Inthasuwan (Migration)

[2025] ARTA 909

Inthasuwan (Migration) [2025] ARTA 909 (7 January 2025)

DECISION AND  

REASONS FOR DECISION

Applicant:Mr Amorn Inthasuwan

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2429220

Tribunal: General MemberS Manera

Place:Sydney

Date:  7 January 2025

Decision:The Tribunal sets aside the decision under review and remits the application for a Student (Temporary) (Class TU) visa for reconsideration in accordance with the order that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl 500.213 of Schedule 2 to the Regulations.

Statement made on 07 January 2025 at 9:13am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language requirement – relevant legislative instrument – Pearson Test of English Academic result provided upon review – decision under review remitted       

LEGISLATION

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cl 500.213

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. 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.

2. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 6 August 2024 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

3. The applicant is a 32-year-old man and a citizen of Thailand. The applicant applied for the visa on 26 February 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.

4. In support of his student visa application, the applicant provided the Department of Home Affairs with (amongst other documents) Confirmations of Enrolment for a General English course, a Certificate IV in Leadership and Management, a Diploma in Leadership and Management and an Advanced Diploma in Leadership and Management.

5. 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 he had not provided evidence that he had the required level of English language proficiency required for grant of the visa.

6. 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 IMMI 18/015: English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visa Instrument 2018 (the Instrument), specifies the requirements for evidence of English language proficiency and classes of applicants to whom the requirement does not apply.

7. The applicant applied for review to the Tribunal on 20 August 2024. The applicant provided a copy of the delegate’s decision record to the Tribunal.

8. The Tribunal notes the delegate’s decision record incorrectly states that the applicant was required to have a level of English language proficiency that meets the requirements specified in legislative instrument LIN 24/022. However, as the visa was applied for on 26 February 2024, the applicable instrument is IMMI 18/015 (which applies to student visa applications made on or after 6 June 2018 and before 23 March 2024).

9. The applicant appeared before the Tribunal on 2 January 2025 by telephone to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages who attended the Tribunal hearing via video conference on MS Teams.

10. The applicant was represented in relation to his application for review. The representative attended the Tribunal hearing via video conference on MS Teams.

11. For the following reasons, the Tribunal sets aside the decision under review and remits the visa application for reconsideration.

    Evidence provided to the Tribunal

12. On 5 September 2024 the Tribunal wrote to the applicant and requested that he provide evidence that he meets the English language requirements as required for the grant of the visa.

13. On 18 September 2024 the applicant responded to the Tribunal’s request but did not provide evidence that he meets the English language requirements. The applicant advised the Tribunal that he would be sitting a Pearson Test of English Academic (PTE test) on 29 October 2024 and would provide the results as soon as they were received. The applicant did not provide his PTE test results to the Tribunal prior to the hearing.

14. On 12 December 2024 the applicant was notified to attend a hearing before the Tribunal on 2 January 2025 via video conference to give evidence and present arguments. The hearing notice requested the applicant to provide any documents upon which he wished to rely in support of his matter to the Tribunal on or before 26 December 2024.

15. On 16 December 2024 the applicant appointed Mr Niels Mosegaard as his representative. Mr Mosegaard requested that the hearing be adjourned until February 2025 as the applicant intended to rely on documentation from his vocational college in support of his application for review, but the college was currently unable to provide the documentation due to its end of year closure. The representative requested an adjournment until February 2025 to ensure the college was available to provide the documentation. The representative did not specify what documentation he intended to provide, nor did he specify how the documentation would demonstrate that the applicant satisfied the English language requirements for grant of the visa. As the Tribunal had requested relevant information from the applicant on 5 September 2024, it considered that the applicant had been given an adequate opportunity to provide evidence that he meets the English language requirements as required for the grant of the visa and, as such, the Tribunal refused the request for an adjournment. The Tribunal requested that the representative provide a written submission at least 7 days prior to the hearing, setting out how the applicant meets the requirements specified in legislative instrument IMMI18/015, and providing details of the specific evidence upon which the applicant intended to rely to demonstrate that he meets the English language requirements. The Tribunal did not receive submissions from the representative at least 7 days prior to the hearing.

16. On 1 January 2025 the applicant’s representative wrote to the Tribunal requesting an urgent adjournment as the applicant was unwell and unable to attend the hearing. A medical certificate dated 31 December 2024 was provided in support of the adjournment request. The medical certificate stated that the applicant had attended a medical consultation and was found to be unable to attend work from 1 - 5 January 2025 due to illness.

17. On 2 January 2025 the Tribunal wrote to the applicant’s representative advising that the request for an adjournment was refused, as the Tribunal was not satisfied that it was reasonable nor that there were good reasons for granting the adjournment. In reaching this conclusion, the Tribunal informed the representative that while the medical certificate stated that the applicant was unable to attend work, there was insufficient evidence that the applicant was unfit to attend the hearing, which was estimated to take 1:30 hours, and which the applicant could attend by video conference or telephone from home. The Tribunal also stated in its correspondence that evidence of the applicant’s English language proficiency had still not been provided. The Tribunal informed the applicant’s representative that in the circumstances it was not satisfied that it was reasonable to grant the adjournment, nor that there were good reasons for doing so and, as such, the hearing scheduled for 2:00PM (NSW time) would proceed.

