Nguyen (Migration)

This matter concerned an application for a Subclass 500 (Student) visa. The applicant's visa application was refused by the delegate on the basis that she had failed to provide acceptable evidence of English language proficiency, thus not meeting the requirements of cl.500.213 of Schedule 2 to the Migration Regulations. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant had satisfied the English language proficiency criteria for the visa.

The Tribunal considered the requirements of cl.500.213, which mandates that an applicant must provide evidence of English language proficiency as specified in a legislative instrument, unless they fall within a specified class of applicants. The delegate had found the applicant did not meet the requirements based on a PTE Academic Test Tasker Score Report showing an overall score of 31, which was below the minimum score of 42 (or lower in specific circumstances) stipulated in IMMI 16/019, the relevant instrument at the time of the delegate's decision. However, the applicant's representative argued that IMMI 18/015, which commenced on 6 June 2018, was the operative instrument and that it repealed IMMI 16/019, creating uncertainty regarding the applicable English language proficiency requirements for applications made before IMMI 18/015's commencement where the applicant had not undertaken the TOEFL-PBT test or achieved the required score.

The Tribunal found that due to the conflicting legislative instruments and the specific circumstances of the applicant's test results and the timing of her application relative to the commencement of IMMI 18/015, there was an ambiguity as to which English language proficiency requirements applied. Consequently, the Tribunal determined that the application should be remitted to the Minister for reconsideration, with a direction that the applicant meets the criteria under cl.500.213 of Schedule 2 to the Regulations.