Akhter v Minister for Immigration
[2015] FCCA 35
•9 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AKHTER & ORS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 35 |
| Catchwords: WORDS AND PHRASES – “Competent English”. |
| Legislation: Migration Act 1958 (Cth), ss.31, 48A, 504 Migration Amendment Regulation 2012 (No.2) (Cth) |
| Badrujamaludin & Anor v Minister for Immigration [2014] FCCA 1004 Berenguel v Minister for Immigration [2010] HCA 8; (2010) 264 ALR 417 Ghori v Minister for Immigration [2011] FCA 759 Guo v Minister for Immigration (2009) 176 FCR 83 Macabenta v Minister for Immigration (1998) 90 FCR 202 Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 Palanisamy v Minister for Immigration & Anor [2013] FCCA 1779 Parmar v Minister for Immigration [2011] FCA 760, (2011) 195 FCR 186 Singh v Minister for Immigration [2014] FCA 185 SZGIZ v Minister for Immigration [2013] FCAFC 71 (2013), 212 FCR 235 Qui v Minister for Immigration (1994) 55 FCR 439 |
| First Applicant: | TASLEMA AKHTER |
| Second Applicant: | MOHAMMAD SALAHUDDIN |
| Third Applicant: | ADYAN UDDIN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 24 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 25 November 2014 |
| Delivered at: | Sydney |
| Delivered on: | 9 February 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones of Parish Patience Immigration Lawyers |
| Solicitors for the Respondents: | Mr A Markus of Australian Government Solicitor |
ORDERS
The application as amended on 25 November 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 24 of 2014
| TASLEMA AKHTER |
First Applicant
MOHAMMAD SALAHUDDIN
Second Applicant
ADYAN UDDIN
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
These proceedings concern the issue of the interpretation and validity of the Migration Regulations 1994 (Cth) (Regulations) which prescribe tests for English language proficiency for the purposes of eligibility for certain classes of visas. The application before the Court is to review a decision of the Migration Review Tribunal (Tribunal). The decision was made on 12 December 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants skilled residence visas.
The following statement of background facts is derived from the submissions of the parties.
The first applicant, Ms Akhter, is the primary applicant for the visas the subject of the Tribunal decision. The other applicants are members of Ms Akhter’s family unit and are secondary visa applicants.
The applicants lodged an application for the visas on 6 November 2012, indicating that they wished to be considered for a Skilled (Independent)(Subclass 885) visa[1] on the basis of Ms Akhter’s skills as a hairdresser. With her application she provided evidence of having booked an International English Language Testing System (IELTS) test[2]. On 23 May 2013, the Department of Immigration and Citizenship (as it then was) wrote to Ms Akhter requesting more information concerning her application. The letter noted that she had, in support of a previous visa application, submitted an IELTS test result which demonstrated she had vocational English, but for this visa the required standard is at least to the level of “competent English”[3]. Ms Akhter responded by providing a copy of an IELTS test result, dated 13 May 2009, submitted in support of her subclass 485 temporary visa application, which stated that Ms Akhter achieved an overall score of 5.5. Ms Akhter also submitted that she had met the English language requirements for her subclass 485 visa, had undertaken two years full time study in a course conducted in English and had lived in Australia for seven years[4].
[1] Relevant Documents (RD) 1
[2] RD 29
[3] RD 82-3
[4] RD 86, 100
On 1 August 2013, a delegate of the Minister refused the applicants’ visa application on the basis that Ms Akhter did not meet the time of application criterion for English in clause 885.213 of Schedule 2 to the Regulations, which required Ms Akhter to have “competent English”. The delegate was not satisfied that Ms Akhter had “competent English” as defined in regulation 1.15C of the Regulations[5].
[5] RD 109-114
On 21 August 2013, the applicants applied to the Tribunal for review of the decision[6]. On 8 November 2013, the Tribunal invited the applicants to attend a hearing before it. In its invitation letter, the Tribunal also noted that, to that date, Ms Akhter had not provided evidence that she met the English language proficiency requirement and set out those requirements[7].
