Belnas (Migration)

[2021] AATA 1454

Belnas (Migration) [2021] AATA 1454 (11 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Russel Nuevo Belnas
Ms Genelou Bautista Garcia

CASE NUMBER:  2004746

HOME AFFAIRS REFERENCE(S):          BCC2019/5593160

MEMBER:Stephen Witts

DATE:11 May 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 11 May 2021 at 11:52am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – no specified test results provided – decision under review affirmed

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

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 4 March 2020 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 6 November 2019. 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.

3. The delegate in this case refused to grant the visas 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 delegate was not satisfied that the applicant had sufficient English language proficiency.

4. The applicants appeared before the Tribunal on 11 May 2021 to give evidence and present arguments.

5. The applicants were assisted in relation to the review by their 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. 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 applicant has sufficient English language proficiency.

   English language proficiency (cl.500.213)

8. 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). IMMI 18/015, 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.

9. In this case, the applicant was required by the Minister to provide evidence of English language proficiency in accordance with the instrument.

10. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at hearing. In particular the Tribunal has considered a letter from the applicant’s representative dated 6 May 2021 stating that the applicant has met the requirements for English language proficiency on the basis that the applicant is a Philippine passport holder and as such has a low immigration risk outcome , and also that the applicant’s educational provider provided an email confirming the risk assessment is level 2, and as such an endorsement from the applicant’s education provider is sufficient. It was also asserted that this assessment level as evaluated by the Department of Home Affairs was sufficient.

11. The Tribunal has considered this submission noting that this is advisory material only and finds that it is not relevant to the key issue at hand which is the applicant’s English language proficiency as evidenced under requirements in the relevant instrument, that is whether the applicant has achieved the required minimum test score in a test provided by a specified language test provider in accordance with the instrument, and whether the test was taken within the maximum time period.

12. At the hearing the Tribunal had a discussion with the applicant regarding his application noting as above that the department had required him to provide the appropriate English test results and that he had not done so. The applicant stated that he wanted to finish his studies and has already completed his English course and only has a year or so to go. He stated that he now has a child who is a few months old. The applicant’s representative on behalf of the applicant stated that as in her written submission of 6 May 2021 the designation of the assessment level of the applicant’s current course provider had changed and that therefore he did not have to provide evidence of English language proficiency as stated above in accordance with the instrument. The Tribunal had a discussion with the applicant and the applicant’s representative regarding this matter noting that the department had clearly asked for proof of English language proficiency in accordance with the required minimum test score in a test provided by a specified language provider in accordance with the instrument. The Tribunal further noted that it would consider this matter and it would consider the submissions of the applicant.

13. The Tribunal has considered the submissions of the applicant as stated and notes that the applicant has not provided a minimum test score in a test provided by a specified language test provider in accordance with the instrument. The Tribunal notes the submissions above of these other factors but finds that they are not specifically relevant to the matter at hand which is the applicant’s evidence that he has reached the required level of English language proficiency in accordance with one of these tests. The applicant has simply not done one of these tests and reached the required level test score within the appropriate time period.

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

15. 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.

16. In regard to the secondary applicant the that as the primary applicant does not fulfil the criteria for the grant of the visa that the secondary applicant also does not fulfil the criteria.

    DECISION

17. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Stephen Witts
    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.