Thamvarokun (Migration)
[2021] AATA 2221
•3 June 2021
Thamvarokun (Migration) [2021] AATA 2221 (3 June 2021)
Corrigendum
DIVISION:Migration & Refugee Division
APPLICANT: Mr Treewut Thamvarokun
CASE NUMBER: 1929995
DIBP REFERENCE(S): BCC2019/3781154
MEMBER:David Barker
DATE OF DECISION: 3 June 2021
DATE CORRIGENDUM
SIGNED:8 June 2021
PLACE OF DECISION: Sydney
AMENDMENT: The following corrections are made to the decision:
Paragraph 8. of the Tribunal's Record of Decision should read:
The Tribunal considered whether the applicant is within a class of applicants specified in the instrument to which cl 500.213(1) does not apply. These are specified as follows in section 6(2) of IMMI 18/015:
David Barker
Member
DECISION RECORD
DIVISION: Migration & Refugee Division
APPLICANT: Mr Treewut Thamvarokun
CASE NUMBER: 1929995
HOME AFFAIRS REFERENCE(S): BCC2019/3781154
MEMBER: David Barker
DATE: 3 June 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 03 June 2021 at 11:51am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – successful completion of a substantial component of a course in English – IELTS test results – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 6, 65
Migration Regulations 1994, Schedule 2 cl 500.213; r 1.03
STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 October 2019 to refuse to grant the applicant a Student (Temporary)
(Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 31 July 2019. 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 requirements of cl 500.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not provide evidence of an adequate level of English language proficiency.
The applicant appeared before the Tribunal by teleconference on 11 May 2021 to give evidence and present arguments. There were difficulties with the interpreting and the hearing was adjourned part heard and a further teleconference hearing took place on 1 June 2021. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 whether there is evidence of English language proficiency as set out in IMMI 18/015.
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.
The Tribunal considered whether the applicant is within a class of applicants specified in the instrument to which cl 500.213(1) does not apply. These are specified as follows in
cl 500.213(2) of Schedule 2 to the Regulations:
(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; …
The applicant is a national of Thailand, which is not a country specified in cl 6(2)(a).
Regulation 1.03 defines an ELICOS course as an English Language Intensive Course for Overseas Students that is a registered course. The applicant has most recently completed a Diploma of Leadership and Management and is enrolled to shortly commence an Advanced Diploma of Leadership and Management. The course in which he is currently enrolled is not either a registered school course or a post-graduate research course. There is also no indication on the COE for this course that it is delivered in any language but English, and as discussed elsewhere in this decision, there is no indication the applicant is at the present time enrolled in an ELICOS course. Therefore, cl 6(2)(b) does not apply to him.
The applicant is not a Foreign Affairs student, Defence Student, or Secondary exchange student. Therefore, cl 6(2)(c) does not apply to him.
Clause 6(2)(d) provides that an applicant, who, in the 2 years before applying for a Subclass 500 (Student) visa, has successfully completed: the requirements for a Senior Secondary Certificate of Education, in a course that was conducted in Australia and in English; or 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 applicant has not undertaken any study relevant to the requirements for a Senior Secondary Certificate of Education. At the time of application for the student visa which is the focus of the current review, he had completed approximately 3 and a half months of a
6-month Certificate IV in Business Administration course. The Tribunal considered whether it could be appropriately construed that prior to lodging his application for the student visa, he had completed a substantial component of this course.
The applicant applied for the visa on 31 July 2019. A review of the Record of Results from the Certificate IV in Business Administration shows there were 10 units of study in the course, and as previously discussed, the course ran from 15 April 2019 to 13 October 2019. In association with his visa application, the applicant provided the Department with a letter from SSBT, dated 16 July 2019, which certified that as of that date, the applicant had completed 3 units of study: BSBITU401, BSBWRT401 and BSBITU402.
The Tribunal has had regard to policy guidance in the Department’s Procedures Advice Manual (PAM3) which at Part 4.6.4.3. discusses the approach to take in assessing completion of previous studies for English language exemption. The Tribunal is not bound by Department policy where there is a cogent reason to not do so and is aware that what amounts to successful completion of a substantial component of a course is a question of fact, having regard to the circumstances of the case. PAM3 suggests that a fixed mathematical formula to determine what equates to a ‘substantial component’ of a course must not be applied. The Tribunal would avoid adopting such a definitive view, but is satisfied that a purely temporal calculation of the proportion of the duration of a course that has elapsed by the time of a visa application does not inherently reflect the extent to which the substantive content of a course has been completed. For this reason, the Tribunal is not persuaded that by attending 106 days of a 180-day course1 in and of itself establishes that a substantial component of the Certificate IV in Business Administration was completed prior to the visa application.