[6] RD 115
[7] RD 133-4
Ms Akhter appeared before the Tribunal on 6 December 2013 with the assistance of a migration agent[8]. Ms Akhter submitted that the time of application criterion that the applicant has competent English could be met at any time up until the time of decision, relying on the High Court judgment in Berenguel v Minister for Immigration[9], and asked the Tribunal to allow Ms Akhter further time to sit an IELTS test[10].
[8] RD 155
[9] [2010] HCA 8; (2010) 264 ALR 417 (Berenguel)
[10] RD 140-141
On 12 December 2013, the Tribunal affirmed the decision under review essentially for the same reasons as the delegate[11]. The Tribunal did not accept Ms Akhter’s submissions regarding the construction of the Regulations, which were amended in response to the Berenguel judgment. It found that Ms Akhter had to provide evidence to the Tribunal that she had achieved the specified score in a language test conducted in the three years immediately before the day on which her application was made, and that she could not satisfy the requirement by sitting a test in the future. For this reason the Tribunal declined to adjourn the review and found that it was not satisfied Ms Akhter met the English language requirements in regulation 1.15C of the Regulations, due to the absence of a relevant test score and because Ms Akhter did not hold a passport of a type specified for the purposes of the regulation.
[11] RD 154-158
The judicial review application
These proceedings began with a show cause application filed on 6 January 2014. The applicants now rely upon an amended application filed in court by leave on 25 November 2014. The grounds in that amended application are:
1. The Tribunal erred in construing Regulation 1.15C of the Migration Regulations 1994 (“the Regulations”).
Particulars
a. The Tribunal interpreted the definition of the term “competent English” as [if it] were exhaustive, which it is not. The Tribunal read the preliminary words of the regulation as though they read “if and only if” in circumstances where the statutory language does not import any exclusivity to the definition of “competent English”.
b. The Tribunal read into sub-paragraph 1.15C(1)(c), the words “in the test undertaken for the purposes of paragraph (b)” to follow the words “the person achieved a score specified in the instrument”; when the statutory formula contained no such requirement or limitation.
2. Regulation 1.15C is an invalid exercise of the power to make regulations under the Migration Act.
Particulars
The definition of “competent English” in reg 1.15C is unreasonable and/or may lead to manifest arbitrariness, injustice or partiality.
3. The Legislative Instrument referred to in reg 1.15C is an invalid exercise of the power to make such instruments under the Migration Act.
Particulars
The tests to which the instrument refers are described in a way that is ambiguous, uncertain, misleading and/or incapable of practical administration.
I have before me as evidence the book of relevant documents filed on 17 March 2014. I also received as an exhibit[12] the relevant legislative instrument specifying language tests, scores and passports[13] in issue in these proceedings. I marked for identification an affidavit of the applicants’ solicitor made on 25 November 2014 annexing a company extract in relation to the National Languages and Literary Institute of Australia Pty Ltd. I informed the parties that I would take that material into account as evidence if relevant.
[12] Exhibit R1
[13] IMMI 12-018
The applicants and the Minister made oral and written submissions.
Consideration
Ground 1 – did the Tribunal misconstrue regulation 1.15C?
Applicants’ submissions
Without further explanation, the term “competent English” in clause 885.213 would have its ordinary English meaning which the Tribunal would be required to apply to the evidence before it. The issue in this case is whether the ordinary English meaning of the term has been displaced by regulation 1.15C and/or the legislative instrument referred to in it.
Exhaustive list
Ground 1(a) challenges the Tribunal's implicit assumption that the definition of competent English in regulation 1.15C is an exhaustive list of acceptable evidence.
The applicants accept that this Court may be bound by authority on this point, in particular the Federal Court judgments in Parmar[14], Ghori[15], and Sidhu[16]. If that is the case, then the applicants formally submit that those cases were wrongly decided on the point.
[14] Parmar v Minister for Immigration [2011] FCA 760
[15] Ghori v Minister for Immigration [2011] FCA 759
[16] Sidhu v Minister for Immigration [2014] FCA 935
In the applicants’ submission, the list cannot be considered exhaustive for a number of reasons.
