QANAEER (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457, where the applicant's English language proficiency was in dispute. The Tribunal, presided over by Mr S Norman, was required to determine whether the applicant had met the English language requirements as stipulated by clause 457.223(4)(eb) of Schedule 2 to the Regulations.

The primary legal issue before the Tribunal was the interpretation and application of clause 457.223(4)(eb), which sets out the requirements for English language proficiency for applicants who are not exempt and for whom subclause (6) does not apply. This clause mandates that such applicants must have undertaken a specified language test and achieved a minimum score within a specified period and in a single attempt. The Tribunal had to assess whether the evidence provided by the applicant satisfied these specific criteria.

The Tribunal reasoned that while the initial delegate was not satisfied that the applicant met the English language requirements, subsequent evidence submitted by the applicant via email on 23 May 2019, detailing a TOEFL iBT test taken on 3 November 2018, demonstrated compliance. The Tribunal found that the scores achieved in this test, specifically an overall score of 81 with individual component scores, met the requirements of clause 457.223(4)(eb), including the timeframe specified in the relevant legislative instrument (IMMI 17/057). Consequently, the Tribunal concluded that the applicant satisfied this particular criterion.

Given this finding, the Tribunal determined that the appropriate course of action was to remit the application for reconsideration by the Minister, with a direction that the applicant meets the English language proficiency requirement under clause 457.223(4)(eb). The Minister is to then consider the remaining criteria for the Subclass 457 visa.