Baylon (Migration)

[2020] AATA 3617

Baylon (Migration) [2020] AATA 3617 (1 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rejean Ybanez Baylon

CASE NUMBER:  1932736

HOME AFFAIRS REFERENCE(S):          BCC2019/4544491

MEMBER:Mark O'Loughlin

DATE:1 September 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets Public Interest Criterion 4021 for the purposes of cl.500.217.

I, Member M. O’Loughlin certify that this is the Tribunal’s statement of decision and reasons.

Statement made on 1 September 2020 at 14.14 pm

CATCHWORDS
MIGRATION – Student (Class TU) visa – Subclass 500 (Student) – English language proficiency – visa refused because evidence of proficiency not provided – no record that applicant was required to provide evidence of proficiency – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 352
Migration Regulations 1994 (Cth), Schedule 2, cls 500.213, 500.217, Schedule 4, criterion 4021

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 Home Affairs on 5 November 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 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant had not provided any evidence of English language proficiency either at the time of application or at the time of the delegate’s decision.

4. The applicant appeared before the Tribunal on 1 September 2020 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant was obliged to provide evidence of English language proficiency as contemplated by cl.500.213 and if so, whether the applicant did so.

   English language proficiency (cl.500.213)

7. Cl.500.213 reads as follows:

   500.213

   (1)  If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence that the applicant has a level of English language proficiency that meets the requirements specified in an instrument under paragraph (3)(a).

   Note:          For arrangements for the use of a computer program, see section 495A of the Act.

   (2)  Subclause (1) does not apply to an applicant within a class of applicants specified in an instrument under paragraph (3)(b).

   (3)  The Minister may, by legislative instrument, specify:

   (a)  requirements for the purposes of subclause (1); or

   (b)  a class of applicants to which subclause (1) does not apply.

8. The Tribunal understands that online visa applications made to the Minster are assessed by a computer program and some applicants are required by that program to provide specific evidence to support their application.

9. The Tribunal further understands that this automatic process takes place at the time of application. 

10. Presumably this applicant’s application was assessed by this method.

11. The Tribunal has not been provided with any record of the applicant having been required by the Minister (either in writing or by the computer program described) to provide evidence of English language proficiency.

12. The Tribunal understands that no such record is generally made where the process is the automatic process described above.

13. The applicant asserted in her oral evidence that she was not required to provide evidence of English language proficiency, either at the time of her application or at any other time before the delegate’s decision.

14. The Tribunal noted that her application did not appear to have been accompanied by evidence of English language proficiency.,

15. The documents provided to the Tribunal by the Secretary under s. 352 of the Act do not include any evidence of the Minister requiring the applicant, in writing or by use of a computer program available online, to provide evidence of English language proficiency.

16. Having weighed the evidence available to it, the Tribunal is not satisfied that the applicant was required by the Minister in writing or by use of a computer program available online, to give to the Minister evidence of English language proficiency that meets the requirements specified in a relevant instrument.

17. The Tribunal finds that cl.500.213 is not enlivened and does not prevent the applicant from being granted a visa.

18. Given the Tribunal’s finding that cl.500.213 does not apply, it is not open to the Tribunal to make a direction in relation to that provision.

19. For the purposes of making a permissible direction the Tribunal observes that the applicant has provided evidence that appears to show that she holds a valid passport issued by the Republic of the Philippines and in the form so issued.

20. The Tribunal further observes that the passport does not fall into a class of passports specified by the Minister in a relevant instrument in writing.

21. Therefore, given that cl. 500.213 does not apply, in order to make a permissible direction on a non-contentious criterion, the Tribunal finds that the applicant meets Public Interest Criterion 4021 for the purposes of cl.500.217.

22. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

23. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets Public Interest Criterion 4021 for the purposes of cl.500.217.

    Mark O'Loughlin
    Member

24. 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.