Ghimire (Migration)

[2018] AATA 2996

Ghimire (Migration) [2018] AATA 2996 (4 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Devendra Ghimire

CASE NUMBER:  1814089

DIBP REFERENCE(S):  BCC2018/1202424

MEMBER:Stephen Witts

DATE:4 July 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

·cl.500.213 of Schedule 2 to the Regulations

Statement made on 04 July 2018 at 8:35am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Evidence of English language ability not provided to the Department – Uncertainty as to what English language proficiency requirements apply – Decision remitted with direction

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 Immigration 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 14 March 2018. The delegate refused to grant the visa on 26 April 2018.

3. The delegate made the decision on the basis that evidence of English language ability was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations).

4. Cl 500.213(3)(a) specifies that the Minister may, by legislative instrument, specify the requirements for the purposes of cl.500.213(1).

5. IMMI18/015 is the legislative instrument which seeks to specify the English language proficiency requirements for Subclass 500 student visa applications for the purposes of cl.500.213 of schedule 2 to the Migration Regulations 1994.

6. Section 7 of IMMI18/015 states that the instrument applies to an application for a Subclass 500 visa made on or after the commencement of the instrument, 6 June 2018.

7. Significantly, Schedule 2 to the instrument states that IMMI18/015 repeals the previous instrument, IMMI16/019, with the exception that the previous instrument will continue to apply in relation to an applicant who meets either of the following requirements:

   The applicant completed the TOEFL-PBT test before 14 October 2017 and achieved the specific score within a certain period; or

   The applicant completed the TOEFL-PBT test on or after 14 October 2017 but before the commencement of IMMI18/015 and achieved a specified score within a certain period.

8. IMMI18/015 makes no reference to applications for a Subclass 500 visa made before its commencement where an applicant did not undertake the TOEFL-PBT test or did not achieve the required score. As such, it is unclear what English language proficiency requirements apply to the applicant.

9. In light of this, the Tribunal has determined that the matter should be remitted for reconsideration.

   DECISION

10. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

    cl.500.213 of Schedule 2 to the Regulations

    Stephen Witts
    Member