BUI (Migration)

[2020] AATA 3635

BUI (Migration) [2020] AATA 3635 (14 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  KHANH TOAN BUI

CASE NUMBER:  1837364

HOME AFFAIRS REFERENCE(S):          BCC2018/3474948

MEMBER:P. Wood

DATE:14 July 2020

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 14 July 2020 at 12:55pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– applicant failed to provide evidence of English language proficiency – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 3 December 2018 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 13 September 2018. 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).

4. The applicant appeared before the Tribunal on 31 January 2020 to give evidence and present arguments.

5. In light of the applicant’s evidence (see below), and the absence of any evidence that the first named applicant falls within a class of persons exempted from providing evidence of English language proficiency under the Regulations, the Tribunal is not satisfied that the applicant meets cl.500.213.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   English language proficiency (cl.500.213)

6. 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).

7. IMMI 18/015, which is attached to this decision and was sent to the named applicant by the Tribunal ahead of the hearing, specifies the requirements for evidence of English language proficiency and classes of applicants to whom the requirement does not apply.

8. In this case, the applicant was required by the Minister to provide evidence of English language proficiency in accordance with the instrument. The applicant did not provide the delegate with such evidence.

9. The applicant also failed to provide such evidence to the Tribunal. At the hearing, the applicant claimed to have been poorly advised by his education agent as to the English language proficiency requirements and also to have read a risk assessment document of the Government stating that the applicant did not need to provide evidence of English. The same claims were made by the applicant’s registered migration agent in a written submission to the Tribunal dated 29 January 2020. The Tribunal has read and had regard to the documents attached to the registered migration agent’s written submission to the Tribunal dated 29 January 2020 but the Tribunal is concerned only with the IMMI 18/015 instrument.

10. Unfortunately, the evidence provided does not establish English language proficiency in accordance with the IMMI 18/015 instrument.

11. The Tribunal is not satisfied that the applicant falls within the excluded class of applicants under the Regulations. As such, the applicant cannot meet the requirements for English Language proficiency specified in the Regulations.

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

    DECISION

13. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    P. Wood
    Senior 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.