Chiang (Migration)

[2019] AATA 5374

Chiang (Migration) [2019] AATA 5374 (9 September 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Cheng-ta Chiang

CASE NUMBER:  1908878

HOME AFFAIRS REFERENCE(S):         BCC2018/5425191

MEMBER:  Warren Stooke AM

DATE:  9 September 2019

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision not to grant the

applicant a Student (Temporary) (Class TU) visa.

Statement made on 09 September 2019 at 2:18pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – failure to undertake an English language test – specified class of exempted persons – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 21 March 2019 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 3 December 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) because the applicant did not provide evidence of an English language ability.

4. The applicant appeared before the Tribunal on 5 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was assisted in relation to the review by their registered migration agent.

6. The applicant confirmed to the Tribunal that he had received a copy of the delegate’s decision and had read the decision. In this regard, the representative confirmed to the Tribunal that she had explained the decision to the applicant, as the evidence of the applicant was to be conducted completely in the Mandarin language.

7. The applicant stated that the reason for the refusal to grant the visa was – “because of English ability my progress is not satisfying as should be”.

8. The applicant confirmed to the Tribunal that he had provided a copy of the decision to the Tribunal with his application.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 a level of English language proficiency that meets the requirements specified in the instrument: cl.500.213(1)English language proficiency (cl.500.213)

11. 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.

Case Number 1908878  Page 2 of 8

1. The applicant is a 29 year old from Taiwan, who arrived in Australia in November 2013 on a 417 visa and was granted a second 417 in 2014. The applicant was subsequently granted a Student 570 visa in December 2015 and a second student visa in July 2017.

2. The applicant provided evidence that he has completed the following courses:

a.     Certificate I in EAL (22 August 2016 to 5 March 2017);

b.     Certificate II in EAL (11 September 2017 to 25 March 2018)

c.     Certificate III in Business (12 November 2018 to 12 May 2019)

1. Further, the applicant provided the Tribunal with a Confirmation of Enrolment in a Certificate IV in Business from 3 June 2019 to 1 December 2019 and a Confirmation of Enrolment in a Diploma of Project Management to be undertaken from 20 January 2020 to 14 February 2021.

2. The Tribunal advised the applicant that the determinative issue in his case was whether he satisfied the requirements of IMMI 18/015: English Language Tests and Evidence for Subclass 500 (Student) Instrument 2018 and the Tribunal asked the applicant if he had undertaken an English language test. The applicant replied – “I did not take any test”.

3. The applicant gave evidence that he is currently employed in a food delivery job with Uber Eats and is paid $6 to $7 per delivery.

4. The Tribunal asked the applicant what was his purpose to be in Australia and he stated: - “Did not think too much when I came on a Working Holiday visa then thought I would study English to improve my future”.

5. On 2 June 2019, the representative for the applicant provided the following submission:

   “Based on the client’s previous, current and future course plan from Certificate I in EAL to Diploma of Project Management, he has progressed and completed 3 out of 5 courses, and is currently completing the 4th stage of the course plan. Moreover, the course packaged pathway is done correspondingly to another based on the progressive knowledge and more consolidate academic English level on every stage of the qualification.

   We had provided all the enrolment evidence and completion evidence for all stages of Australian CRICOS registered qualification and current enrolment letter for Cert IV in Business to support our appeal.”

6. The representative submitted in the hearing that completion of Certificates at the Certificate I, II and III levels meets the criteria. In relation to this assertion, the Tribunal requested that the representative provide the Tribunal with evidence to support her contention of compliance with the criteria in IMMI 18/015.

7. On 5 September 2019, the representative provided the following submission:

   “As member suggested to provide him the Regulations and Legislative instrument regarding the criteria in the absence of English language tests, I have quoted subclause 500.213 of Schedule 2 to the Regulations as well as the relevant Instrument IMMI 18/015 English Language Tests and

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Evidence Exemptions for Subclass 500 (Student Visa) relating to 500.213 (3)(a) for member's further consideration.

500.213

(1)        If required to do so by the Minister, in writing or by use of a computer program available online, at anytime, the applicant gives to the Minister evidence that the applicant has a level of English language proficiency that meets the requirements specified in an instrument under paragraph (3)(a).

Note: For arrangements for the use of a computer program, see section 495A of the Act.

(2)        Subclause (1) does not apply to an applicant within a class of applicants specified in an instrument under paragraph (3)(b).

(3)        The Minister may, by legislative instrument, spec*

(a)    requirements for the purposes of subclause (1); or

(b)    a class of applicants to which subclause (1) does not apply.

Migration (IMMI 18/015: English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visa) Instrument 2018

Part 2- Requirements for Subclass 500 (Student) visa
6 Primary Criteria

(2) For the purpose of subclause 500.213(2) of Schedule 2 to the Regulations, subclause 500.213(1) o f Schedule 2 to the Regulations does not apply to the folowing classes of applicants:

(d) an applicant, who, in the 2 years before applying for a Subclass 500 (Student) visa, has successfully completed:

1. the requirements for a Senior Secondary Certificate of Education, in a course that was concluded in Australia and in English; or

2. 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;

According to the policy/PAM on assessment of successful completion of a

substantial component of a course in Australia, the credits for previous registered study undertaken in Australia should be considered by a case officer.

Credits for previous study

If the previous study has been undertaken in Australia in a CRICOS registered

course taught in English, those credits can be taken into account when determining

Case Number 1908878  Page 4 of 8

whether the applicant has successfully completed a substantial component of their course in Australia in English.

Based on the client's previous, current and future course from Certificate 1 in EAL to Diploma of Project Management, he has progressed and completed three out of five qualifications and is currently completing the 4th one.

Satisfying 500.213(3)(a) and the relevant instrument, we have included Mr. Chiang, the visa applicant's latest study transcript of Certificate IV in Business at St Peter Institute, also added a new unit competency signed by his class trainer this week.

The completion evidence of his prior stages of Australian CRICOS registered qualifications in Australia had been attached to the AAT application portal earlier.

We hope that statement quoting regulations, the relevant instrument

IMMI18/015 and the policy with all supporting document meet your assessment for further decision.”

1. The Tribunal notes that 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.

2. The Tribunal finds in this case, that the applicant was required by the Minister to provide evidence of English language proficiency in accordance with the instrument and that the applicant, based on his own admission at hearing, did not undertake an English language test at any time. Therefore cl.500.213(1) is not met.

3. Further, the Tribunal has considered the submissions of the representative concerning an assertion that cl.500.213(2)(d)(ii) has been met. In this regard, the Tribunal finds that the applicant only completed a Certificate I and Certificate II in EAL, whilst on a Student visa and that it is a requirement under cl.500.213(2)(d)(ii) that “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”. The applicant, based upon the evidence, was not the holder of a Student visa when he completed the Certificate III in Business on 12 May 2019, or when he commenced the Certificate IV in Business on 3 June 2019. The applicant whilst undertaking both courses was subject to a Bridging A visa that applied from 3 December 2018. Therefore cl.500.213(2) is not met.

4. Accordingly, the Tribunal is satisfied that the applicant does not meet cl.500.213.

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1. 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

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

   Warren Stooke AM
   Member

Case Number 1908878  Page 6 of 8

Attachment – IMMI 18/015 – English language instrument (extract)

1. Primary Criteria

2. 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.

3. 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;

Case Number 1908878  Page 7 of 8

(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.

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