CHOI (MIGRATION)

[2024] ARTA 137

CHOI (MIGRATION) [2024] ARTA 137 (10 DECEMBER 2024)

DECISION AND  

REASONS FOR DECISION

Applicants:Mrs Yoonseo Choi
Mr Donghwi Kim
Mr Moomchan Kim

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2433842

Tribunal:General Member R Da Costa

Place:Sydney

Date:  10 December 2024

Decision:The Tribunal remits the applications for reconsideration, with the direction that the first-named applicant meets the following criteria for a Subclass 500 visa:

· subclause 500.213 of Schedule 2 to the Regulations

Statement made on 10 December 2024 at 1:20pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – Pearson PTE Academic test result provided upon review – members of the family unit – decision under review remitted          

LEGISLATION

Administrative Review Tribunal Act 2024, s 106
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss65
Migration Regulations 1994, Schedule 2, cls 500.213, 500.311

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 5 September 2024 to refuse to grant the visa applicants Student (Temporary) (Class TU) Subclass 500 visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

3. The first-named applicant applied for the visa on 18 December 2023. The delegate refused to grant the visa on the basis that she had not provided evidence that she has a level of English language proficiency that meets the requirements specified in legislative instrument Migration (IMMI 18/015: English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visa) Instrument 2018 (IMMI 18/015) made under subclause 500.213(3) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

4. On 31 October 2024, the applicants’ representative sent the Tribunal a copy of the result of a Pearson PTE Academic test undertaken by the first-named applicant on 30 October 2024 showing an overall score of 44. This meets the requirements in Item 4 of Schedule 1 to IMMI 18/015, which requires a minimum PTE score of 42. In light of the new evidence received by the Tribunal, the Tribunal is satisfied that the criterion is met and has concluded that the matter in respect of the first-named applicant should be remitted for reconsideration.

5. The delegate refused the applications of the second and third-named applicants on the basis that they did not meet subclause 500.311, which essentially requires them to be a member of the family unit of a person (the primary person) who holds a student visa. This means their refusal flowed from the refusal of the first-named applicant. In light of the Tribunal’s finding about the first-named applicant above, the Tribunal considers that the applications of the second and third-named applicants should also be remitted for reconsideration as a result.

6. In reaching its decision, the Tribunal did not consider a hearing to be necessary as it was able to find wholly in favour of the applicant and it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties to the proceeding: s 106(3) of the Administrative Review Tribunal Act 2024 (Cth).

   DECISION

7. The Tribunal remits the applications for reconsideration, with the direction that the first-named applicant meets the following criteria for a Subclass 500 visa:

   · subclause 500.213 of Schedule 2 to the Regulations

   Representative for the Applicant:           Mr YOUNGKI HONG (MARN: 0701746)