Kanwaljit Kaur (Migration) - [2025] ARTA 2115

Kanwaljit Kaur (Migration) [2025] ARTA 2115 (11 September 2025)
DECISION AND
REASONS FOR DECISION
Applicants:Mrs Kanwaljit Kaur
Mr Davinder Singh
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2423738

Tribunal:General Member R Hampson
Place:Brisbane
Date: 11 September 2025
Decision:The decisions under review are affirmed.

Statement made on 11 September 2025 at 11:31am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language requirement – courses completed in the English language – English language proficiency test result – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994, Schedule 2, cl 500.213
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 1 July 2024 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 28 December 2023. 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.
The delegate in this case refused to grant the visas 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 has not demonstrated that she had a level of English language proficiency that met the requirements of the visa.
The applicants appeared before the Tribunal via MS Teams video link on 28 July 2025 to give evidence and present arguments.
For the following reasons, the Tribunal considers the decisions under review should be affirmed.
BACKGROUND
The applicant is a 42 year old citizen of India. She applied for the visa to undertake study in Kitchen and Hospitality Management. The applicant is married and her husband also a national of India and a member of her family unit is with her here in Australia.
The applicants first arrived in Australia on 3 December 2018 on visitor visas (3 month stay) and accordingly departed. The applicants then arrived in Australia again on 21 April 2022 on a further 3 month visitor visa. They were granted a Bridging Visa A on 19 July 2022 and then granted Student Guardian visas on 24 March 2023 in relation to their son whilst he was studying in Australia. The applicants again departed Australia on 4 December 2023 and returned on 18 December 2023 on visitor visas. The applicants applied for and were granted further Bridging Visa A’s on 28 December 2023 following an application for the Student Visa on that date.
The applicants applied to the Department with regard the Subclass 500 (Student) visa on 28 December 2023 and on the delegate refused this application on 1 July 2024 on the grounds the applicant did not meet cl 500.213 the English Language proficiency and the second applicant as a member of the same family unit is also refused on the same criteria as the primary applicant.
On 18 July 2024 the applicants applied to the Tribunal for a review of this decision.
On 19 November 2024 the Tribunal wrote to the applicant requesting evidence of her English language proficiency test results. The applicants did not reply to this request.
On 23 June 2025 the applicants were sent an invitation to attend a hearing with the Tribunal for 28 July 2025.
Prior to this hearing the applicants, via their authorised representative provided the Tribunal with the following documents:
a)A completion letter from Skills Australia dated 15 July 2025 stating the first applicant has completed course requirements and is eligible to receive the award for a Certificate IV in Kitchen Management.
b)Authenticated Vocational and Training (VET) Transcript outlining subjects the first applicant has undertaken.
c)A Skills Australia completion Certificate IV in Kitchen Management for the first applicant.
d)Confirmations of Enrolment (CoE) for the first applicant for the Certificate IV in Kitchen Management and for the Diploma of Hospitality Management.
e)A ground for appeal statement for the first and second applicant submitted on 21 July 2025.
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 primary applicant has completed the English language proficiency test with sufficient results to satisfy the criteria in the instrument cl 500.213(2).
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). Migration (IMMI 18/015: English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visa Instrument (the Instrument), 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 India, the applicant does not meet the requirements of section 6(2)(a) of the Instrument. The secondary applicant is also a passport holder of India and as such does not meet the requirements of this Instrument.
The applicants attended the hearing on 28 July 2025 and the primary applicant was asked about her English Language proficiency test results that had been previously requested by the Tribunal. The applicant stated she had had difficulty passing the English test. She said she felt she could now pass the test as she is having English tutoring.
The Tribunal spoke with the primary applicant about her current study enrolment and recent completion of her Certificate IV in Kitchen Management and her claim that she had completed an English proficiency test as part of her enrolment for this course. She said that when she enrolled in the course, she was given a piece of paper which she completed and this satisfied her enrolment during study. She then undertook a 70 week course of study which was taught completely in the English language.
The Tribunal then spoke with the primary applicant pursuant to the provisions of s 359A regarding the English language requirements and the concern that she has not met these requirements and that she does not meet the list of persons exempt from the English language test as set out in the instrument IMMI 18/050. These exemptions will be further discussed in following paragraphs.
The Tribunal has considered whether the primary 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 requirements to demonstrate English language proficiency under the Instrument.
The Tribunal notes the primary applicant is currently enrolled in and attending a Diploma of Hospitality Management which she states she will be due to complete in February 2026 and she has asked the Tribunal for time to complete this course of study and then she will return to India.
The primary applicant was not and is not enrolled in a principal course of study that meets the requirements for exemption under section 6(2)(b) of the Instrument.
The primary applicant is not an applicant who meets any of the criteria as a (i) Foreign Affairs student; (ii) Defence student; or (iii) Secondary exchange student as specified in section 6(2)(c) of the Instrument.
The Tribunal also spoke with the applicant about submissions in her ground for appeal statement submitted on 21 July 2025 in which she has appealed to the Tribunal for exemption to cl 500.213 as she has completed 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 at which time the applicant was holding a student visa. The Tribunal spoke with the applicant about this exemption, noting the primary applicant was in receipt of a Bridging Visa A whilst her application for a Subclass 500 (Student) visa was being assessed and as such she did not meet this exemption on the evidence currently before the Tribunal.
Whilst the primary applicant has now completed a Certificate IV in Kitchen Management. She did not complete this in the two years before applying for the visa under review. The applicant has not completed any previous course of study to this.
The Tribunal has also considered whether the applicant has successfully completed a minimum of 5 years study in English undertaken in Australia. The applicant has, according to her VET, transcript only completed the recent Certificate IV in Kitchen Management. The primary applicant commenced this course on 12 February 2024 and completed it on 13 June 2025. She commenced a Diploma of Hospitality Management on 15 July 2025.
There is no other basis on which the evidence demonstrates that the primary applicant may be exempt from the English language requirement. She is therefore required to undertake one of the English language tests specified in the Instrument and achieve the specified score. The Tribunal at hearing on 28 July 2025 in consultation with the primary applicant agreed to allow the primary applicant 28 days to complete this test and provide the Tribunal with the results. The due date for completion of this test was 25 August 2025.
On 21 August 2025 the applicant notified the Tribunal she was booked to undertake an English language test on 9 September 2025. On 8 September 2025 the Tribunal sent an email to the applicant reminding her to lodge her test results by close of business on 10 September 2025 after she had completed the test.
On 9 September 2025 at 10:15am the applicant was scheduled to undertake the Pearson Academic English test at the Pearson Professional Centre in Brisbane city. This is one of the tests specified in the Instrument.
At the time of writing this decision on 11 September 2025 the Tribunal has not received a response from the applicant regarding her English language test results or any other matter.
Accordingly, the Tribunal is not satisfied that the primary applicant meets cl 500.213 of Schedule 2 of the Regulations. The primary applicant has been on notice of this requirement since she applied for the visa on 28 December 2023. It is considered the applicant has continued to study while awaiting review and has had sufficient time to demonstrate she has met the requirement.
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 decisions not to grant the applicants Student (Temporary) (Class TU) visas.
Dates of hearing(s): 28 July 2025
Representative for the Applicant: Mrs Payal Narula (MARN: 1568847)