NLEKWUWA (Migration)

This matter concerned an application for a Student (Temporary) (Class TU) visa, subclass 500 (Student), brought before the Tribunal. The central dispute revolved around whether the applicant had provided sufficient evidence of English language proficiency to satisfy the requirements of the visa.

The Tribunal was required to determine whether the applicant met the criteria for English language proficiency as stipulated in clause 500.213 of Schedule 2 to the Regulations. Specifically, the court needed to ascertain if the applicant was required to provide evidence of English language proficiency under the relevant instrument, and if so, whether they had met that requirement or fell within an exempt class.

The Tribunal reasoned that the applicant, a citizen of Nigeria, was undertaking a Bachelor of Medical Science at Canberra University since late 2016 and was due to complete it in December 2018. This meant the applicant had completed a substantial component of a course leading to a qualification at the Certificate IV level or higher, conducted in Australia in English while holding a student visa. Consequently, the Tribunal found that the applicant met the requirements of subclause 2(d)(ii) of the relevant instrument, IMMI 16/019, and was therefore in a specified class for the purposes of clause 500.213(3)(b).

Given these findings, the Tribunal concluded that the appropriate course of action was to remit the application for the visa to the Minister for reconsideration, with a specific direction that the applicant meets the criteria under clause 500.213 of Schedule 2 to the Regulations.