KWON (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), for an applicant nominated as a Wall and Floor Tiler. The decision was made by Mr S Norman of the Tribunal. The core of the dispute revolved around whether the applicant met the English language proficiency requirements stipulated by the relevant legislative instrument.

The Tribunal was required to determine if the applicant had satisfied the English language proficiency requirements as set out in subclause 457.223(4)(eb) of Schedule 2 to the Regulations. This subclause mandates that an applicant, who is not exempt and to whom subclause (6) does not apply, must have undertaken a specified language test and achieved the required score within the specified period and in a single attempt.

The Tribunal found that the applicant, nominated as a Wall and Floor Tiler, was not an exempt applicant and subclause (6) did not apply. The applicant had undertaken a PTE Academic Test on 24 June 2019 and provided the results to the Tribunal. The Tribunal was satisfied that these results met the specified score requirements in a single attempt and within the specified timeframe, thus satisfying the criteria under cl.457.223(4)(eb).

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant met the English language proficiency criteria under cl.457.223(4)(eb). The Minister was to consider the remaining criteria for the Subclass 457 visa.