First, there is nothing in the language of the regulation that necessarily implies an exhaustion of the ways in which a person can demonstrate competent English. Each of the subregulations 15C(1) and (2) begins with the words "A person has competent English if...". There is no general heading to the effect that a person is taken to have competent English only if one or other of the subregulations is satisfied.
Secondly, the term is a common English expression, not a term of art. In SZGIZ[17], the Full Federal Court considered at [63]-[73] the principles involved in deciding whether a list is exhaustive or “merely expansive”. Although much of the discussion in that case depended on different examples of lists using the terms “includes” or “means”, neither of which is used in regulation 1.15C, in the applicants’ submission the real test (unless, of course, a term such as “if and only if” is used) is whether the expression is one that has an ordinary English meaning or one that is entirely a creature of the legislation itself.
[17] SZGIZ v Minister for Immigration [2013] FCAFC 71
Thirdly, as is argued in more detail below, any semblance of an exhaustive definition is necessarily destroyed by the uncertainty, ambiguity and irrationality of those parts of the definition dealing with the Occupational English Test (OET) and the reference to passports. If the single remaining element of the list is not intended on its own to be exhaustive, but the other elements are found to be incapable of reasonable determination, an interpretation that threw the entire weight of exclusivity onto that one element would be perverse.
Time of sitting and achieving scores
Ground 1(b) challenges the Tribunal's implicit assumption that the “score” referred to in paragraph (c) of regulation 1.15C(1) must have been achieved in the test referred to in paragraphs (a) and (b). There is no justification for this assumption in the language of the regulation.
Paragraphs (a) and (b) on their face require that Ms Akhter had sat at least one specified test in the three years immediately before the date of the application. These tests are referred to in the instrument at clause 2.D as an IELTS test and an OET. Clause 2.E of the instrument separately specifies scores for the purposes of paragraph (c).
The High Court noted in Berenguel at [26] that:
[...] There is nothing to prevent relevant information being submitted to the Minister after lodgement of the application. Indeed, s 55 of the Act expressly provides for that to be done and requires the Minister to have regard to such information. The Act specifically provides that the Minister may have regard to up-to-date information and, where the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained, a construction which would deprive him of the most recent information seems to be antithetical to that purpose.
The same considerations apply to the construction of the regulation in this instance. The Tribunal's interpretation would deprive the Minister of the most recent information concerning Ms Akhter’s level of English language ability, and is therefore not to be preferred to one which would allow for up-to-date information to be taken into account at the time of decision.
Minister’s submissions
Ground 1(a) – that the definition of competent English in regulation 1.15C is not an exhaustive definition
The applicants’ first ground asserts that the Tribunal erred by treating the definition of “competent English” as an exhaustive definition.
The applicants accept that a number of Federal Court of Australia judgments have rejected the same argument[18]. While these judgments considered slightly different forms of regulation 1.15C, the reasoning applies equally to the present case[19]. It is clear that the definition of “competent English” in regulation 1.15C is an exhaustive one which applies throughout the regulations for the purposes of determining English language proficiency.
[18] Parmar v Minister for Immigration (2011) 195 FCR 186 (Parmar), Ghori v Minister for Immigration [2011] FCA 759 and Sidhu v Minister for Immigration [2014] FCA 935 (Sidhu)
[19] see [18] of Parmar and Sidhu at [6]-[11] applying Parmar
No assistance to the applicant can be drawn from the Full Court’s reasoning in SZGIZ v Minister for Immigration[20], which considered whether the use of the word “includes” in s.48A of the Migration Act had the effect of making the definition in that section expansive and non-exhaustive. Regulation 1.03 states that competent English has the meaning given by regulation 1.15C. Regulation 1.15C states that a person has “competent English if:” (emphasis added). The use of the conjunction “if” indicates an exhaustive definition. The applicants’ other arguments regarding the asserted ambiguity of other definitions also do not assist their argument.
