Nguyen (Migration)

[2018] AATA 3255

Nguyen (Migration) [2018] AATA 3255 (11 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Minh Nhat Nguyen
Mr Andy Nguyen

CASE NUMBER:  1814361

DIBP REFERENCE(S):  BCC2018/762272

MEMBER:Stephen Conwell

DATE:11 July 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the applicants meet the following criteria for a Subclass 500 visa:

· cl.500.213 of Schedule 2 to the Regulations

· cl.500.311 of Schedule 2 to the Regulations

Statement made on 11 July 2018 at 9:17am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Evidence of English language ability – Tribunal unclear of English language proficiency requirement – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 500.213, 500.311

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 Immigration on 27 April 2018 to refuse to grant the applicants Student (Temporary) (Class TU) Subclass 500 visas under s.65 of the Migration Act 1958 (the Act).

2. The first-named applicant (applicant) applied for the visa on 15 February 2018. The delegate refused to grant the visa on the basis that evidence of English language ability was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations).

3. Cl.500.213(3)(a) specifies that the Minister may, by legislative instrument, specify the requirements for the purposes of cl. 500.213(1).

4. 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.

5. 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, 6 June 2018.

6. 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:

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

   ·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.

7. 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 to the Tribunal what English language proficiency requirements apply to the applicant.

8. In light of this, the Tribunal has determined that the matter should be remitted for reconsideration. In reaching its decision the Tribunal did not consider a Hearing to be necessary as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2) of the Act.

   DECISION

9. The Tribunal remits the application for reconsideration, with the direction that the applicants meet:

   ·cl.500.213 of Schedule 2 to the Regulations; and

   ·cl.500.311 of Schedule 2 to the Regulations

   Stephen Conwell
   Member