1509530 (Migration)

This matter concerned an application for a Subclass 457 visa, where the applicant sought reconsideration of a decision by the Administrative Appeals Tribunal. The central dispute revolved around whether the applicant met the English language proficiency requirements as stipulated by clause 457.223(4)(eb) of the Migration Regulations 1994. The Tribunal, presided over by Senior Member Dione Dimitriadis, was tasked with determining the applicant's compliance with these specific visa criteria.

The primary legal issue before the Tribunal was to ascertain if the applicant satisfied the English language proficiency requirements under clause 457.223(4)(eb). This involved examining whether the applicant was an "exempt applicant" and whether subclause (6) applied. If neither of these conditions were met, the Tribunal had to determine if the applicant had undertaken a specified language test within the prescribed period, achieved the required score in a single attempt, and if the test and score met the specifications outlined in relevant legislative instruments.

The Tribunal found that the applicant was not an exempt applicant, as their base rate of pay was below the threshold specified in the relevant legislative instrument. Furthermore, subclause (6) was deemed not to apply. Consequently, the applicant was required to meet the language test requirements. The applicant provided evidence of a Pearson Test of English Academic undertaken on 22 February 2016, achieving an overall score of 36 and individual component scores that met or exceeded the minimum requirements. The Tribunal verified these results and concluded that the applicant had met the English language proficiency criterion under clause 457.223(4)(eb).

Given that the applicant met this specific criterion, the Tribunal decided to remit the applications for Temporary Business Entry (Class UC) visas for reconsideration by the Minister. This remittal was with the direction that the first named applicant had satisfied the English language proficiency requirements. The Minister was to consider the remaining criteria for the Subclass 457 visa, including the status of a current approved nomination, which had been lodged but not yet decided at the time of the Tribunal's decision.