Araya Calderon (Migration)
[2025] ARTA 1329
•8 July 2025
ARAYA CALDERON (MIGRATION) [2025] ARTA 1329 (8 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicants:Ms Katherine Alina Araya Calderon
(first applicant)
Mr Ronald Andrey Fernandez Badilla
(second applicant)
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2440845
Tribunal:General Member J Lock
Place:Adelaide
Date: 8 July 2025
Decision:The Tribunal sets aside the decisions under review and remits the applications for Student (Temporary) (Class TU) visas for reconsideration in accordance with the order that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.213 of Schedule 2 to the Regulations.
Statement made on 08 July 2025 at 9:03am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – evidence of specified test result provided – decision made without hearing necessary – member of family unit – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Administrative Review Tribunal Act 2024 (Cth), s 106(3)
Migration Regulations 1994 (Cth), Schedule 2, cls 500.213, 500.311
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 9 October 2024 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 22 March 2024. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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.
The delegate of the Minister made a decision on 9 October 2024 to refuse to grant the visas on the basis that the first applicant did not satisfy the requirements of cl 500.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because there was no evidence provided that the first applicant satisfied the English language proficiency requirements of the student visa. The delegate found that the second applicant was not a member of the family unit of a person who satisfied the primary criteria for the grant of a student visa.
The applicants applied to the Tribunal on 28 October 2024 for a review of the delegate’s decision.
On 6 December 2024, the Tribunal received from the first applicant evidence of a Pearson Test of English Academic (PTE) test dated 3 December 2024 indicating an overall score of 46. The PRISMS record indicates the first applicant is currently enrolled in a Certificate IV in Kitchen Management from 29 April 2024 to 12 December 2025.
In light of the new evidence received, the Tribunal is satisfied that the criterion in cl 500.213 of the Regulations is met.
The Tribunal has had regard to the circumstances in which it may reach its decision without holding a hearing as set out in s 106(3) on the Administrative Review Tribunal Act 2024 (Cth) (the ART Act). Noting that the Minister for Immigration and Citizenship (the Minister) does not participate in these proceedings and the Tribunal’s decision is wholly in favour of the first applicant, the Tribunal is satisfied the decision can be made without holding a hearing in the proceeding.
For the following reasons, the Tribunal sets aside the decisions under review and remits the visa applications for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 first applicant meets the English language proficiency requirements of cl.500.213.
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). The relevant instrument IMMI 18/015[1], 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.
[1] Migration (IMMI 18/015: English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visa) Instrument 2018 (IMMI 18/015)
As the applicant is not within a class of exempt applicants specified in the instrument, cl 500.213(1) applies to the applicant. In this case, the applicant was required by the Minister to provide evidence of English language proficiency in accordance with the instrument.
The relevant instrument IMMI 18/015 requires a minimum PTE score of 42 to meet the English language requirement for cl 500.213(1). It indicates that the test must have been completed in the 2-year period prior to the decision to grant or refuse the visa application. The relevant period is the date of this decision and the 2-years prior. As the test was completed on 3 December 2024 and the applicant achieved an overall score of 46, the Tribunal finds the first applicant meets the English language proficiency as required by the instrument.
Accordingly, the Tribunal is satisfied the first applicant meets the requirements of cl 500.213. The Tribunal finds that the matter should be remitted for reconsideration.
Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider whether the first applicant satisfies the remaining criteria for a Subclass 500 (Student) visa and whether the second applicant satisfies cl 500.311 as a member of the family unit of a person who satisfied the criteria for the grant of a student visa.
DECISION
The Tribunal sets aside the decisions under review and remits the applications for Student (Temporary) (Class TU) visas for reconsideration, in accordance with the order that the first applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.213 of Schedule 2 to the Regulations.
Dates of hearing(s): No hearing held
Representative for the Applicant: Mr Phillip Eltakchi (MARN: 2117133)
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