CHI (Migration) - [2025] ARTA 668

CHI (MIGRATION) [2025] ARTA 668 (6 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Kah Ying CHI
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2417968

Tribunal:General Member J Cabarrús
Place:Sydney
Date: 6 March 2025
Decision:The decision under review is affirmed.

Statement made on 06 March 2025 at 2:22pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language requirements – extension of time to book and complete test – no appearance at hearing, evidence of test score, current enrolment or decision about future plans – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Administrative Review Tribunal Act 2024 (Cth), s 106(1), (5)
Migration Regulations 1994, Schedule 2, cl 500.213(1)
STATEMENT 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 11 June 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 28 October 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.
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) relating to English language proficiency.
For the following reasons, I consider the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant is a national of Malaysia and was born in 1990. She most recently came to Australia in April 2017 as the holder of a Subclass 457 visa. She applied for the student visa in October 2023 and provided various documents in support of her application.
In June 2024, the delegate refused to grant the visa because the applicant had not provided evidence that she had the requisite level of English language proficiency, or that she was in a class of persons to whom the English language test requirements do not apply, and accordingly she did not meet cl 500.213.
The applicant applied to the Tribunal for a review of that decision. She was represented in relation to the review.
On 26 June 2024, the Tribunal wrote to the applicant, asking her to provide evidence that she met the English language requirements as required for the grant of the visa by 10 July 2024.
On 8 July 2024, the applicant wrote to the Tribunal, stating that:
a.she had encountered difficulties making a test appointment, as there were currently no available slots for English language tests in the Melbourne area where she lived, so she could not meet the 10 July 2024 deadline; and
b.the applicant had been focusing intensely on her studies recently, which had limited her ability to allocate sufficient time for preparing and scheduling the English language test.
The applicant requested an extension of time to provide the necessary evidence, which would allow her to make a test appointment.
The Tribunal replied to the applicant indicating that she could provide the requested information at any time, and her case would be placed back in the queue.
On 16 January 2025, the Tribunal gave the applicant notice of a hearing to be held by Microsoft Teams video on 5 March 2025. The hearing notice asked the applicant to provide all documents she intended to rely on by 26 February 2025 and suggested that, in doing so, she should have regard to the reasons given in the delegate’s decision. The hearing notice also stated that if the applicant did not appear at the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable the applicant to appear before the Tribunal.
On 3 March 2025, the applicant wrote to the Tribunal, advising that she was not presently enrolled in any courses, and had not yet made a final decision regarding her future plans.
The applicant did not appear at the hearing on 5 March 2025. The hearing attendant joined the virtual hearing room at 8:45am, and remained there until 9:30am. The applicant did not join during this timeframe.
The applicant did not provide any reasons why she was unable to attend a hearing at the scheduled time and place, nor did she request an adjournment of the hearing.
Consideration of s 106 of the ART Act
Section 106 of the Administrative Review Tribunal Act 2024 (ART Act) permits me to make a decision after considering the documents provided and without holding a hearing in certain circumstances.
In this case, s 106(5)(a) and (b) are met, because the applicant failed to appear at a Tribunal case event (the hearing), and she is not a non-participating party to the proceeding.
I am satisfied that the applicant received appropriate notice of the date, time and place of the hearing, because the hearing notice was sent to the applicant’s representative almost 7 weeks in advance of the hearing, and they replied to that email (showing it was received). Accordingly, s 106(5)(c) is also met.
The issue in this case, as identified in the delegate’s decision of June 2024, and flagged by the Tribunal in its correspondence to the applicant later that month, is whether the applicant meets the requirements of cl 500.213 of Schedule 2 to the Regulations. These requirements are straightforward objective requirements that can be readily assessed having regard to documentation. Accordingly, it appears to me that the issues for determination in this proceeding can be adequately determined in the absence of the parties to the proceeding. Therefore, s 106(5)(d) is also met, so s 106(5) applies.
In this case, pursuant to s 106(1), I have decided to make a decision based on the documents provided and without holding a hearing because:
a.the applicant has been on notice of the issue since the delegate’s decision in June 2024;
b.the Tribunal notified the applicant that it was also considering this same issue;
c.although the applicant gave reasons for why she could not meet the relevant requirement by July 2024 and asked for more time to provide her evidence, she has not provided any further information about English language test results or attempts to book or complete a test since that time;
d.the applicant has not made any recent request for additional time to meet the requirement, and her most recent correspondence suggests that she may no longer be interested in the student visa (in that she said she was not presently enrolled in any courses, and had not yet made a final decision about her future plans); and
e.as noted above, the requirements are straightforward and can be readily assessed having regard to the documentation.
Findings and reasons
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.
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).
The requirements for evidence of English language proficiency, and the classes of applicants to whom the requirement does not apply, are specified in Migration (IMMI 18/015: English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visa) Instrument 2018.
The classes of applicants are set out in s 6(2) of the instrument, and can broadly be described as: the holders of passports of certain countries; applicants enrolled in specified courses; foreign affairs, defence or secondary exchange students; applicants who have completed specified studies conducted in English in Australia in the 2 years before the visa application; and applicants who have successfully completed at least 5 years’ study in English in specified countries. The applicant has not claimed that she is in any of these classes of persons, and there is no evidence before the Tribunal to suggest that she is. Accordingly, I find that the applicant is not within a class of applicants specified in the instrument, so cl 500.213(1) applies to the applicant.
In this case, the applicant was required by the Minister to provide evidence of English language proficiency in accordance with the instrument. Pursuant to s 6(1) of the instrument, Schedule 1 to the instrument sets out the language tests and minimum test scores. The tests specified are the IELTS Test, TOEFL iBT, Certificate in Advanced English, PTE and OET. The applicant has not provided evidence of achieving the requisite test scores in any of these tests. Accordingly, I find that the applicant does not meet cl 500.213.
Given the above findings, I am not satisfied that the applicant meets the criteria for the grant of a Subclass 500 (Student) visa. 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.
Representative for the Applicant: Ms Lizhi HUANG (MARN: 1792352)