Navdeep Singh (Migration)

This matter concerned an application for a Subclass 500 (Student) visa, where the applicant, Navdeep Singh, was seeking review of a decision that had refused his visa application. The central dispute revolved around whether the applicant had met the English language proficiency requirements stipulated by the Migration Regulations.

The court was required to determine whether the applicant's enrolment in an English Language Intensive Courses for Overseas Students (ELICOS) course, specifically a "PTE Preparation for Success" course, could satisfy the English language proficiency requirements for the Subclass 500 visa. This involved considering whether the purpose of the ELICOS course was to remedy deficiencies in a previously achieved test score, and whether such a course could be considered "packaged with" a previous course of study for the purposes of meeting the visa criteria. The court also had to consider whether there was any discretion to take into account the applicant's study record in assessing his English language proficiency.

The court reasoned that the relevant instrument, IMMI 18/015, specified that an applicant must achieve a certain test score in a specified English language test. It further stipulated that if evidence of the test score was not provided at the time of application, it must be achieved within two years immediately before a decision to grant or refuse the visa. The court found that the applicant's PTE score of 31, achieved on 23 May 2020, could not be considered "packaged with" the ELICOS course completed in September 2020, as the course was intended to remedy deficiencies in that score. The court also noted that there was no discretion to consider the applicant's study record in lieu of meeting the specified test score requirement.

Consequently, the court remitted the application for the visa to the Minister for reconsideration, with a direction that the applicant met the English language proficiency criteria under clause 500.213 of Schedule 2 to the Regulations.