MIGRATION - Student (Temporary) (Class TU) visa - Subclass 500 (Student) - English language requirement - completion of previous courses conducted in English - no current enrolment in a course of study - no successful English test results - decision under review affirmed

Migration Act 1958 (Cth), ss 65, 359

Migration Regulations 1994, Schedule 2, cl 500.213

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 October 2024 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 17 April 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 he had not provided evidence of a level of English language proficiency that met the requirements of the specified instrument. The delegate noted that on 17 April 2024, the applicant included a copy of an invoice of a Pearson Test of English (PTE) appointment with no detail of the test date. The delegate subsequently assessed the student visa application on 24 October 2024 and checked whether any further English language evidence was provided. The check resulted in the delegate finding that no evidence of an English language test was provided nor evidence of the applicant belonging to a class of persons specified in the relevant legislative instrument.
4. After the refusal by the delegate on 24 October 2024, the applicant lodged an application for review of the delegate's decision with the Administrative Review Tribunal (the Tribunal) on 19 November 2024.
5. On 4 December 2024, the Tribunal wrote to the applicant requesting evidence that he meets the English language requirements. The applicant was provided until 3 January 2025 to provide the information. On 3 January 2025, the applicant's representative subsequently requested an extension of time on the basis that the applicant had received an unfavourable English test score and was scheduled to sit a further English language test on 21 January 2025. The Tribunal agreed to an extension of time until 3 February 2025.
6. On 3 February 2025, the applicant's representative advised the Tribunal of the applicant scoring an unfavourable result on his PTE Academic test undertaken on 21 January 2025 and requested an extension of time for the applicant to sit a further English language test on 25 February 2025. The Tribunal agreed to the extension of time until 22 April 2025.
7. On 22 April 2025, the applicant's representative advised the Tribunal of the applicant scoring an unfavourable result on his PTE Academic test undertaken on 25 February 2025 and requested an extension of time for the applicant to sit a further English language test on 13 May 2025. The Tribunal agreed to the extension of time and asked that the applicant provide the English language test result as soon as possible.
8. On 30 May 2025, the applicant's representative advised the Tribunal of the applicant scoring an unfavourable result on his PTE Academic test undertaken on 13 May 2025 and requested an extension of time for the applicant to prepare and sit a further English language test.
9. The Tribunal subsequently sent a hearing notice to the applicant's representative dated 12 June 2025, inviting the applicant to attend a hearing scheduled for 24 July 2025.
10. Prior to the hearing in July 2025, the applicant's representative provided the following information which the Tribunal has taken into consideration:
    1. Legal submissions dated 15 July 2025;
    2. Confirmation of Enrolment documents for Certificate IV in Kitchen Management and Diploma of Hospitality courses;
    3. Medical certificate dated 11 July 2025 indicating that the applicant was unfit for studies between 8 July 2025 and 10 July 2025 inclusive;
    4. Screenshot of SMS confirming the applicant's COVID-19 positive status;
    5. Letter from the Department dated 24 October 2024 advising the applicant to attend to biometric testing;
    6. Letter from the Department dated 24 October 2024 advising the applicant to ignore the biometric request letter also dated 24 October 2024;
    7. Applicant's statement of support to the Tribunal regarding his English language competency and circumstances regarding his English tests;
    8. Applicant's records of results issued by Lotus College dated 16 May 2025 and 23 July 2025 showing completion of units with all results at the 'competent' level;
    9. Applicant's Bachelor of Science in Hotel and Restaurant Management degree certificate and academic transcript from Arellano University, Philippines.
11. The applicant appeared before the Tribunal on 24 July 2025 to give evidence and present arguments.
12. The applicant was assisted in relation to the review by his representative, Ms Rabia Zahid.
13. 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 cl 500.213.

