MOHSIN IQBAL (Migration)

[2022] AATA 3700

MOHSIN IQBAL (Migration) [2022] AATA 3700 (12 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  MOHSIN IQBAL

REPRESENTATIVE:  Mr Prabhat Krishna Dwarampudi (MARN: 1462995)

CASE NUMBER:  2205485

HOME AFFAIRS REFERENCE(S):          BCC2021/315496

MEMBER:Amanda Pearson

DATE:12 October 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 12 October 2022 at 7.02pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language requirement – Pearson PTE Academic Score – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, 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 22 March 2022 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 4 March 2021. 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 delegate was not satisfied that the applicant met the English language proficiency requirements for the grant of this visa.

4. The applicant appeared before the Tribunal on 29 August 2022 and this hearing was adjourned to 5 October 2022. In both hearing the applicant appeared to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

5. The applicant was assisted in relation to the review.

6. For the following reasons, the Tribunal has concluded that 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 requirements, as required by cl 500.213 of Schedule 2 of the Regulations.

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

9. As the applicant is within a class of applicants specified in the instrument, cl 500.213(1) applies to the applicant.

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

11. On 29 August 2022, the applicant submitted the following documents to the Tribunal in support of their review application hearing:

    a.Language Testing Results Certificate – Pearson PTE Academic Score Report, Overall Score: 22; and

    b.Confirmation of Enrolment – Diploma of Leadership and Management (D20A4A80), issued on 9 June 2022; and

    c.Letter dated 11 June 2022 from the Melbourne Business & Technology a letter stating 50 weeks of has completed 50 weeks of General English starting from 5 April 2021 to 23 March 2022 at Advanced level.

12. The Applicant had previously completed Language Testing Results Certificate – Pearson PTE Academic Score Report, Overall Score: 19: Date of Test being 18 February 2021.

13. For the adjourned hearing on the 5 October 2022, the Applicant submitted Pearson PTE Academic Score Report, Overall Score: 30, test date 26 August 2022.

14. The Pearson Test of English (PTE) Academic is an approved English language test in line with item 4 of Schedule 1 of IMMI 18/015. As mentioned above, the Applicant has provided to the Tribunal a copy of their PTE Academic Score Report displaying an overall result of 30 obtained from a test that occurred on 26 August 2022. This test was not packaged with an ELICOS course.

15. In light of the new evidence received, the Tribunal is not satisfied that the Applicant meets cl 500.213.

16. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

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

    Amanda Pearson
    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.