Sharma (Migration)

[2018] AATA 3320

Sharma (Migration) [2018] AATA 3320 (14 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms KANCHAN SHARMA

CASE NUMBER:  1711394

HOME AFFAIRS REFERENCE(S):           BCC2017/764080

MEMBER:Meredith Jackson

DATE:14 August 2018

PLACE OF DECISION:  Brisbane

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 14 August 2018 at 12:08pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – Certificate III in Spoken and Written English – Studied for at least 10 weeks – Attended ‘catch up’ courses due to College holiday closure – Decision under review remitted for reconsideration

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 Immigration and Border Protection on 15 May 2017 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 26 February 2017. 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 applicant did not provide evidence of English language proficiency as required under cl.500.213(3) (a).

4. On 11 July 2018 the applicant appeared before the Tribunal to give evidence and present arguments. The applicant was assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 English language proficiency requirements.

   English language proficiency (cl.500.213)

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

8. On 15 May 2017, the delegate refused to grant the visa on the basis that the applicant had achieved an overall band score of 5 in an IELTS test taken on 24 September 2016 but as such, had not achieved the requisite score of 5.5 and had not packaged her course with at least 10 weeks of ELICOS study, as required by regulation 500.213(3)(a). The applicant had provided the delegate with a Certificate III in Spoken and Written English undertaken at Oceania College between 5 December 2016 and 10 February 2017. The delegate found that while this appeared to be a course of 10 weeks’ duration, the College was closed over the summer break between 19 December 2016 and 9 January 2017, a period of three weeks, which reduced the period of study to 7 weeks, and this meant the applicant had not met the specified requirement.

9. On 11 July 2018, at the review hearing, the applicant provided the Tribunal with a copy of the Certificate III in Spoken and Written English from Oceania College issued on 18 May 2017.The applicant also provided a Completion Letter from the college stating that she had completed all the course requirements on 10 February 2017.

10. The Tribunal granted the applicant 7 days to provide additional evidence that she had studied for 10 weeks as specified in an Instrument.

11. On 17 July 2018, the applicant provided a letter from Oceania College stating that the applicant had completed the Certificate III course over 10 weeks, and which claimed that while the campus was closed for three days during the holiday period (Monday 26 December 2016, Tuesday 27 December 2016 and Monday 2 January 2017), it had provided catch-up classes to cover the closure days and that the applicant had attended all of the catch-up classes.

12. For the purposes of this review, the Tribunal accepts the College’s information regarding its closure and finds that the applicant had completed the Certificate III course and had studied for a period of at least 10 weeks, as required in the relevant Instrument, and therefore meets the requirement of clause 500.213(1). In making this finding, the Tribunal also accepts the attendance of “catch-up classes” over the three days of the Oceania College closure were a reasonable substitute for attendance on the three holidays the college was closed.

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

14. 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

15. 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.

    M. Jackson
    Member