Bretshnaider (Migration)

This matter concerned an application for a Student (Temporary) (Class TU) visa, subclass 500 (Student), before the Migration Review Tribunal. The applicant had failed to provide documents concerning English language proficiency to the Department, but subsequently provided these documents to the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the English language proficiency requirement under cl.500.213 of Schedule 2 to the Regulations. This clause requires an applicant to provide evidence of English language proficiency if required by the Minister, unless they fall within a specified class of applicants. The Tribunal was also required to determine the appropriate course of action given the timing of the provision of the English language proficiency evidence.

The Tribunal found that the applicant was within a class of applicants specified in IMMI 16/019, the relevant instrument, to whom the requirement to provide evidence of English language proficiency did not apply. However, the applicant was still required by the Minister to provide such evidence. The applicant provided a Pearson Test of English (PTE) Academic Score Report demonstrating an overall score of 65, which exceeded the minimum requirement of 42 set out in IMMI 16/019. Consequently, the Tribunal was satisfied that the applicant met cl.500.213.

The Tribunal remitted the application for the visa to the Minister for reconsideration, with a direction that the applicant meets the criteria under cl.500.213 of Schedule 2 to the Regulations.