ALDAGAMSEH (Migration)

[2018] AATA 3938

ALDAGAMSEH (Migration) [2018] AATA 3938 (12 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdallah Saber Dheif Allah ALDAGAMSEH

CASE NUMBER:  1711886

HOME AFFAIRS REFERENCE(S):           BCC2016/4147776

MEMBER:Penelope Hunter

DATE:12 September 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 12 September 2018 at 5:06pm

CATCHWORDS
MIGRATION – Student (Temporary)(Class TU) – Subclass 500 (Student) – English language proficiency – IELTS test score below the minimum requirements – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 500.213

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 and Border Protection on 17 May 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 8 December 2016. 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 (the Regulations) because the applicant had not provided satisfactory evidence of his English language ability.

4. The applicant appeared before the Tribunal on 14 August 2018 to give evidence and present arguments. The applicant was supported by his friend Hassan Manna. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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. The issue in the present case is whether the application satisfies cl. 500.213.

7. 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). This requirement does not apply to an applicant within a class specified in an instrument: cl.500.213(2). IMMI 16/019 (attached) and LIN 18/213 specify the requirements for evidence of English language proficiency and classes of applicants to whom the requirement does not apply.

8. In this case, the applicant was required by the Minister to provide evidence of English language proficiency in accordance with the instrument.

9. The applicant applied for the visa in order to undertake package of courses, including a course of English for 20 weeks, a Certificate IV in Business Administration and a Diploma of Business with course dates from May 2017 to January 2019.

10. The applicant had submitted to the Department a PTE Academic Certificate for a test undertaken on 1 May 2017. It recorded an overall score of 20. This was below the minimum test score required in Schedule 2 of the instrument.

11. On 24 August 2017, the applicant submitted to the Tribunal an IELTS Test Report for a test taken on 3 August 2017, in which the applicant received an overall band score of 4.0. The Tribunal discussed with the applicant at the hearing that, again this is below the minimum test score required in Schedule 2 of the instrument of 4.5 as the applicant’s course was packaged with a 20 week ELICOS course.

12. At the Tribunal hearing the applicant provided a Certificate of Completion of a course of General English Intermediate Level finished on 28 April 2017; a letter confirming that he was enrolled in a Certificate IV in Business Administration at Hannay International College, starting on 15 May 2017 and finishing on 10 November 2017; and a Confirmation of Enrolments in a Diploma of Accounting commencing with course dates from 6 August 2018 to 5 August 2019; and a Confirmation of Enrolment in an Advanced Diploma of Accounting with course dates from 23 September 2019 to 22 February 2021. The Tribunal discussed with the applicant that none of this information satisfied the English language requirements as set out in the instrument.

13. Following the hearing the applicant was a short period of leave until 17 August 2018 to submit further evidence of his English language ability, and or evidence that he had successfully completed 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 in English while the applicant was holding a Student visa. The applicant told the Tribunal that he had completed his Certificate IV in Business. On 17 August 2018, the applicant submitted a further letter from Hannay International College dated 16 August 2018. The letter confirmed that the applicant started his Certificate IV in Business Administration on 15 May 2017 and successfully completed on 10 November 2017, during this time he handed in work. However, this further evidence does not place the applicant within the class of applicants specified in clause 2 of the Instrument and exempt the applicant from the English language requirement. The applicant applied for the visa on 8 December 2016, at the time he held enrolment in at the Certificate IV level but had not yet started the course. The Tribunal is therefore not satisfied that in the two years before applying for the visa under review he had successfully completed a substantial component of that course.

14. The applicant has not provided evidence that they have achieved the required minimum test score in a test provided by a specified language test provider at the time of this decision.

15. Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.213.

16. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

17. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Penelope Hunter
    Member

    
    

    Attachment – IMMI 16/019 – English language instrument (extract)

    (1)SPECIFY for the purposes of paragraph 500.213(3)(a) of Schedule 2 to the Regulations:

    a.the requirement to use one or more of the English language test providers listed in Schedule 1 to this Instrument; and

    b.the requirement to achieve the relevant English language test score listed in Schedule 2 to this Instrument in a test provided by the relevant English language test provider mentioned in item 1 of this Instrument; and

    c.countries, listed in Schedule 3 to this Instrument, where an applicant may take a Test of English as a Foreign Language (TOEFL) paper-based test; and

    d.the maximum time periods in which an English test must be taken:

    i.two years immediately before the date the application is made; or

    ii.two years immediately before a decision is made on the application.

    2.SPECIFY for the purposes of paragraph 500.213(3)(b) of Schedule 2 to the Regulations, classes of applicants to which subclause 500.213(1) of Schedule 2 to the Regulations does not apply, as stated in subclause 500.213(2) of Schedule 2 to the Regulations:

    a.an applicant who is a citizen of, and 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 and that principal course of study 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 applicants who is a:

    i.Foreign Affairs student;

    ii.Defence Student; or

    iii.secondary exchange students; or

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

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

    vii.the United States of America.

    SCHEDULE 1

English language test providers:
1.	International English Language Testing System (IELTS test)
2.	Test of English as a Foreign Language (TOEFL)         Paper-Based test
3.	TOEFL internet-based test (also known as TOEFL iBT)
4.	Cambridge English: Advanced (CAE) test (also known as Certificate in Advanced English)
5.	Pearson Test of English Academic (PTE)
6.	Occupational English Test (OET)

SCHEDULE 2

English test:	Minimum test score:
1	IELTS	Overall band score 5.5; or Overall band score 5 if packaged with at least 10 weeks’ ELICOS; or Overall band score of 4.5 if packaged with at least 20 weeks’ ELICOS.
2	TOEFL Paper-Based test	527; or 500, if packaged with at least 10 weeks’ ELICOS; or 450, if packaged with at least 20 weeks’ ELICOS.
3	TOEFL iBT	46; or 35, if packaged with at least 10 weeks’ ELICOS; or 32, if packaged with at least 20 weeks’ ELICOS.
4	CAE	162; or 154, if packaged with at least 10 weeks’ ELICOS; or 147, if packaged with at least 20 weeks’ ELICOS.
2	PTE	42; or 36, if packaged with at least 10 weeks’ ELICOS; or 30, if packaged with at least 20 weeks’ ELICOS.
5	OET	‘PASS’ mark

SCHEDULE 3

Countries in which an applicant may take a TOEFL paper-based test:
Belarus	Kyrgyzstan	Tajikistan
Ecuador	Mali	Tanzania
El Salvador	Moldova	Uganda
Guatemala	Solomon Islands	Uzbekistan
Honduras	Suriname