KIM (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), brought by an applicant who is a citizen of the Republic of Korea. The dispute before the Tribunal was whether the applicant met the English language proficiency requirements stipulated by clause 457.223(4)(eb)(ii) of the relevant regulations. The Tribunal, presided over by Member Lilly Mojsin, determined that it was not necessary to hold a hearing as the applicant's case could be decided in their favour based on the existing material.

The primary legal issue before the Tribunal was to ascertain whether the applicant satisfied the English language proficiency requirements under clause 457.223(4)(eb)(ii). This clause mandates that an applicant, who is not exempt and does not meet the salary threshold for special consideration, must achieve a specified test score in a single attempt within a designated timeframe. The applicant had lodged their visa application on 28 February 2017 and subsequently, on 19 November 2018, provided a Pearson Test Taker Score Report.

The Tribunal found that the applicant was not an exempt applicant and did not meet the criteria for being paid a salary above the specified threshold for special consideration. Crucially, the Tribunal was satisfied that the applicant had achieved the required test scores in a single attempt, specifically a Listening score of 33, Reading of 34, Speaking of 37, and Writing of 44, with an overall score of 38. These results were obtained in a test taken after the visa application was lodged and within three years of that lodgment, thus meeting the specified period. Consequently, the Tribunal concluded that the applicant satisfied the English language proficiency requirements under clause 457.223(4)(eb)(ii).

Given these findings, the Tribunal remitted the application for the Temporary Business Entry (Class UC) visa to the Minister for reconsideration. The remittal was accompanied by a direction that the first named applicant meets the criteria specified in clause 457.223(4)(eb)(ii) of Schedule 2 to the Regulations, with the Minister to consider the remaining criteria for the visa.