Gautam (Migration)
[2025] ARTA 1471
•21 July 2025
GAUTAM (MIGRATION) [2025] ARTA 1471 (21 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Pujan Gautam
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2507083
Tribunal:General Member C Stokes
Place:Adelaide
Date: 21 July 2025
Decision:The decision under review is affirmed.
Statement made on 21 July 2025 at 2:24pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – short courses completed in English – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 106
Migration Act 1958 (Cth), ss 65, 348
Migration Regulations 1994, Schedule 2, cl 500.213CASES
EIZ20 v Child Support Registrar [2023] FedCFamC2G 637
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the then Minister for Home Affairs on 4 February 2025 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 25 June 2024. 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) because the applicant had not provided any evidence that his English language proficiency meets the requirements of the relevant legislative instrument.
The applicant was assisted in relation to the review by a migration agent.
On 12 June 2025, the Tribunal invited the applicant to give oral evidence and present arguments at a video hearing on 10 July 2025 at 2.30 pm. The applicant was advised that if he did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before it or it may dismiss his application for review without any further consideration of the application or the information before the Tribunal. The applicant was also advised that if he wanted the Tribunal to make a decision without holding a hearing, he could use the enclosed ‘Response to hearing notice’ form to request the Tribunal to make a decision without holding a hearing. The applicant was advised that if he requests the Tribunal to make a decision without a hearing, and the Tribunal proceeds to make a decision because it considers the issues can be determined in his absence, this does not guarantee that he will receive a favourable decision.
On 10 July 2025, the morning of the scheduled hearing, the applicant’s representative responded to the Tribunal’s hearing invitation by providing a competed ‘Response to hearing notice form.’ The form was signed by the applicant and the box indicating, ‘No, I will not participate in the hearing, and request the Tribunal make a decision on the papers without holding a hearing’ was ticked.
On 10 July 2024, the Tribunal wrote to the applicant to advise that the hearing had been cancelled and invited the applicant to comment on information which the Tribunal considered would, subject to the applicant’s comments or response, be the reason, or a part of the reason, for affirming the decision under review. The applicant did not respond within the requested timeframe.
For the reasons set out below, pursuant to ss 106(1) and 106(3) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), and after considering all the documents and things given to the Tribunal, the Tribunal has decided to make a decision in relation to the application for review without holding a hearing.
For the following reasons, the Tribunal considers the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Request for a decision without a hearing
The Tribunal is empowered to make a decision without holding a hearing when certain criteria are met. Where the only parties to a proceeding are the applicant and a non-participating party, the applicant may request the Tribunal to make a decision without holding a hearing of the proceeding: s 106(3) of the Administrative Review Tribunal Act 2024 (the ART Act). The Minister in this proceeding is a non-participating party: s 348(1) of the Act.
These provisions were considered by the President and two Deputy Presidents of the Tribunal in the case of 2010120 (Refugee) [2025] ARTA 550. I am guided by their decision, and also that of the Federal Circuit and Family Court of Australia in EIZ20 v Child Support Registrar [2023] FedCFamC2G 637 at [59] and [60].
I am satisfied that the applicant has made a clear and unambiguous request for a decision without holding a hearing and that he has done so while represented and being on notice that there is no guarantee that he will receive a favourable decision. I am also satisfied that the applicant was given the opportunity to comment on information which the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review.
I have before me the Department’s file. This includes a copy of the visa application form which specified the requirement to provide evidence of English language proficiency, as well as the delegate’s decision to refuse the visa where it was explained the applicant has not provided the Department with evidence of English language proficiency. It also contains a copy of the applicant’s passport and a number of Certificates of Enrolment (CoEs). The Tribunal file contains the documents which the applicant has provided to the Tribunal, including a certificate of completion of an English for Academic Purposes course dated 25 January 2025 and a Pearson Test of English Academic test result completed on 24 April 2027, with a score of 35. From these documents, I am able to make findings as to whether the applicant meets the requirements of the relevant instrument in relation to his English language proficiency or whether he falls within a class of persons specified in the relevant instrument. Accordingly, it appears to me that the issues for determination in the proceeding can be adequately determined in the absence of the parties: s 106(3)(c) of the ART Act.
Section 106(1) of the ART Act is therefore enlivened, and it is open to me to make a decision in this proceeding without holding a hearing. In circumstances where the applicant has made it clear that he does not wish to attend a hearing of the Tribunal, I consider it is appropriate for me to now proceed to make a decision on the papers.
English language proficiency (cl 500.213)
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. There were no secondary applicants.
The issue in the present case is whether the applicant has provided prescribed evidence of English language proficiency. This evidence can be presented at the time of application or at the time of decision.
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). Migration (English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visa) Instrument (LIN 24/022) 2024 (Instrument), 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 Tribunal has considered whether the applicant qualifies as a class of applicants to which subclause 500.213(2) of Schedule 2 of the Regulations applies and are exempt from the requirement to demonstrate English language proficiency under the Instrument.
As a passport holder of Nepal, the applicant does not meet the requirements of s 6(1)(a) of the Instrument.
