Patel v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 On 24 August 2010, Mrs Hetalben Prakashbhai Patel, the first appellant (the appellant), a citizen of India, applied for a Subclass 572 student visa. The appellant's husband, the second appellant, was also included in the visa application. Mrs Patel stated in her visa application that her intended course of study was a Diploma of Business Management course at the Technical College of Western Australia. 2 One of the conditions which Mrs Patel was required to satisfy at the time of the decision in respect of her visa application, was to provide evidence of English language proficiency. The means of satisfying this requirement, in Mrs Patel's case, was set out in cl 5A404 of Div 2 of Pt 5 of Sch 5A to the Migration Regulations 1994 (Cth) (the Regulations). The provisions of cl 5A404 which are relevant to this appeal are the following: 5A404 English language proficiency The applicant must give evidence that one of the following applies: (a) the applicant: (i) will not undertake an ELICOS before commencing his or her principal course; and (ii) achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.5; (b) the applicant: (i) will undertake an ELICOS of no more than 20 weeks duration before commencing his or her principal course; and (ii) achieved, in an IELTS test that was taken less than 2 years before the date of the application, an Overall Band Score of at least 5.0; … (d) the applicant had, less than 2 years before the date of the application: … (iii) as the holder of a student visa - successfully completed a substantial part of a course (other than a foundation course) that: (A) was conducted in English; and (B) was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher; or (iv) successfully completed a substantial part of a course that: (A) is specified by the Minister in an instrument in writing for this sub-subparagraph; and (B) was conducted outside Australia; and (C) was conducted in English; and (D) was leading to a qualification from the Australian Qualifications Framework at the Certificate IV level or higher;… 3 Prior to making her application for the student visa, Mrs Patel had, from April 2009 to May 2009, completed an English Language Intensive Courses for Overseas Students (ELICOS) course at the Perth International College of English. Mrs Patel had, also, previously, undertaken, in October 2008, an International English Language Testing System (IELTS) test. Mrs Patel had achieved an "Overall Band Score" of 5.0 on the IELTS test. 4 Mrs Patel's visa application, also, disclosed that Mrs Patel had enrolled in two courses to be conducted in Western Australia. The first course was a Certificate III Printing and Graphic Arts Diploma course to run from 18 January 2010 to 14 January 2011. The second course was a Certificate IV Small Business Management course to run from 17 January 2011 to 15 July 2011. 5 On 7 December 2010, Mrs Patel's student visa application was rejected by a delegate of the Minister on the basis that Mrs Patel had not satisfied the English language proficiency requirement in cl 5A404. 6 The delegate found that Mrs Patel had provided an IELTS certificate dated 6 November 2008, with an Overall Band Score of 5.0 and a certificate that she had completed a five week ELICOS course in 2009. The delegate found that by reason of the score of 5.0 which Mrs Patel had achieved on the IELTS test, cl 5A404(b) applied to her visa application. The delegate found that Mrs Patel had not provided evidence that she would be undertaking an ELICOS course of no more than 20 weeks before commencing her principal course. In those circumstances, the delegate found that Mrs Patel had failed to satisfy the delegate that she met the cl 5A404 English language proficiency requirement.