Sardar (Migration) - [2025] ARTA 1646

SARDAR (MIGRATION) [2025] ARTA 1646 (28 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Umair Sardar
Respondent:  Minister for Immigration and Citizenship
Representative:  Mr Harshdeep Singh (MARN: 1577093)
Tribunal Number:  2415094

Tribunal:General Member D. Dimitriadis
Place:Sydney
Date: 28 July 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Student (Temporary) (Class TU) visa for reconsideration in accordance with the order 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 28 July 2025 at 5:06pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – specified test result packaged with at least 10 weeks of English language study – evidence of test result and course enrolment provided – concurrent advanced diploma study – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.213(3)(a)
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 May 2024 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 21 November 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.
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 applicant did not provide evidence that he has a level of English language proficiency that meets the requirements specified in an instrument under paragraph 500.213(3)(a).
The applicant was assisted in relation to the review.
The applicant appeared by video before the Tribunal at a hearing on 4 July 2025 to give evidence and present arguments.
For the following reasons, the Tribunal sets aside the decision under review and remits the visa application for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 has a level of English language proficiency that meets the requirements specified in an instrument under paragraph 500.213(3)(a).
English language proficiency (cl 500.213)
To meet cl 500.213, the applicant must (if required by the Minister) give evidence that he has 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). Legislative instrument IMMI 18/015, an extract of which is attached to this decision, specifies the requirements for evidence of English language proficiency and the classes of applicants to whom the requirement does not apply.
The applicant is a national of Pakistan. On the evidence before it, the Tribunal finds that the applicant is not, for the purposes of cl.500.213(3)(b), within a class of applicants (specified in the instrument), to which subclause 500.213(1) does not apply. As the applicant is not within a class of applicants specified in the instrument, cl.500.213(1) applies to the applicant, who is required by the Minister to provide evidence of English language proficiency in accordance with the instrument.
In this case, the applicant was required by the Minister to provide evidence of English language proficiency in accordance with the instrument.
The applicant provided evidence of a Pearson Test of Academic English (PTE) which he took on 11 July 2025. The PTE report showed that the applicant achieved a test score of 37. The Tribunal has verified the test score.
According to IMMI 18/015, an applicant requires, in respect of a PTE a minimum score of:
·42; or
·36, if packaged with at least 10 weeks of ELICOS; or
·30, if packaged with at least 20 weeks of ELICOS.
As the applicant’s test score did not meet the minimum score of 42 as required by IMMI 18/015, the applicant must provide evidence that his result of 37 is packaged with at least 10 weeks of ELICOS.
The applicant submitted evidence of confirmation of enrolment (CoE) in an ELICOS course, General English (Elementary to Advanced) provided by Reach Community College Pty Ltd for the period 21 July 2025 to 26 September 2025. A search of PRISMS (Provider Registration and International Student Management System) indicates that the applicant is currently studying that course.
The applicant also provided to the Tribunal a copy of a Certificate from Nova Institute of Technology certifying that the applicant successfully completed the requirements for a Graduate Diploma of Management (Learning) on 26 November 2024 and a transcript of the results. He provided a letter dated 26 June 2025 from Brighton Pacific Pty Ltd trading as Australia Institute of Business and Technology (AIBT) about the applicant’s formal enrolment and academic summary report in an Advanced Diploma of Information Technology.
Records available to the Tribunal through the Department’s PRISMS system indicate that the applicant finished the Graduate Diploma of Management (Learning) at Nova Institute of Technology, is studying the General English (Elementary to Advanced) course at Reach Community College Pty Ltd and is also studying an Advanced Diploma of Information Technology at AIBT which he began on 23 September 2024 and the course is due to finish on 18 September 2026. Having consulted the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS), I find that the General English (Elementary to Advanced) course at Reach Community College Pty Ltd is an ELICOS course. As the applicant is undertaking that course from 21 July 2025 to 26 September 2025, I am satisfied that he is undertaking an ELICOS course of at least 10 weeks. I am therefore satisfied that at time of decision the applicant meets the English language proficiency requirements under the relevant Legislative Instrument IMMI 18/015.
Accordingly, the Tribunal is satisfied that the applicant meets cl 500.213.
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
The Tribunal sets aside the decision under review and remits the application for a Student (Temporary) (Class TU) visa for reconsideration, in accordance with the order that the applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.213 of Schedule 2 to the Regulations.
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.

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.