1515309 (Migration)

This matter concerned an application for a Subclass 572 Vocational Education and Training visa. The applicant, a Romanian national, was enrolled in a Certificate IV in Aged Care, having previously completed a Certificate III in Aged Care. The central dispute revolved around whether the applicant met the requirements of cl.572.223 of the Migration Regulations 1994, specifically concerning the "genuine applicant for entry and stay as a student" criterion.

The court was required to determine if the applicant had provided sufficient evidence to satisfy the English language proficiency requirements under Schedule 5A of the Regulations, given her highest assessment level was level 3. The applicant had submitted results from a Pearson Test of English Academic (PTE Academic), which she believed met the criteria. The court also needed to consider the broader requirements of cl.572.223, including the applicant's genuine intention to stay temporarily in Australia and her financial capacity.

The Tribunal found that the applicant's PTE Academic results did not satisfy the Schedule 5A English language requirements. This was because, while clause 5A102 and legislative instrument IMMI 14/080 allowed for alternative English language tests, the wording of clause 5A102 suggested that such tests could only be undertaken in a foreign country. The Tribunal noted that the applicant had undertaken her test in Australia. Consequently, the Tribunal remitted the application for reconsideration, directing that the applicant met the criteria under cl.572.223(2)(a) of Schedule 2 to the Regulations, implying that other criteria would need to be assessed.