Lama (Migration)

[2021] AATA 5396

Lama (Migration) [2021] AATA 5396 (5 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Anita Lama

CASE NUMBER:  2005742

HOME AFFAIRS REFERENCE(S):          BCC2019/6672794

MEMBER:Gabrielle Cullen

DATE:5 November 2021

PLACE OF DECISION:  Sydney

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

Statement made on 05 November 2021 at 3:26pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – IMMI 18/015 – PTE Academic test – 20 weeks ELICOS package – minimum required test score of 30 – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 6 March 2020 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 14 December 2019. 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 evidence indicates that at the time of application the applicant provided evidence of enrolment in a General English course from 9 December 2019 to 21 June 2020, followed by Academic English from 6 July 2020 to 17 January 2021, as well as enrolment in a Diploma and Advanced Diploma of Business from 15 February 2021 to 9 April 2023. The evidence at the time of this decision indicate she has successfully completed the English courses and is now enrolled in the Diploma and Advanced Diploma of Business from 12 April 2021 to 14 May 2023. With her application she also provided evidence of achieving a score of 17 in a PTE test dated 1 October 2019.

4. 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 (the Regulations) because she did not provide a level of English language proficiency that meets the requirements of the specified instrument. The delegate was not satisfied that a PTE test score report of 17 was sufficient to meet the requirement to satisfy English language proficiency as set out in the legislative instrument which requires a PTE score of at least 30 when also undertaking 20 weeks of a packaged English course.

5. On 22 March 2020 the applicant lodged an appeal to the Tribunal and attached the decision of the Department.

6. On 24 March 2020 the Tribunal wrote to the applicant requesting evidence that she meets the English language requirements. She was given until 21 April 2020 to provide the information.

7. On 21 April 2020 the applicant’s representative replied as follows

   I would like to inform you that applicant has enrolled for General English from 9th December 2019 to 21st June 2020 and Academic English from 6th July 2020 - 17 Jan 2021.

   She will complete her Diploma of Business from 15th Feb 2021 to 13th Feb 2022. Once completion of Diploma of Business; she will move to Advanced Diploma of Business from 11th April 2022 and will complete 09th April 2023. Furthermore, the course provider has accepted an application of her to study without English and enrolled for English course so that she will obtain required English level before commencing Diploma course.

   Applicant believed that she was eligible to do the course as course provider did not have any problem in starting English course. Hence, she did not have English language required score during her initial application because she was enrolled for English course . Please refer to attached Confirmation of Enrolment30 August  for General English, Academic English and Diploma of Business leading to Advanced Diploma of Business.

8. Following further contact from the Tribunal to the applicant’s representative to provide evidence that she meets the English language requirement under cl. 500.213 and IMMI 18/015, on 21 July 2021 the applicant’s representaitve provided the following:

   ·Evidence the applicant had successfully completed the General English and Academic English courses;

   ·Evidence of enrolment in the Diploma and Advanced Diploma of Business;

   ·Submission from the applicant’s representaitve indicating the applicant meets cl.500.213 as she has completed the General English and Academic English courses.

   ·Submission from the applicant’s representative indicating the applicant meets the genuine temporary entrant requirement.

9. The applicant appeared before the Tribunal on 26 July 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

10. The applicant was assisted in relation to the review by their registered migration agent.

11. The Tribunal raised with the applicant that the issue before it is whether she meets cl.500.213 and outlined this provision in addition to the English language instrument IMMI 18/105. It went through each of the ways a person could met the English capacity requirements as outlined in these provisions and why she did not appear to meet the criteria according to the evidence she had provided. The representative requested she be given time to book and sit and English exam to show she meets the English language requirements. She was given until 27 July 2021 to provide evidence she had booked a test and advised that a decision would then not be made until after she had taken the test.

12. On 26 July 2021 the applicant’s representative provided evidence the applicant had booked a PTE academic test on 17 August 2021 and provided evidence of the booking.

13. On 26 July 2021 the Tribunal wrote to the applicant via her representative acknowledging receipt of the booking and requested she provide the results of this test by 30 August 2021.

14. On 26 August 2021 the applicant’s representaitve wrote the following email.

    I would like to thank you for your e-mail. Mrs. Anita has booked PTE Exam for 17th August 2021; unfortunately she could not appear on 17th August 2021 and rescheduled for 30th August 2021.

