Kumar (Migration)

[2025] ARTA 1467

KUMAR (MIGRATION) [2025] ARTA 1467 (28 JULY 2025)

DECISION AND  

REASONS FOR DECISION

Applicant:Mr Vijay Kumar

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:  2433649

Tribunal:General Member C Stokes

Place:Adelaide

Date:  28 July 2025

Decision:The decision under review is affirmed.

Statement made on 28 July 2025 at 1:48pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language requirement – completion of an English course – no English language test results – decision under review affirmed          

LEGISLATION

Migration Act 1958 (Cth), 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 then Minister for Home Affairs on 9 September 2024 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 8 March 2024. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 500.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant had not provided any evidence that his English language proficiency meets the requirements of the relevant legislative instrument.

4. On 16 September 2024, the applicant applied to the then Administrative Appeals Tribunal (AAT) for review. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is a review of the delegates’ decisions by the Tribunal.

5. The applicant appeared before the Tribunal on 10 July 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. The applicant was assisted by a migration agent in relation to the review.

6. For the following reasons, I consider the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 cl 500.211 to cl 500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant meets the English language proficiency requirements as set out in cl 500.213 of Schedule 2 and IMMI 18/015.

   English language proficiency (cl 500.213)

8. To meet cl 500.213, the applicant must (if required by the Minister) give evidence that they have a level of English language proficiency that meets the requirements specified in an instrument: cl 500.213(1). This requirement does not apply to an applicant within a class specified in an instrument: cl 500.213(2). IMMI 18/015, which is attached to this decision, has been superseded but it was the one that was prescribed at the time the applicant applied for a student visa. It specifies the requirements for evidence of English language proficiency and classes of applicants to whom the requirement does not apply.

9. Based on the applicant’s student visa application, Indian passport and his oral evidence at the hearing there is no evidence before the Tribunal to suggest that the applicant holds a valid passport issued by the United Kingdom, the United States of America, Canada or the Republic of Ireland. The applicant also confirmed that he had not completed his leadership management course nor any other course that was Certificate IV or higher in the 2 years before applying for the visa. Further, the only course he is currently enrolled in is the Certificate IV in Kitchen Management. I find that the applicant does not fulfil the any of the criteria for an exemption from the English language requirement set out in paras 6(2)(a) to (e) of IMMI18/015.

10. As the applicant is not within a class of applicants specified in the instrument, cl 500.213(1) applies to the applicant. In this case, the applicant was required by the Minister to provide evidence of English language proficiency in accordance with the instrument which meant that the applicant was required to produce one of the English language tests with the scores specified in Schedule 1 to IMMI18/015. Any of these tests had to be provided within two years of the date of lodgement of the application or two years immediately before a decision was made to grant or refuse the visa application: para 6(1)(c) of IMMI18/015.

11. While the applicant has provided evidence of his completion of a General English course from 15 June 2020 to 13 June 2021 issued by the UK English College dated 18 June 2021, he has not provided any evidence of an English language test with a score specified in Schedule 1 to IMMI18/015. The applicant has been given multiple opportunities to provide evidence of English language proficiency – he was asked to do so at the time he applied for the visa in March 2024, it was explained to him in the delegate’s decision record that he had not met the English language proficiency requirements dated 9 September 2024 and he was requested to provide the Tribunal with evidence that he met the requirements on 17 October 2024. He was also invited to provide evidence at a hearing where he explained to the Tribunal that he did not intend on staying in Australia long and did not want to spend the money on any further English language testing but wanted to return home. After seeking advice from his representative, the applicant asked for time to sit a relevant test which the Tribunal granted. The applicant did not provide a test result with the required score within the 2-week period provided by the Tribunal. Consequently, I am not satisfied that the applicant meets cl 500.213.

12. The English language criterion is a mandatory criterion for the grant of a student visa. I am not required to assess whether the applicant meets any of the other criteria for the visa. Given the above findings and the absence of any discretion in relation to this criterion, I have no choice but to affirm the decision under review.

    DECISION

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

    Dates of hearing(s):  10 July 2025 

    Representative for the Applicant:           Mr Bimal Bhattarai (MARN: 9685736)

    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.