Thepwan (Migration) - [2025] ARTA 1647

Thepwan (Migration) [2025] ARTA 1647 (19 August 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Chinalai Thepwan
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2429044

Tribunal:General Member T H R Baggiano
Place:Brisbane
Date: 19 August 2025
Decision:The decision under review is affirmed.

Statement made on 19 August 2025 at 4:54pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language criterion – financial capacity – International English Language Testing System (IELTS) test score – IELTS test score requirements – applicant commenced Certificate IV course as a holder of a bridging visa – no exemption for English language testing – extension of time to present English test results – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 56, 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 500.213
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 July 2024 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 26 December 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.
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 he had not provided evidence of a level of English language proficiency that met the requirements of the specified instrument. On 21 June 2024, the delegate made a request under s 56 of the Act for the applicant to provide evidence of English language proficiency as well as other evidence relating to the financial capacity criterion. In relation to the English language criterion, the applicant provided a screenshot of his International English Language Testing System (IELTS) results showing an overall score of 3.5 from a test completed on 23 July 2024. The official IELTS test report form was later provided to the Tribunal by the applicant which verified the overall band score of 3.5.
After the refusal by the delegate on 30 July 2024, the applicant lodged an application for review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT) on 19 August 2024.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. The decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal by videoconference on 22 July 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
For the following reasons, the Tribunal considers 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 the applicant meets cl 500.213.
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). LIN 18/015, specifies the requirements for evidence of English language proficiency and classes of applicants to whom the requirement does not apply.
In this case, the applicant was required by the Minister to provide evidence of English language proficiency in accordance with IMMI 18/015.
There is no evidence of an English language test result that meets the requirements in LIN 18/015 and therefore cl 500.213(3)(a) and cl 500.213(1) are not met. LIN 18/015 sets out the English language tests and minimum scores. The applicant provided an IELTS test score from a test completed on 23 July 2024 with an overall band score of 3.5. As raised with the applicant at hearing, an IELTS score of 5.5 is required but the evidence indicates that he has fallen short of the requisite score, achieving an overall score of 3.5. On this basis, the applicant has not provided an English language test result that meets the requirements in LIN 18/015.
As discussed with the applicant at hearing, he had provided an IELTS test result from July 2024 to the delegate which fell short of the required score, however, after having lodged a review application with the Tribunal, it was noted that the applicant had not booked a further English language test despite nearly 12 months having passed.
The applicant explained that the agency that he had consulted had advised that there was no need for him to sit a further English language test, and that he could instead provide evidence of his in-progress studies for his Certificate IV course which the agent said was ‘equivalent to an IELTS score of 6’.
I explained to the applicant that while there is an exemption for English language testing for individuals who have completed a substantial component of a course leading to a Certificate IV qualification in the two years before applying for a student visa, this can only be relied upon if the applicant was holding a student visa at the time. According to the Department’s movement records which set out the applicant’s entries to and departures from Australia as well as all Australian visas granted to the applicant, his original student visa ceased on 8 April 2023. Looking at the movement records and Provider Registration and International Student Management Systems (PRISMS) records in conjunction, when he commenced his Certificate IV course, he was a holder of a bridging visa, rather than a student visa.
In addition to the applicant’s 2024 IELTS test result not meeting LIN 18/015 requirements, the above information was also put to the applicant for comment under s 359A of the Migration Act. In response, the applicant stated that as he had completed a cookery course in the English language, this demonstrates his English language ability. If his English language ability was not up to standard, he would not have been able to continue that course.
I explained to the applicant that while I understood his logic, my role is to apply the law, which in this case is cl 500.213. While the application of such rules does not allow for alternate evidence such as evidence of the applicant having completed his Certificate III course in the English medium and may seem unfair, I am restricted to assessing the applicant’s circumstances against cl 500.213 and LIN 18/015. The applicant confirmed that he understood my explanation.
Given that the applicant had relied upon incorrect guidance from his agent, I provided the applicant with an extension of time to present evidence of a new English test booking and results from that English test within a prescribed timeframe.
On 22 July 2025, the applicant provided evidence of an IELTS test booking for 13 August 2025.
On 19 August 2025, the applicant provided screen shots of results from two attempts at the IELTS test:
a.Test result dated 12 August 2025 showing an overall score of 3.5; and
b.Test result dated 15 August 2025 showing an overall score of 3.5.
Regrettably, both test scores fall below the required overall score of 5.5 as set out in LIN 18/015.
There is no evidence before me that for the purposes of cl 500.213(3)(b) that the applicant falls within a class of persons specified in an instrument, and therefore meets cl 500.213(2) and the requirement does not apply.
In particular, there is no evidence that he is a specified class of person as outlined in IMMI 18/015 Part 2 given that:
a.he is not the holder of a passport from one of the countries outlined in s 2(a);
b.he is not currently enrolled in a course of study that meets the requirements of s 2(b);
c.he is not an applicant who is a Foreign Affairs, Defence or Secondary exchange student under s 2(c);
d.he has not, in the 2 years before applying for the Subclass 500 (Student) visa, successfully completed a Senior Secondary Certificate of Education, in a course that was conducted in Australia and in English under s 2(d);
e.he has not, in the 2 years before applying for the Subclass 500 (Student) visa, successfully completed a substantial component of a course leading to a qualification at the Certificate IV level or higher that was conducted in Australia and in English while holding a student visa under s 2(d). While the applicant is currently studying towards a Certificate IV in Kitchen Management which commenced on 30 June 2025, he is not doing so as a holder of a student visa nor had he completed a substantial component of the course in the 2 years prior to applying for the Subclass 500 (student) visa;
f.he has not undertaken study for a minimum of 5 years in any of the countries set out under s 2(e).
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 required by the Minister to provide evidence of English language proficiency in accordance with the instrument.
However, as mentioned above, the applicant’s most recent attempts at the IELTS test in August 2025 have fallen short of the required 5.5 score set by LIN 18/015.
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.
THR Baggiano
General Member
Date of hearing: 21 July 2025