Somrod (Migration)

[2018] AATA 3404

Somrod (Migration) [2018] AATA 3404 (19 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nirut Somrod

CASE NUMBER:  1709335

DIBP REFERENCE(S):  BCC2017/387145

MEMBER:Penelope Hunter

DATE:19 July 2018

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 19 July 2018 at 11:54am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine temporary entrant – English language ability – IELTS test report form – Test score – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 5002.13

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 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 30 January 2017. The delegate refused to grant the visa on 26 April 2017.

3. On 23 February 2017, the delegate requested that the applicant provide evidence of his English language ability. The applicant provided an IELTS Test Report Form and a Confirmation of Enrolment in a course of course of General English for 20 weeks from 29 May 2017 to 13 October 2017.

4. The delegate made the decision on the basis that evidence of English language ability was not provided as required to satisfy a criterion for the grant of the visa under cl 500.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations) which sets out as follows;

   500.213

   (1)  If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence that the applicant has a level of English language proficiency that meets the requirements specified in an instrument under paragraph (3)(a).

   (2)  Subclause (1) does not apply to an applicant within a class of applicants specified in an instrument under paragraph (3)(b).

   (3)  The Minister may, by legislative instrument, specify:

   (a)  requirements for the purposes of subclause (1); or

   (b)  a class of applicants to which subclause (1) does not apply.

5. At the time of the request, and the decision of the delegate, the relevant legislative instrument was IMMI 16/019. The whole of this instrument was repealed under Schedule 2 of the IMMI 18/015: English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visa) Instrument 2018, registered on 5 June 2018. However, Part 3 section 7 of legislative instrument IMMI 18/015 sets out that it applies only to an application for a Subclass 500(Student) visa made on or after the commencement of the instrument. The applicant’s application for the visa was before the commencement of the visa. Part 2 of Schedule 1 contains some transitional provisions in respect of applicant’s who completed TOEFL – PBT, this is not relevant to the circumstances of the applicant.

6. As the previous legislative instrument IMMI 16/019 has been wholly repealed insofar as it applied to the applicant’s circumstances, and because legislative instrument IMMI 18/015 is stipulated to apply only to applications lodged on or after 6 June 2018, the Tribunal finds that there is no applicable legislative instrument in accordance with cl. 500.213(3)(a) of Schedule 2 of the Regulations.

7. As there is no applicable instrument it follows that there are no specified requirements in accordance with cl. 500.213(1) at the date of the Tribunal determination. The Tribunal is therefore unable to find that the applicant does not meet the criteria in cl. 500.213 of Schedule 2 to the Regulations.

8. In these circumstances the Tribunal has determined that it is appropriate to make a decision in this matter on the papers without the need for a hearing.

9. The Tribunal does also note that the IELTS Test Report Form dated 4 March 2017, is one of the test providers specified in Schedule 1 of the repealed IMMI 16/019. Further, the overall band score of 4.5 achieved by the applicant when packaged with at least 20 weeks of ELICOS, as demonstrated by the Confirmation of Enrolment in another course of General English for 20 weeks from 29 May 2017 to 13 October 2017 also satisfied the test score required in Schedule 2 of IMMI 16/019. It appears to the Tribunal on the evidence that at the time of the delegate’s decision the applicant did meet the requirements of cl.500.213.

10. The Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

    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

    Penelope Hunter
    Member