KUNYONG (Migration)

This matter concerned an application for a Student (Temporary) (Class TU) visa, subclass 500, which was affirmed by the Tribunal. The applicant sought to demonstrate English language proficiency as required by clause 500.213 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant met the English language proficiency requirements specified in clause 500.213 of the Regulations, considering the evidence provided and the exemptions available under IMMI 18/015. Specifically, the Tribunal had to determine if the applicant's submitted IELTS score of 3.5 was sufficient, and if any of the exemptions to providing such evidence applied.

The Tribunal reasoned that to satisfy clause 500.213, an applicant must provide evidence of English language proficiency as specified in IMMI 18/015, unless they fall within an exempted class. The applicant was required to provide this evidence and submitted an IELTS score of 3.5. The applicant also presented a Certificate IV in Human Resources dated 03/02/2020 and a Confirmation of Enrolment in a Diploma in Leadership and Management. However, the Tribunal noted that the Certificate IV completion date was after the delegate's decision and that the applicant did not provide evidence of meeting the criteria for any of the exempted classes, particularly the exemption under s 6(2)(d)(ii) of IMMI 18/015, which requires completion of a substantial component of a Certificate IV or higher qualification conducted in Australia and in English while holding a student visa. As the applicant failed to satisfy the primary criteria for English language proficiency and did not fall within an exempted class, the Tribunal was not satisfied that the applicant met clause 500.213.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Student (Temporary) (Class TU) visa.