MIGRATION - Student (Temporary) (Class TU) visa - Subclass 500 (Student) - English language proficiency - specified test booked but no evidence of result provided - decision under review affirmed

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 500.213(1)

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 February 2025 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant applied for the visa on 28 June 2024. 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.
3. 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 they did not provide evidence that they either met the English language proficiency requirements or belonged to a class of persons to whom the English language test requirements did not apply.
4. The applicant appeared before the Tribunal on 3 July 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and Nepali and English languages.
5. The applicant was assisted in relation to the review.
6. For the following reasons, the Tribunal considers the decision under review should be affirmed.

1. 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 English language proficiency requirements or belongs to a class of persons to whom the English language test requirements do not apply.

1. 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 24/022, which is attached to this decision, specifies the requirements for evidence of English language proficiency and classes of applicants to whom the requirement does not apply.
2. Clause 6 of LIN 24/022 lists the classes of applicants to whom subclause 500. 213(1) does not apply. The applicant does not fall within any of the classes specified in that clause.
   1. The applicant is a citizen of Nepal which is not one of the 5 countries listed in Cl 6(1)(a).
   2. The applicant is enrolled in a Graduate Diploma of Management and Learning. This is not one of the 4 listed course types in Cl 6(1)(b).
   3. The applicant is not a Foreign Affairs, Defence or Secondary exchange student so Cl 6(1)(c) does not apply.
   4. The applicant has provided no evidence that she meets the criterion in Cl 6(1)(d) which applies to applicants who in the 2 years before applying for a subclass 500(student) visa have successfully completed the requirements for a Senior Secondary Certificate in Australia or a course leading to a qualification at the Certificate IV level or higher that was conducted in Australia.
   5. The applicant has provided no evidence that she meets the criterion in Cl 6(1)(e) that applies to applicants who have completed 5 years of study in English in 7 specified countries.
3. As the applicant is not within a class of applicants specified in the instrument, cl 500.213(1) applies to the applicant. The applicant was required by the Minister to provide evidence of English language proficiency in accordance with the instrument.
4. Clause 5(1)(a) of LIN 24/022 lists 5 English language tests of which the applicant must undertake one. The applicant provided no evidence of having undertaken a required English language test with her visa application on 28 June 2024, or with the application to the Tribunal on 4 March 2025 for review of the decision to refuse the visa.
5. On 7 March 2025 the Tribunal wrote to the applicant and requested evidence of English language proficiency be provided by 7 April 2025. On 7 April 2025 the applicant's representative requested an extension of time to provide the evidence, and this was granted until 7 May 2025. On 7 May 2025 the Tribunal was advised that the applicant had been unable to sit the test due to health reasons and that the test was now scheduled for 12 June 2025. On 12 June 2025 the Tribunal was advised that the applicant was again unable to sit the test due to health reasons.
6. On 20 June 2025 the Tribunal invited the applicant to a hearing on 3 July 2025. On 24 June 2025, in response to the Notice of Hearing, the applicant's representative advised the Tribunal that the English test was booked for 25 August 2025.
7. The applicant appeared before the Tribunal on 3 July 2025. The applicant confirmed that the English language test was booked for 25 August 2025. The Tribunal told the applicant that evidence of English language proficiency was required to be provided to the Tribunal no later than 7 days after the test on 25 August 2025. After the hearing the Tribunal wrote to the applicant's representative and requested that evidence that the applicant meets the English language requirements be provided to the Tribunal in writing by 1 September 2025. The letter also stated that the Tribunal should be contacted before that date if the information was unable to be provided, and that if they failed to provide the information by 1 September 2025 the Member may proceed to decide the matter.
8. No correspondence or evidence that the applicant meets the English language requirement has been received by the Tribunal. Accordingly, the Tribunal is not satisfied that the applicant meets cl 500.213.
9. 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.

1. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Representative for the Applicant: Mr Komal Khatiwada (MARN: 0853554)