Zheng (Migration)

This matter concerned an application for Temporary Business Entry (Class UC) visas, specifically Subclass 457 (Temporary Work (Skilled)) visas, by a primary applicant and secondary applicants. The Administrative Appeals Tribunal was required to determine whether the primary applicant satisfied the English language requirement as stipulated in clause 457.223(4)(eb) of the Migration Regulations 1994. The secondary applicants' eligibility was contingent on the primary applicant meeting the criteria for the visa.

The central legal issue before the Tribunal was whether the primary applicant had met the English language proficiency requirement under cl.457.223(4)(eb). This clause mandates that an applicant, unless exempt, must have undertaken a specified English language test within three years of the visa application and achieved the minimum score set by the Minister in a legislative instrument. The Tribunal also considered whether the applicant had provided evidence of this, or claimed an exemption from the requirement.

The Tribunal reasoned that the applicant had not provided evidence of undertaking an English language test that met the specified minimum scores, despite being requested to do so on multiple occasions by the Tribunal. The applicant had booked an IELTS test but failed to provide the results. Furthermore, no claim was made that the applicant was an exempt applicant. As the primary applicant failed to satisfy this essential criterion, the Tribunal affirmed the decision to refuse the Subclass 457 visa. Consequently, the applications of the secondary applicants were also affirmed.