There is no dispute as to the following matters:

   ·that the applicant’s passport was issued by an entity recognised by the Australian government as authorised to issue passports;

   ·the passport was in the form in which it was issued, in that it was not fraudulently altered; and

   ·the passport was not in a class of passports specified by the Minister in an instrument in writing for cl.500.217; or

   ·it would not be unreasonable to require the applicant to hold a passport.

7. The issue in the review is whether the applicant is the holder of a valid passport.

8. The delegate found the applicant failed to satisfy the requirements of cl.500.217 because his passport expired on 3 June 2018, and because of that fact, on 11 July 2018, the date on which the delegate came to decide the visa application, the applicant’s passport was invalid. Consequently, the delegate was left with no option but to refuse the application.

9. The matter comes before the Tribunal by way of an application to review the decision of the delegate.

10. In this review the applicant relies on a written submission and supporting documentation. In substance, the applicant says it was his understanding that his passport was valid for the purposes of the application because it was current when he submitted it to the Department with the application. The record of the delegate’s decision, a copy of which the applicant provided to the Tribunal, informed to the applicant that his understanding was erroneous. He learnt from the delegate’s decision that his application failed because his visa expired prior to the delegate’s decision, a fact that was fatal to his application.

11. The applicant also informed the Tribunal that he was issued with a new passport by officials at the Consulate [of Brazil]. Accordingly, he submitted he is now the holder of a valid passport. He supports his claim with a copy of a passport apparently issued to him at the Consulate of Brazil in Sydney on 18 July 2018 with an expiration date of 17 July 2028. There is not evidence before the Tribunal that would justify the Tribunal finding the passport is invalid. The Tribunal is satisfied the applicant is the holder of a valid passport.

12. On the basis of the information before the Tribunal, the Tribunal finds the applicant meets the requirements of PIC 4021 at the time of this decision for the purposes of satisfying the requirements of cl.500.217. Accordingly, matter should be remitted to the Department for reconsideration.

    DECISION

13. The Tribunal remits the decision not to grant the applicant a Student (Temporary) (Class TU)  (Subclass 500) visa for reconsideration, with the direction that the applicant meets the following criteria for the visa:

    ·Public interest criteria 4021 for the purposes of cl.500.217 of Schedule 2 to the Migration Regulations.

    Peter Haag
    Member