Barnie (Migration)

[2020] AATA 3587

Barnie (Migration) [2020] AATA 3587 (26 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Josephine Barnie

CASE NUMBER:  1930962

HOME AFFAIRS REFERENCE(S):          BCC2019/4543861

MEMBER:Mark O'Loughlin

DATE:26 August 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 26 August 2020 at 9:43am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – legislative instrument requires satisfactory test score within two years before application made – satisfactory test scores achieved more than two years before application made, and after application made – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.213(1)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of the decision made by a delegate of the Minister for Home Affairs on 23 October 2019 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 11 September 2019. 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(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant had not provided evidence of proficiency in the English language as contemplated by the subclause and did not come within a class of applicants to whom the subclause did not apply.

4. The applicant appeared before the Tribunal on 28 July 2020 to give evidence and present arguments.

5. The applicant was assisted by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In making its decision the Tribunal relied on the following documents that the applicant had provided;

   a.Decision of the delegate dated 23 October 2019;

   b.IELTS Test report form dated 23 February 2017;

8. The Tribunal has not relied on any other documents in making this decision.

   English language proficiency (cl.500.213)

9. 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 under paragraph (3)(a) unless she falls into a class of applicants to which subclause (1) does not apply .

10. The Tribunal is satisfied that the applicant was required by the Minister to give evidence of their English language proficiency as contemplated by cl.500.213(1) and must therefore meet the requirements specified at cl.500.213(a) for the purposes of cl.500.213(1) unless she falls into a class of applicants to which cl.500.213(1) does not apply.

11. At the time of the application the applicant gave to the Minister, in purported satisfaction of cl.500.213, evidence of her English language proficiency.  That evidence was an IELTS test report form dated 23 February 2017 showing that the applicant had achieved an overall band score of 6.0.

12. On 2 December 2019 the applicant sent the Tribunal further evidence of her English language proficiency, being a PTE test result dated 28 November 2019 showing a test result of 49.

13. IMMI 18/015 (“the instrument”), which is attached to this decision, is the relevant instrument in force at the time the applicant made this application.  It specifies the requirements for evidence of English language proficiency and the classes of applicants to which the requirements do not apply.

14. At subclause 6(1) the instrument provides that, to demonstrate their level of English language proficiency, an applicant must achieve a minimum score in one of a range of specified tests.

15. S.6(1)(c) of the instrument may be relevantly summarised as providing that, to satisfy cl.500.213(1), the test must have been taken within 2 years immediately before the date of the application (if the evidence was provided at the time of the application -s.6(1)(c)(i)), or within 2 years immediately before a decision to grant or refuse the application is made (if the evidence was provided other than at the time of the application -s.6(1)(c)(ii)).

16. The term “a decision to grant or refuse the application” in s.6(1)(c)(ii) of IMMI 18/015 refers to the delegate’s decision but not to the Tribunal’s review of that decision.

17. A test score obtained after the delegate’s decision cannot therefore satisfy the requirements of 6(1)(c), even if it was taken before the Tribunal’s review.

18. The applicant agreed in her evidence that at the time of the delegate’s decision on 23 October 2019, she had obtained a certificate dated 23 February 2017 showing an IELTS score of 5.5. That score does not satisfy the requirements of the instrument as it was more than 2 years old at the time of the application.

19. The PTE score of 28 November 2019 postdates the decision to grant or refuse the application, which was the delegate’s decision of 23 October 2019.

20. The Tribunal finds that at the time of the decision to grant or refuse the application the applicant did not satisfy the requirements of subclause 6(1) of the instrument and does not therefore satisfy cl.500.213(1) of Schedule 2 to the regulations under the Act.

21. The instrument further provides, at subclause 6 (2), for classes of applicant to whom the requirement to provide evidence of English language proficiency in cl.500.213.(1) does not apply.

22. There is no evidence that the applicant falls within any of the classes set out in subclause 6 (2) of the instrument.

23. As the applicant is not within a class of applicants specified in the instrument, cl.500.213(1) applies to the applicant.

24. The applicant does not satisfy cl.500.213(1).

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

26. 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

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

    Mark O'Loughlin
    Member

    
    

    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.