Thapa (Migration)

This matter concerned an application for review of a decision to refuse a Subclass 500 (Student) visa. The applicant sought to satisfy the English language proficiency requirements as stipulated in clause 500.213 of Schedule 2 to the Regulations, as specified by IMMI 18/015. The Tribunal, constituted by Member Frank Russo, was tasked with determining whether the applicant had met these criteria.

The central legal issue before the Tribunal was whether the applicant had provided sufficient evidence of English language proficiency to meet the requirements of clause 500.213 of the Regulations, as governed by IMMI 18/015. This involved assessing whether the applicant had undertaken an approved English language test, achieved the minimum required score, and whether any exemptions from this requirement applied to the applicant under the specified instrument.

The Tribunal found that the applicant had undertaken a PTE Academic test, but the score achieved was insufficient to meet the requirements of IMMI 18/015. Furthermore, the Tribunal considered the various classes of applicants for whom the English language proficiency requirement does not apply, as outlined in IMMI 18/015, and concluded that the applicant did not fall into any of these exempt categories. Specifically, the applicant was not a citizen of a country listed in paragraph 6(2)(a) of IMMI 18/015, nor did they provide evidence of meeting any other exemption criteria.

Consequently, the Tribunal determined that the applicant had failed to satisfy the English language proficiency criteria for the Subclass 500 (Student) visa. As the applicant did not claim to meet the criteria for a Subclass 590 (Student Guardian) visa, the Tribunal affirmed the original decision to refuse the visa.