KHANAL (Migration)

This matter concerned an application for a Subclass 500 (Student) visa. The applicant sought review of a decision by the Administrative Appeals Tribunal (the Tribunal) which had considered the applicant's English language proficiency. The Tribunal had determined that a hearing was not necessary as it was able to find in favour of the applicant on the basis of the material before it.

The central legal issue before the Tribunal was whether the applicant met the English language proficiency requirements stipulated by clause 500.213 of Schedule 2 to the Migration Regulations 1994. This clause requires applicants to provide evidence of a specified level of English language proficiency, unless they fall within a class of applicants exempted by an instrument. The Tribunal was required to assess the applicant's PTE test result against the requirements of IMMI 18/015, the relevant instrument specifying these requirements.

The Tribunal reasoned that the applicant was not within a class of applicants exempted from the English language proficiency requirement. It then examined the applicant's PTE test result, which indicated an overall score of 58, taken on 15 August 2023. The Tribunal found that this score met the minimum requirement of 42 specified in IMMI 18/015, and that the test had been taken within the two-year period immediately preceding the decision, as required. Consequently, the Tribunal was satisfied that the applicant met the English language proficiency criteria under clause 500.213.

Given these findings, the Tribunal determined that the appropriate course of action was to remit the application for the visa to the Minister for reconsideration. The Tribunal directed that the applicant be considered to meet the English language proficiency criteria under clause 500.213 of Schedule 2 to the Regulations.