MUSTAFAI (Migration)

[2018] AATA 1895

MUSTAFAI (Migration) [2018] AATA 1895 (9 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  MUHAMMAD MUMTAZ KHAN MUSTAFAI

CASE NUMBER:  1620588

DIBP REFERENCE(S):  BCC2016/2806189

MEMBER:Lilly Mojsin

DATE:9 May 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.213 of Schedule 2 to the Regulations.

Statement made on 09 May 2018 at 3:39pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – Pearson Test of English (PTE) Academic scores – Decision under review remitted

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 Immigration on 25 November 2016 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 24 August 2016.

3. 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.

4. The delegate in this application 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 the applicant had not provided evidence to the Department that he met the English language requirements.

5. The applicant appeared before the Tribunal on 15 February 2018 to give evidence and present arguments.

6. The applicant was assisted in relation to the review by his registered migration agent.

   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.

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 16/019, 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. The applicant is a citizen of Pakistan. He has not enrolled in a principal course of study registered to be delivered in a language other than English; a registered ELICOS course, a registered school course; or a registered post-graduate research course. He is not a Foreign Affairs student; Defence Student; or secondary exchange students; or in the two years before applying for a Subclass 500 (Student) visa,  has successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that was conducted in Australia in English; or  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 in English while the applicant was holding a Student visa; or  has successfully completed a minimum of 5 years of study in English undertaken in any of the listed countries. 

10. Therefore, the Tribunal finds that applicant not is in a specified class for the purposes of cl.500.213(3)(b). As the applicant is not within a class of applicants specified in the instrument, cl.500.213(1) applies to the applicant.

11. In this application, the applicant was required by the Minister to provide evidence of English language proficiency in accordance with the instrument, IMMI 16/019.

12. The applicant has provided test results from PTE Academic [Pearson Test of English Academic]. He was tested on 9 January 2018 and had an overall score of 52. As the minimum score for Pearson Test of English Academic is 42, and as the applicant has achieved the required minimum test score in a test provided by a specified language test provider, and the test was taken within the maximum time period ie within 2 years of the date of this decision, the applicant meets cl.500.213(1).

13. Accordingly, the Tribunal is satisfied that the applicant meets cl.500.213.

14. 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

15. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.213 of Schedule 2 to the Regulations.

    Lilly Mojsin
    Member

    
    

    Attachment – IMMI 16/019 – English language instrument (extract)

    1.SPECIFY for the purposes of paragraph 500.213(3)(a) of Schedule 2 to the Regulations:

    a.the requirement to use one or more of the English language test providers listed in Schedule 1 to this Instrument; and

    b.the requirement to achieve the relevant English language test score listed in Schedule 2 to this Instrument in a test provided by the relevant English language test provider mentioned in item 1 of this Instrument; and

    c.countries, listed in Schedule 3 to this Instrument, where an applicant may take a Test of English as a Foreign Language (TOEFL) paper-based test; and

    d.the maximum time periods in which an English test must be taken:

    i.two years immediately before the date the application is made; or

    ii.two years immediately before a decision is made on the application.

    2.SPECIFY for the purposes of paragraph 500.213(3)(b) of Schedule 2 to the Regulations, classes of applicants to which subclause 500.213(1) of Schedule 2 to the Regulations does not apply, as stated in subclause 500.213(2) of Schedule 2 to the Regulations :

    a.an applicant who is a citizen of, and 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  and that principal course of study 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 applicants who is a:

    i.Foreign Affairs student;

    ii.Defence Student; or

    iii.secondary exchange students; or

    d.in the two years before applying for a Subclass 500 (Student) visa,  an applicant has successfully completed:

    i.the requirements for a Senior Secondary Certificate of Education, in a course that was conducted in Australia 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 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; and/or

    vii.the United States of America.

    SCHEDULE 1

English language test providers:
1.	International English Language Testing System (IELTS test)
2.	Test of English as a Foreign Language (TOEFL) Paper-Based test
3.	TOEFL internet-based test (also known as TOEFL iBT)
4.	Cambridge English: Advanced (CAE) test (also known as Certificate in Advanced English)
5.	Pearson Test of English Academic (PTE)
6.	Occupational English Test (OET)

SCHEDULE 2

English test:	Minimum test score:
1	IELTS	Overall band score 5.5; or Overall band score 5 if packaged with at least 10 weeks’ ELICOS; or Overall band score of 4.5 if packaged with at least 20 weeks’ ELICOS.
2	TOEFL Paper-Based test	527; or 500, if packaged with at least 10 weeks’ ELICOS; or 450, if packaged with at least 20 weeks’ ELICOS.
3	TOEFL iBT	46; or 35, if packaged with at least 10 weeks’ ELICOS; or 32, if packaged with at least 20 weeks’ ELICOS.
4	CAE	162; or 154, if packaged with at least 10 weeks’ ELICOS; or 147, if packaged with at least 20 weeks’ ELICOS.
2	PTE	42; or 36, if packaged with at least 10 weeks’ ELICOS; or 30, if packaged with at least 20 weeks’ ELICOS.
5	OET	‘PASS’ mark

SCHEDULE 3

Countries in which an applicant may take a TOEFL paper-based test:
Belarus	Kyrgyzstan	Tajikistan
Ecuador	Mali	Tanzania
El Salvador	Moldova	Uganda
Guatemala	Solomon Islands	Uzbekistan
Honduras	Suriname