Chen (Migration)

[2024] AATA 1465

Chen (Migration) [2024] AATA 1465 (23 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chao Chen

REPRESENTATIVE:  Mr Stanley Chan (MARN: 0430097)

CASE NUMBER:  2400470

HOME AFFAIRS REFERENCE(S):          BCC2023/5111854

MEMBER:Frank Russo

DATE:23 May 2024

PLACE OF DECISION:  Sydney

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

Statement made on 23 May 2024 at 1:15pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language requirement – no specified English test results – multiple course cancellations - not currently enrolment – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359, 360
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 January 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 5 September 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 delegate was not satisfied that the applicant had provided a level of English language proficiency that meets the requirements of the specified instrument.

4. The applicant was assisted in relation to the review.

5. On 15 April 2024, the Tribunal wrote to the applicant advising that it had considered all the papers relating to his application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a telephone hearing on 7 May 2024 at 1:00pm. The applicant was advised that if he did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without taking any further action to allow him to appear before the Tribunal or it may dismiss the application for review without any further consideration of the application or information before it. The applicant was also advised that he needed to provide in writing, at least 7 days before the hearing date, evidence that he meets the English language proficiency requirements as prescribed by the relevant legislative instrument.

6. On 30 April 2024, the applicant’s representative provided a completed response to the hearing invitation, which was dated 16 April 2024 and signed by the applicant, in which the applicant indicated that he will not participate in the hearing and consented to the Tribunal making a decision on the papers without taking further steps to allow him to appear. The Tribunal is satisfied that the necessary consent has been given under s.360(2)(b) of the Act and that, pursuant to s.360(3), the review applicant is no longer entitled to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 meets cl.500.213.

   English language proficiency (cl 500.213)

9. 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.

10. The Tribunal notes that a new English language instrument, Migration (English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visa) Instrument (LIN 24/022) 2024 (‘new instrument’) commenced on 23 March 2024, but does not apply to Student visa applications made prior to the commencement date. Section 9 of this new instrument indicates that IMMI 18/015 continues to apply to applications for Student visas which were made but not yet finally determined before the commencement date of the new instrument. Therefore IMMI 18/015 remains the applicable English language instrument in the current application for review.

11. The Student visa application under review was made in respect of the applicant’s enrolment in a Diploma of Project Management. According to the visa application form, the applicant was enrolled in this course from 13 February 2023 at Harbourside Institute of Australia. The applicant also declared that prior to this he held a Student visa and that he was enrolled in ‘General Education’ at Steps Sunshine Coast International College (SCIC) from 17 January 2022 to 1 January 2023. He declared that prior to this he was enrolled in high school in China from September 2017 to June 2020.

12. In this case, the applicant was required by the Minister to provide evidence of English language proficiency in accordance with the instrument. On 10 October 2023, the Department requested that the applicant provide evidence that he meets the English language proficiency requirements. On 31 October 2023, the applicant provided a statement of attainment from SCIC certifying that he had completed a 20-week General English course from 17 January 2022 to 3 June 2022. Based on this information, the delegate was not satisfied that the applicant meets cl 500.213.

13. The applicant has not provided the Tribunal with any English language test results or any other evidence that he meets the English language proficiency requirements. The only relevant evidence he has provided in support of his English language proficiency is the statement of attainment for the General English course issued by SCIC.

14. There is no evidence for the purpose of cl.500.213(3)(b) that the applicant falls within a class of persons specified in an instrument and therefore meets cl.500.2013(2) such that the English proficiency requirement does not apply. In particular, there is no evidence that the applicant 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 specified in paragraph 6(2)(a). There is no evidence he is enrolled in a course of study that meets the requirements of paragraph 6(2)(b). Information before the Tribunal indicates that the applicant is not currently enrolled in a course of study.

15. On 8 May 2024, the Tribunal used the procedure in s.359A of the Act to write to the applicant to invite him to comment or respond to information which, subject to his comments or response, it considered would be the reason, or a part of the reason, for affirming the decision under review. The Tribunal put to the applicant that a recent check of his enrolment record in the Provider Registration and International Student Management System (PRISMS) database indicates that he does not hold a current confirmation of enrolment (CoE) in a course of study. The Tribunal’s letter also set out the following enrolment history:

    a.He was enrolled in High School Preparation from 1 February 2021 to 18 June 2021. This enrolment is recorded as ‘Finished’;

    b.He was then enrolled in Diploma of Project Management from 12 July 2021 to 10 July 2022, however this enrolment was cancelled on 9 July 2021 because of non-commencement of studies. He also had an enrolment for the Advanced Diploma of Project Management which was cancelled on 9 July 2021 because of non-commencement of studies;

