NG (Migration)

Case [2019] AATA 4025

NG (Migration) [2019] AATA 4025 (19 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Siao Yi NG

CASE NUMBER:  1803342

HOME AFFAIRS REFERENCE(S):           BCC2017/4051071

MEMBER:P. Wood

DATE:19 September 2019

PLACE OF DECISION:  Sydney, New South Wales

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

Statement made on 19 September 2019 at 3:45pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – required evidence not provided – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 23 January 2018 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 1 November 2017. 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 (the Regulations).

  4. On 21 August 2019 the Tribunal wrote to the applicant’s nominated address inviting the applicant to appear at a hearing of the Tribunal at 2.30pm on 17 September 2019. In that letter, the Tribunal also invited the applicant to provide the requisite evidence of English language proficiency required by the instrument (as outlined below).

  5. On 21 August 2019 the applicant advised wrote to the Tribunal advising that she had returned to her home country and would not be attending the hearing of the Tribunal (tf 27). The applicant did not seek an adjournment of 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.

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

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NG (Migration) [2019] AATA 4025
Case
[2019] AATA 4025
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a Student (Temporary) (Class TU) visa, subclass 500 (Student), which was reviewed by the Tribunal. The applicant sought to have the decision not to grant the visa affirmed.

The primary legal issue before the Tribunal was whether the applicant satisfied the English language proficiency requirement as stipulated by clause 500.213 of Schedule 2 to the Regulations. This clause requires an applicant, if so directed by the Minister, to provide evidence of their English language proficiency in accordance with a specified instrument, IMMI 16/019.

The Tribunal found that the applicant had been required to provide evidence of English language proficiency under IMMI 16/019, but failed to do so before the Department or the Tribunal. As no such evidence was presented, the Tribunal was not satisfied that the applicant met the criteria under clause 500.213. Consequently, the Tribunal concluded that the applicant did not meet the criteria for the grant of a Subclass 500 (Student) visa. The Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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. English language proficiency (cl.500.213) 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). 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. In this case, the applicant was required by the Minister to provide evidence of English language proficiency in accordance with the instrument. According to the delegate’s decision record, provided to the Tribunal by the applicant, the applicant did not provide the Department with the requisite evidence of English language proficiency specified by the instrument. No such evidence has been provided to the Tribunal either. Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.213. 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 The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.P. WoodSenior MemberAttachment – 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; andb.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; andc.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; andd.the maximum time periods in which an English test must be taken:i.two years immediately before the date the application is made; orii.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; orv.the Republic of Ireland; orb.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; oriv.a registered post-graduate research course; orc.an applicants who is a:i.Foreign Affairs student;ii.Defence Student; oriii.secondary exchange students; ord.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; orii.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; ore.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/orvii.the United States of America.SCHEDULE 1

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.P. WoodSenior MemberAttachment – 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; andb.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; andc.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; andd.the maximum time periods in which an English test must be taken:i.two years immediately before the date the application is made; orii.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; orv.the Republic of Ireland; orb.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; oriv.a registered post-graduate research course; orc.an applicants who is a:i.Foreign Affairs student;ii.Defence Student; oriii.secondary exchange students; ord.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; orii.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; ore.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/orvii.the United States of America.SCHEDULE 1

Ratio Decidendi

Legal Principle Established

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