1608913 (Migration)

This matter concerned an application for a Student (Temporary) (Class TU) visa, specifically a Subclass 573 Higher Education Sector visa. The applicant had previously been granted student visas and lodged an application for a further visa to continue tertiary studies. The delegate of the Minister refused the application on the basis that the applicant did not meet the English language proficiency requirements as detailed in clause 573.223 of the Migration Regulations 1994. The applicant sought review of this decision before the Administrative Appeals Tribunal (AAT).

The primary legal issue before the Tribunal was whether the applicant met the evidentiary requirements for a Subclass 573 visa, specifically concerning English language proficiency, as stipulated in Schedule 5A of the Migration Regulations 1994. The Tribunal was required to determine if the applicant had provided satisfactory evidence to satisfy clause 573.223(2)(a), which applies when the applicant is not an "eligible higher degree student" as defined in clause 573.111.

The Tribunal found that the applicant was enrolled in a Master of Business, which qualified for Subclass 573. Crucially, the Tribunal noted that subsequent to the delegate's decision, the applicant had provided an IELTS test result from 3 September 2016, achieving an overall band score of 6.0. The Tribunal was satisfied that this evidence demonstrated the applicant now met the English language requirements of clause 5A704 and, therefore, satisfied the requirements of clause 573.223(2)(a).

Accordingly, the Tribunal concluded that the applicant met the requirements of clause 573.223 and remitted the matter to the delegate for reconsideration, with a direction that the applicant met the criteria under clause 573.223(2)(a).