Kollias (Migration)

[2023] AATA 433

Kollias (Migration) [2023] AATA 433 (8 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sotirios Kollias

REPRESENTATIVE:  Mr John Kotsifas

CASE NUMBER:  2208508

HOME AFFAIRS REFERENCE(S):          BCC2021/134366

MEMBER:T. Quinn

DATE:8 March 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 08 March 2023 at 4:34pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – English language proficiency – no evidence of achieving specified score in specified test provided when requested – simplified student visa framework – course provider’s assessment of applicant’s eligibility and academic progress in vocational courses – completion of department’s online checklist – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 338(2), 347
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cl 500.213(1)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 19 January 2021, 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 visa (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 24 May 2022, a delegate of the Minister for Home Affairs (‘the delegate’) refused to grant the application on the basis 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 June 2022, 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 appeared before the Tribunal by telephone hearing on 8 March 2023 to give evidence and present arguments.  The applicant was assisted in relation to the review and their representative also attended the telephone hearing.  The hearing was conducted with the assistance of an interpreter in the Greek and English languages.

5. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant(s), in as much detail as necessary to enable the decision maker to properly consider the case that is being put.

6. For the following reasons, the decision under review is affirmed.  In reaching this decision, I have had regard to:

   a.the oral evidence given by the applicant at hearing;

   b.the submissions made on behalf of the applicant by his representative, Mr Kotsifas;

   c.all written material filed by or on behalf of the applicants; and

   d.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

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 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.

8. 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.

9. ‘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.

10. 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

11. The applicant was requested by the Department to provide evidence of English language proficiency in correspondence dated 26 May 2021 and 28 March 2022.[9]  The applicant did not provide evidence of English language proficiency and the delegate refused his student visa application on that basis. 

    [9]See delegate’s decision and Department file.

12. On 1 July 2022, the applicant filed submissions suggesting that the applicant was not required to provide evidence of English language proficiency because he was ‘[h]is education provider has advised that as the applicant is a Greek citizen (level 1 assessment country), and that the provider has conducted its own assessment of the applicant’s eligibility for entry into his courses and the applicant successfully completed those requirements’.  This email also referred to ‘[t]he Home affairs checklist’ which it was submitted ‘also confirms that the applicant does not need to provide evidence of English language’.  I do not agree with or accept these submissions.  When the Department requested evidence of English language proficiency in correspondence in May 2021 and March 2022, the applicant was obliged to provide that evidence in the form required by the Department (which is directive in relation to specific exceptions in the IMMI18/015.

13. The Tribunal wrote to the applicant on 27 February 2023, referring specifically to the submissions of 1 July 2022 and clarifying that clause 500.213(1) of the Regulations remained unmet and stated that the letter from the course provider which was provided in July 2022 and a website checklist do not suffice to meet English language proficiency requirements.

14. The applicant filed detailed submissions on 6 March 2023, claiming (inter alia) that requiring evidence of English language proficiency was contrary to the simplified student visa framework and the explanatory statements in relation to those changes as well as the PAMs and the purpose of the Migration Legislation Amendment (2016 Measures No.1) Regulations 2016.  The applicant also submits that as a fresh decision maker, the Tribunal has the discretion to apply with new framework without requiring the applicant to provide evidence of English language.  These submissions included documents regarding the applicant’s academic progress in substantive vocational level courses and a submission from the applicant including claims that other people in his community have been surprised by the request for evidence of English language proficiency.  These submissions were substantively repeated at hearing by the applicant’s representative.

15. I do not consider it is appropriate to change the question for determination before me. The question before me remains whether the applicant meets the English language proficiency requirements of clause 500.213 of the Regulations. The Department enlivened this issue when it sent its required for evidence of English language proficiency in May 2021 and March 2022. I accept that this is not always a requirement and at the time of the applicant making his application in January 2021 it was not necessary for him to specifically provide that evidence. However, the Minister has determined it appropriate to request evidence of English language proficiency. Two requests have been made in this regard and remain unmet. I accept that there may be aspects of the decision to make this request that seem arbitrary, particularly when they are made without explanation. However, the question before me is not whether it was appropriate for the Minister to make the request. The question before me is whether clause 500.213 of the Regulations is or is not met. At the time of decision, this clause remains unmet, and I am not satisfied that the applicant has provided evidence of English language proficiency as requested by the Department in May 2021 and March 2022.

16. The jurisdiction of the Migration and Refugee Division of the Tribunal is limited to reviewing decisions under Parts 5 and 7 of the Act. Part 5 provides for the review of Part 5-reviewable decisions. These include decisions to refuse or cancel migration visas. In the vast majority of reviews of visa refusals, the Tribunal either affirms the primary decision or remits the matter for reconsideration with a direction that the applicant satisfies a criterion or criteria for the grant of the visa. In doing so it takes a fresh look at the visa application.

