Sandhu (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking review of a decision not to grant a Student (Temporary) (Class TU) visa, subclass 500. The primary dispute concerned the applicant's failure to provide satisfactory evidence of English language proficiency as required by the regulations.

The legal issue before the Tribunal was whether the applicant met the English language proficiency requirements stipulated in clause 500.213 of Schedule 2 to the Migration Regulations 1994. This clause requires applicants, if directed by the Minister, to provide evidence of their English language proficiency in accordance with a specified instrument, IMMI 18/015. The Tribunal also had to determine if the applicant fell within any of the classes of persons exempted from this requirement under the regulations.

The Tribunal found that the applicant had been required to provide evidence of English language proficiency but had failed to do so before the delegate and crucially, had also failed to provide it to the Tribunal. While the applicant cited difficulties in booking an English test due to the COVID-19 pandemic, the Tribunal noted that the applicant had ample opportunity to take steps to meet the requirement between the delegate's decision in August 2019 and March 2020, prior to the pandemic's significant impact. The applicant's assertion that he did not believe it was necessary to take steps during this earlier period was not accepted as a sufficient reason for non-compliance. The Tribunal concluded that the applicant had not provided evidence establishing English language proficiency and did not fall within any of the exempted classes.

Consequently, the Tribunal was not satisfied that the applicant met the requirements of clause 500.213 and therefore affirmed the decision not to grant the visa.