In association with his visa application, the applicant provided the Department with a letter from SSBT, dated 16 July 2019, which certified that as of that date, the applicant had completed 3 units of study. A review of the Record of Results from the Certificate IV in Business Administration shows there were 10 units of study in the course. The completed units of study were respectively: BSBITU401 – Design and develop complex text documents; BSBWRT401 – Write complex documents; and BSBITU402 – Develop and use complex spreadsheets. The 7 uncompleted units of study were: BSBADM405 – organise meetings; BSBADM409 – Coordinate business resources; BSBCMM401 – Make a presentation; BSBFIA401 – Prepare financial reports; BSBMKG401 Profile the market; BSBMKG413 – Promote products and services; and BSBMKG414 – Undertake marketing activities. The Tribunal is not of the view that any one unit of study is more or less substantive in relation to the Certificate IV in Business Administration undertaken by the applicant. It considers the evidence shows the applicant had not successfully completed more than 3 of 10 required units of study, or 30 percent of the course by mid-July 2019. The Tribunal is unfortunately not satisfied the applicant had successfully completed a substantial component of the course prior to the date on which the student visa application was lodged at the end of July in 2019. Therefore, cl 6(2)(d) does not apply to him.
There is no indication that cl 6(2)(e) is applicable to the applicant as there is no evidence to demonstrate the applicant has successfully completed a minimum of 5 years of study in English undertaken in one or more of the specified countries in this clause.
As the applicant is not within a class of applicants specified in the instrument, cl 500.213(1) applies to the applicant.
In this case, the applicant was, by way of a request letter on 29 August 2019, asked to provide evidence of English language proficiency in accordance with the instrument. On 17 September 2019, an IELTS test report, issued on 6 September 2019, showing that the applicant had achieved an overall band score of 4.5, was uploaded to the Department’s IMMI account.
1 The duration of the Certificate IV in Business Administration course running from 15 April 2019 to 13 October 2019 is calculated to be 180 days.
The delegate noted that the Provider Registration and International Student Management System (PRISMS) student record indicated the applicant was at that time registered for
a package of courses that did not include ELICOS and that the minimal required IELTS test score for a non-ELICOS course was an overall band score of 5.5. The delegate found
that as a consequence cl 500.213(3)(a) was not met. The delegate also considered whether the applicant satisfied cl 500.213(3)(b) and belonged to a class of applicants to which subclause (1) does not apply. The applicant had not provided any evidence with their application which would indicate this requirement was met.
A review of the PRISMS records shows that the applicant completed a General English (Beginner to Intermediate) course which ran from 27 August 2018 to 21 April 2019, but failed to commence a subsequent IELTS Preparation course (Intermediate to Advanced), which was due to run from 22 April 2019 to 14 July 2019. He has provided evidence of the successful completion of this course. This was consistent with his oral evidence at hearing, as was the documentary evidence regarding the applicant’s successful completion of a Certificate IV in Business Administration, which was a full-time course, provided through the Sydney School of Business and Technology (SSBT) in the English language and which ran from 15 April 2019 to 13 October 2019.
The PRISMS record shows that he subsequently enrolled in an English Language Programs for International Students (Elementary to Upper Intermediate) course, which ran from
2 December 2019 to 3 May 2020. The applicant provided evidence following the hearing of his completion of this course in the form of a letter from Sydney Global College and a CoE [B0655218]. There is an indication of the applicant’s enrolment in a Diploma of Leadership and Management through Sydney Global College [CoE B0655C90], running from 11 May 2020 to 9 May 2021, which the applicant indicated at hearing that he had successfully completed. He gave evidence that he has enrolled in an Advanced Diploma of Leadership and Management through Sydney Global College [CoE B0655C90], running from 10 May 2021 to 7 May 2023.
Clause 6(1) of IMMI 18/015 specifies that in relation to the IELTS English language test, the overall band score required varies according to whether courses in which a student is
enrolled at the time the IELTS test is undertaken are packaged with an ELICOS course. The applicant gave evidence that he has completed a regular English language course but then withdrew from an IELTS Preparation course in which he had enrolled, in order to undertake a Certificate IV in Business Administration course. He confirmed that 4.5 is the highest overall band score that he has achieved in an IELTS test.
In the circumstance where an applicant was not studying a package of courses, including an ELICOS course, at the time they undertook an IELTS test in response to the request from the Department that they give evidence that they have an adequate level of English language proficiency, the required IELTS overall band score is 5.5. Accordingly, the applicant does not meet the provisions of cl 500.213(1). In this respect, the Tribunal acknowledges that the packages of leadership and management courses the applicant is currently studying includes an English language course, but as he enrolled in this package of courses after he had undertaken the IELTS course, this does not affect the IELTS overall band score that he was required to achieve at the time he undertook the IELTS test.
Accordingly, the Tribunal is not satisfied that the applicant meets cl 500.213.
Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
David Barker Member
Attachment – IMMI 18/015 – English language instrument (extract)
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.
…
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.
0
0