Huang (Migration)
[2025] ARTA 927
•3 January 2025
Huang (Migration) [2025] ARTA 927 (3 January 2025)
Applicant:Mr Pei-feng Huang
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2421965
Tribunal: General Member N Hossen
Place:Perth
Date:3 January 2025
Corrigendum
Date of Corrigendum: 11 June 2025
Pursuant to s 114 of the Administrative Review Tribunal Act 2024 (Cth), the following alteration is made to the decision.
The sentence in paragraph 3 of the written statement of reasons for the decision is altered to read: The delegate in this case refused to grant a 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 did not provide to the Department any evidence with their application which would satisfy Regulation 500.213(3)(b).
Statement made on 11 June 2025 at 11:41am
Decision and Reasons for Decision
Applicant: Mr Pei-feng Huang
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2421965
Tribunal: Noelle Hossen
Place: Perth
Date: 3 January 2025
Decision: The decision under review is affirmed.
Statement made on 03 January 2025 at 1:49pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – requirements for English language proficiency not met – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s114
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 2.03AA, Schedule 2, cls 500.213
Statement of reasons
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 June 2024 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 30 November 2023. 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 did not provide to the Department a
The applicant appeared before the Tribunal on the 3 January 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was assisted in relation to the review, but his representative did not attend the hearing.
For the following reasons, the Tribunal considers the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 meets clause 500.213 of Schedule 2 which is extracted to this decision. This clause states that the applicant must give evidence that he has met a level of English proficiency that meets certain specified requirements in certain circumstances. However, this requirement does not apply to an applicant within a class specified in IMMI18/015 (also extracted to this decision). IMMI 18/015 specifies evidence of English Language proficiency and classes of applicants to whom the requirement does not apply.
English language proficiency (cl 500.213)
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). 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.
On the 3 September 2024 the Tribunal requested the applicant provide evidence of English Language proficiency.
The Tribunal did not receive any further evidence from the applicant to prove that he had completed the requirements for evidence of English language proficiency.
The applicant provided a completed hearing Response lodged on the 31 December 2024 and stated in the form that he did not plan to provide any further documents to be relied upon at the hearing.
In the delegate’s Decision the Delegate stated
“In Response to the request, the applicant has provided evidence of a PTE academic score report with a Score Report Code: 339b1bSRYH for a test undertaken on the 19 June 2024, which shows an overall score of 38.
The applicant’s English Language test results were assessed against the minimum scores specified by the Minister in the Legislative Instrument. The results do not meet the minimum requirements as stipulated.”
At the hearing the applicant gave evidence that he had recently completed an English test and that he had become nervous in the oral exam and failed and achieved a score of 32. He said that he needed more time to pass his English Course.
He said that he had been in Australia for 7 years and during that time he had not passed any of the courses that he had enrolled in and studied. He said that he was enrolled and attending a Certificate IV in Business and Marketing and that he had not passed the first phase of the Course in October 2024. He said that he had not passed the first phase of the Course, but he expected that the facilitators would allow him to study further whilst he attended the second phase of the Course.
The Tribunal finds that the decision under review should be affirmed. In reaching the Decision the Tribunal has had regard to the following:
1) The oral evidence given by the applicant at the hearing
2) Relevant documents on the Tribunal and the Department’s file.
The applicant is not in a specified class for the purposes of clause 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. As the applicant is not within a class of applicants specified in the instrument, cl 500.213(1) applies to the applicant.
In this case, the applicant was required by the Minister to provide evidence of English language proficiency in accordance with the instrument. The relevant instrument IMMI 18/015 indicates that a PTE score of 42 meets the English Language requirements of cl.500.213(1). It indicates that it is sufficient that the test is taken 2 years immediately before the Decision. As the Applicant has achieved an overall score of 38 in a PTE test dated the 19 June 2024.
Accordingly, the Tribunal is not satisfied that the applicant meets cl 500.213.
Concluding paragraphs
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): 3 January 2025
Representative for the Applicant: Ms Jie Zhan (MARN: 0639485)
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