    c.He was enrolled in General English from 17 January 2022 to 3 June 2022 and this enrolment is recorded as Finished;

    d.He had enrolments in the Diploma of Project Management starting on 11 July 2022 and 3 April 2023, both of which were cancelled before the course start dates because of non-commencement of studies; and

    e.He was enrolled in the Diploma of Project Management from 13 February 2023 until 11 August 2024, which was cancelled on 14 February 2024 due to ‘Student Notifies Cessation of Studies’. He also had an enrolment in the Advanced Diploma of Program Management which was cancelled the same day due to non-commencement of studies.

16. The Tribunal advised the applicant that, for the purpose of assessing whether he is enrolled in a course of study that meets the requirements of paragraph 6(2)(b), this information is relevant because it indicates that he is not currently enrolled in any course of study. The Tribunal also advised that the information may be relevant in assessing whether he satisfies the English language exemptions in paragraphs 6(2)(d) and 6(2)(e) of the instrument. The applicant was given until 22 May 2024 to comment or respond to the information. No response has been received. As the Tribunal has not received any comments or response within the period allowed, the Tribunal has proceeded to make a decision on the review without taking any further action to obtain the applicant’s views on the information.

17. The Tribunal checked the applicant’s enrolment information again on the day of this decision, and confirmed that there have been no changes to his enrolment record since 8 May 2024. The applicant has not provided any information to indicate that he is enrolled in a course of study, such as a CoE or letter of offer. In the absence of any information to the contrary, the Tribunal accepts the information contained in the applicant’s PRISMS record. The Tribunal finds that while the applicant was previously enrolled in an ELICOS course, he is not currently enrolled in such a course. Therefore, he does not meet the exception in sub-paragraph 6(2)(b)(ii) of the instrument. The applicant is not enrolled in any of the other courses of study which are listed in paragraph 6(2)(b) of the instrument.

18. There is no evidence that the applicant meets paragraph 6(2)(c) of the instrument, as there is no evidence that he is a foreign affairs student, defence student or secondary exchange student.

19. There is no evidence to indicate the applicant meets any of the exceptions in paragraph 6(2)(d) of the instrument. While his PRISMS record indicates that he finished ‘High School Preparation’ in June 2021, there is no evidence before the Tribunal that he was enrolled in anything other than a preparation course or that he successfully completed the requirements for a Senior Secondary Certificate of Education in Australia, nor any evidence that he completed the High School Preparation course in the two years before applying for the Student visa. I note that the Student visa application under review was made on 5 September 2023, and the applicant would therefore needed to have completed any requirements for the purpose of paragraph 6(2)(d) between 5 September 2021 and 5 September 2023. There is also no evidence before the Tribunal that the applicant has completed a substantial component of a course leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher. The applicant has provided no evidence of successful completion of any units towards the Diploma of Project Management, which he commenced in February 2023. According to his PRISMS record, this enrolment was cancelled on 14 February 2024 due to the applicant notifying his education provider that he was ceasing his studies. According to his PRISMS record, the applicant did not commence any of the other courses he was enrolled in at the Diploma or Advanced Diploma levels.

20. There is also no evidence that the applicant has successfully completed a minimum of five years of study in English in any of the countries listed in paragraph 6(2)(e), and therefore he does not meet the exception in that paragraph of the instrument.

21. As the applicant is not within a class of applicants specified in the instrument, cl 500.213(1) applies to the applicant. The applicant is therefore required to provide evidence of English language proficiency in accordance with the instrument.

22. While the Tribunal accepts the applicant’s evidence that he completed a General English course from 17 January 2022 to 3 June 2022, it finds that this is not sufficient to meet the English proficiency requirements as set out in the Instrument. Paragraphs 6(1)(a) and (b) of IMMI 18/015 specify that for the purpose of subclause 500.213(1) of Schedule 2 to the Regulations, an applicant must undertake one of the English language tests specified in Column 1 of Schedule 1 to the instrument, and the applicant must achieve an English language test score specified for that English test in Column 3 of Schedule 1 to the instrument. A statement of attainment for a certificate in General English is not one of the specified English language tests specified in Schedule 1 to the instrument. The applicant therefore does not meet paragraph 6(1)(b) of the instrument. There is no evidence before the Tribunal that the applicant has undertaken one of the English language tests specified in Column 1 of Schedule 1 to the instrument and achieved an English language test score which meets the specified score for that test in Column 3.

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

24. 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

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

    Frank Russo
    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.