The applicant’s visa application included CoEs in an English for Academic Purposes course (which is a registered ELICOS course but has now been completed), a Certificate in Kitchen Management which is ongoing, as well as a future Diploma of Hospitality Management course. Based on these CoEs, I am not satisfied the applicant meets the requirements of para 6(1)(b) or (c) of the Instrument.
While the applicant has provided evidence he completed an English for Academic Purposes 24-week course at the advanced level in December 2024, on the material before the Tribunal the highest level of study of the applicant prior to applying for the visa under review was secondary school in Nepal. His prior study does not meet the threshold of being qualification from the Australian Qualifications Framework at the Certificate IV level as required by para 6(1)(d) of the Instrument nor does it demonstrate the applicant has completed a minimum of 5 years study in English undertaken in Australia as required by para 6(1)(e).
There is no other basis on which the evidence demonstrates that the applicant may be exempt from the English language requirement. He is therefore required to undertake one of the English language tests specified in the Instrument and achieve a specified score.
On 25 April 2025, the applicant undertook a Pearson PTE Academic test. This is one of the tests specified in the Instrument. The report discloses that the applicant achieved an overall score of 35. This is below the specified score of 50 when studies are not packaged with ELICOS courses, and 36 when packaged with a 20-week ELICOS course which accompanies a principal course and is intended to commence after the visa application was made. While the applicant has completed a 24-week ELICOS course to accompany his Certificate IV in Kitchen Management course and it was commenced after the visa application was made, he unfortunately has not reached the required score of 36.
Accordingly, the Tribunal is not satisfied that the applicant meets cl 500.213 of Schedule 2 to the Regulations. The applicant has been on notice of this requirement since he applied for the visa in June 2024, or at the very least since the delegate’s decision in February 2025. It is considered that the applicant has had sufficient time to demonstrate that he met the requirement.
The English language criterion is a mandatory criterion for the grant of a student visa. The Tribunal is not required to assess whether the applicant meets any of the other criteria for the visa. Given the above findings and the absence of any discretion in relation to this criterion, the Tribunal has no choice but to affirm the decision under review.
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
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Dates of hearing(s): N/A
Representative for the Applicant: Mr Raju Adhikari
Attachment – LIN 24/022 – English language instrument (extract)
5 English language test requirements
(1) For the purposes of subclause 500.213(1) of Schedule 2 to the Regulations, the following requirements are specified:
(a) the applicant must undertake one of the following English language tests:
(i) Cambridge English: Advanced test (CAE) (also known as Certificate in Advanced English);
(ii) International English Language Testing System (IELTS);
(iii) Occupational English Test (OET);
(iv) Pearson Test of English Academic (PTE);
(v) Test of English as a Foreign Language internet-based test (TOEFL iBT); and
(b) the applicant must have undertaken 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—
the 2 year period immediately before the day on which the visa application is made; or
(ii) if evidence of the test is not provided at the time the visa application is made—the 2 year period immediately before the day on which a decision to grant or refuse to grant the visa is made; and
(c) the applicant meets the requirements in subsection (2), (3), or (4).
(2) The applicant achieved the required English language test score specified in Column 2 of an item in the table in Schedule 1.
(3) If the applicant is enrolled in:
(a) at least 10 weeks of an ELICOS that accompanies a principal course and that is intended to commence after the Subclass 500 (Student) visa application was made; or
(b) a standard foundation program; or (c) an extended foundation program; or (d) an eligible pathway program; the applicant achieved the required English language test score specified in Column 3 of an item in the table in Schedule 1.
(4) If the applicant is enrolled in at least 20 weeks of an ELICOS that accompanies a principal course and that is intended to commence after the Subclass 500 (Student) visa application was made, the applicant achieved the required English language test score specified in Column 4 of an item in the table in Schedule 1.
6 English language test requirements do not apply
(1) 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, one or more of the following countries:
(i) Canada;
(ii) New Zealand;
(iii) the Republic of Ireland
(iv) the United Kingdom;
(v) the United States of America;
(b) an applicant who is enrolled in one of the following courses, where that course is the only course of study enrolled in for the purposes of the Subclass 500 (Student) visa application:
(i) a course of study that is registered to be delivered in a language other than English;
(ii) an ELICOS;
(iii) a registered school course;
(iv) a registered post-graduate research course;
(c) an applicant who is:
(i) a Foreign Affairs student; or
(ii) a Defence Student; or
(iii) a Secondary exchange student;
(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;
(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 Required English language test scores
English language test scores Item Column 1: Column 2: Column 3: Column 4: Test name Minimum test score Minimum test score:
if principal course is accompanied by at least 10 weeks of an ELICOS; or
if a standard foundation program; or
if an extended foundation program; or
if an eligible pathway program.
Minimum test score:
if principal course is accompanied by at least 20 weeks of an ELICOS.
1 Cambridge English: Advanced (CAE) test/ Certificate in Advanced English 169 162 154 2 International English Language Testing system (IELTS Test) Overall band score 6.0 Overall band score of 5.5 Overall band score of 5.0 3 Occupational English Test (OET) a score of at least B for each test component a score of at least B for each test component a score of at least B for each test component 4 Pearson Test of English Academic (PTE) 50 42 36 5 Test of English as a Foreign Language internet-based test (TOEFL iBT) 64 46 35
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