Tangsupsatit (Migration)

[2024] AATA 2836

Tangsupsatit (Migration) [2024] AATA 2836 (2 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Uraiwan Tangsupsatit

CASE NUMBER:  2408176

HOME AFFAIRS REFERENCE(S):          BCC2023/5185056

MEMBER:Mary Sheargold

DATE:2 August 2024

PLACE OF DECISION:  Melbourne

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 02 August 2024 at 9:13am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – specified test score and enrolment in English language course – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cl 500.213(1)

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 Home Affairs on 2 April 2024 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 8 September 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.

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 (Cth) (the Regulations) because she did not demonstrate that she had the required English language proficiency as stipulated in the relevant legislative instrument.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

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 has demonstrated the required English language proficiency at the time of this decision.

   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: 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.

8. Item 6(2) in Part 2 of IMMI 18/015 exempts applications with certain passports (United Kingdom, United States of America, Canada, New Zealand, the Republic of Ireland), as well as those who are enrolled in a principal course of study that is a registered ELICOS course or certain school courses, those connected to Foreign Affairs or Defence, secondary school exchange students, those who in the 2 years before applying completed a secondary school certificate in Australia, or a Certificate IV in Australia while holding a student visa, and applicants who have successfully completed a minimum of 5 years of study in English in Australia, Canada, New Zealand, South Africa, the Republic of Ireland, the United Kingdom, or the United States of America.

9. In this case, the applicant is a Thai national.  She has provided no evidence to demonstrate that she meets any of the exemption categories stipulated in IMMI 18/015.

10. As the applicant is not within a class of applicants specified in the instrument, cl 500.213(1) applies to the applicant.

11. In this case, the applicant was required by the Minister to provide evidence of English language proficiency in accordance with the instrument.

12. Item 6(1) of Part 2 in IMMI 18/015 requires applicants to undertake an English test specified in Column 1 of Schedule 1 and achieve the score specified in Column 3 of Schedule 1 in the period either of 2 years immediately before the date of application, or if evidence of the test is not provided at the time the application is made, 2 years immediately before a decision to grant or refuse the visa application.

13. In her application form, the applicant answered ‘No’ to the question ‘Have you undertaken an English language test in the last 24 months?’.  In this case, applying the criteria in IMMI 18/015, she must demonstrate that she has achieved a score in a specified English language test within 2 years immediately before the decision to refuse or grant her visa is made.

14. After her application was made, the applicant sought additional time to submit her Pearson Test of English Academic (PTE) test score to the Department.  The result she submitted from a test undertaken on 18 March 2024 was below the minimum qualifying score set out in Column 3 of Schedule 1 to IMMI 18/015.  However, on 4 June 2024, she took another test and achieved a score of 33, which, if packaged with at least 20 weeks’ ELICOS, meets the requirement.

15. On 18 June 2024, the applicant provided the Tribunal with evidence of her Certificate of Enrolment in the course General English Beginner to Advanced, CRICOS course code 073679D, with Discover English Pty Ltd trading as Discover English.  The course has a duration of 72 weeks.  The Tribunal is satisfied that this is an ELICOS course within the meaning of r 1.03.

16. Based on the new information available to the Tribunal at review, the Tribunal is satisfied that the applicant now meets the English language requirement stipulated in Schedule 1 to IMMI 18/015, and therefore meets the requirement in cl.500.213(1) of Schedule 2 to the Regulations.

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

18. 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

19. 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.

    Mary Sheargold
    Member

    
    

    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.