English Language Prerequisites for Student Visas

English Language prerequisites for student visas

English language requirements for student visas can be met up to time of decision according to 2 MRT decisions, even though DIAC requires applicants to meet the requirements prior to application.

The English language proficiency requirements for the subclass 572 visa for example are:

the applicant had, less than 2 years before the date of the application:(i)      successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that was conducted:(A)      in Australia; and(B)      in English; or(ii) successfully completed the requirements for a Senior Secondary Certificate of Education, in a course that:(A)      is specified by the Minister in a Gazette Notice for this sub-subparagraph; and(B)      was conducted outside Australia; and(C)      was conducted in English; or(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)…(v)      successfully completed a foundation course that was conducted:(A)      in Australia; and(B)      in English;

DIAC takes the view that one of these alternatives must be met BEFORE  the visa application is lodged. But as Wijaya 060978622 [2008] MRTA 235 (25.3.08) demonstrates, this is not so.

Firstly meeting the Sched 5A requirements is part of the time of decision criteria (see para 572.223(2).

Secondly as the words in bold above show the requirement is that the course is completed not less than 2 years before application, NOT that the course be completed before application.  In other words the provision sets the outer earlier limits as to when the English language requirements had to be met, NOT the later limits.  So the English language requirement could be met up to the day of decision!

There was a similar interpretation in Don 0803348 [2008] MRTA 1391 (18 December 2008) where the Tribunal concluded (at paragraph 21):

However, it seems unlikely the drafters would use a single phrase to convey opposite ends of a time frame for the IELTS test. If the drafters had wished to impose an additional requirement that the test must be taken before the application was made, they could easily have made this explicit. This would have been desirable, because to prohibit taking the test after the application date seems to work against the primary objective of ensuring the IELTS test is not out of date.