Khan (Migration)

[2025] ARTA 412

Khan (Migration) [2025] ARTA 412 (19 March 2025)

Applicant:Mr Yousaf Khan

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2418568

Tribunal:Kathleen Timbs

Place:Sydney

Date:  19 March 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 criterion for a Subclass 500 (Student) visa in cl 500.213 of Schedule 2 to the Regulations.

Statement made on 19 March 2025 at 3:05pm

CATCHWORDS  
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – meets the English language proficiency as required by the instrument – decision under review remitted  

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 500.213

STATEMENT OF 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 5 June 2024 to refuse to grant the applicant a Student (Temporary) (Class TU) (Subclass 500) visa under s 65 of the Migration Act 1958.

2. On 9 February 2024, the applicant applied for the visa.

3. On 5 June 2024, the delegate refused to grant the visa.

4. The applicant appeared before the Tribunal on 30 January 2025 to give evidence and present arguments.

RELEVANT LAW – ENGLISH LANGUAGE PROFICIENCY

1. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Migration Regulations 1994. The primary criteria in cl 500.211 to cl 500.218 must be satisfied by at least one applicant. In this case, the delegate refused to grant the visa because they found the applicant did not satisfy the English language requirements in cl 500.213 of Schedule 2 to the Migration Regulations 1994.

2. Clause 500.213(1) provides that the applicant must give evidence that they have a level of English language proficiency that meets the requirements specified in an instrument. However, cl 500.213(2) provides that this requirement does not apply if the applicant is in a class specified in the Instrument. The Instrument in this case is Migration (IMMI 18/015: English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visa) Instrument 2018 (the Instrument).

3. In this case, the Minister required the applicant to provide evidence of English language proficiency in accordance with the Instrument. The applicant is not in a class specified in the Instrument for the purposes of cl 500.213(2) and cl 500.213(1) therefore applies. The issue for the Tribunal is to determine whether the applicant has provided evidence that he satisfies the English language proficiency requirements in the Instrument.

EVIDENCE AND MATERIAL CONSIDERED BY THE TRIBUNAL

1. The Tribunal considered documents provided by the Department before hearing, documents provided by the applicant before and after hearing, and oral evidence and submissions provided by the applicant at hearing.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Section 6(1) of the Instrument provides that cl 500.213(1) is met if:

• an applicant takes one of the English language tests in Column 1 of the table in Schedule 1 of the Instrument;

• the applicant achieves a test score specified for that test in Column 3 of that table;

• the applicant took the test in the period of two years immediately before the grant of the visa.

1. Following the hearing, the applicant took a Pearson Test of English Academic (PTE) and he provided a report showing an overall test score of 49. The PTE is specified in column 1 of table in Schedule 1 of the Instrument and the test score in column 3 is 42. The applicant has therefore provided evidence that he meets the English language proficiency requirement in the Instrument. In that case, the Tribunal finds he satisfies cl 500.213(1).

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 criterion for a Subclass 500 (Student) visa in cl 500.213 of Schedule 2 to the Regulations.

Date of hearing:  30 January 2025