Purja (Migration)

[2023] AATA 3842

Purja (Migration) [2023] AATA 3842 (9 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Biju Purja

REPRESENTATIVE:  Miss Yujie Rong (MARN: 1801289)

CASE NUMBER:  2311740

HOME AFFAIRS REFERENCE(S):          BCC2023/2565827

MEMBER:Frank Russo

DATE:9 October 2023

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 9 October 2023 at 10:18am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – IMMI18/015 – English language tests and minimum test scores – decision under review remitted

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 2 August 2023 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 28 April 2023. 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 (Cth) (the Regulations) because the delegate was not satisfied that the applicant had provided evidence a level of English language proficiency that meets the requirements of the specified instrument. The delegate’s decision indicates that the applicant provided a Pearson Academic English Test result of 39, which was insufficient to meet the minimum requirements within the legislative instrument. The delegate also found that the applicant did not satisfy any of the English language exemptions specified within IMMI 18/015.

4. The applicant was scheduled to appear before the Tribunal on 9 October 2023 to give evidence and present arguments, however on 7 October 2023 the applicant provided evidence of a Pearson Academic English Test result of 48, which is sufficient to meet the English language proficiency requirements. On the basis of the material before it, the Tribunal considers that it should decide the review in the applicant’s favour and has therefore cancelled the scheduled hearing and proceeded to make a decision on the papers.

5. The applicant was assisted in relation to the review.

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

   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 the requirements of cl.500.213.

   English language proficiency (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 18/015, 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. On 2 October 2023 the applicant provided the Tribunal with a statement dated 1 October 2023, together with a confirmation of enrolment (CoE) for the Certificate III in Light Vehicle Mechanical Technology, as well as the results of a Pearson Test of Academic English with an overall score on 39, with a test date of 28 September 2023.

10. The Tribunal has considered whether there is evidence that, for the purpose of cl.500.213(3)(b), the applicant falls within a class of persons specified in an instrument and therefore meets cl.500.2013(2) and the requirement to provide an English language test does not apply. There is no evidence that the applicant meets the following specified classes of person as outlined in IMMI 18/015. He is not the holder of a passport from one of the countries outlined in clause 6(2)(a). There is no evidence he is enrolled in a course of study that meets the requirements of cl.6(2)(b). With regard to cl.6(2)(d)(i), there is no evidence that the applicant has completed a Senior Secondary Certificate of Education in Australia conducted in English. Nor is there evidence with regard to cl.6(2)(d)(ii) that the applicant has successfully completed a substantial component of a course leading to an AQF qualification at the Certificate IV level or higher that was conducted in Australia in English while the applicant was holding a student visa, as this is the applicant’s first application for a Student visa.

11. As the applicant is not within a class of applicants specified in the instrument, cl 500.213(1) applies to the applicant. The applicant is therefore required to provide evidence of English language proficiency in accordance with the instrument.

12. The applicant has now provided the Tribunal with evidence of a Pearson Test of Academic English (PTE) with an overall score of 48, which he obtained on 6 October 2023. Schedule 1 of IMMI18/015 sets out the English language tests and minimum scores required for various tests. Item 4 of Schedule 1 indicates that the minimum test score required for a Pearson Test of Academic English or PTE is 42, or 36 if packaged with at least 10 weeks of ELICOS, or 30 if packaged with at least 20 weeks of ELICOS.

13. The Tribunal is therefore satisfied that the applicant now meets the minimum test score of 42 required for the Pearson Test of Academic English.

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

15. 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

16. 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.

    Frank Russo
    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.