Chaitap (Migration)

[2025] ARTA 1738

Chaitap (Migration) [2025] ARTA 1738 (5 August 2025)

Decision and Reasons for Decision

Applicant:  Miss Rasita Chaitap

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:  2424660

Tribunal:  General Member E Chan

Place:  Adelaide

Date:  5 August 2025

Decision:The Tribunal sets aside the decision under review and remits the application for a Student (Temporary) (Class TU) visa for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl 500.213 of Schedule 2 to the Regulations.

Statement made on 05 August 2025 at 5:08pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – result of specified test exceeding required score provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.213(1)

Statement of 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 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).

2. The applicant applied for the visa on 29 December 2023. 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 (Cth) (the Regulations) because the applicant had not demonstrated that she had a level of English language proficiency that met the requirements for the visa.

4. The applicant appeared before the Tribunal on 5 August 2025 to give evidence and present arguments. The applicant’s representative also attended at the hearing.

5. In her hearing response form to the Tribunal, the applicant had indicated that she did not require an interpreter. As a result, no interpreter was booked. However, at the commencement of the hearing, the applicant indicated that she required an interpreter. Arrangements were then made to have a Thai and English languages interpreter attend at the hearing.

6. The applicant initially requested that the Tribunal take evidence from her brother who could give evidence about her lifestyle in Australia and the financial support that he provides to her. She also wanted the Tribunal to take evidence from her friend who could give further evidence about her lifestyle in Australia. After some discussions, the applicant agreed that their evidence was not relevant to her review application on this occasion.

7. For the following reasons, the Tribunal sets aside the decision under review and remits the visa application for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 the applicant.

2. 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).

3. Immigration instrument 18/015, specifies the requirements for evidence of English language proficiency and classes of applicants to whom the requirement does not apply.

4. I have considered whether the applicant qualifies as a class of applicants to which subclause 500.213(2) of Schedule 2 of the Regulations applies and are exempt from the requirement to demonstrate English language proficiency under the Instrument. The applicant does not qualify as a class of applicants who are exempt under subsection 6(2)(d) of the Instrument.

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

2. The applicant lodged her student visa application on 29 December 2023 to the Department. In support of her application, the applicant provided the Department with her International English Language Testing system (IELTS Test) results in which she achieved an overall band score of 4.5. Under the Instrument, the applicant is required to obtain a minimum IELTS overall band score of 5.5. As the applicant had not been able to produce any evidence to indicate that she had satisfied the requirements of the Instrument, the delegate refused her student visa application.

3. On 5 August 2025, at the hearing, the applicant’s representative provided me with a copy of the applicant’s Pearson Test of English Academic (PTE) score report in which she had achieved an overall score of 46 on 17 March 2025. Under the Instrument, the applicant is required to obtain a minimum PTE test score of 42. It follows that the applicant has, at the time of this decision, achieved over the minimum PTE test score required of her under the Instrument.

4. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

DECISION

1. The Tribunal sets aside the decision under review and remits the application for a Student (Temporary) (Class TU) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 500 (Student) visa:

   ·cl 500.213 of Schedule 2 to the Regulations.

   Representative for the Applicant:           Mr Sharad Bhusal (MARN: 2217814)