Prajapati (Migration)

[2024] AATA 4057

Prajapati (Migration) [2024] AATA 4057 (8 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rashmi Prajapati

REPRESENTATIVE:  Ms Manisha PRADHAN (MARN: 2217980)

CASE NUMBER:  2315522

HOME AFFAIRS REFERENCE(S):          BCC2023/4227456

MEMBER:Damian Creedon

DATE:8 October 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

·cl 500.213 of Schedule 2 to the Regulations

Statement made on 08 October 2024 at 8:33am

CATCHWORDS  
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa – Tribunal received evidence of the applicant’s PTE English test results – decision under review remitted 

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, 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 Home Affairs on 15 September 2023 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth).

2. The delegate made the decision 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 (Cth) (the Regulations). The relevant legislative instrument (IMMI 18/015) is attached to this decision.

3. On 13 September 2024 the applicant attended a hearing of her application and requested an opportunity to retake her PTE English test. That request was granted.

4. On 18 September 2024 the Tribunal received evidence of the applicant’s PTE English test results indicating a score of 43.[1] Considering the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

   [1] See: Score Report Code: 27ddeeLPY0.

   DECISION

5. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

   ·cl 500.213 of Schedule 2 to the Regulations

   Damian Creedon
   Member

   
   

   Attachment – IMMI 18/015 – English language instrument (extract)

   6Primary Criteria

   (1)For the purpose of subclause 500.213(1) of Schedule 2 to the Regulations, the following requirements are specified:

   (a)the applicant must undertake one of the English language tests specified in Column 1 of Schedule 1;

   (b)the applicant must achieve the English language test score specified for that English language test in Column 3 of Schedule 1; and

   (c)the applicant must have completed the test within the following period:

   (i)if evidence of the test is provided at the time the applicant makes an application for a Subclass 500 (Student) visa - 2 years immediately before the date of the visa application; or

   (ii)if evidence of the test is not provided at the time the visa application is made - 2 years immediately before a decision to grant or refuse the visa application is made.

   (2)For the purpose of subclause 500.213(2) of Schedule 2 to the Regulations, subclause 500.213(1) of Schedule 2 to the Regulations does not apply to the following classes of applicants:

   (a)an applicant who is a citizen of, and who 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 that 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 applicant who is a:

   (i)Foreign Affairs student;

   (ii)Defence Student; or

   (iii)Secondary exchange student; or

   (d)an applicant, who, in the 2 years before applying for a Subclass 500 (Student) visa, has successfully completed:

   (i)the requirements for a Senior Secondary Certificate of Education, in a course that was conducted in Australia and 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 and 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;

   (vii)the United States of America.

   …

   Schedule 1 — English language tests and minimum test scores

English language tests
Item	Column 1: Test name	Column 2: Acronym/ also known as	Column 3: Minimum test score
1	International English Language Testing system	IELTS Test	(a)    Overall band score 5.5; or (b)    Overall band score 5 if packaged with at least 10 weeks’ ELICOS; or (c)     Overall band score of 4.5 if packaged with at least 20 weeks’ ELICOS.
2	Test of English as a Foreign Language internet-based test	TOEFL iBT	(a)    46; or (b)    35, if packaged with at least 10 weeks’ ELICOS ; or (c)     32, if packaged with at least 20 weeks’ ELICOS.
3	Cambridge English: Advanced (CAE) test	Certificate in Advanced English	(a)    162; or (b)    154, if packaged with at least 10 weeks’ ELICOS; or (c)     147, if packaged with at least 20 weeks’ ELICOS.
4	Pearson Test of English Academic	PTE	(a)    42; or (b)    36, if packaged with at least 10 weeks’ ELICOS; or (c)     30, if packaged with at least 20 weeks’ ELICOS.
5	Occupational English Test	OET	a score of at least B for each test component of the OET.