Mohammed (Migration)

[2022] AATA 1417

Mohammed (Migration) [2022] AATA 1417 (16 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shahabuddin Mohammed

CASE NUMBER:  2201418

HOME AFFAIRS REFERENCE(S):          BCC2020/1177367

MEMBER:Peter Newton SC

DATE:16 May 2022

PLACE OF DECISION:  Sydney

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

Statement made on 16 May 2022 at 4:42pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – no evidence of relevant English language test score provided – no evidence of current enrolment – consent to decision without hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 500.211(a), 500.213(1)

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 13 January 2022 (Department’s Decision) refusing to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (Act).

2. The applicant applied for the visa on 15 March 2020. 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) (Regulations) because the delegate found the applicant did not provide any evidence to demonstrate he achieved I the two years immediately before the date the application was made, the relevant English language test score listed in Schedule 2 to the Instrument under reg 500.213(3)(a) or (b). The delegate also found the applicant had not given evidence that two years immediately before a decision is made on the application, the relevant English language test score listed in Schedule 2 to the Instrument in a test provided by the relevant English language test provider mentioned in item 1 of the Instrument [was achieved].

4. On 13 April 2022 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 12 May 2022 at 11:30 am (NSW) time. On 13 April 2022 the applicant by his agent sent a Response to hearing invitation (Response) advising the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the papers without taking any further action to allow him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

5. The applicant provided to the Tribunal: - a copy of the Department’s Decision, an email from the applicant’s agent to the Tribunal sent 11 May 2022 at 4:37pm attaching the applicant’s “current offer letter” comprising a letter from Aspen College to the applicant dated 11 May 2022 for a Certificate III in Light Vehicle Mechanical Technology commencing 6 June 2022 and ending 4 June 2023 and a Certificate IV I Automotive Mechanical Diagnosis commending 19 June 2023 and ending 16 June 2024; and a chain of SMS messages recording a PTE Academic test has been booked for the applicant on 30 May 2022 at 8am AEST.

6. The Tribunal file contains a record from the data base of the Provider Registration and International Student Management System (PRISMS) for the applicant. In arriving at my decision, I have not relied on this document.    

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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 the applicant. The issues in the present case are whether the applicant is enrolled in a current course of study and whether the applicant meets the English language proficiency level

   Enrolment (cl 500.211)

9. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl 500.211(a). The applicant does not claim to meet any of the alternative criteria in cl 500.211.

10. ‘Course of study’ is relevantly defined in cl 500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in reg 1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000 (Cth), to provide the course to overseas students.

11. On 13 April 2022 the Tribunal sent to the applicant’s representative by email an Invitation to attend a hearing scheduled for 12 May 2022 at 11:30 am (NSW) time (Invitation). The Invitation states:

    “Please provide all documents you intend to rely on to support your case by 5 May 2022. The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a qualified translator.

    In addition, please provide the following information at least 7 days before the
    hearing date so that a decision can be made as quickly as possible:

    1. A copy of your current Confirmation of Enrolment (COE) or other document/s that show you are currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of schedule 2 to the Migration Regulations 1994 (the Regulations) for the grant of the visa.

    2.    Documents that show your past studies in Australia, including copies of all your attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to your past or intended studies in Australia.”

12. The applicant did not provide a COE or other document recording he is currently enrolled in a course of study as defined in cl 500.111 and as required by cl 500.211(a) of Schedule 2 to Regulations. The applicant did provide a letter from Aspen College offering the applicant a place in the two courses of study set out above. The applicant applied for the student visa on 15 March 2020. The application was refused because the delegate was not satisfied the applicant met the English language proficiency level. The applicant has applied to the Tribunal to review the Department’s Decision. I consider a genuine student would do all that is required to satisfy the required criteria for a student visa. For the reasons outlined below, the applicant still has not satisfied the English language proficiency level. I consider the applicant has sufficient time to do so. He has failed to do so. I consider the applicant also has had sufficient time to enrol in a registered course of study. He has failed to do so. I consider these failures are not reflective of a genuine applicant for entry and stay as a student.

13. For the reasons outlined above, the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl 500.211 is not met.

    English language proficiency (cl 500.213)

14. 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.

15. The applicant has not given any evidence or made any submission that he falls within a class of applicants to which clause 500.213(1) does not apply. The Minister has set out these exempted class of applicants in paragraphs 2(a), (b), (c), (d) and (e) of instrument IMMI 18/015. I find that the applicant does not fall within an exempted class specified in paragraphs 2(a), (b), (c), (d) and (e) of instrument IMMI 18/015. I am satisfied clause 500.213(a) in Schedule 2 of the Regulations applies.

16. As the applicant is not within a class of applicants specified in the instrument, cl 500.213(1) applies to the applicant.

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

18. By email from the Tribunal to the applicant’s representative sent 15 February 2022 at 14:59, the Tribunal requires “Evidence that the primary applicant, Mr Shahabuddin Mohammed meets the English language requirements”. On 11 May 2022 the applicant’s representative sent to the Tribunal 5 February 2022 a chain of SMS messages recording a PTE Academic test has been booked for the applicant on 30 May 2022 at 8am AEST.

19. The applicant has been on notice that the failure to meet the English language proficiency criteria is a determinative factor. That is the ground upon which the delegate refused the application for the visa. I consider the applicant also has had sufficient time to achieve the required English language proficiency levels set out in Schedule 1 of the attached legislative Instrument. He has failed to do so. I consider this failure is not reflective of a genuine applicant for entry and stay as a student.

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

21. 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

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

    Peter Newton
    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.