PAILA (Migration)

This matter concerned an application for a Student (Temporary) (Class TU) visa, Subclass 572 (Vocational Education and Training Sector). The applicant sought review of a decision by the Administrative Appeals Tribunal (AAT) which affirmed the delegate's refusal to grant the visa. The core dispute revolved around whether the applicant had met the English language proficiency requirements for the visa subclass.

The Tribunal was required to determine whether the applicant had provided acceptable evidence of English language proficiency in accordance with the applicable regulations and instruments for a Subclass 572 visa. Specifically, the Tribunal had to consider whether the applicant qualified as an "eligible vocational education and training student" and, if not, whether they had satisfied the evidentiary requirements under Schedule 5A of the Migration Regulations 1994, including the relevant English language proficiency score mandated by the applicable assessment level and instrument.

The Tribunal reasoned that the applicant did not qualify as an eligible vocational education and training student under clause 572.223(1A) of the Regulations. Consequently, the applicant was required to meet the evidentiary requirements under clause 572.223(2), which mandated providing evidence in accordance with Schedule 5A for their highest assessment level. The applicant's passport country indicated an assessment level of 3 for Subclass 572. The relevant instrument for this subclass was IMMI14/080, which stipulated a minimum overall Pearson Test of English (PTE) score of 42. Although the applicant provided a PTE score report of 40 for a test taken on 19 April 2016, this score did not meet the required threshold. The Tribunal also noted that the applicant's submission referencing IMMI18/015 was irrelevant as that instrument applied to a different visa subclass.

As the applicant failed to meet the English language proficiency requirement under the applicable instrument and assessment level, the Tribunal found that the criteria for the grant of a Subclass 572 visa were not met. Accordingly, the Tribunal affirmed the decision not to grant the visa.