Thapa (Migration)

[2024] AATA 2796

Thapa (Migration) [2024] AATA 2796 (9 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prabin Thapa

REPRESENTATIVE:  Ms Moni Limbu (MARN: 1462306)

CASE NUMBER:  2318755

HOME AFFAIRS REFERENCE(S):          BCC2023/3421098

MEMBER:Frank Russo

DATE:9 July 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 9 July 2024 at 9:26am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – IMMI 18/015 – PTE Academic test – minimum test score – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.213

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 31 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).

2. The applicant applied for the visa on 19 July 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 the delegate was not satisfied that the applicant had provided a level of English language proficiency that meets the requirements of the specified instrument.

4. The applicant appeared before the Tribunal by telephone on 25 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The applicant was assisted in relation to the review. His representative also attended the hearing by telephone.

5. For the following reasons, the Tribunal has concluded that decision under review should be affirmed.

   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 meets cl.500.213.

   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. The Tribunal notes that a new English language instrument, Migration (English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visa) Instrument (LIN 24/022) 2024 (‘new instrument’) commenced on 23 March 2024, but does not apply to Student visa applications made prior to the commencement date. Section 9 of this new instrument indicates that IMMI 18/015 continues to apply to applications for Student visas which were made but not yet finally determined before the commencement date of the new instrument. Therefore IMMI 18/015 remains the applicable English language instrument in the current application for review.

9. In this case, the applicant was required by the Minister to provide evidence of English language proficiency in accordance with the instrument. The delegate’s reasons for decision note that in response to this request, on 7 November 2023, the applicant provided confirmations of enrolment (CoE) for General English, a Certificate IV in Kitchen Management and a Diploma of Hospitality Management. On 18 September 2023 the Department sent the applicant a further request for evidence that he satisfies the English language proficiency requirements. On 30 October 2023, the applicant provided the Department with the results of a PTE Academic test undertaken on 10 October 2023, with an overall score of 10, which was not sufficient to meet the requirements of the legislative instrument.

10. There is no evidence for the purpose of cl.500.213(3)(b) that the applicant falls within a class of persons specified in an instrument and therefore meets cl.500.2013(2) such that the English proficiency requirement does not apply. At the hearing, the Tribunal went through each of the classes of applicants to whom cl.500.213(1) of the Regulations do not apply, and discussed with him why there is no evidence that he falls within any of these classes of applicants.

11. Having considered all of the evidence before the Tribunal, I find that there is no evidence that the applicant meets any of the specified classes of person as outlined in IMMI 18/015. Specifically, the applicant is not the holder of a passport from one of the countries outlined in paragraph 6(2)(a).

12. There is no evidence the applicant is enrolled in a course of study that meets the requirements of paragraph 6(2)(b). On 11 December 2023 the Tribunal sent the applicant a letter requesting that he provide evidence that he meets the English proficiency requirements. In response, on 8 January 2024 the applicant provided a submission in which he claims that the ‘streamlined evidentiary requirements’ under cl 500.213(1) apply to him. This appears to be on the basis that the applicant was enrolled in a 12-week General English course that he completed on 6 August 2023, and he completed a second English language course on 19 November 2023. This submission also attached copies of the applicant’s CoEs for General English from 28 August to 19 November 2023, as well as for the Certificate IV in Kitchen Management from 11 September 2023 to 20 April 2025 and the Diploma of Hospitality Management from 12 May 2025 to 28 September 2025, as well as a further copy of the PTE Academic test report where he obtained an overall score of 10. The submission also notes that the applicant’s ‘main course of study’ is the Certificate IV in Kitchen Management and the Diploma of Hospitality Management. While I note this written submission, the applicant’s enrolment in General English is not his principal course of study as he also has enrolments on the Certificate IV in Kitchen Management and the Diploma of Hospitality Management. Therefore, the exception in paragraph 6(2)(b) does not apply. This was discussed with the applicant and his representative at the hearing. The applicant stated that he is a regular student in an English class, but stated that he understood the Tribunal’s concerns that he did not meet any of the exceptions in cl 500.213(1). His representative indicated that she had no submissions in relation to this issue.

13. There is no evidence the applicant meets paragraph 6(2)(c) as he is not a Foreign Affairs Student, a Defence student or a Secondary exchange student.

14. For the purposes of paragraph 6(2)(d), there is no evidence the applicant has completed a Senior Secondary Certificate of Education in Australia conducted in English or that he has successfully completed a substantial component of a course leading to a qualification from the AQF at the Certificate IV level or higher that was conducted in Australia in English while the applicant was holding a Student visa.

15. For the purpose of paragraph 6(2)(e), there is no evidence that the applicant has completed a minimum of 5 years of study in English in any of the countries specified in that paragraph. In his written submission to the Tribunal, the applicant confirms that he first started studying in Australia in June 2023. There is no evidence that he has studied in any of the other specified countries.

16. While the applicant claims in his written submission that ‘streamlined evidentiary requirements’ apply to him, no convincing evidence has been provided as to why cl 500.213(1) would apply to him. As the applicant is not within a class of applicants specified in the instrument, cl 500.213(1) applies to the applicant.

17. There is no evidence of an English language test that meets the requirements in IMMI 18/015 and therefore cl.500.213(3)(a) and cl.500.213(1) are not met. IMMI18/015 sets out the English language tests and minimum scores. In this regard the applicant provided the Department with a PTE Academic test result with an overall score of 10. The applicant also provided a copy of this test score report to the Tribunal with his application for review and his written submission.

18. IMMI 18/015 indicates that a PTE test score of 42 is required, or 36 if packaged with at least 10 weeks of ELICOS or 30 if packaged with at least 20 weeks of ELICOS.

19. At the hearing, the Tribunal gave the applicant an extension of time until 15 April 2024 to provide evidence of a booking to sit an English language test. On 28 March 2024 the applicant provided evidence of a PTE Academic test on 30 April 2024. In response, the Tribunal gave the applicant until 10 May 2024 to provide the results of this test.

20. On 30 April 2024, the applicant’s representative wrote to the Tribunal to indicate that the applicant was nervous when he sat the PTE Academic test and requested an extension of time. A test result was provided, dated 30 April 2024, where the applicant obtained an overall test score of 20. The Tribunal granted the applicant an extension of time until 12 June 2024 to provide the results of an English test. In response, the applicant’s representative sent an email to the Tribunal on 15 May 2024, thanking the Tribunal for granting the extension of time. The applicant did not provide the Tribunal with the results of a further test report by 12 June 2024, nor has the Tribunal received any further response or information from the applicant.

21. There is no evidence before the Tribunal that at the date of this decision, the applicant has a test score for an English language test which meets the requirements in IMMI 18/015. As noted above, the only test results provided by the applicant are the PTE test result of 10 which he obtained on 10 October 2023, and the PTE test result of 20 which he obtained on 30 April 2024. These are both below the minimum test score of 30 which he would need to achieve with courses packaged with 20 weeks of ELICOS courses.

22. Accordingly, the Tribunal is not satisfied that the applicant meets cl 500.213.

23. 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

24. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Frank Russo
    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.