YE (Migration) - [2025] ARTA 906

YE (MIGRATION) [2025] ARTA 906 (4 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Miss Jing YE
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2410823

Tribunal:General Member A Verduci
Place:Melbourne
Date: 4 February 2025
Decision:The decision under review is affirmed.

Statement made on 04 February 2025 at 10:10am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – English language requirement – courses conducted in English – no English language tests – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, 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 1 May 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 13 October 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 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).Her application was refused on 1 May 2024 because she did not provide evidence of her English language proficiency in accordance with the relevant legislative provisions.
She lodged an application for review of the delegate’s decision with the former Administrative Appeals Tribunal (‘the AAT’) on 6 May 2024.
On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (‘the Tribunal’ or ‘the ART’).
If a proceeding was commenced in the AAT but not finalised before 14 October 2024, it must be continued in the ART in a manner that is efficient and fair. Anything done in, or in relation to, the proceeding before 14 October 2024 continues to have effect for the purposes of, or in relation to, the proceeding after that date. Anything done in, or in relation to, the proceeding before 14 October 2024 that was validly done according to the applicable law at the time is taken to be valid under, or to have been done in accordance with, the law as it is now, for purposes of the proceeding after 14 October 2024. Anything done in, or in relation to, the proceeding before 14 October 2024 by the AAT is taken, after that time, to have been done by the ART: item 24 of Part 5 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).
I am satisfied that this proceeding has continued in a manner that is efficient and fair.
The applicant appeared before me by MS Teams on 3 February 2025 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant has submitted various documents during the course of the review including a copy of her certificate in an Advanced Diploma of Business from Elizabeth Institute issued on 3 November 2024 and certificate of real estate ownership for land in the People’s Republic of China. These documents have been considered.
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 .
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).
Migration (IMMI 18/015: English Language Tests and Evidence Exemptions for Subclass 500 (Student) V9sa) Instrument 2018 (“IMMI 18/015”) specifies the requirements for evidence of English language proficiency and classes of applicants to whom the requirement does not apply.
Does cl 500.213(1) apply?
The applicant is not required to have achieved the specified English language test score within the specified period if an exception in item 6(2) of Part 2 to IMMI 18/015 applies.
I accept that the applicant is a citizen of the People’s Republic of China. She is not a citizen of, and does not hold a passport issued by, any other country. She does not meet the requirements in item 6(2)(a) of Part 2 to IMMI 18/015.
The applicant says , and I accept, that she is not enrolled in a principal course of study that is: registered to be delivered in a language other than English or is a registered ELICOS course, a registered school course or a registered post-graduate research course. She does not meet the requirements in item 6(2)(b) of Part 2 to IMMI 18/015.
The applicant says, and I accept, that she is a not a Foreign Affairs, Defence or secondary exchange student. She does not meet the requirements in item 6(2)(c) of Part 2 to IMMI 18/015.
In the two years before applying for this visa, the applicant does not claim to have successfully completed the requirements for a Senior Secondary Certificate of Education in a course conducted in Australia and in English. There is no evidence before me to suggest that she did.
In the two years before applying for this visa, the applicant does not claim to have successfully completed a substantial component of a course leading to a qualification from the Australian Qualification Framework at the Certificate IV level or higher that was conducted in English while she was holding a student visa.
She applied for the current visa on 13 October 2023. The two-year period before she applied is 13 October 2021 to 12 October 2023. There is no evidence that she was the holder of a student visa during this period.
According to information stored in the Department’s electronic records, she held a student visa between 28 April 2017 and 30 December 2020. However, this visa ceased before the relevant two-year period commenced. Departmental records also indicate that she was outside of Australia from 14 January 2020 to 4 September 2023 and that she did not complete, or substantially complete, any courses conducted in Australia during this time. She was invited to comment on this information during the hearing and she said that this information is correct. Whilst I accept that she departed Australia in January 2020 because of the COVID-19 pandemic, the information leads me to conclude that she does not satisfy the requirements in item 6(2)(d) of Part 2 to IMMI 18/015.
The applicant has not successfully completed a minimum of five years of study in English undertaken in Australia, Canada, New Zealand, South Africa, the Republic of Ireland, the United Kingdom and/or the United States of America. She does not meet the requirements in item 6(2)(e) of Part 2 to IMMI 18/015.
The applicant is not within a class of applicants specified in IMMI 18/015. Accordingly, cl 500.213(1) applies to her.
Does the applicant meet the requirements of cl 500.213(1)?
In this case, the applicant was required by the Minister to provide evidence of English language proficiency in accordance with the instrument.
There is no evidence before me that the applicant has ever achieved a specified English language test score. According to her evidence, she has never booked for an English language test because her listening and spoken English is below the necessary standard.
At the conclusion of the hearing, the applicant asked if she would be granted the visa if she had the necessary English language test score. I explained that English language proficiency is one of the visa criteria that must be met, but that there are other criteria that she may still need to satisfy.
I also took her question to be an implied request to adjourn the review. I exercised my discretion not to adjourn the review for the following reasons: she had applied for the visa in October 2023 and said that she understood the visa criteria and why her application was refused by the delegate in May 2024; she has not taken any steps to book, sit or complete an English language test since arriving in Australia in September 2023, since applying for the visa in October 2023 or since her application was refused for this reason in May 2024; the Tribunal wrote to her on 5 September 2024 requesting that she provide evidence of meeting the English language requirements by 8 October 2024 but she did not provide that evidence or request any time to book and sit a test; she had not taken any steps to book an English language test on a date into the future and there was no reasonable grounds to believe that she would achieve the necessary English language score in circumstances where she considered her listening and spoken English to be insufficient.
Considering all of the above, I am not satisfied that the applicant meets cl 500.213.
I find 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.
Date of hearing: 3 February 2025