NLEKWUWA (Migration)

[2018] AATA 3185

NLEKWUWA (Migration) [2018] AATA 3185 (30 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chidi Owen NLEKWUWA

CASE NUMBER:  1719200

HOME AFFAIRS REFERENCE(S):           BCC2017/1016737

MEMBER:David Barker

DATE:30 July 2018

PLACE OF DECISION:  Sydney

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 30 July 2018 at 9:51am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – Satisfactory English test results – Practice and Procedure – Decision made on review – Decision remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
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 Immigration and Border Protection on 4 August 2017 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 15 March 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) because the delegate was not satisfied the applicant had met the English language requirements for the grant of the visa.

4. In reaching its decision the Tribunal was able to decide the review in the applicant's favour on the basis of the material before it:cl.360(2)(a) of the Act.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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. The issue in the present case is whether the applicant has provide evidence that he has a satisfactory level of proficiency in the English language.

7. 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). The English Language Tests and Evidence Exemptions for Subclass 500 student visas instrument (IMMI 18/015) has been amended by with effect from 20 July 2018. The amendments clarify that, despite the repeal of IMMI 16/019, that instrument continues to apply to applications made, but not finally determined, before 6 June 2018. Given the applicant lodged his application for the Subclass 500 student visa in March 2017, IMMI 16/019, which is attached to this decision, remains the relevant instrument and it specifies the requirements for evidence of English language proficiency and classes of applicants to whom the requirement does not apply.

8. The applicant is a citizen of Nigeria and is 24 years old. He has not enrolled in a principal course of study registered to be delivered in a language other than English; a registered ELICOS course, a registered school course; or a registered post-graduate research course. He is not a Foreign Affairs student; Defence Student; or secondary exchange students; or in the two years before applying for a Subclass 500 (Student) visa, has successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that was conducted in Australia in English; or has successfully completed a minimum of 5 years of study in English undertaken in any of the listed countries. 

9. The applicant has been undertaking a Bachelor of Medical Science at Canberra University since late 2016. He is due to complete this course in December 2018.Therefore he has completed 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. He meets the requirements of subclause 2(d)(ii) of IMMI 16/019. Therefore, the Tribunal finds that applicant is in a specified class for the purposes of cl.500.213(3)(b). Accordingly, the applicant meets cl.500.213(3).

10. In this case, the applicant was required by the Minister to provide evidence of English language proficiency in accordance with the instrument, IMMI 16/019.

11. The applicant has provided test results from PTE Academic [Pearson Test of English Academic]. He was tested on 6 October 2017 and had an overall score of 82. As the minimum score for Pearson Test of English Academic is 42, and as the applicant has achieved the required minimum test score in a test provided by a specified language test provider, and the test was taken within the maximum time period i.e. within 2 years of the date of this decision, the applicant meets cl.500.213(1).

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

13. 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

14. 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.

    David Barker
    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