Sriprasert (Migration) - [2025] ARTA 528

SRIPRASERT (MIGRATION) [2025] ARTA 528 (26 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Nutchaphol Sriprasert
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2317768

Tribunal:General Member M Simmons
Place:Sydney
Date: 26 March 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 26 March 2025 at 1:23pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – applicant within class specified in instrument – “substantial component” of studies at Cert IV or higher level in English – Cert IV in progress at time of application and completed at time of review – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Administrative Review Tribunal Act 2024 (Cth), s 106(3)(b)(i), (c)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.213
CASES
Chaudhary v MICMA [2023] FedCFamC2G 732
Saeed v MIMA [2024] FedCFamC2G 827
Thamvarokun (Migration) [2021] AATA 2221
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 19 October 2023 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 22 August 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 English language requirements of cl 500.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
For the following reasons, the Tribunal sets aside the decision under review and remits the visa application for reconsideration.
DELEGATE DECISION
I note that in addition to considering cl 500.213, the delegate’s decision also includes statements in respect of cl 500.212. This provision requires that an applicant is a genuine applicant for entry and stay as a student taking into account various specified factors. While the delegate’s decision sets out the requirements of cl 500.212 and contains a conclusion on whether that provision is met, there are no details at all which are particular to the review applicant explaining why the delegate determined they individually do not meet this provision. That is, the delegate does not explain what if any relevant evidence is before them which informed their assessment. Nor do they set out any reasons to indicate how it is that they reached their conclusion in respect of cl 500.212.
This is in contrast to their consideration of cl 500.213, which comments on the material before the delegate on which they have based their assessment and contains reasoning to justify their conclusions. The delegate relevantly notes that the applicant has provided an English Language certificate and proceeds to explain why this does not meet the criteria in dispute.
The aspects of the delegate’s decision which refer to cl 500.212 appear to be template provisions included in error which have not been adapted or related to the applicant in any way. Given that the only consideration and reasoning apparent in the delegate’s decision relates to the English language requirements in cl.500.213, I am satisfied that cl.500.213 is the criteria in issue in that decision. I have proceed to conduct my review in relation to that assessment.
DECISION WITHOUT A HEARING
Section 106 of the Administrative Review Tribunal Act 2024 (ART Act) sets out the circumstances in which the Tribunal may reach a decision without a hearing. These include where the Tribunal may make a decision wholly in favour of the applicant, per s 106(3)(b)(i) of the ART Act. On the material before me, I am satisfied that the Tribunal is able to make a decision wholly in the applicant’s favour in this matter.
It must also appear to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding: s 106(3)(c) ART Act. The issues to be determined in this proceeding are:
·Whether the applicant satisfies cl 500.213, because per 500.213(2) they are within a class of applicants specified in an instrument to whom the requirement to evidence English language proficiency per cl 500.213 (1) does not apply.
On the available information, it appears the issues for determination in this proceeding can be adequately determined in the absence of the parties to the proceeding. Before me is the Department’s file which includes a copy of the applicant’s student visa application, along with a copy of the delegate’s decision. The applicant has also provided submissions and supporting material explaining why they believe cl 500.213 is satisfied, including evidence of prior studies undertaken in Australia while holding a student visa. Also before me is a Provider Registration and International Student Management System (PRISMS) check detailing the review applicant’s study history in Australia, along with records of the Australian visas they have held. I am satisfied that findings in respect of cl 500.213 can be made on this material.
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 cl500.213.
English language proficiency (cl 500.213)
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). IMMI 18/015, which is attached to this decision, specifies the requirements for evidence of English language proficiency and classes of applicants to whom the requirement does not apply.
For the purpose of subclause 500.213(2), IMMI 18/015 provides that subclause 500.213(1) does not apply to classes of applicants including:
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;
The expression ‘substantial component’ (of a course) is not defined.[1] Courts have suggested that several factors would be relevant to determining whether a person had successfully completed a substantial component of a course including, but not limited to, the percentage of the number of subjects of the overall course that had been completed.[2]
[1] Chaudhary v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 732 at [55].
[2] Saeed v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 827 at [30].
I have had regard to policy guidance in the Department’s Procedures Advice Manual (PAM3) which discusses the completion of previous studies for the purpose of the English language exemption. I note the Tribunal is not bound by Department policy and I am cognisant that what amounts to a successful completion of a substantial component of a course is a question of fact, having regard to the particular circumstances of this case.
PAM3 suggests that a fixed mathematical formula to determine what equates to a ‘substantial component’ of a course should not be applied, noting that an applicant having completed 50 per cent of the course duration of itself should not suffice.[3] I would not necessarily agree with the conclusive position expressed in PAM3. However, I am satisfied that a purely temporal calculation of the proportion of the duration of a course that has elapsed, of itself, does not inherently reflect the extent to which the substantive content of a course has been completed.[4]
[3] 3.10.3. ‘English language proficiency’, Procedures Advice Manual (PAM3), Department of Home Affairs.
[4] Member Barker expressed this view in Thamvarokun (Migration) [2021] AATA 2221 (3 June 2021).
The visa application was submitted on 22 August 2023. Material before me indicates that the applicant completed a Certificate IV in Business between 3 April 2023 and 31 March 2024. As such, at the time of application the review applicant had undertaken around 5 months of study of the 12 month duration course.
Before me is an interim academic transcript dated 13 September 2023 which sets out the results the applicant had achieved in each completed unit of study towards his Certificate IV of Business as at that date. The records show that at that time he had completed 7 units of study. The Certificate IV in Business, with course code BSB40120, requires completion of 12 units of study to attain the qualification.[5] While I note this transcript is dated 3 weeks after the student visa application was submitted, it indicates that the applicant was enrolled in the completed units a number of weeks, if not months, prior to the visa application being lodged, and as such I afford this document considerable weight in my assessment.
[5] Per Training.gov.au guidelines ‘BSB40120 Certificate IV in Business’ released 19 October 2020: (accessed 21 March 2025).
Substantial has been defined as “of ample or considerable amount, quantity, size, etc”.[6] The material which has informed my assessment does not suggest that the amount of the course completed, whether by duration or number of composite units or any other measure, needs to be a majority to be considered substantial.
[6] ‘substantial’, Macquarie Dictionary Online. 2025, Macquarie Dictionary.
On the totality of the material before me, I am satisfied that in the two years prior to applying for the student visa, the applicant had completed a considerable amount of study towards his qualification, noting both the number of units completed and the duration of studies undertaken out of the yearlong course. I find that the by 22 August 2023 the applicant had successfully completed a substantial component of the Certificate IV of Business.
The applicant’s movement records indicates he was granted a Subclass 500 student visa on 2 November 2022 and that he held that visa until submitting the application for the student visa which is subject of that review. Academic records indicate that the applicant studied for his Certificate IV of Business in Australia, undertaking courses conducted in English. As such I find that study constituting a substantial component of the Certificate IV of Business was undertaken in Australia, in English, while the applicant held a student visa.
As the applicant is within a class of applicants specified in the instrument, cl 500.213(1) does not apply to the applicant.
Accordingly, the Tribunal is satisfied that the applicant meets cl 500.213.
Given the above findings, the appropriate course is to set aside the delegate’s decision and remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.
This would include, but not be limited to, a consideration of cl.500.212 which takes into account the applicant’s individual circumstances.
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: Migration (IMMI 18/015: English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visa) Instrument 2018
Part 2 – Requirements for Subclass 500 (Student) visa
6 Primary 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