Rakal (Migration)

[2020] AATA 2981

Rakal (Migration) [2020] AATA 2981 (11 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shiva Kumar Rakal

CASE NUMBER:  1925563

HOME AFFAIRS REFERENCE(S):          BCC2019/2549074

MEMBER:David Barker

DATE:11 May 2020

PLACE OF DECISION:  Sydney

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 11 May 2020 at 12:44pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – PTE English test result – decision under review remitted       

LEGISLATION

Migration Act 1958, ss 65, 360
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 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 15 May 2019. The delegate refused to grant the visa on 23 August 2019.

2. The delegate in this case refused to grant the visas 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 he had not provided evidence of meeting the requisite English language proficiency as specified in the legislative instrument.

3. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. 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). IMMI18/015 and LIN18/123 specify the requirements for evidence of English language proficiency and classes of applicants to whom the requirement does not apply.

6. As the applicant is not within a class of applicants specified in the instrument, cl.500.213(1) applies to the applicant. In this case, therefore, the applicant is required by the Minister to provide evidence of English language proficiency in accordance with the instrument.

7. The relevant instrument IMMI 18/015 indicates that a PTE score of 42 or above meets the English language requirements of cl.500.213(1). It indicates that it is sufficient that the test is taken two years immediately before the decision.

8. The applicant has, on 22 October 2019, provided the Tribunal with a Pearson / PTE Academic certificate showing  the results of a PTE test undertaken on 20 October 2019 indicating an overall score of 44.

9. As the applicant has achieved 44 in a PTE test dated 20 October 2019, the Tribunal finds he meets the English language proficiency as required by the instrument.

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

    DECISION

11. 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

    David Barker
    Member