Barnie (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal (the Tribunal) regarding a decision to refuse a Subclass 500 (Student) visa. The applicant sought to demonstrate English language proficiency through an IELTS test report dated 23 February 2017, which indicated an overall band score of 5.5. The applicant also provided a PTE test result dated 28 November 2019, showing a score of 49, after the delegate's decision.

The primary legal issue before the Tribunal was whether the applicant had met the English language proficiency requirements as stipulated by clause 500.213 of Schedule 2 to the Migration Regulations 1994 and the legislative instrument IMMI 18/015. Specifically, the Tribunal had to determine if the provided English language test results were obtained within the timeframe prescribed by the instrument.

The Tribunal reasoned that to satisfy clause 500.213(1), an applicant must provide evidence of a satisfactory test score obtained within a specific period. The relevant instrument, IMMI 18/015, specified that if evidence of the test was provided at the time of the application, the test must have been taken within two years immediately before the date of the visa application. Alternatively, if evidence was not provided at the time of application, the test must have been taken within two years immediately before a decision to grant or refuse the application was made by the delegate. The Tribunal found that the IELTS test score of 5.5, obtained on 23 February 2017, was more than two years old at the time of the applicant's visa application on 23 October 2019. Furthermore, the Tribunal held that a test score obtained after the delegate's decision, such as the PTE result from 28 November 2019, could not satisfy the requirements of subclause 6(1)(c)(ii) of the instrument, as it referred to the delegate's decision, not the Tribunal's review.

Consequently, the Tribunal concluded that the applicant had not met the criteria for the grant of a Subclass 500 (Student) visa. The Tribunal affirmed the delegate's decision not to grant the visa.