KUNYONG (Migration)

[2020] AATA 1192

KUNYONG (Migration) [2020] AATA 1192 (29 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Wuttikorn KUNYONG

CASE NUMBER:  1837089

HOME AFFAIRS REFERENCE(S):          BCC2018/4492976

MEMBER:P. Wood

DATE:29 January 2020

PLACE OF DECISION:  Sydney

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

Statement made on 29 January 2020 at 11:37am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – English language proficiency – courses in progress in Australia – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 1; Schedule 2 cl 500.213

STATEMENT OF DECISION AND 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 7 December 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 15 October 2018. 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 applicant appeared before the Tribunal on 29 January 2020 to give evidence and present arguments.

4. The Tribunal hearing was conducted with the assistance of an interpreter.

5. In light of the applicant’s evidence (see below), and the absence of any evidence that the applicant falls within a class of persons exempted from providing evidence of English language proficiency under the Regulations, the Tribunal is not satisfied that the applicant meets cl.500.213.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   English language proficiency (cl.500.213)

6. 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).

7. IMMI 18/015, which is attached to this decision, specifies the requirements for evidence of English language proficiency and classes of applicants to whom the requirement does not apply.

8. In this case, the applicant was required by the Minister to provide evidence of English language proficiency in accordance with the instrument.

9. The applicant provided the delegate with an IELTS score report of only 3.5.

10. The applicant provided the following further evidence to the Tribunal:

    ·A Certificate IV in Human Resources, dated 03/02/2020 (noting this date is in the future)

    ·A Confirmation of enrolment in a Diploma in Leadership and Management

11. Given the applicant is claiming to have completed the Certificate IV well after the delegate’s 7 December 2018 decision, the Tribunal is not satisfied that the applicant falls within the excluded class of applicants under the Regulations.[1]

    [1] [1] IMMI 18/015 s 6(2)(d)(ii)

12. As such, the applicant cannot meet the requirements for English Language proficiency specified in the Regulations.

13. Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.213.

    DECISION

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

    P. Wood
    Senior Member

    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.