Karki (Migration)

[2022] AATA 1768

Karki (Migration) [2022] AATA 1768 (12 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sushil Karki

CASE NUMBER:  2118367

HOME AFFAIRS REFERENCE(S):          BCC2021/401046

MEMBER:12 April 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 12 April 2022 at 2:04pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – IMMI 18/015 – documentation not provided – decision under review affirmed

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 Home Affairs on 17 November 2021 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 15 March 2021. 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.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of c.500.213l of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

4. The applicant provided a copy of the decision record to the Tribunal.

5. The applicant appeared before the Tribunal on 12 April 2022 to give evidence and present arguments.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 evidence of English language proficiency as set out in IMMI 18/015.

   English language proficiency (cl 500.213)

8. 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). 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.

9. Upon request the Tribunal granted the applicant an adjournment of 1 month because of medical incapacity.

10. Clause 500.213 provides as follows:

    500.213

    (1) If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence that the applicant has a level of English language proficiency that meets the requirements specified in an instrument under paragraph (3)(a).

    Note: For arrangements for the use of a computer program, see section 495A of the Act.

    (2) Subclause (1) does not apply to an applicant within a class of applicants specified in an instrument under paragraph (3)(b).

    (3) The Minister may, by legislative instrument, specify:

    (a) requirements for the purposes of subclause (1); or

    (b) a class of applicants to which subclause (1) does not apply.

11. The applicant lodged this application for a Class TU Subclass 500 Vocational Education Sector Student visa on 15 March 2021.

12. In order to meet regulation 500.213 the applicant must satisfy the Minister that they have a level of English language proficiency that meets the requirements specified in the instrument.

13. In order to meet regulation 500.213 (3)(a), the following requirements are specified:

    (a) the applicant must undertake one of the English language tests specified in Column 1 of Schedule 1:

    (b) the applicant must achieve the English language test score specified for that English language test in Column 3 of Schedule 1; and

    (c) the applicant must have completed 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 - 2 years immediately before the date of the visa application; or

    (ii) if evidence of the test is not provided at the time the visa application is made - 2 years immediately before a decision to grant or refuse the visa application is made.

14. The Tribunal has also considered whether the applicant satisfies Regulation 500.213 (3)(b) and belongs to a class of applicants to which subclause (1) does not apply. The applicant has not provided any evidence with their application which would satisfy this regulation. As such, the Tribunal is not satisfied the applicant meets the requirements specified in an instrument under regulation 500.213 (3)(b).

15. The Tribunal reviewed the decision record and examined the Departmental file. The applicant did not challenge the findings of the delegate or challenge the reasoning in the decision in any way. The applicant did not provide any material or documents to the Tribunal that satisfied IMMI 18/015. The Tribunal was unable to locate any documents on the Departmental file that satisfy IMMI 18/015.

16. Prior to the hearing the applicant did not provide any information that addressed cl.500.213 of the Migration Regulations.

17. On 9 December 2021 the Tribunal wrote to the applicant and requested he provide “Evidence that the primary applicant, meets the English language requirements”.

18. The applicant did not comply with this request for information.

19. On 25 February 2022 the Tribunal wrote to the applicant and requested he provide “Evidence you meet the English language proficiency requirements as prescribed by the relevant legislative instrument”

20. The applicant did not comply with this request for information.

21. The applicant is required to satisfy the primary criteria as set out in IMMI 18/015. There is no evidence before the Tribunal that the applicant satisfies cl.6(2) (a)(b)(c)(d)or (e) of IMMI 18/015.

22. In the hearing the applicant advised the Tribunal he had not provided any documentation that addressed English language proficiency. The applicant also advised the Tribunal he did not have any documentation to provide to the Tribunal that addressed English language proficiency.

23. The applicant did not provide any documents that addressed English language requirements prior to the hearing, during the hearing or after the hearing.

24. As the applicant is not within a class of applicants specified in the instrument, cl.500.213(1) does not apply to the applicant.

25. Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.213.

26. 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

27. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Mark Bishop

    Member

    Attachment – IMMI 18/015 – English language instrument (extract)

    6Primary Criteria

    (1)For the purpose of subclause 500.213(1) of Schedule 2 to the Regulations, the following requirements are specified:

    (a)the applicant must undertake one of the English language tests specified in Column 1 of Schedule 1;

    (b)the applicant must achieve the English language test score specified for that English language test in Column 3 of Schedule 1; and

    (c)the applicant must have completed 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 - 2 years immediately before the date of the visa application; or

    (ii)if evidence of the test is not provided at the time the visa application is made - 2 years immediately before a decision to grant or refuse the visa application is made.

    (2)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:

    (i)the United Kingdom;

    (ii)the United States of America;

    (iii)Canada;

    (iv)New Zealand; or

    (v)the Republic of Ireland; or

    (b)an applicant who is enrolled in a principal course of study that is:

    (i)registered to be delivered in a language other than English;

    (ii)a registered ELICOS course, as defined in regulation 1.03 of the Regulations;

    (iii)a registered school course; or

    (iv)a registered post-graduate research course; or

    (c)an applicant who is a:

    (i)Foreign Affairs student;

    (ii)Defence Student; or

    (iii)Secondary exchange student; or

    (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; or

    (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 — English language tests and minimum test scores

English language tests
Item	Column 1: Test name	Column 2: Acronym/ also known as	Column 3: Minimum test score
1	International English Language Testing system	IELTS Test	(a)    Overall band score 5.5; or (b)    Overall band score 5 if packaged with at least 10 weeks’ ELICOS; or (c)     Overall band score of 4.5 if packaged with at least 20 weeks’ ELICOS.
2	Test of English as a Foreign Language internet-based test	TOEFL iBT	(a)    46; or (b)    35, if packaged with at least 10 weeks’ ELICOS ; or (c)     32, if packaged with at least 20 weeks’ ELICOS.
3	Cambridge English: Advanced (CAE) test	Certificate in Advanced English	(a)    162; or (b)    154, if packaged with at least 10 weeks’ ELICOS; or (c)     147, if packaged with at least 20 weeks’ ELICOS.
4	Pearson Test of English Academic	PTE	(a)    42; or (b)    36, if packaged with at least 10 weeks’ ELICOS; or (c)     30, if packaged with at least 20 weeks’ ELICOS.
5	Occupational English Test	OET	a score of at least B for each test component of the OET.