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 specifies the requirements for evidence of English language proficiency and classes of applicants to whom the requirement does not apply.
2. In this case, the applicant was required by the Minister to provide evidence of English language proficiency in accordance with LIN 24/022.
3. LIN 24/022 sets out the prescribed English language tests and minimum scores. The applicant provided to the Tribunal the following test reports which fell short of the required PTE Academic score of 50:
   1. PTE Academic score report from 21 January 2025 with an overall score of 34;
   2. PTE Academic score report from 25 February 2025 with an overall score of 32; and
   3. PTE Academic score report from 13 May 2025 with an overall score of 30.
4. The Tribunal notes that the applicant had also attempted to sit an English language test prior to 21 January 2025 but that the score he attained, and as advised by his representative, did not meet the minimum requirements. This information was provided by the applicant's representative when the Tribunal contacted the applicant on 4 December 2024 to ask for English language evidence, and was also confirmed by the applicant at hearing.
5. The Tribunal also acknowledges and accepts the applicant's evidence of having contracted COVID-19 in July 2025 which prevented him from being able to sit a further English language test which he had booked for the same month. At hearing, the applicant advised that he had not sought to reschedule this particular test.
6. On the basis of the above evidence, the applicant has not provided an English language test result that meets the requirements in LIN 24/022.
7. There is no evidence before me, for the purposes of cl 500.213(3)(b), that the applicant falls within a class of persons specified in LIN 24/022, and therefore meets cl 500.213(2) and the requirement does not apply.
8. In particular, there is no evidence that the applicant is a specified class of person as outlined in LIN 24/022 Part 2, paragraph 6, given that:
   1. he is not the holder of a passport from one of the countries outlined in s 1(a);
   2. he is not currently enrolled in a course of study that meets the requirements of s 1(b);
   3. he is not an applicant who is a Foreign Affairs, Defence or Secondary exchange student under s 1(c);
   4. he has not, in the 2 years before applying for the Subclass 500 (Student) visa, successfully completed a Senior Secondary Certificate of Education, in a course that was conducted in Australia and in English under s 1(d)(i);
   5. he has not, in the 2 years before applying for the Subclass 500 (Student) visa, successfully completed a substantial component of a course leading to a qualification at the Certificate IV level or higher that was conducted in Australia and in English while holding a student visa under s 1(d)(ii). While the applicant is currently studying towards a Certificate IV in Kitchen Management which commenced on 13 May 2024, he is not doing so as a holder of a student visa. The applicant's visa history, according to the Department's Movement Records, shows that he initially entered Australia on a Visitor (subclass 600) visa on 19 January 2024 and subsequently held Bridging Visas from April 2024;
   6. he has not undertaken study for a minimum of 5 years in any of the countries set out under s 1(e).
9. During hearing, I raised with the applicant that I had one issue before me to consider, which is whether he meets cl 500.213. I raised with the applicant under s 359A of the Act that according to the applicant's English language test results and oral evidence provided at hearing, he might not meet the requirements set out in cl 500.213(1), namely the overall score of 50 required for the PTE test, as set out in LIN 24/022.
10. I also discussed with the applicant that he had confirmed during hearing that he did not fall within the list of persons exempt from English language testing as per cl 500.213(3)(b). Specifically in relation to s 1(d)(ii) of LIN 24/022, I acknowledged that while the applicant commenced his Certificate IV course on 13 May 2024 and had provided evidence of having completed a substantial component of this course, according to the applicant's Movement Records issued by the Department which sets out details of all visas granted to the applicant, he was a holder of a Bridging Visa A (subclass 010) from 17 April 2024 to 24 September 2024, and then a Bridging Visa B (subclass 020) from 24 September to present date. This means that the applicant may not meet the exemption under s 1(d)(ii) of LIN 24/022 as he was not a holder of a student visa at the time of completing a substantial component of his Certificate IV course.
11. I explained to the applicant that this information is relevant to the review as it may lead me to find that he does not meet the English language requirements, and that a consequence of relying on this information is that I might find that he does not satisfy cl 500.213 which forms part of the criteria for grant of a student visa.
12. After inviting the applicant to comment on the above information, he stated that he tried his best in each of the English tests. He felt extremely nervous each time he sat the tests. Further, the noise levels within the examination room resulted in the applicant not being able to focus properly on his tests. In between each test, the applicant would study and even sought advice from a teacher. However, he found that his level of nervousness was unable to be reduced, and ultimately impacted his test scores.
13. The applicant asked the Tribunal to give him a chance as he is already part-way through his Certificate IV studies. He stated that after he graduates from his courses in Australia, he intends on using his skills to run his own business in the Philippines.
14. It is noted that the applicant's representative provided written submissions dated 15 July 2025 which asked the Tribunal to consider a liberal and holistic approach in evaluating the applicant's English language proficiency and to take into consideration that the applicant had demonstrated a history of operating in English-speaking academic environments in both the Philippines and Australia though his completed Bachelor of Science in Hotel and Restaurant Management from the Philippines and his ongoing studies towards a Certificate IV in Kitchen Management in Australia.
15. At hearing, the applicant's representative provided further oral submissions. The representative acknowledged that the applicant does not meet cl 500.213 nor the requirements set out under the legislative instrument, but asked the Tribunal to consider the following compelling circumstances:
    1. While awaiting the Tribunal's review decision, the applicant had made multiple attempts to sit English tests but despite all his efforts, was unable to reach the required PTE score of 50;
    2. The applicant is currently studying and has completed a substantial component of his Certificate IV course. While these studies were completed while the applicant held bridging visas, this was because his student visa had been refused by the delegate;
    3. The applicant's current studies in Australia and previous overseas studies show that he has the required English language competency;
    4. The applicant contributed financially towards his ongoing studies and he is a genuine student;
    5. If the applicant were required to leave Australia, he would have wasted a lot of time and not achieved his study outcomes, which was the main purpose of his stay;
    6. If given the chance to obtain a student visa, the applicant will engage a teacher to assist him to increase his score in a future English test.
16. I advised the applicant and his representative that I would take into consideration their evidence and submissions before making a decision on the review application. I explained that while I have the utmost sympathy towards the applicant in terms of the factors that resulted in him being unable to attain the requisite score in his multiple English language tests, in the absence of an English test result which meets the minimum requirements, I can only consider whether the applicant is in a class of persons that is exempt from English language testing. My role is restricted to considering the applicant's circumstances against the relevant legislation, being cl 500.213, which encompasses LIN 24/022. I do not have the discretion to find that the applicant meets the English language criterion through other means or against other benchmarks that are not set out in LIN 24/022.
17. Although the applicant's representative requested that the Tribunal considers the applicant's previous studies in the Philippines and ongoing studies in Australia, and the circumstances outlined at paragraph 29, I find that the applicant is not within a class of applicants specified in the instrument and that cl 500.213(1) applies to the applicant. This finding was made on the basis that the Philippines is not a country covered by LIN 24/022, namely under Part 2, paragraph 6 and s 1(e), the applicant has not successfully completed a minimum of 5 years of study in English undertaken in Australia (or any of the other countries set out in s 1(e)) and the applicant has not successfully completed, in the two years before applying for the student visa, a qualification leading to an Australian Qualifications Framework at the Certificate IV level or higher while holding a student visa.
18. In relation to the applicant's representative's request that the Tribunal give the applicant a chance to obtain a student visa so that he can engage a teacher to assist in improving his score in a future English test, this is regrettably not possible as I am required to determine whether the applicant meets the English language criterion at time of decision. As set out above, the applicant does not meet the English language criterion and, as such, I am required to proceed to finalise my decision.
19. Accordingly, the Tribunal is not satisfied that the applicant meets cl 500.213.
20. 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: Ms Rabia Zahid (MARN: 2418367)