Somon (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), brought before the Tribunal by the applicant. The primary dispute revolved around the applicant's failure to meet the English language requirements stipulated for the visa. The applicant had not achieved the required score in a specified language test within the three years preceding her application, and a subsequent attempt to book a test was delayed due to suspected COVID-19 symptoms.

The legal issues before the Tribunal were whether the applicant met the English language requirements under clause 457.223(4)(eb) of the Migration Regulations 1994, or if she qualified as an exempt applicant. The Tribunal was required to consider the applicant's claims, including a late assertion of having completed five years of education in English, and to determine if these claims, along with the circumstances surrounding her English language testing, warranted an exemption or an adjournment of the hearing.

The Tribunal reasoned that the applicant had not provided sufficient evidence to satisfy the English language criteria. While the applicant claimed to have completed five years of education in English, this claim was made for the first time at the hearing, with no supporting documentary evidence, and contradicted the fact that she had held student visas for less than five years. The Tribunal also noted that the applicant's proposed English language test date fell outside the prescribed three-year period, and her request for an adjournment was refused as it appeared she could not meet the criteria. Consequently, the Tribunal affirmed the decision not to grant the visa.