Baylon (Migration)

This matter concerned an appeal by an applicant for a Subclass 500 (Student) visa, which had been refused on the grounds of failing to provide evidence of English language proficiency. The Administrative Appeals Tribunal was required to determine whether the applicant was obliged to provide such evidence under clause 500.213 of the relevant regulations and, if so, whether that obligation had been met.

The Tribunal considered the wording of clause 500.213, which stipulates that an applicant must provide evidence of English language proficiency if required to do so by the Minister, either in writing or via an online computer program. The Tribunal noted that while online applications are often assessed by a computer program that may request specific evidence, there was no record before it indicating that this applicant had been so required. The applicant herself testified that she had not been asked to provide such evidence.

Weighing the available evidence, the Tribunal was not satisfied that the applicant had been required by the Minister to provide evidence of English language proficiency. Consequently, the Tribunal found that clause 500.213 was not enlivened and did not prevent the applicant from being granted the visa. The Tribunal therefore remitted the application for reconsideration by the Minister, with a direction that the applicant met Public Interest Criterion 4021 for the purposes of clause 500.217.