17. The reviewable decision in this matter is the delegate’s decision, on 24 May 2022, to refuse the application for a student visa lodged by the applicant. In taking a fresh look at this application, I note the submissions received. Whilst noting the concerns raised by the applicant and his representative, as is required in a de novo merits review, I have undertaken my own consideration of the available evidence and the legislative requirements in the Act and Regulations.

18. Clause 500.213 requires an applicant, when asked, to provide evidence of their proficiency in the English language, unless they are in a class of persons exempted from this requirement.

19. The applicant was requested, twice, to provide evidence of his English language ability. The operation of clause 500.213(1) provides that this requirement can be extended at any time and I am satisfied that this encompasses a circumstance such as the applicant’s, where an application is subject to streamlined evidentiary requirements. This is because clause 500.213(1) does not restrict or qualify particular applicants who are not required to provide evidence that meets the requirements in the relevant instrument. Through its reference to ‘the applicant’ clause 500.213(1) makes it clear that the provision is applicable to an applicant to whom the request is extended.

20. The Tribunal is not persuaded by the applicant’s submissions in relation to the purpose of the simplified student visa framework. The Regulations give clear legislative grounds to ask an applicant to provide the requested evidence. The requests for the applicant to provide the evidence gave him time to respond. The Tribunal also wrote to the applicant on 27 February 2023 to clarify that the requirements remained unmet. I am satisfied, when considering these factors, that the applicant has had a fair and reasonable opportunity to respond to the request.

21. I accept the applicant may have been surprised and perturbed by the requests of May 2021, March 2022 and the Tribunal’s email of 27 February 2023. However, I am satisfied he was given appropriate notice of the requirement and an opportunity to respond to the request. I am satisfied that the request to provide the evidence of his proficiency in the English language gave the applicant a reasonable indication as to the direction the Department proposed to take in assessing whether he met the required criteria for the grant of the student visa. In light of this, I am both satisfied the aforementioned request was extended to the applicant in a procedurally fair manner and that the requirement he provide the evidence falls within the applicable legal framework, namely clause 500.213(1) of the Regulations.

22. After the hearing, the applicant indicated that ‘he will sit either an IELTS or PTE test but requires at least 30 days to do so.  He will sit the test despite his principal argument that it is not required under the simplified student visa application framework.’   This email also refers to the applicant’s academic progress.  I note the evidence provided in relation to the applicant’s continued academic progress despite his student visa refusal and commend him in this regard.

23. However, the applicant’s original application is now over two years old, and he was sent correspondence nearly two years ago requesting evidence of English language proficiency and again one year ago along with an email indicating this requirement remained unmet over a week ago. The applicant’s application for review is now nine months old. The Tribunal President has given a Direction in relation to Conducting Migration and Refugee Reviews under section 18B of the Administrative Appeals Tribunal Act 1975 (‘the President’s Direction’). Clause 5.2 of the President’s Direction indicates that adjournments will not be granted simply on the basis of the convenience of the review applicant or their representative. Where the Tribunal has given sufficient advance notice of a hearing, adjournments will not be granted on the basis of a need to gather further evidence unless cogent reasons can be shown. Cogent reasons are required, not merely for the convenience of the applicant. Although I acknowledge this is not a specific request for adjournment and is a post-hearing submissions, I also consider the applicant has had ample time to ensure he complied with clause 500.213. With respect, the applicant’s request to delay the final determination of this matter in order that he be given more time to comply with a mandatory requirement of the Act and Regulations when he is currently non-compliant is not persuasive. I did not consider an adjournment was appropriate in the circumstances.

    Has the applicant provided evidence of English language proficiency in accordance with IMMI 18/015?

24. As previously discussed in this decision, the applicant was requested to provide evidence of her English language ability in May 2021 and March 2022. 

25. For the purpose of clause 500.213(1) of Schedule 2 to the Regulations an applicant must undertake and achieve a specified score in one of the English language tests specified in IMMI 18/015, which is either: the International English Language Testing system (IELTS Test); Test of English as a Foreign Language internet-based test (TOEFL iBT); Cambridge English: Advanced (CAE) test; Pearson Test of English Academic (PTE); or the Occupational English Test (OET).

26. In this case, the applicant has not provided results from any of these English language tests.  The Tribunal has received other evidence, but it does not meet these directive language test requirements. 

27. The applicant has not provided evidence of a level of English language proficiency that meets the requirements set out in clause 6 of IMMI 18/015 (see attachment extracted below).

28. Accordingly, I am not satisfied that the applicant meets clause 500.213.

29. Given the above findings, 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

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

    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.