PRATAMA (Migration)

[2019] AATA 3524

PRATAMA (Migration) [2019] AATA 3524 (21 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr RICO PRATAMA

CASE NUMBER:  1808202

HOME AFFAIRS REFERENCE(S):           BCC2018/434757

MEMBER:Penelope Hunter

DATE:21 August 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 21 August 2019 at 9:11am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency  – Pearson Test of English Academic (PTE) test – below minimum required score – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 Home Affairs on 7 March 2018 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 25 January 2018. 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 that the applicant had provided evidence of his English language proficiency.

4. The applicant appeared before the Tribunal on 15 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

5. The applicant was assisted in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 meets cl.500.213.

8. 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). IMMI 16/019, which is attached to this decision, specifies the requirements for evidence of English language proficiency and classes of applicants to whom the requirement does not apply.

9. In this case, the applicant was required by the Minister to provide evidence of English language proficiency in accordance with the instrument. He is not within the class specified in the Instrument that is exempt from demonstrating English language proficiency. He is a citizen of Indonesia, and it is not disputed that he had not at the time of the visa application successfully completed a minimum of 5 years study in Australia. Neither had the applicant met the requirements for a Senior Secondary Certificate of Education in a course that was conducted in Australia in English or 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 at the time of visa application. He is not a specified student and is not proposing to study in Australia in a course delivered in a language other than English or an ELICOS course. Clause 500.213(2) does not apply in respect of the applicant.

10. The applicant had applied for the visa in order to undertake study in series of courses at Victory Institute including a Certificate IV in Business, Diploma and Advanced Diploma of Business. The relevant English language test providers for the purposes of satisfying cl 500.213(3)(a) of Schedule 2 of the Regulation are set out in Schedule 1 of the Instrument. Prior to the hearing the representative for the applicant submitted a copy of a report for a Pearson Test of English Academic (PTE) test undertaken by the applicant on 29 February 2019. This records that the applicant achieved an overall score of 25. According to Schedule 2 of the Instrument, the relevant score given the applicant’s proposed study in 42, as his courses were not packaged with any ELICOS courses. The applicant’s score of 25 is below the required benchmark for the purposes of satisfying the visa criteria. The report recorded that the applicant had previously sat the test before, the applicant confirmed this in his evidence to the Tribunal. The applicant further conceded that to date he has failed to meet the minimum test score.

11. Accordingly, the Tribunal is not satisfied that the applicant meets cl.500.213.

12. In submissions to the Tribunal, the representative for the applicant has set out that the applicant intends to make a request for Ministerial intervention in relation to his visa application pursuant to s.351 of the Act. This is a matter for the applicant. The Tribunal discussed this submission with the applicant and his representative at the hearing. The compelling circumstance advanced at the hearing was that the applicant has continued to study while awaiting review. The Tribunal accepts this evidence however it is noted that a student visa is a temporary visa. The Tribunal is not persuaded that for this reason alone it is appropriate for the Tribunal refer the matter for consideration in the applicant’s case and it declines to do so.

13. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

14. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Penelope Hunter
    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