Wattanawichian (Migration)

This matter concerned an application for a Student (Temporary) (Class TU) visa, subclass 500, where the applicant sought review of a decision. The Tribunal, constituted by Gabrielle Cullen, was required to determine whether the applicant met the English language proficiency requirements for the visa.

The central legal issue before the Tribunal was the interpretation and application of clause 500.213 of Schedule 2 to the Regulations, which sets out the English language requirements for a Subclass 500 visa. Specifically, the Tribunal had to ascertain whether the applicant had provided sufficient evidence of English language proficiency as stipulated in the relevant legislative instrument, IMMI 18/015.

The Tribunal reasoned that clause 500.213(1) requires an applicant to provide evidence of English language proficiency, typically through a specified test, unless an exemption under clause 500.213(2) applies. The instrument IMMI 18/015 specified that an IELTS score of 5.5 is sufficient and that the test must have been taken within two years immediately before the decision. The Tribunal found that the applicant had achieved an IELTS score of 5.5 in a test dated 9 August 2018, which satisfied the requirements of IMMI 18/015 and therefore clause 500.213.

Consequently, the Tribunal remitted the application for the Student (Temporary) (Class TU) visa for reconsideration by the Minister, with a direction that the applicant had met the criteria under clause 500.213 of Schedule 2 to the Regulations. The Minister was to consider the remaining criteria for the visa.