Cai (Migration)

This matter concerned an appeal by the applicant, Cai, against a decision regarding a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The dispute centred on whether the primary visa applicant met the English language proficiency requirements stipulated by clause 457.223(4)(eb) of Schedule 2 to the relevant regulations. The decision was made by Wan Shum, a Member of the Tribunal.

The core legal issue before the Tribunal was to determine if the applicant had satisfied the English language requirements under cl.457.223(4)(eb). This clause mandates that an applicant, who is not exempt and whose salary does not meet a specified threshold, must achieve a required score in a specified language test, undertaken in a single attempt within a defined period. The Tribunal was required to assess whether the evidence provided by the applicant met these specific criteria.

The Tribunal reasoned that the applicant was not an exempt applicant and did not meet the salary threshold for exemption under cl.457.223(6). Therefore, the applicant was required to demonstrate English language proficiency by undertaking a specified test and achieving the required score in a single attempt within the specified timeframe. The applicant provided evidence of a PTE test taken on 7 June 2019, which yielded an overall score of 37 and at least 30 in each of the four components. The Tribunal found that these results met the specified test scores in the applicable instrument and were achieved within three years of the visa application. Consequently, the Tribunal concluded that the applicant satisfied the requirements of cl.457.223(4)(eb).

Given this finding, the Tribunal determined that the appropriate course of action was to remit the application for the Temporary Business Entry (Class UC) visa for reconsideration by the Minister. The Tribunal directed that the visa applicant be considered to meet the criteria set out in cl.457.223(4)(eb) of Schedule 2 to the Regulations, allowing for the assessment of the remaining visa criteria.