Khadka (Migration)

[2024] AATA 62

Khadka (Migration) [2024] AATA 62 (4 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nirajan Khadka

REPRESENTATIVE:  Mr Dal Bahadur Chhetri (MARN: 1688108)

CASE NUMBER:  2318242

HOME AFFAIRS REFERENCE(S):          BCC2023/4811395

MEMBER:T. Quinn

DATE:4 January 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·clause 500.213 of Schedule 2 to the Regulations.

Statement made on 04 January 2024 at 12:58pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – date of test result provided to department exceeds specified time limit – recent test result provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338(2), 347
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cl 500.213

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 23 August 2023, the applicant applied for a Student visa[1] to undertake study in Australia (‘the application’).[2]

   [1]Specifically, a Student (Temporary) (Class TU) visa (‘the visa’) under section 65 of the Migration Act 1958 (‘the Act’).

   [2]At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian).  The applicant applied for the former (being a Subclass 500 (Student) visa) to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

2. On 23 October 2023, a delegate of the Minister for Home Affairs refused to grant the application based on a finding that the applicant had not provided a level of English language proficiency that meets the requirements of the specified instrument in relation to student visas.[3]

   [3]See clause 500.213 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) which requires that student visa applicants produce particular evidence of English proficiency if required by the Minister. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.

3. On 10 November 2023, the applicant applied for a review of the delegate’s decision with this Tribunal.[4]

   [4] Pursuant to sections 338(2) and 347 of the Act.

4. The applicant was assisted in relation to the review.

5. Upon considering the material before me, I have concluded that the decision under review must be remitted for reconsideration.  In reaching my decision, I have had regard to:

   a.all written material filed by or on behalf of the applicant; and

   b.other relevant documents on the Tribunal and Department files.

   Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in my reasons as set out below. The reasons incorporate reference only to that information that I have found to be fundamental or materially significant to the determination of the issues in the case.

   STATUTORY FRAMEWORK

6. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in clause 500.211 to clause 500.218 must be satisfied by at least one applicant.[5]

   [5]Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.

7. The issue in the present case is whether the applicant meets clause 500.213 of Schedule 2 of the Regulations which is extracted to this decision. In short, this clause states the applicant must (if required by the Minister) give evidence that they have a level of English language proficiency that meets certain specified requirements. However, this requirement does not apply to an applicant within a class specified in IMMI 18/015 (also extracted to this decision). IMMI 18/015 specifies particular evidence of English language proficiency and classes of applicants to whom the requirement does not apply.

8. ‘Course of study’ is defined as a ‘full-time registered course’ and a ‘registered course’ is a course provided by an institution which has been registered under the Education Services for Overseas Students Act2000 (Cth) (‘the ESOS Act’) to provide that course to overseas students.[6]

   [6]Regulation 1.03 of the Regulations.

9. All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), an online register kept in accordance with the requirements of the ESOS Act.[7]  Details of courses listed in CRICOS are integrated into the Provider Registration and International Student Management System (‘PRISMS’), a database maintained by the Australian government.[8] The PRISMS database is the principal means by which registered course providers comply with legislative requirements relating to the monitoring of international students studying in Australia. Upon enrolling an international student into a registered course of study, the course provider enters the details of that enrolment into the PRISMS database. The database then records a Confirmation of Enrolment (‘COE’) for the student. The COE functions as a record of the student’s enrolment status in the course and as proof of enrolment for the purposes of clause 500.211 of Schedule 2 of the Regulations.

   [7]Section 10 of the ESOS Act.

   [8]See generally, Department of Education and Training, Provider Registration International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018).

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The applicant previously achieved a Pearson Test of English Academic (‘PTE test’) result of 54.  However, that test was undertaken on 14 January 2020 which exceeds the two-year timeframes set out in the IMMI 18/015 instrument (extracted below).

11. The applicant has now provided evidence that he has achieved an even higher PTE test result on 8 August 2023 of 59.  This PTE test result has been verified by the Tribunal on 21 December 2023 and I commend the applicant in this regard.

12. The relevant instrument IMMI 18/015 indicates that a PTE score of 42 or above meets the English language requirements of clause 500.213(1). It indicates that it is sufficient that the test is taken two years immediately before the decision. As the applicant has achieved 59 in a PTE test dated 8 August 2023, he meets the English language proficiency as required by the instrument.

13. Accordingly, I am satisfied that the applicant meets clause 500.213.

14. 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

15. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·Clause 500.213 of Schedule 2 to the Regulations.

    T. Quinn
    Member

    Attachment – clause 500.213 of Schedule 2 of the Migration Regulations 1994

    (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.

    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.