    AAT has requested her to submit her English test result by 30th August 2021. She is afraid that she will not get the result on 30th August 2021; she can get her result may 1-2 days after the test which will be around 2nd September 2021.

    Hence, I would like to request you to provide an extension date till 4th September 2021 instead of 30th August 2021 to submit her English test result.

15. The applicant’s representative provided evidence of a PTE Academic test booking for the applicant on 30 August 2021.

16. On 27 August 2021 the Tribunal wrote to the applicant via her representative advising that it agreed to her request of extension of time and gave her until 4 September 2021 to provide submissions.

17. On 4 September 2021 the applicant’s representative provided evidence of the applicant having achieved an overall PTE score of 22 in a test taken on 30 August 2021. The applicant’s’ representaitve indicated her performance was highly affected by her illness and she could not concentrate. He submitted that she needs counselling and requested an extension of 2 months until 4 November 2021 to submit the English results. The applicant’s representative also provided the following

    ·Medical report dated 2 September 2021 indicating the applicant has been suffering anxiety, depression and stress and has been on anti-anxiety medication since 24 June 2021. He submitted that she us unable to concentrate and retain matters and needs ongoing counselling.

    ·Medical report dated 21 June 2021 indicating the applicant is unfit for work from 21 June 2021 to 25 June 2021

    ·Evidence of anti-anxiety medication issued to the applicant on 21 June 2021.

18. On the basis of the medical evidence the Tribunal granted the extension of time to provide the evidence to 4 November 2021.

19. On 5 November the applicant’s representative provided evidence of a PTE test dated 3 November 2021 with an overall score of 28.

20. He noted that the applicant has been suffering from severe anxiety, depression, and stress; however she sat the PTE exam in spite of all those adversities and secured an overall band score 28.

21. He submitted that her performance was highly affected by her disease; she could not concentrate during an exam and needs counselling. He requested the Tribunal consider her situation.

22. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. 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 she meets cl.500.213.

24. 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, specifies the requirements for evidence of English language proficiency and classes of applicants to whom the requirement does not apply.

25. In this case, the applicant was required by the Minister to provide evidence of English language proficiency in accordance with the instrument. This was outlined to her at the Tribunal hearing.

26. There is no evidence of an English language test that meets the requirements in IMMI 18/015 and therefore cl.500.213(3)(a) and cl.500.213(1) is not met. IMMI18/015 sets out the English language tests and minimum scores. In this regard she provided a number of PTE tests with the following overall scores including one dated 4 November 2021 with an overall score of 28, one dated 30 August 2021 with an overall score of 22 and one dated 1 October 2019 with an overall score of 17. IMMI 18/015 indicates a PTE test score of 42 is required or 36 if packaged with at least 10 weeks ELICOs or 30 if packaged with 20 weeks ELICOS. Accepting the applicant has done 20 weeks of English the Tribunal is not satisfied she meets the minimum required test score of 30. She has not provided evidence of any other English language tests. The Tribunal has considered her request to consider that she suffers from anxiety and depression and that this makes it difficult for her to concentrate. The Tribunal is of the view it has given her sufficient time to meet the requirement notwithstanding her difficulties and notes that she has had over 2 years to meet the English test requirement. The instrument requires her to provide a PTE test score of 30 or above and despite numerous attempts over 2 years she has not reached that level or provided any other form of English language test that meets the requirements of the instrument.

27. There is no evidence that for the purpose of cl.500.213(3)(b) that the applicant falls within a class of persons specified in an instrument and therefore meets cl.500.2013(2) and the requirement does not apply. In particular, there is no evidence that she meets the specified class of person as outlined in IMMI 18/015. Specifically she is not the holder of a passport from one of the countries outlined in 2(a) and there is no evidence she is enrolled in a course of study that meets the requirements of 2(b). There is no evidence the applicant meets 2(c) or that she has undertaken study for a minimum of 5 years in the countries specified in 2(e).

28. With regard to 2(d) (i) there is no evidence she completed a Senior Secondary Certificate of Education in Australia conducted in English nor with regard to 2(d)(ii) that she has successfully completed a substantial component of a course leading to a qualification from the AQF at the Certificate IV level or higher that was conducted in Australia in English while the applicant was holding a student visa. The Tribunal notes that since the application for the visa in December 2019 she has held a bridging visa.

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

30. Given the above findings, the Tribunal finds that 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

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

    Gabrielle Cullen
    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.