Swain (Migration)

This matter concerned an application for a Student (Temporary) (Class TU) visa, subclass 500 (Student), which was before the Tribunal for reconsideration. The applicant sought to satisfy the English language proficiency requirement under clause 500.213 of Schedule 2 to the Regulations. The Tribunal, constituted by Gabrielle Cullen, was required to determine whether the applicant met this specific criterion.

The central legal issue was whether the applicant had provided sufficient evidence of English language proficiency as required by clause 500.213(1) of the Regulations, read in conjunction with IMMI 18/015. This instrument specifies the acceptable English language tests and minimum scores, as well as the timeframe within which the test must have been completed. The Tribunal also considered whether the applicant fell within any of the classes of applicants exempted from this requirement under clause 500.213(2).

The Tribunal reasoned that as the applicant was not within a class of applicants exempted by IMMI 18/015, clause 500.213(1) applied. It found that the applicant had achieved a score of 50 in a PTE test dated 22 December 2019, which exceeded the minimum score of 42 specified in IMMI 18/015 for PTE tests. Furthermore, the test was taken within the two years immediately preceding the decision, satisfying the temporal requirement.

Consequently, the Tribunal concluded that the applicant met the English language proficiency criterion under clause 500.213. The Tribunal remitted the application for the visa to the Minister for reconsideration, with a direction that the applicant satisfies this particular criterion.