Chua (Migration)

[2018] AATA 5109

Chua (Migration) [2018] AATA 5109 (6 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jerico Bassig Chua
Mrs Alkyne Grace Chua

CASE NUMBER:  1814773

HOME AFFAIRS REFERENCE(S):           BCC2018/1527663

MEMBER:Mark Bishop

DATE:6 September 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 06 September 2018 at 11:15am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – applicant failed to provide evidence that he met the minimum test score required for English language requirements – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.213, 500.218

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 17 May 2018 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 4 April 2018. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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 visas on the basis that the applicant did not satisfy the requirements of cl.500.213of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant failed to provide evidence he met the minimum test score required for English language requirements as set out in the relevant legislative instrument.

4. The applicants appeared before the Tribunal on 6 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, Mrs Alkyne Grace CHUA.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 satisfies the minimum English language requirements as set out in cl.500.213(a) of Schedule 2 to the Migration Regulations.

   English language proficiency (cl.500.213)

7. 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 16/019, 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.

   The decision record outlined the following:

   ·If required the applicant gives to the Minister evidence that the applicant has a level of English language proficiency that meet the requirements specified in an instrument under paragraph Cl.500.313(3)(a);

   ·The relevant instrument at the time the application was lodged was IMMI 16/019;

   ·That instrument specifies the minimum test score that the applicant is required to achieve in a PTE as:

   o42 if the applicant is registered for a package of courses that does not include ELICOS;

   o36 if the applicant is registered for a package of courses including at least 10 weeks’ of ELICOS;

   o30 if the applicant is registered for a package of courses including at least 20 weeks’ of ELICOS.

8. This instrument specifies the minimum score that the applicant is required to achieve in a Pearson Test of English Academic (PTE) test as an overall band score of 30 if packaged with at least 20 weeks ELICOS.

9. At the time of the decision the delegate recorded the applicant had provided a PTE Academic Test Report dated 28 March 2018 with an overall band score of 23.

10. The delegate recorded that PRISMS indicated the applicant held an enrolment in a package of courses that included an English for Academic Purposes that was registered for a period of 20 weeks of ELICOS and a Diploma of Hospitality Management.

11. Therefore the minimum test score the applicant was required to achieve in an PTE Academic test to satisfy the requirements of subclause 500.213(1) is an overall band score of 30 and registered ELICOS course for a period of twenty weeks or more.

12. As stated above the PTE Test Report issued on 28 March 2018 indicated that the applicant achieved an overall band score of 23. The applicant did not meet the requirements of subclause 500.213(1) and therefore the requirements of clause 500.213.

13. On Friday 17 August the Tribunal wrote to the applicant and requested he provide “evidence he meet the English language requirements”.

14. The applicant did not respond to this request for information. The applicant did not provide the evidence as requested.

15. At the review hearing the applicant provided the following documentation to the Tribunal:

    ·Copy of an employment agreement between Zitire Pty Ltd trading as Sea Salt and Jerico Bassig CHUA (the applicant) providing for full time employment as a chef dated and signed 22 October 2015 with a commencement date of 9 November 2015;

    ·Copy of an employment agreement between Australian Unity and Jerico CHUA (the applicant) providing for 28 hours work on a permanent part time basis at an hourly rate of $21.31 as a food service assistant dated and signed 2 August 2017 with a commencement date of 5 August 2017;

    ·Certificate of Completion of English for Academic Purposes in the name of Jerico CHUA with course attendance dated of 16 April 2018 until 31 August 2018;

    ·Results statement from Brighton Institute of Technology (BIT) in the name of Jerico CHUA;

    ·Assessment report EAP course in the name of Jerico CHUA;

    ·Academic record Jerico CHUA at BIT;

    ·PTE Academic Test Taker Score Report in the name of Jerico Bassig CHUA showing overall score of 23;

16. In summary the applicant has provided evidence of his continuing employment in the hospitality industry since 2015, initially as a full time worker then as a part time worker and then his progress studying English at BIT. The Tribunal notes there are not any conditions attached to the applicant’s Bridging visa A issued 4 April 2018.

17. The applicant did not provide a test score result to the Tribunal.

18. The Tribunal inquired of the applicant if he had any further documentation to provide to the Tribunal. The applicant advised no.

