Decision: The Tribunal remits the decision for reconsideration in accordance with a direction that the applicant satisfies the requirements specified in subclause 500.213 of Schedule 2 to the Migration Regulations 1994 (Cth)

MIGRATION - Student (Temporary) (Class TU) visa - Subclass 500 (Student) - English language proficiency - approved test result below specified score provided with visa application - second test result above specified score provided to tribunal - silent acceptance by Federal Circuit Court of result obtained and provided after delegate's decision but before tribunal's decision - amendment to legislative instrument not to be taken as substantive merely because of different wording - decision made without hearing necessary - decision under review remitted

Acts Interpretation Act 1901 (Cth), s 15AC

Administrative Review Tribunal Act 2024 (Cth), s 106(3)(b)(i)

Migration Act 1958 (Cth), s 65

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

Chaudhary v MICMA [2023] FedCFamC2G 732

Giri v MIAC [2025] FedCFamC2G 1592

Maughan Thiem Auto Sales Pty Ltd v Cooper [2013] FCAFC 145; (2013) 216 FCR 197

Swain (Migration) [2021] AATA 4355

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 April 2025 to refuse to grant the applicant a Subclass 500 (Student) visa under section 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant was required, in accordance with clause 500.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations), to provide evidence of an approved English language proficiency test that satisfied the requirements specified in the applicable legislative instrument LIN 24/022[1].
3. The applicant provided evidence of an approved English language proficiency test (Pearson Test of English Academic) at the time of application. The test, which was undertaken on 25 March 2025, recorded a score of 33 overall.
4. While the applicant undertook an approved test within the required time period, the delegate refused to grant the visa on the basis that the applicant did not achieve the required minimum English language test score of 36 as specified in Column 4 of Schedule 1 in LIN 24/022 or provided any evidence that the applicant belonged to a class of persons specified in LIN 24/022 to whom the English language test requirements do not apply.
5. The applicant applied to the Tribunal for a review of this decision on 15 April 2025.
6. On 17 December 2025 the applicant provided the Tribunal with evidence of an approved English language proficiency test (Pearson Test of English Academic) dated 15 December 2025 recording a score of 43 overall.
7. For the following reasons I have determined that the decision under review should be remitted for reconsideration in accordance with a direction that the applicant satisfies the requirements specified in subclause 500.213 of Schedule 2 to the Migration Regulations 1994 (Cth).
8. Accordingly, I find that it is appropriate that the matter be determined on the papers in accordance with section 106(3)(b)(i) of the Administrative Review Tribunal Act 2024 (Cth).

1. To satisfy clause 500.213, the applicant must evidence that they have a level of English language proficiency that meets the requirements specified in the applicable legislative instrument made under subclause 500.213(3)(a) of Schedule 2 to the Regulations.
2. In the present application, the relevant level of English language proficiency is that which is specified in legislative instrument (LIN 24/022_)._ The applicable minimum English language test score is that which is specified in Column 4 of Schedule 1 in LIN 24/022, namely, 36 overall.
3. The English language proficiency test dated 17 December 2025 is an approved English language proficiency test pursuant to item 5(1)(a) of LIN 24/022 and exceeds the minimum English language test score specified in Column 4 of Schedule 1 in LIN 24/022.
4. Item 5(1)(b) of LIN 24/022 specifies that the applicant must have completed the English test within two (2) years immediately before the date of the visa application if evidence of the test is provided at the time of the visa application, or within two (2) years immediately before a decision to grant or refuse the visa application is made if evidence of the test is not provided at the time the visa application is made.
5. I note that it appears to have been accepted sub silentio by the Federal Circuit Court in a matter remitted by consent on the basis that the Tribunal had failed to accept evidence of English language proficiency obtained by the applicant after the date of the delegate's decision, but prior to the Tribunal's decision, that the relevant period on review is within two (2) years of the Tribunal's decision.[2] I note also that the Tribunal has made a number of decisions consistent with this interpretation.
6. Such interpretation is also consistent with earlier judicial obita dicta in Chaudhary v Minister for Immigration Citizenship and Multicultural Affairs [3]
7. I note that the wording of item 5(1)(b) of LIN 24/022 is different to that which was considered in Chaudhary,[4] and that the alterations of the words of a statute must, absent evidence to the contrary, indicate an intention to change the statute's meaning.[5]
8. I have, however, had regard to section 15AC of the Acts Interpretation Act 1901 (Cth) which provides that where terms are expressed in a particular form and a later expressed in a different form for the purpose of using a clearer style of drafting that the terms shall not be taken to be different merely because different forms of words were used.
9. I note that the explanatory statement accompanying the earlier instrument that introduced this change in wording did not explain the departure from the language in which the timeframes were previously stated.[6] This may support a view that the change is attributable to different drafting practices and does not reflect a substantive change.
10. Similarly, I note that the explanatory statement to LIN 24/022 appears to partially refer to the earlier definition of the maximum time period.[7]
11. This would also support a view that the change is attributable to different drafting practices and does not reflect a substantive change.
12. Recent authority from the Federal Circuit Court[8] further indicates that, as this is a hearing de novo, the requirement to provide evidence that the applicant has a level of English language proficiency that meets the requirements specified in the applicable legislative instrument is only enlivened if the applicant is required to do so by the Tribunal (standing in the shoes of the Minister) and is not engaged at all on review unless and until the Tribunal requires the applicant to provide the evidence in question.
13. Consistent with this authority, it is appropriate to read the requirement in item 5(1)(b) of LIN 24/022 as requiring the applicant to have completed the English test within two (2) years immediately before the date of the application for review if evidence of the test is provided at the time of the application for review, or within two (2) years immediately before a decision is made on the application for review if evidence of the test is not provided at the time the application is made.
14. The English language proficiency test dated 17 December 2025 may therefore be accepted.
15. The decision under review should, therefore, be remitted for reconsideration in accordance with a direction that the applicant satisfies the requirements specified in subclause 500.213 of Schedule 2 to the Migration Regulations 1994 (Cth).

[1] Migration (English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visa) Instrument (LIN 24/022) 2024.

[2] See Swain (Migration) [2021] AATA 4355 (25 October 2021) at [6], where the Tribunal records in its reasons that a previous Tribunal decision affirming the delegate's decision had been remitted by the Federal Circuit Court by consent on that basis

[3] Chaudhary v Minister for Immigration Citizenship and Multicultural Affairs, [2023] FedCFamC2G 732 at [60]- [61]. Note that this case considered the requirements specified in item 1(d) of the earlier applicable legislative instrument IMMI 16/019. This instrument provided that the maximum time period within which an English test must be taken is "two years immediately before the date the application is made, or two years immediately before a decision is made on the application". The court found that it was open on the plain meaning of the word 'decision' to encompass a decision of the Tribunal.

[5] Maughan Thiem Auto Sales Pty Ltd v Cooper [2013] FCAFC 145; (2013) 216 FCR 197, 2-3 [32]

[6] Migration (IMMI 18/015: English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visa) Instrument 2018.

[7] Explanatory Statement to Migration (English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visa) Instrument (LIN 24/022) 2024 1 [6]

[8] Giri v Minister for Immigration and Citizenship [2025] FedCFamC2G 1592; see also Manes v Minister for Immigration and Citizenship (No 2) [2025] FedCFmC2G 1978