Navdeep Singh (Migration)

[2022] AATA 2305

Navdeep Singh (Migration) [2022] AATA 2305 (4 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Navdeep Singh

REPRESENTATIVE:  Mrs Natalia Labayova  (MARN: 1680300)

CASE NUMBER:  2204820

HOME AFFAIRS REFERENCE(S):          BCC2020/1786172

MEMBER:David Thompson

DATE:4 July 2022

PLACE OF DECISION:  Perth

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 04 July 2022 at 10:26pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – specified test score ‘packaged with’ ELICOS course – purpose of course to remedy deficiencies in test score – course to be taken after test score achieved –score cannot be packaged with previous course – applicant now enrolled in course of specified length – no discretion to consider study record – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulation 1994 (Cth), Schedule 2, cl 500.213(1)
Acts Interpretation Act 1901 (Cth), s 15AA
Legislation Act 2003 (Cth), s 13

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 18 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 23 June 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) (the Regulations) because he had failed to provide sufficient evidence that his English language proficiency met the requirements of the legislation, as set out in a legislative instrument made under that clause.

4. The applicant appeared before the Tribunal on 15 June 2022 to give evidence and present arguments.

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

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   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 requirements of cl 500.213.

   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.

   Evidence

9. As well as giving evidence at hearing, the applicant filed the following items of documentary evidence with the Tribunal:

   a.The Delegate’s decision record and notification letter dated 18 March 2022.

   b.A course completion letter dated 21 September 2020 issued by Apeiro Institute, confirming that the applicant completed a PTE Preparation for Success course (that is, an ELICOS course).

   c.A PTE score result dated 21 May 2022, showing that the applicant had achieved an overall score of 37.

   d.A statement of achievement dated 21 September 2020 issued by Apeiro Institute, showing that the applicant’s level of proficiency in various English language skills achieved in the course of an ELICOS PTE Preparation for Success course and stating that the course had run from 10 June 2020 to 11 September 2020.

   e.A letter of Offer and Acceptance of Offer dated 20 May 2020 issued by Apeiro Institute, offering the applicant the following package of courses:

   i.Certificate III in Light Vehicle Mechanical Technology, scheduled to run from 8 June 2020 to 4 June 2021

   ii.Certificate IV in Automotive Mechanical Diagnosis, scheduled to run from 5 July 2021 to 2 January 2022

   iii.Diploma of Automotive Technology, scheduled to run from 31 January 2022 to 31 July 2022

   f.Course completion letters issued by Apeiro Institute, certifying that the applicant has completed the first two courses in the package set out above and dated 25 October 2021 and 30 May 2022 respectively.

10. Prior to hearing, the Tribunal obtained the Departmental file on the applicant’s visa application. I have read and considered that file. It contains the following additional relevant documents:

    a.A PTE score result dated 23 May 2020, showing that the applicant had achieved an overall score of 31.

    b.A letter dated 28 September 2021 from the Department to the applicant requesting further information regarding (amongst other things) his English language proficiency.

11. Following hearing, and with leave, the applicant filed the following further items of documentary evidence:

    a.CoE D2E81192, in respect of the applicant’s enrolment in a PTE Preparation for Success course at Apeiro Institute, scheduled to run from 1 August 2022 to 9 October 2022.

    b.CoE D2E7FA94, in respect of the applicant’s enrolment in a Diploma of Automotive Technology course at Apeiro Institute, scheduled to run from 7 November 2022 to 14 May 2023.

12. The applicant’s representative, who appeared with him at hearing, has filed outlines of submissions at various points of the Tribunal process. I have considered those submissions in reaching my decision. Where it proves necessary or desirable to refer to any of the documents listed above in the course of my reasons, I do so by reference to that document’s paragraph number. Thus, the document referred to in paragraph 9(a) is referred to simply as ‘document 9(a)’, and so on for the other documents listed.

    Findings of fact

13. On the basis of the evidence before me, I make the following findings of fact:

    a.The applicant is a citizen of the Republic of India.

    b.On 23 May 2020, the applicant sat a Pearson Test of English - Academic (PTE test) and received an overall score of 31.

    c.On 10 June 2020, he was enrolled in and commenced an ELICOS course (namely, a PTE Preparation for Success course) at Apeiro Institute. That course was scheduled to run to 11 September 2020.

    d.The applicant applied for a Class TU Sub-class 500 student visa on 23 June 2020. On that date he was present in Australia.

    e.He successfully completed his ELICOS course on 11 September 2020.

    f.The applicant commenced studying for a Certificate III in Light Vehicle Mechanical Technology on 5 October 2020, and successfully completed that course on 8 October 2021.

    g.The applicant commenced studying for a Certificate IV in Automotive Mechanical Diagnosis on 1 November 2021.

    h.On 18 March 2022 the applicant’s student visa application was refused. He lodged this review application on 1 April 2022.

    i.The applicant successfully completed his Certificate IV in Automotive Mechanical Diagnosis on 8 May 2022.

    j.The applicant sat a further PTE test on 21 May 2022, and achieved an overall score of 37.

    k.On 27 June 2022 the applicant enrolled in a further PTE Preparation for Success course, again with Apeiro Institute, scheduled to run from 1 August 2022 to 9 October 2022.

14. The applicant does not dispute that in the course of his student visa application, the Minister required him to provide evidence of his English language proficiency in accordance with the instrument. This admission was properly made, as document 10(b) makes clear. Clause 500.213 of Schedule 2 the Regulations is, therefore, engaged.