Ground 1(b) – that the language test in which the person achieved the specified score did not need to be sat before the visa application was made
[20] (2013) 212 FCR 235
The applicants ask the Court to construe regulation 1.15C(1)(c) of the Regulations such that the score achieved by a person need not be achieved in the test referred to in regulation 1.15(1)(b) of the Regulations. This was the same argument, relying on the High Court’s judgment in Berenguel, made to, and rejected by, the Tribunal in its reasons for decision.
There is no basis in the terms of the regulation for such a construction. Regulation 1.15C was amended following the judgment in Berenguel[21], which amended regulation 1.15C to remove the requirement that a person achieve a particular IELTS test score “in a test conducted not more than two years before the day on which the application was lodged” and instead inserted a provision which requires a person to show they have undertaken a test “conducted in the 2 years immediately before the day on which the application was made”. This was later extended to three years by the Migration Amendment Regulation 2012 (No.2) (Cth) which is the current form and the form relevant to this application. It is clear that a language test used to satisfy the competent English criterion had to be sat between a date three years before the day the visa application is made and the day the visa application is made. The intention of the 2011 Regulation was to clarify the time period in which a language test had to be conducted. As the Explanatory Statement to the 2011 Regulation stated[22]:
New regulations 1.15C, 1.15D and 1.15E also clarify that the person will only have competent English, proficient English or concessional competent English, if the Minister is satisfied that the language test undertaken by the person was conducted no more than two years immediately before the day on which the application for a GSM visa was made.
These amendments ensure that an applicant for a GSM visa is assessed as holding the relevant English language test score before the application for a GSM visa is made. This supports the policy intention that only applicants who are assessed as having the specified English language test score prior to making their application for the GSM visa may satisfy the relevant Schedule 2 criterion.
[21] see the Migration Amendment Regulations 2011 (No 3) (Cth) (2011 Regulation)
[22] Schedule 1, Item 2, page 6
That this is the correct construction has been accepted in numerous cases in both this Court and on appeal to the Federal Court[23].
[23] see, for example, Singh v Minister for Immigration [2014] FCA 185, Sidhu, Bali v Minister for Immigration [2014] FCA 986, Palanisamy v Minister for Immigration & Anor [2013] FCCA 1779, Badrujamaludin v Minister for Immigration & Anor [2014] FCCA 1004
Ground 1 – resolution
The issues in relation to this ground were dealt with very recently in this Court in Milanes v Minister for Immigration & Anor[24]. I agree generally with the views expressed by Judge Cameron in that case at [14]-[24].
[24] [2015] FCCA 205
Ground 1(a) in my opinion fails in this Court on the authority of the Federal Court decisions in Parmar, Ghori and Sidhu. I also accept the Minister’s submission that that authority is unaffected by the decision in SZGIZ.
Ground 1(b) also fails in the Court on the basis of relevant Federal Court authority. The clear purpose of the amended regulations was to require applicants to establish English language proficiency prior to a visa application being made. In Kaushal v Minister for Immigration & Anor[25] I accepted, on the basis of the Federal Court authorities, that the drafter’s purpose had been achieved. At [27] in that case I put to one side the issue now raised by the applicants. It is now necessary to resolve it. In my opinion, the construction argued for by the applicants would be plainly inconsistent with the drafter’s purpose, which has been accepted in the Federal Court authorities relied upon by the Minister as having been achieved. I am bound by those authorities.
Grounds 2 and 3 – is regulation 1.15C invalid?
[25] [2014] FCCA 2857. The decision is under appeal in the Federal Court
Applicants’ submissions
Invalidity
Grounds 2 and 3 challenge the validity of regulation 1.15C and the relevant legislative instrument, respectively.
The tests
As at the date of the application, the term “IELTS test” was defined in regulation 1.03 to mean “the International English Language Testing System test”. No further explanation of what that term meant appeared in the legislation.
An entity known as the International English Language Testing System does exist and does administer English language tests[26]. Whether or not this is the test referred to in the Regulations, or whether it is the only test that might meet that description, is by no means clear. What is clear from the Tribunal's decision is that this is the test that it considers is referred to in the Regulations.
[26] See type="1">
The test on which the Tribunal appears to rely has two versions[27].
[27] See >
It is submitted that the reference to the IELTS test in paragraph 2.D of 12/018 is ambiguous and incapable of practical administration.
