Chimeddorj (Migration)

[2020] AATA 2945

Chimeddorj (Migration) [2020] AATA 2945 (29 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Selenge Chimeddorj

CASE NUMBER:  1932368

HOME AFFAIRS REFERENCE(S):          BCC2019/4158045

MEMBER:Steven Griffiths

DATE:29 April 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction 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 29 April 2020 at 10.00am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – substantial completion of course of study taught in English in the 2 years before application – applicant’s academic transcript – decision under review remitted    

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 31 October 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 21 August 2019. 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 was assisted by their registered migration agent, Mr. Oyunchimeg Bordukh, of Bridge Blue Global Migration.

5. On 14 November 2019, 9 December 2019, 13 December 2019, 28 January 2020, 31 January 2020, 25 February 2020, 9 March 2020, 14 April 2020 and 21 April 2020 the Tribunal received a range of submissions from the applicant on the course of study, taught in English, that she had substantially completed

6. On 29 November 2019, 27 February 2020 and 14 April 2020 the Tribunal received requests from the applicant for priority consideration of the review due to the near completion of her course of study and the implication on a future graduate visa she will be applying for.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   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.

9. The Tribunal has read and had regard to information provided by the applicant to the Department. The Tribunal has also read and had regard to the delegate’s decision record, a copy of which was provided to the Tribunal by the applicant with her application for review.

10. The Tribunal notes the delegate’s decision was based around compliance with cl.500.213 of the Regulations and that the applicant did not provide documented evidence of English language proficiency.

11. The applicant is a 30-year-old female citizen of Nepal, who arrived in Australia on 29 June 2016 on a Student 573 Visa, granted on 22 August 2016 and to cease 21 August 2019. She was placed on a WA-010 Bridging Visa on 21 August 2019.

12. The Tribunal has read and had regard to information provided by the applicant to the Tribunal on 14 November 2019, 9 December 2019, 13 December 2019, 28 January 2020, 31 January 2020, 25 February 2020, 9 March 2020, 14 April 2020 and 21 April 2020.  

13. 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.

14. The applicant is within a class of applicants specified in the instrument, being Part 2, clause 6(2)(d)(ii) which states that an applicant, while in the 2 years before applying for a Subclass 500 (Student) visa, has successful completed a substantial component of a course leading to a qualification from the Australian Qualifications Framework at the Certificate lV level of higher that was conducted in Australia and in English, while the applicant was holding a student visa, thus cl.500.213(1) does not apply to the applicant.

15. As part of the student visa applicant assessment, the applicant was required by the Minister to provide evidence of English Language proficiency in accordance with the instrument.

16. The Tribunal notes the applicant was requested to provide such evidence before a decision was made, with a subsequent submission from the registered migration agent that not acting upon this requirement was their error and not the applicant.

17. The Tribunal accepts the Australian Government, Department of Education, Overseas Student Confirmation-of-Enrolment, for a Masters Degree, Master of Professional Accounting, which commenced on 19 February 2018 and is to be completed on 19 June 2020, for the applicant.

18. The Tribunal accepts the Academic Transcript, dated 10 December 2019, from Charles Sturt University on subjects in the Master of Professional Accounting the applicant has studied in 2018 and 2019.

19. As the applicant is within a class of applicants specified in the instrument, cl.500.213(1) does not apply to the applicant.

20. 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

21. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.213 of Schedule 2 to the Regulations.

    Steven Griffiths
    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.