18. The applicant’s representative then contacted the Tribunal and advised that the applicant requested an interpreter in the Thai and English languages. Despite the last-minute request, the Tribunal sourced an interpreter in the Thai and English languages, who attended the hearing by video conference on MS Teams.

19. Approximately one hour prior to the start of the hearing, the applicant’s representative submitted a document called ‘Written submission of the applicant’ to the Tribunal. This submission referred to legislative instrument LIN 24/022. The representative also submitted a letter from New Cambridge College Sydney dated 13 December 2024 advising that the applicant is currently enrolled as a full-time student in a Certificate IV in Leadership and Management.

20. At the start of the hearing the Tribunal asked the applicant as to how he was feeling, considering he had recently provided a medical certificate to the Tribunal stating that he was unable to work. The applicant responded that he was not feeling well, but that he was happy to proceed with the hearing by telephone. The Tribunal notes the applicant was able to give prompt and intelligent responses to questions during the hearing, and he willingly chose to give oral evidence in the English language, despite the availability of an interpreter. The applicant did not request a break at any time during the hearing because of his health condition. The Tribunal finds that despite the medical certificate provided stating that the applicant was unable to attend work, the applicant had a meaningful opportunity to participate in the hearing.

21. During the hearing the applicant confirmed that he was aware the delegate of the Minister had refused his student visa as he had not demonstrated that he has a level of English language proficiency as required by the Regulations.

22. The Tribunal discussed with the applicant his study history in Australia. The applicant confirmed that between March 2024 and September 2024, he completed a General English course of 26 weeks’ duration at the Australian College of International Studies Pty Ltd. The applicant also stated that he is currently enrolled in a Certificate IV in Leadership and Management at New Cambridge College Sydney and that he commenced this course on 16 September 2024 and is due to complete the course on 14 September 2025.

23. During the hearing the applicant stated that he had given a copy of his PTE test results to his registered migration agents, who had advised him that his score was below the minimum test score required. As such, the applicant decided not to provide a copy of his PTE test results to the Tribunal.

24. On 3 January 2025 the Tribunal wrote to the applicant’s representative and requested a copy of the applicant’s PTE test results, as the Tribunal was mindful that the applicant’s advisors may have only considered whether the applicant’s score was sufficient under legislative instrument LIN 24/022, and not the correct instrument, IMMI 18/015, considering the delegate had referred to the incorrect instrument in its decision record, and the representative had also referred to the incorrect instrument in his submission of 2 January 2025.

25. On 6 January 2025 the representative provided the Tribunal with a copy of the applicant’s PTE test results showing an overall score of 33. The representative also provided copies of the applicant’s Confirmations of Enrolment for his packaged courses of study, and a post-hearing written submission. The Confirmations of Enrolment state that the applicant is enrolled in the following courses:

    ·General English, commencing 11 March 2024 and finishing 8 September 2024 (26 weeks). According to the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS), this is an ELICOS course[1];

    ·Certificate IV in Leadership and Management, commencing 16 September 2024 and finishing 14 September 2025;

    ·Diploma of Leadership and Management, commencing 15 September 2025 and finishing 13 September 2026; and

    ·Advanced Diploma of Leadership and Management, commencing 14 September 2026 and finishing 10 September 2028.

    [1] Course Details - Australian College of International Studies Pty Ltd - General English

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. 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 cl 500.213 of Schedule 2 to the Regulations.

    English language proficiency (cl 500.213)

27. The applicant is a national of Thailand and is not, for the purposes of cl 500.213(3)(b), within a class of applicants specified in the relevant instrument, IMMI 18/015, to whom the English language requirements do not apply. As a result, cl 500.213(1) applies to the applicant and the applicant is required by the Minister to provide evidence of English language proficiency in accordance with the Instrument.

28. The relevant Instrument IMMI 18/015 indicates that a PTE score of 30 meets the English language requirements of cl.500.213(1) if packaged with at least 20 weeks’ ELICOS. As the applicant has achieved an overall score of 33 in a PTE test dated 29 October 2024 and has provided evidence of a 26 weeks’ General English course, which the Tribunal is satisfied is an ELICOS course and is packaged with his leadership and management courses, the Tribunal finds that he has a level of English language proficiency as required by the Instrument.

29. Accordingly, the Tribunal is satisfied that the applicant meets cl 500.213.

30. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

31. The Tribunal sets aside the decision under review and remits the application for a Student (Temporary) (Class TU) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl 500.213 of Schedule 2 to the Regulations.

    Date of hearing:  2 January 2025  

    Representative for the Applicant:           Mr Niels Ole Mosegaard (MARN: 2318127)