19. The Tribunal inquired of the applicant if he a further PTE Test Taker Score report to provide to the Tribunal. The applicant advised no.

20. The Tribunal inquired of the applicant if he any other English language test score results as set out in Schedule 2 to provide to the Tribunal. The applicant advised no.

21. The Tribunal inquire of the applicant if he had undertaken any further English language tests. The applicant advised no.

22. There is no evidence before the Tribunal that the applicant satisfies the minimum test score results as set out in Schedule 2 to IMMI16/019.

23. The applicant does not meet the requirements of cl.500.213(1) of Schedule 2 to the Migration Regulations

    Secondary applicant Alkyne Grace CHUA

24. The secondary applicant is a member of the family unit of the primary applicant. As the primary applicant was found not to meet cl.500.213 the applicant does not meet cl.500.311. As cl.500.311 is not met by the secondary applicant the Tribunal finds the criteria for the grant of a student visa are not met.

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

26. Accordingly, the Tribunal is not satisfied that the applicant and secondary applicant respectively, meet cl.500.213. and cl.500.311.

27. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicants do not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

28. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Mark Bishop
    Member

    
    

    Attachment – IMMI 16/019 – English language instrument (extract)

    (1)SPECIFY for the purposes of paragraph 500.213(3)(a) of Schedule 2 to the Regulations:

    a.the requirement to use one or more of the English language test providers listed in Schedule 1 to this Instrument; and

    b.the requirement to achieve the relevant English language test score listed in Schedule 2 to this Instrument in a test provided by the relevant English language test provider mentioned in item 1 of this Instrument; and

    c.countries, listed in Schedule 3 to this Instrument, where an applicant may take a Test of English as a Foreign Language (TOEFL) paper-based test; and

    d.the maximum time periods in which an English test must be taken:

    i.two years immediately before the date the application is made; or

    ii.two years immediately before a decision is made on the application.

    2.SPECIFY for the purposes of paragraph 500.213(3)(b) of Schedule 2 to the Regulations, classes of applicants to which subclause 500.213(1) of Schedule 2 to the Regulations does not apply, as stated in subclause 500.213(2) of Schedule 2 to the Regulations:

    a.an applicant who is a citizen of, and 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 and that principal course of study 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 applicants who is a:

    i.Foreign Affairs student;

    ii.Defence Student; or

    iii.secondary exchange students; or

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

    i.the requirements for a Senior Secondary Certificate of Education, in a course that was conducted in Australia 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 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; and/or

    vii.the United States of America.

    SCHEDULE 1

English language test providers:
1.	International English Language Testing System (IELTS test)
2.	Test of English as a Foreign Language (TOEFL)         Paper-Based test
3.	TOEFL internet-based test (also known as TOEFL iBT)
4.	Cambridge English: Advanced (CAE) test (also known as Certificate in Advanced English)
5.	Pearson Test of English Academic (PTE)
6.	Occupational English Test (OET)

SCHEDULE 2

English test:	Minimum test score:
1	IELTS	Overall band score 5.5; or Overall band score 5 if packaged with at least 10 weeks’ ELICOS; or Overall band score of 4.5 if packaged with at least 20 weeks’ ELICOS.
2	TOEFL Paper-Based test	527; or 500, if packaged with at least 10 weeks’ ELICOS; or 450, if packaged with at least 20 weeks’ ELICOS.
3	TOEFL iBT	46; or 35, if packaged with at least 10 weeks’ ELICOS; or 32, if packaged with at least 20 weeks’ ELICOS.
4	CAE	162; or 154, if packaged with at least 10 weeks’ ELICOS; or 147, if packaged with at least 20 weeks’ ELICOS.
2	PTE	42; or 36, if packaged with at least 10 weeks’ ELICOS; or 30, if packaged with at least 20 weeks’ ELICOS.
5	OET	‘PASS’ mark

SCHEDULE 3

Countries in which an applicant may take a TOEFL paper-based test:
Belarus	Kyrgyzstan	Tajikistan
Ecuador	Mali	Tanzania
El Salvador	Moldova	Uganda
Guatemala	Solomon Islands	Uzbekistan
Honduras	Suriname