2423161 (Migration)

[2024] AATA 3881

2423161 (Migration) [2024] AATA 3881 (20 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Yu Pan (MARN: 1794605)

CASE NUMBER:  2423161

MEMBER:Michael Judd

DATE:20 September 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl 500.213 of Schedule 2 to the Regulations.

Statement made on 20 September 2024 at 9:38am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language requirement – Pearson (PTE) score Report provided upon review – decision under review remitted        

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 500.213

Any references appearing in square brackets indicate that information has been omitted from
this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Home Affairs on 28 June 2024 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 19 November 2023. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because she had not given evidence of having satisfied the English language proficiency requirements.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Delegate’s reasons for decision

   If required, applicants seeking to meet the primary criteria for grant of a student visa must
   provide evidence of English language proficiency in a form specified in the legislative instrument made under 500.213(3). The maximum time periods in which an English test must be taken is either two years before the application is lodged or two years before a decision is made on the application.

   At the time of lodgement and assessment of the applicant’s student visa application, the applicant did not provide evidence of English Language Proficiency. On 12 March 2024, the applicant was sent a ‘Request for More Information’, which requested that they provide evidence of their English language proficiency……The date of the applicant’s PTE test booking has passed and the applicant has not provided evidence of their test results. Therefore, the applicant has not provided evidence of their English language proficiency or information that they satisfy the English language
   requirements in another way as detailed above. Based on the information before me, I am not satisfied that the applicant meets clause 500.213 in Schedule 2 of the Migration Regulations and therefore does not satisfy the requirements for the grant of a Student visa.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.

6. The issue in the present case is whether at time of Tribunal decision the applicant satisfies the English language proficiency requirements.

   English language proficiency (cl 500.213)

7. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The issue in the present case is whether at time of Tribunal decision the applicant satisfies the English language proficiency requirements for the purposes of clause 500.213.

8. To meet cl 500.213, the applicant must (if required by the Minister) give evidence that they have a level of English language proficiency that meets the requirements specified in an instrument: cl 500.213(1). The Minister required the applicant to give such evidence.

9. This requirement does not apply to an applicant within a class specified in an instrument: cl 500.213(2). IMMI 18/015, which is attached to this decision, specifies the requirements for evidence of English language proficiency and classes of applicants to whom the requirement does not apply. The Tribunal is satisfied that the requirements do apply to the applicant for the purposes of cl 500.213(3)(b). As the applicant is within a class of applicants specified in the instrument, cl 500.213(1) applies to the applicant.

10. On or about 16 July 2024, evidence of Pearson (PTE) score Report (sat on 7 July 2024) was provided to the Tribunal showing that the applicant achieved an overall band score of 42. The Score Report was verified by the Tribunal. Under legislative instrument IMMI 18/015, the minimum score required is 42. Accordingly, the Tribunal is satisfied that the applicant meets cl 500.213.

11. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

12. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl 500.213 of Schedule 2 to the Regulations.

    Attachment – IMMI 18/015 – English language instrument (extract)

    6Primary Criteria

    (1)For the purpose of subclause 500.213(1) of Schedule 2 to the Regulations, the following requirements are specified:

    (a)the applicant must undertake one of the English language tests specified in Column 1 of Schedule 1;

    (b)the applicant must achieve the English language test score specified for that English language test in Column 3 of Schedule 1; and

    (c)the applicant must have completed the test within the following period:

    (i)if evidence of the test is provided at the time the applicant makes an application for a Subclass 500 (Student) visa - 2 years immediately before the date of the visa application; or

    (ii)if evidence of the test is not provided at the time the visa application is made - 2 years immediately before a decision to grant or refuse the visa application is made.

    (2)For the purpose of subclause 500.213(2) of Schedule 2 to the Regulations, subclause 500.213(1) of Schedule 2 to the Regulations does not apply to the following classes of applicants:

    (a)an applicant who is a citizen of, and who holds a valid passport issued by:

    (i)the United Kingdom;

    (ii)the United States of America;

    (iii)Canada;

    (iv)New Zealand; or

    (v)the Republic of Ireland; or

    (b)an applicant who is enrolled in a principal course of study that is:

    (i)registered to be delivered in a language other than English;

    (ii)a registered ELICOS course, as defined in regulation 1.03 of the Regulations;

    (iii)a registered school course; or

    (iv)a registered post-graduate research course; or

    (c)an applicant who is a:

    (i)Foreign Affairs student;

    (ii)Defence Student; or

    (iii)Secondary exchange student; or

    (d)an applicant, who, in the 2 years before applying for a Subclass 500 (Student) visa, has successfully completed:

    (i)the requirements for a Senior Secondary Certificate of Education, in a course that was conducted in Australia and in English; or

    (ii)a substantial component of a course leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher that was conducted in Australia and in English, while the applicant was holding a student visa; or

    (e)an applicant who has successfully completed a minimum of 5 years of study in English undertaken in one or more of the following countries;

    (i)Australia;

    (ii)Canada;

    (iii)New Zealand;

    (iv)South Africa;

    (v)the Republic of Ireland;

    (vi)the United Kingdom;

    (vii)the United States of America.

    …

    Schedule 1 — English language tests and minimum test scores

English language tests
Item	Column 1: Test name	Column 2: Acronym/ also known as	Column 3: Minimum test score
1	International English Language Testing system	IELTS Test	(a)    Overall band score 5.5; or (b)    Overall band score 5 if packaged with at least 10 weeks’ ELICOS; or (c)     Overall band score of 4.5 if packaged with at least 20 weeks’ ELICOS.
2	Test of English as a Foreign Language internet-based test	TOEFL iBT	(a)    46; or (b)    35, if packaged with at least 10 weeks’ ELICOS ; or (c)     32, if packaged with at least 20 weeks’ ELICOS.
3	Cambridge English: Advanced (CAE) test	Certificate in Advanced English	(a)    162; or (b)    154, if packaged with at least 10 weeks’ ELICOS; or (c)     147, if packaged with at least 20 weeks’ ELICOS.
4	Pearson Test of English Academic	PTE	(a)    42; or (b)    36, if packaged with at least 10 weeks’ ELICOS; or (c)     30, if packaged with at least 20 weeks’ ELICOS.
5	Occupational English Test	OET	a score of at least B for each test component of the OET.