Nguyen (Migration)

[2018] AATA 5108

Nguyen (Migration) [2018] AATA 5108 (6 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Hoang Phuong Quyen Nguyen

CASE NUMBER:  1816111

HOME AFFAIRS REFERENCE(S):           BCC2018/1154958

MEMBER:Mark Bishop

DATE:6 September 2018

PLACE OF DECISION:  Melbourne

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 06 September 2018 at 11:54am

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – evidence of
English language ability provided – proof of enrolment provided – applicant complies with the relevant English language proficiency requirements – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 500.211, 500.213, 500.218

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 28 May 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 11 March 2018. 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 cl500.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant failed to provide evidence of English language proficiency.

4. The applicant appeared before the Tribunal on 6 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was assisted in relation to the review by their registered Migration Agent (MA).

6. For the following reasons, the Tribunal has concluded that the decision of the delegate 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). 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. On 28 May 2018 the delegate made a finding the applicant had failed to provide acceptable evidence of English language proficiency and hence did not meet the requirements of regulation 500.213. The delegate made a finding the criteria for the grant of a Student visa was not met by the applicant. The delegate refused the application by the applicant for a Student visa.

10. On 9 August 2018 the Tribunal wrote to the applicant and requested she provide “evidence you meet the English language proficiency requirements as prescribed by the relevant legislative instrument”.

11. The relevant instrument at the time of this decision is IMMI 16/019. That instrument specifies the minimum test score that the applicant is required to achieve in a PTE as :

    ·42 if the applicant is registered for a package of courses that does not include ELICOS;

    ·36 if the applicant is registered for a package of courses including at least 10 weeks’ of ELICOS;

    ·30 if the applicant is registered for a package of courses including at least 20 weeks’ of ELICOS.

12. On 4 September 2018 the applicant provided a PTE Academic Test Tasker Score Report in her name. It showed an overall score of 31. The test was taken on 18 December 2017 in Australia. The minimum test score required is 42 or less in certain limited circumstances as set out in the IMMI 16/019 schedule attached to this decision and outlined above in paragraph 11.

13. In the submission provided to the Tribunal the MA advised “her client has done the PTE test but the result is not enough. She tried to work with current school provider but they did not allow her to do English”.

14. The MA for the applicant provided a further written submission to the Tribunal as follows:

    Relevant laws and fact

    ·The applicant was refused visa application on the basis of clause 500.213 in Schedule 2 of the Migration Regulations. However Cl.500.213(3)(a) specifies that the Minister may, by legislative instrument, specify the requirements for the purposes of cl. 500.213(1). IMMI18/015 is the current legislative instrument (IMMI 18/015)which seeks to specify the English language proficiency requirements for Subclass 500 student visa applicants for the purposes of cl. 500.213 of Schedule 2 to the Migration Regulations 1994.

    ·Section 7 of IMMI18/015 states that the instrument applies to an application for a Subclass 500 visa made on or after the commencement of the instrument, 6June 2018.

    ·Significantly, Schedule 2 to IMMI 18/015 states that it repeals the previous instrument, IMMI16/019, with the exception that the previous instrument will continue to apply in relation to an applicant who meets either of the following requirements:

    o    The applicant completed the TOEFL-PBT test before 14 October 2017 and achieved the specified score within a certain period; or

    o    The applicant completed the TOEFL-PBT test on or after 14 October 2017 but before the commencement of IMMI18/015 and achieved the specified score within a certain period.

    ·IMMI18/015 makes no reference to applications for a Subclass 500 visa made before its commencement where an applicant did not undertake the TOEFL-PBT test or did not achieve the required score. As such, it is unclear what English language proficiency requirements apply to the applicant (According to the case Minh Nhat Nguyen (Migration) [2018] (AAT number: 1814361)).

15. The Tribunal has considered this submission. The Tribunal determines as follows:

    ·The applicable Instrument for the applicant’s case is IMMI 16/019, and she would need to provide evidence of English language proficiency as listed in IMMI 16/019.

    ·IMMI 18/015 was registered on 5 June 2018 (commenced on 6 June 2018), and repealed IMMI 16/019. However, it didn’t make any reference to applicants who applied for a subclass 500 visa before 6 June 2018 and didn’t undertake an TOEFL-PBT test or did not achieve the required score.

    ·This is the instrument the MA has referred to in the submission above, but has not taken into account the amendment to IMMI 18/015 which came into effect on 20 July 2018. The amended IMMI 18/015 (compilation) applies to all visa applications made on or after 6 June 2018. In the amended IMMI 18/015, the Instrument states that despite the repeal of IMMI 16/019, this repealed instrument continues to apply for an application for a Subclass 500 visa if that application is made before 6 June 2018 and is not finally determined on or before 6 June 2018 (see Schedule 2, Part 2 of IMMI 18/015 (compilation)).

    ·The case the MA referred to (1814361) was made on 11 July 2018. This was made before the Minister amended IMMI 18/015 to clarify that despite the repeal of IMMI 16/019 it would continue to apply to student visa applications made and not finally determined before 6 June 2018.

16. At the hearing on 6 September the Tribunal requested the applicant provided proof of English language proficiency as require by IMMI 16/019. The applicant did provide proof of enrolment in three courses. Those courses were “English for Academic Purpose” enrolment period 10 September 2018 until 28 January 2019 leading to two future courses in an Advanced Diploma of Business and a Bachelor of Business concluding 3 November 2022.

17. Accordingly the applicant has provided PTE test score results of 31 plus proof of enrolment in a package of course with an ELICOS component of 20 weeks.

18. There is evidence before the Tribunal that the applicant complies with the relevant English language proficiency requirements.

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

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

21. 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

22. 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.

    Mark Bishop

    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