LEE (Migration)

The Administrative Appeals Tribunal considered the case of an applicant for a Temporary Business Entry (Class UC) visa, Subclass 457. The central dispute concerned whether the primary applicant met the English language proficiency requirements stipulated by clause 457.223(4)(eb) of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine if the applicant had satisfied the English language requirements, specifically by achieving the specified test scores within the prescribed timeframe, as outlined in IMMI 17/057. This involved assessing whether the applicant was an exempt applicant or if subclause (6) applied, which relates to salary thresholds. If neither of these exceptions applied, the Tribunal had to examine the applicant's performance in an English language test, such as the IELTS, and compare it against the minimum score requirements and the validity period of the test results relative to the visa application date.

The Tribunal reasoned that the applicant was not an exempt applicant and did not meet the salary threshold for subclause (6) to apply. Consequently, the applicant was required to meet the English language proficiency criteria under clause 457.223(4)(eb)(iv) and (v). The Tribunal found that the applicant had undertaken an IELTS test on 2 November 2017, achieving the required scores of at least 4.5 in each component and an overall band score of 5.0. Crucially, these results were obtained within the three-year period from the visa application lodged on 8 November 2016, thus satisfying the specified timeframe.

Based on these findings, the Tribunal concluded that the applicant met the English language requirement under clause 457.223(4)(eb). The matter was therefore remitted to the Minister for reconsideration of the remaining criteria for the Subclass 457 visa.