Li (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) Subclass 457 visa. The applicant sought review of a decision to refuse the visa. The primary legal issue before the Tribunal was whether the applicant met the English language proficiency requirements as stipulated in subclause 457.223(4)(eb) of the Migration Regulations 1994.

The Tribunal was required to determine if the applicant was an exempt applicant or if a salary-based exemption applied. The applicant conceded he was not an exempt applicant as he did not hold an eligible passport and had not achieved the required test score. He later submitted that his annual salary of $96,410.00 plus superannuation met the English language salary exemption.

The Tribunal noted that the relevant instrument, IMMI 17/057, specified a salary exemption for Subclass 457 visa applications made *prior* to 1 July 2017, requiring a base rate of pay of at least AUD $96,400. As the applicant's visa application was made on 4 January 2018, after the cut-off date, the salary-based exemption was not available. The Tribunal concluded that the applicant had not met the English language requirements and affirmed the decision to refuse the visa. The Tribunal also considered the applicant's case in relation to ministerial guidelines but decided not to refer the matter, noting the applicant could still make a direct request to the Minister.