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457 visas, the English Language Criterion and Exemptions

The contents of this article are correct as at 26 July 2010.

This article has been prepared on the basis that applicants will be lodging their 457 visa application on or after 1 July 2010.

One of the requirements that a primary applicant must meet for the grant of a subclass 457 visa, is to demonstrate English language proficiency.

The English language proficiency level depends on the applicant’s occupation.

Scenario 1

If:

  • The primary applicant is required to obtain a licence, registration or membership for their nominated occupation; and
  • A level of English language proficiency equivalent to more than IELTS test score of 5 in each of the 4 test components (speaking, reading, writing and listening) is required to obtain that licence, registration or membership

Then the applicant must demonstrate that they have English proficiency of at least the standard required for the grant of that licence, registration or membership.

For example, if an applicant is seeking a 457 visa to work in a nominated occupation that requires registration (eg Medical Practitioners), and a test score of at least IELTS level 7 is required to obtain the registration, the applicant must have English language proficiency of at least IELTS level 7.

Scenario 2

In all other cases, the primary applicant must have an English language proficiency equivalent to at least a score of 5 in each of the 4 test components of an IELTS test, unless:

  • They are an exempted applicant; or
  • Their base salary is at least equal to the salary level specified in a legislative instrument and grant of a visa is 'in the interests of Australia'.

Who is an exempt applicant?

An IELTS test is not required in cases where the nominated occupation does not require a level of English language competency for grant of registration, license or membership and the primary applicant:

  • Holds a passport of Canada, New Zealand, the Republic of Ireland, the United Kingdom; or the United States of America; or
  • Has completed at least 5 consecutive years of full-time study in a secondary and/or higher education institution where the instruction was delivered in English; or
  • Has been nominated in relation to an activity or occupation that will be performed at a diplomatic or consular mission of another country or an office of the authorities of Taiwan located in Australia; or
  • Has nominated an occupation that is set out in the Schedule to Instrument F2010L01409, 22 June 2010 found here.

Who else is not required to provide an IELTS test?

If an applicant is not an exempted applicant, they may still be exempted from meeting the English language requirement (where they would otherwise have been required to do so) if they are nominated for a position in an occupation with a base salary of no less than $85,090 per year (up from $81,040 on 1 July 2010).

The base rate of pay is the rate of pay payable to an employee for his or her ordinary hours of work of 38 hours per week, but not including any of the following:

  1. Incentive-based payments and bonuses;
  2. Loadings;
  3. Monetary allowances;
  4. Overtime or penalty rates; and
  5. Any other separately identifiable amounts.

It must also be established that the visa grant is “in Australia’s interests”. According to current policy this may include consideration of adverse information - such as indications that the sponsor may be reducing its local workforce -.which has become known to DIAC through monitoring activities.

If you have any questions concerning this article please click this link to contact Visa Lawyers Australia.