Regulation 1.03 is specific that the test to which the term “Occupational English Test” refers is one that is conducted by the “National Language and Literacy Institute of Australia”. Evidence was tendered at the hearing to support the proposition that that organisation ceased to exist no later than 2005, that is several years before the instrument was made.
The instrument, made in June 2012, refers to a test which, as defined, did not exist.
The references to the tests in the instrument are ambiguous and incapable of proper identification. The instrument fails to give meaningful effect to the definition in regulation 1.15C(1).
Passports
Regulation 1.15C(2) purports, by reference to the instrument, to specify as a defining characteristic of English language competency the fact that a person holds a passport issued by certain countries to citizens of those countries.
The applicants submit that this specification is utterly irrational, capricious and absurd.
The evident purpose of the criterion in clause 885.213 is “to ensure that, when the Minister or delegate decides upon the application for a visa, the applicant will have demonstrated recent competency in the English language”[28]. The regulation does no such thing. It is patently obvious that a person may hold a passport of a particular country without having any appreciable level of competency in the national language of that country, or one of them. In the instant case, the absurdity is compounded by the fact that Canada, an officially bilingual country, is one of the countries listed.
[28] Berenguel, supra at [24]
The test does not even depend on a person having the nationality of the country concerned, but rather on their actual possession of a passport. A citizen of any of the countries concerned, in effect, would not have competent English if they did not hold a passport, would "acquire" competent English on being issued a passport, and would "lose" that competency on the expiry of the document.
The test is not a presumption. Categorical evidence of a total lack of English language ability could be before a decision maker, who would nevertheless be bound to find the passport holder to have "competent English" for immigration purposes.
Besides being irrational, capricious or absurd in its own right, the applicants also submit that the provision should be read in the light of s.10 of the Racial Discrimination Act 1975 (Cth) (RDA), which provides:
Rights to equality before the law
(1) If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.
It is acknowledged that, rather than extending the operation of the passports test to all nationalities (and thus rendering it pointless), the applicability of s.10 is a further basis on which the provision should be considered invalid.
The applicants also accept that the Court may be bound by the authority of Macabenta[29] to reject this interpretation of the RDA, in which case it is formally submitted that that case was wrongly decided.
Invalidity overall
[29] Macabenta v Minister for Immigration (1998) 90 FCR 202
Regulation 1.15C together with the relevant instruments purports to be a definition of the term "competent English" for the purposes of assessing prospective migrants to Australia, which on the basis of judicial authority has been interpreted to be exhaustive or exclusive.
Paradoxically, perhaps, treating it as exhaustive or exclusive is a further reason for finding it to be invalid. In an exhaustive list, an "Occupational English Test" must have a clearly delimited meaning, yet in fact it does not exist. In an exhaustive list, the passports test cannot be a rebuttable presumption, with the possibility of citizens of other countries where English is a national language having the opportunity to put their case. As a form of conclusive evidence of language ability, it is patently unsuited to the purpose. If these two are removed, there cannot be any justification for holding the IELTS test to be the only way of establishing English language competency when the drafters of the legislation clearly intended otherwise, even if they failed to implement that intention.
Minister’s submissions
Ground 2 is addressed separately from Ground 3 in the Minister’s submissions despite the applicants’ submissions addressing those grounds together.
The applicants assert that regulation 1.15C is invalid as it is said to be unreasonable and/or to lead to manifest arbitrariness, injustice or partiality. It appears from the applicants’ submissions that these claims are made on the basis that a reference to IELTS in regulation 1.15C(a)(i) of the Regulations is ambiguous and incapable of practical administration. There is, however, no regulation 1.15C(a)(i) in the Regulations nor any specific reference to IELTS in the current and relevant version of regulation 1.15C of the Regulations. If this is the applicants’ complaint the ground is misconceived.
