Tran (Migration) - [2025] ARTA 532

TRAN (MIGRATION) [2025] ARTA 532 (4 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicants:Mrs Thi Oanh Tran
Mr Hoang Nam Pham
Miss Hoang Nam Anh Pham
Mr Minh Tan Pham
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2415889

Tribunal:Clyde Cosentino
Place:Brisbane
Date: 4 March 2025
Decision:The Tribunal sets aside the decisions under review and remits the applications for Student (Temporary) (Class TU) visas for reconsideration in accordance with the order that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.213 of Schedule 2 to the Regulations.

Statement made on 04 March 2025 at 12:09pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language proficiency – test result and course study – first test result and length of course did not meet requirement – adjournment of hearing to allow applicant to take new test – second test result with required score provided – decision made without further hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 500.213(3)
Administrative Review Tribunal Act 2024 (Cth), s 106(3)
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 28 May 2024 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
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. This decision and statement of reasons is made by the Tribunal.
The applicants applied for the visas on 1 November 2023. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The primary visa applicant (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.
According to the delegate’s decision, at time of lodgement and assessment of the applicant’s student visa application, the main applicant (the applicant) did not provide evidence of English Language Proficiency. The applicant was requested by the delegate to provide evidence of her English Language Proficiency on 11 March 2024 and was given 28 days to respond. At the time of the delegate’s decision, the applicant had not provided any evidence of her English Language Proficiency.
Consequently, the delegate refused to grant the visa on the basis that the applicant did not satisfy the Minister that she had a level of English Language Proficiency that met the requirements specified by the Minister in the relevant Legislative Instrument (IMMI 18/015: English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visa) Instrument 2018 (“IMMI 18/015”)) made under subclause 500.213(3) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
On 24 January 2025, the applicants’ representative sent the Tribunal a copy of the result of a Pearson PTE Academic (PTE) test undertaken by the applicant on 23 July 2024 showing an overall band score of 34.
The Tribunal also had before it the department’s file where the applicant provided the delegate with Confirmation of Enrolment (CoE) in courses, including:
·    Certificate IV in Kitchen Management (from 26 February 2024 to 7 September 2025)
·    Diploma of Hospitality Management (from 29 September 2025 to 3 May 2026);
·    Graduate Diploma of Management (Learning) (from 29 June 2026 to 28 June 2027)
The applicant’s enrolment in the courses above were confirmed by a PRISMS check made by the Tribunal on 30 January 2025.
The applicant also provided a Completion Certificate from Delta International College (CRICOS: 091955f) certifying that the applicant had fulfilled the requirements of the 15 weeks course of “General English”. This was also confirmed by the PRISMS check undertaken by the Tribunal. The Tribunal is satisfied on the evidence before it that the General English course at Delta International College is an ELICOS course.
The applicant appeared before the Tribunal on 6 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was assisted in relation to the review.
At the hearing, the Tribunal indicated to the applicant that, as a result of her PTE test showing an overall band score of 34 only, she did not meet the English Language Proficiency required under IMMI 18/015, given that a PTE result less than 36 needed to be packaged with at least 20 weeks’ ELICOS and not 15 weeks ELICOS as provided in evidence by the applicant.
After considering submissions from the applicant’s representative at the hearing seeking an adjournment to give the applicant time to undertake an urgent second PTE test, and after considering the applicant’s circumstances, the Tribunal granted an adjournment until 12 March 2025 to give the applicant the opportunity to take a new PTE test.
On 21 February 2025, the applicant’s representative provided the Tribunal with evidence of a Pearson PTE Academic Score report dated 20 February 2025 with an overall band score of 36.
In reaching its decision the Tribunal did not consider a resumption of the 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 106(3) of the Administrative Review Tribunal Act 2024 (the ART Act).
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.
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 the requirements of 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). IMMI 18/015 specifies the requirements for evidence of English language proficiency and classes of applicants to whom the requirement does not apply.
The applicant is a national of Vietnam and is not, for the purposes of cl 500.213(b), within a class of applicants specified in the relevant instrument, IMMI 18/015, to whom the requirement does not apply. As a result, cl 500.213(1) applies to the applicant and as a consequence to this, the applicant was required by the Minister to provide evidence of English language proficiency in accordance with the instrument.
The relevant instrument IMMI 18/015 indicates that a PTE score of 36 meets the English language requirements of cl.500.213(1) if packaged with at least 10 weeks’ ELICOS. As the applicant has achieved 36 in a PTE test dated 20 February 2025 and has provided evidence of a 15-week General English course, which the Tribunal is satisfied is an ELICOS course, the Tribunal finds that they meet the English language proficiency as required by the instrument.
Accordingly, the Tribunal is satisfied that the applicant meets cl.500.213.
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.
The delegate refused the applications of the second, third and fourth named applicants on the basis that they did not meet subclause 500.311, which essentially requires them to be a member of the family unit of a person (the primary person) who holds a student visa. This means their refusal flowed from the refusal of the first-named applicant. In light of the Tribunal’s finding that the first-named applicant meets the criteria for a Subclass 500 (Student) visa pursuant to cl 500.213 of Schedule 2 of the regulations, the Tribunal considers that the applications of the second, third and fourth named applicants should also be remitted for reconsideration as a result.
DECISION
The Tribunal remits the applications for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 500 (Student) visa:
·cl 500.213 of Schedule 2 to the Regulations.
Dates of hearing (later adjourned):         6 February 2025
Resumption of Hearing:  N/A
Representative for the Applicant:           Ms To Quyen (Tina) Tran (MARN: 1466142)