Buathong (Migration)
[2025] ARTA 1508
•6 August 2025
BUATHONG (MIGRATION) [2025] ARTA 1508 (6 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Pattanapon Buathong
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2425761
Tribunal:General Member S Waring
Place:Brisbane
Date: 6 August 2025
Decision:The decision under review is affirmed.
Statement made on 06 August 2025 at 4:49pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – applicant participated in a General English course – PTE test results – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 82
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cl 500.213STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 July 2024 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 10 February 2024. 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.
On 12 July 2024, the delegate in this case refused to grant the visa on the basis that evidence of the applicant’s English proficiency provided by him did not satisfy the requirements of cl 500.213 (3)(b) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate noted that on 12 July 2024, the applicant had provided evidence of The Pearson Test of English (PTE) undertaken on 20 June 2024, showing an overall score of 23 points.
The applicant applied to the Administrative Appeals Tribunal on 30 July 2024 for a review of the delegate’s decision and, on 19 September 2024, he provided an ‘outline of reasons’ supporting his claims. Further evidence and submissions provided by the applicant are discussed below.
The applicant appeared before the Tribunal by video on 14 July 2025 to give evidence and present arguments assisted by an interpreter in the Thai and English languages.
The applicant was assisted in relation to the review by his representative Mr Fan who attended the hearing and made submissions to the Tribunal.
For the following reasons, the Tribunal considers the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 he meets cl 500.213.
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 the classes of applicants to whom the requirement does not apply.
On 12 February 2025, the applicant provided evidence to the Tribunal of PTE testing undertaken on 10 February 2025 achieving an overall score of 25 points (with a score of 22 for speaking).
On Sunday 13 July 2025 (the day before the hearing), the applicant sent a statutory declaration to the Tribunal together with 4 annexures regarding his studies and English competency testing (the pre-hearing submission). Annexure “D” disclosed evidence of PTE testing undertaken on 11 July 2025 achieving an overall score of 26 points (with a score of 21 for speaking).
The evidence of the applicant’s recent PTE testing was discussed at hearing despite the pre-hearing submission not being ‘to-hand' at the hearing.
Annexure “A” of the pre-hearing submission included a certification that for 51 weeks, the applicant had participated in an intermediate-level General English course (20 hours per week) between 16 January 2023 and 5 January 2021 (CRICOS: 096826G).
Based on the evidence provided, the Tribunal is satisfied that the applicant has completed a 20 plus week EAP course. The Tribunal explained to the applicant that a PTE score of 30 points is required under IMME18/015 if packaged with a 20 weeks ELICOS course whereas the available evidence indicates that he has only achieved an overall result of 26 points.
The applicant indicated that he has made substantial efforts to improve his English language proficiency and does not have any difficulties in understanding the instructions provided by the trainer in his current course or have any difficulties in engaging with his classmates.
The Tribunal was informed that these grounds are the primary focus of the applicant’s submission.
Referring to an un-named and unreported case on this issue, it was submitted at hearing that an adjournment of the matter was reasonable, in the circumstances of the case, to enable the applicant to take a fourth PTE test. It was submitted that the hearing should be adjourned to January 2026 taking into account the following circumstances:
·that the applicant has demonstrated his English competency by passing 80% of subjects undertaken so far
·that the applicant has only 2 subjects remaining in his current course and would complete the Diploma course in January 2026
·that the recent PTE test results may not be a reliable indicator of the applicant’s English competency due to his spoken English being assessed using artificial intelligence.
Regarding the case law (or decision) cited on behalf of the applicant, the Tribunal was informed that the case was one involving a ‘remittal by consent’ and the Tribunal requested that any available details or report of the case referred to, or any further submission, be provided to the Tribunal by 31 July 2025. This date was proposed by the applicant’s representative as being reasonable.
The Tribunal observed that the applicant has achieved only incremental improvements in his PTE scores in 3 successive attempts. Regarding the length of any adjournment of the matter, the Tribunal noted its relevant power under s82 Administrative Review Tribunal Act 2024 (Cth) and the need to balance considerations when adjourning matters in view of the Tribunal’s objective of ensuring that applications for review are resolved quickly and efficiently.
Taking into account that the pre-hearing submission and supporting evidence was not ‘to hand’ at the hearing (together with the submissions above), the Tribunal allowed the applicant until 31 July 2025 to provide an updated PTE result. This date was proposed by the applicant’s representative as being reasonable.
It was explained to the applicant that he would need to achieve (and provide evidence of) 30 points in his fourth PTE test in order to meet the requirements of IMME 18/015.
On 15 July 2025, the applicant informed the Tribunal that he had made an appointment (the next available) for PTE testing and sought an extension of time, until 14 August 2025, to provide the results of that test. The Tribunal communicated to the applicant (on 21 July 2025) that his request for further time to provide evidence would be determined following its consideration of the material to be provided supporting the submission regarding adjournment.
At the date of this decision, the applicant has not provided any further materials for consideration by the Tribunal. Having regard to the applicant having undergone PTE testing 3 times and achieving no score higher than 26 points (and the marginal improvement in his scores in successive tests) the Tribunal denies the requests for further adjournment of the matter and for further time to submit the applicant’s fourth PTE results. As such, the evidence before the Tribunal establishes that the applicant has achieved a PTE test score of 26 points.
IMMI 18/015 sets out the English language tests and minimum scores which apply to the applicant’s circumstances. Evidence before the Tribunal indicates the applicant has completed a 20 plus week EAP course. As raised with the applicant at hearing, a PTE score of 30 points is required if packaged with a 20 weeks ELICOS course and the evidence establishes that he has only achieved an overall result of 26 points.
For the reasons stated above, the Tribunal finds there to be no evidence provided of an English language test undertaken by the applicant, that meets the requirements in IMMI 18/015 and therefore cl.500.213(3)(a) and cl.500.213(1) are not met.
There is no evidence that for the purpose of cl.500.213(3)(b), the applicant falls within a class of persons specified in an instrument [thereby meeting cl.500.2013(2)] such that the requirement does not apply. In particular, there is no evidence that he meets the specified class of person as outlined in IMMI 18/015. Specifically, he is not the holder of a passport from one of the countries outlined in 2(a) and there is no evidence he is currently enrolled in a course of study that meets the requirements of 2(b). There is no evidence the applicant meets 2(c) or that he has undertaken study for a minimum of 5 years in the countries specified in 2(e).
With regard to 2(d)(i) there is no evidence the applicant completed a Senior Secondary Certificate of Education in Australia conducted in English nor with regard to 2(d)(ii) that he has successfully completed a substantial component of a course leading to a qualification from the AQF at the Certificate IV level or higher that was conducted in Australia in English while the applicant was holding a Student visa.
Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.213.
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.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Date of hearing: 14 July 2025
Representative for the Applicant: Mr Hao (David) Fan
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 nameColumn 2:
Acronym/ also known asColumn 3:
Minimum test score1
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.
0
0
0