15. It is necessary first to consider whether the applicant falls into a class of applicants specified under cl 500.213(3)(b). If he does fall into such a class, he is exempt under cl 500.213(2) from the requirement to produce evidence of his level of English language proficiency under cl 500.213(1).

16. The classes of exempt applicants are set out in 6(2) of the instrument. At hearing, the applicant’s representative submitted that the applicant did indeed fall within such a class, namely, that defined in s.6(2)d)(ii):

    “ an applicant, who, in the two years before applying for a Subclass 500 (Student) visa, has successfully completed … a substantial component of a course leading to a qualification from the Australian Qualification Framework at the Certificate IV level or higher that was conducted in Australia and in English, while the applicant was holding a student visa.”

17. The applicant’s representative argued that the applicant’s Certificate IV in Automotive Mechanical Diagnosis, which he completed on 8 May 2022, was such a course, and that having completed it on that date, the applicant fell within the scope of the exemption. I reject that submission. I have no doubt that the applicant’s Certificate IV course a course of the kind mentioned in s.6(2)(d)(ii) of the instrument, and I accept that the applicant has completed that course. However, on the facts as I have found them, the applicant did not so within the 2 years prior to making the student visa application the subject of this review. Rather, he did not even commence his Certificate IV studies until well after he lodged his student visa application. Nor did he complete a substantial part of that course whilst holding a student visa. In fact, the applicant has not yet been granted any student visa at all, having entered Australia on a Class UD Sub-class 600 visitor’s visa.

18. The applicant’s representative did not press that submission in the written submissions she provided to me following hearing. Rather, she argued (in essence) that the applicant’s record of studies in Australia to date should be taken into account in the exercise of any discretion I might have in dealing with the applicant’s case. I have no doubt that the applicant has a very good record of study in Australia. He has clearly applied himself to his studies and has passed 3 courses (including his initial ELICOS course) without any sign of any deferral or extension, and has only one course from his original package left to complete. However, nothing in the language of cl 500.213 or of the instrument gives the decision maker any discretion in applying those provisions.

19. There is nothing in the evidence before me that would bring the applicant within any of the other exempt classes provided for in s.6(2) of the instrument. As the applicant is not within a class of applicants specified in the instrument, cl 500.213(1) applies to the applicant.

20. The applicant attempted to satisfy the requirements of c.500.213(1) by providing evidence that he had passed a PTE test and had been enrolled in (and completed) an ELICOS course. His PTE test score was 31. For the purposes of the instrument, a PTE test score at that level had to be packaged with an ELICOS course of at least 20 weeks if it were to satisfy those requirements. The applicant’s ELICOS course was, however, only 12 weeks long. On 21 May 2022 the applicant sat a further PTE and achieved an overall score of 37.

21. At hearing, the applicant argued that his PTE test score of 37 should be taken together with his 12-week long ELICOS course, completed on 11 September 2020, fulfilled the requirements of s.6(1), as set out in Item 4 Schedule 1 to the instrument. That item states that a PTE test score of 36 will suffice if it is packaged with at least 10 weeks ELICOS. The applicant’s argument therefore raised the meaning of the term ‘packaged’ as used in this context.

22. The term ‘packaged’ is not, at least for the purposes of cl 500.213 and the instrument, defined in either the instrument itself, the Regulations, or the Act. Nor have I been able to find any judicial or Tribunal decisions that deal with the point. I therefore proceed to construe the term myself.

23. Pursuant to s 15AA of the Interpretation Act1901 (Cth),

    In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

    That provision applies to the instrument by reason of s 13 of the Legislation Act 2003 (Cth).

24. The purpose of cl 500.213 within the scheme of cl 500 of Schedule 2 to the Regulations is self-evidently to ensure that an application for a student visa who intends to undertake a course of studies to be delivered in English is equipped to do so. Thus, a person who is a citizen of an English-speaking country, or who has already successfully completed significant study in English, may be exempted by cl 500.213(2) from the requirements of cl 500.213(1), as may an applicant who is proposing to study a course delivered in a language other than English, or is proposing to learn English itself. That is not to say that that the requirement may have other, subsidiary, purposes. It may be intended to help filter out applicants who do not genuinely intend to study, for instance. Within that context, Schedule 1 to the instrument identifies approved tests of English language proficiency and prescribes, for each of them, a score that is sufficient in itself as proof of English language proficiency (provided it has been achieved within a defined 2-year period), and lesser scores which will suffice provided that the applicant undertakes an ELICOS course of a prescribed minimum length. In this scheme, the ELICOS courses are intended to remedy deficiencies in the applicant’s test score. It must, therefore, be the case that the ELICOS course is to be taken, or be scheduled to be taken, at a time after the relevant test score was achieved. ‘Packaged’ in that context therefore means that the applicant must have both a test score and a prospective ELICOS course of the prescribed length for that score, in hand at the relevant time.

25. I therefore reject the applicant’s argument that his PTE test score obtained on 21 May 2022 and his ELICOS course undertaken between 10 June 2020 and 11 September 2020 at Apeiro Institute are ‘packaged’ together for the purposes of the instrument. However, the applicant is now enrolled in a further ELICOS course of at least 10 weeks duration. I find that that course is packaged with his test score of 37 obtained on 21 May 2022, and that together they meet the requirements of s 6(1)(a) and (b) of the instrument. I also find that his PTE test score of 37 was obtained within the time limit provided in s 6(1)(c) of the instrument.

26. Accordingly, I am satisfied that the applicant meets cl 500.213.

27. 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

28. 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.

    David Thompson
    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.