Overview

The Migration (LIN 18/123: English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visa) Amendment Instrument 2018, enacted under the authority of the Migration Act 1958, seeks to address the issue arising from the revision of the Test of English as a Foreign Language Paper-Based test (TOEFL-PBT) which no longer assesses speaking skills, thus rendering it unsuitable for Subclass 500 (Student) visa applications. This legislative instrument amends the previously introduced instrument IMMI 18/015 to clarify the application of the repeal provision, ensuring that it applies to all student visa applications made, but not finally determined, prior to the commencement date of 6 June 2018. The objective of the instrument is to maintain consistency and fairness in the assessment of English language proficiency for student visa applicants by ensuring that the revised TOEFL-PBT is not considered an acceptable test while preserving the rights of applicants who submitted their applications before the changes took effect.

Scope and Application

The Migration (LIN 18/123: English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visa) Amendment Instrument 2018 applies to the amendment of existing regulations concerning English language tests for applicants seeking a Subclass 500 (Student) visa. Specifically, it addresses the removal of the ‘Test of English as a Foreign Language Paper-Based test’ (TOEFL-PBT) as an acceptable test for establishing English language proficiency due to changes in its format that no longer measure speaking skills. This amendment operates under the Migration Regulations 1994, which are part of the Commonwealth legislation governing immigration to Australia. The instrument ensures that the repeal of IMMI 18/015 is clarified to apply to visa applications made before 6 June 2018, while maintaining the original repeal provisions for applications made on or after this date. The instrument is exempt from disallowance and does not require a Statement of Compatibility with Human Rights, and a Regulatory Impact Statement was deemed unnecessary by the Office of Best Practice Regulation. The instrument's amendments are effective from the date of its registration on the Federal Register of Legislation.

Key Provisions

The Migration Regulations 1994 (the Regulations) have been amended by the Migration (LIN 18/123: English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visa) Amendment Instrument 2018 (LIN 18/123). This amendment, referenced in subclause 500.213(3), updates the requirements for English language proficiency tests for applicants seeking a Subclass 500 (Student) visa. The key provision of this amendment is the removal of the 'Test of English as a Foreign Language Paper-Based test' (TOEFL-PBT) from the list of accepted tests. This change is due to the revision of the TOEFL-PBT by an external agency, which no longer includes a component for measuring speaking skills. Consequently, the TOEFL-PBT is no longer considered suitable for establishing an applicant's English language proficiency. The amendment introduces a clarification to ensure that the repeal of the TOEFL-PBT applies correctly to visa applications made after a specific date. Specifically, IMMI 18/015, which removes the TOEFL-PBT as an accepted test, applies to applications made on or after 6 June 2018. However, the amendment ensures that IMMI 16/019 continues to apply to any applications for a Subclass 500 (Student) visa that were made but not finally determined before this date. This transitional arrangement ensures that applicants who submitted their applications before the commencement of IMMI 18/015 and took the TOEFL-PBT are still covered by the previous instrument. The obligations imposed by the Regulations on the parties concerned primarily relate to the submission of valid English language proficiency tests as part of the visa application process. For applicants, this means ensuring that they submit a recognised test if required, with the TOEFL-PBT no longer being an acceptable option. The Department of Home Affairs, on the other hand, must ensure that their systems and procedures are updated to reflect this change and that applications are processed in accordance with the amended Regulations. There are no specific offences, penalties, or civil/criminal consequences outlined in the instrument itself for breaches related to the acceptance of English language tests. However, applicants who fail to provide evidence of English language proficiency in a recognised form may have their visa applications rejected. Additionally, providing false information or documents to the Department of Home Affairs could lead to broader legal consequences, such as visa cancellations, deportation, or bans on future visa applications under other provisions of the Migration Act 1958. These consequences are governed by the general provisions of the Act rather than the specific amendments made by LIN 18/123.