ALDAGAMSEH (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking a Subclass 500 (Student) visa. The dispute centred on whether the applicant met the English language proficiency requirements stipulated by the relevant regulations and associated instruments. The applicant's intention was to undertake a package of courses, including an English Language Intensive Courses for Overseas Students (ELICOS) component.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 500.213 of Schedule 2 to the Migration Regulations 1994. This clause requires applicants, if directed by the Minister, to provide evidence of English language proficiency meeting specified requirements, unless they fall within a class of applicants exempted by an instrument. The Tribunal had to determine if the applicant's submitted test scores and other evidence met these requirements or if they qualified for any exemptions.

The Tribunal reasoned that the applicant's submitted PTE Academic Certificate and IELTS Test Report both showed scores below the minimum required by the relevant instrument, IMMI 16/019. While the applicant provided evidence of completing a Certificate IV in Business Administration and enrolments in further courses, this did not place them within the specified exempt classes under clause 2 of the instrument. Specifically, the Tribunal was not satisfied that the applicant had, in the two years prior to applying, successfully completed a substantial component of a Certificate IV level or higher qualification conducted in Australia in English while holding a Student visa. Consequently, the Tribunal found that the applicant had not met the criteria for the visa.

The Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa, concluding that the criteria for the visa were not met.