Khadka (Migration)

This matter concerned an applicant for a Subclass 500 (Student) visa. The dispute arose because the applicant's initial English language test result, obtained on 14 January 2020, exceeded the two-year timeframe stipulated by the IMMI 18/015 instrument for providing evidence of proficiency. The applicant subsequently provided a more recent Pearson Test of English Academic (PTE) result from 8 August 2023, scoring 59, which was verified by the Tribunal. The decision was made by T. Quinn, Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the English language proficiency requirements for a Subclass 500 (Student) visa, specifically clause 500.213 of Schedule 2 to the Migration Regulations 1994, as informed by the IMMI 18/015 instrument. This involved determining if the applicant's most recent PTE test result was provided within the relevant timeframe and if the score achieved met the specified minimum requirements.

The Tribunal reasoned that the IMMI 18/015 instrument requires a PTE score of 42 or above and that the test must have been completed within two years immediately before a decision to grant or refuse the visa application is made, if evidence is not provided at the time of application. The applicant's PTE score of 59, achieved on 8 August 2023, satisfied this requirement. Consequently, the Tribunal found that the applicant met the English language proficiency criteria under clause 500.213.

The Tribunal remitted the application for a Student (Temporary) (Class TU) visa for reconsideration by the Minister, with a direction that the applicant had met the English language proficiency criteria under clause 500.213 of Schedule 2 to the Regulations.