The applicants do not identify how regulation 1.15C, or more particularly, regulation 1.15C(1) which refers to “a language test” is otherwise unreasonable or arbitrary. The test for unreasonableness is a high one. In Qui v Minister for Immigration[30], another case where the validity of an English language criterion in the Regulations was challenged, Lockhart J in dismissing the claim that the regulation was unreasonable and uncertain stated that[31]:
[w]hen the validity of a regulation is challenged on the basis that it is “unreasonable” such that it goes beyond the regulation-making power, the word “unreasonable” in this context means that the regulation is so oppressive and capricious that no reasonable mind can justify it.
[30] (1994) 55 FCR 439
[31] at 446. See also, for example, Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381, Yu v Minister for Immigration (2004) 140 FCR 126
A similar argument to the effect that an earlier form of regulation 1.15C was irrational, by reference to the requirements for an IELTS test, was also rejected in Parmar at [20]-[28] per Perram J. His Honour there stated that the regulation exhibited “a carefully structured set of distinct English speaking standards” and the “means adopted to do so is an internationally accepted independent testing mechanism” which was suitable to testing the language skills of applicants applying for high volume visas.
The applicants also assert that regulation 1.15C is irrational, capricious and absurd as regulation 1.15C(2) specifies English language competency by reference to the fact that a person holds a passport of certain countries. As noted above, statutory instrument IMMI12/018 specifies that the passports which are valid for the purpose of the Regulations are those “issued by the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland, to a citizen of that country.”
The applicants appear to base this claim on the fact that a citizen of the countries concerned may not necessarily possess competent English. There is nothing absurd or irrational in the specification of passports for the purposes of the English language requirements – as the instrument makes clear – the passports specified are English speaking countries. The applicants have not demonstrated that the regulation is so unreasonable, in the sense of capricious or oppressive such that it could be invalid. It is not for the Court to determine the merits of the policy manifested in a regulation so long as the regulation is within the scope of the empowering provision[32].
[32] see Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 at 384, Bienke v Minister for Primary Industries (1996) 63 FCR 567 at 578, Guo v Minister for Immigration (2009) 176 FCR 83 at [35]
The applicants also assert that the regulation is invalid due to s.10 of the RDA. It is unclear the precise basis on which this invalidity is alleged, but as they only make a formal submission on this issue given the authority in Macabenta, they perhaps assert that the regulation provides for a right enjoyed only by persons of a particular national origin. In the Minister’s submission, no invalidity arises for this reason and Macabenta is not wrongly decided.
Ground 3 – Legislative Instrument IMMI12/018 is an invalid exercise of the power to make instruments under the Act due to ambiguity or uncertainty
It would appear from the applicants’ submissions that the applicants’ challenge to the validity of Legislative Instrument IMMI12/018 (which was made pursuant to regulation 1.15C of the Regulations) is based on an assertion that the instrument fails to give meaningful effect to the definition in regulation 1.15C(1).
In so far as the instrument refers to an IELTS test, IELTS is defined in regulation 1.03 of the Regulations to mean “International English Language Testing System test”. As the applicants state, IELTS tests are administered by the IELTS organisation[33]. It was the result of an IELTS test that the applicant provided in support of her application and it was a further IELTS test for which she applied to sit[34]. There is no uncertainty in what is meant by the IELTS test as set out in the legislative instrument[35].
[33] applicants’ submissions at [23]
[34] RD 100, 144
[35] see Parmar at [21]-[22]
To the extent that the applicants assert that the instrument was invalidly made due to specifying the OET conducted by the National Language and Literacy Institute of Australia as a test, assuming the applicants’ claim is correct, again, it is unclear how this leads to invalidity of the instrument in its entirety, or how it is relevant to the applicants’ case, given the applicants did not seek to rely on such a test. Even if an error in the instrument could be identified by the reference to a test that is no longer current, the applicants did not rely on meeting that provision or having completed such a test. No jurisdictional error would arise in the Tribunal decision in the circumstances. Moreover there would be no error in the IELTS test being the only test validly specified in an instrument.
Grounds 2 and 3 – resolution
Section 31 of the Migration Act gives the power to prescribe criteria for visas. Section 504 of the Migration Act gives the Governor-General power to make regulations prescribing matters for carrying out or giving effect to the Migration Act.
At the time of Ms Akhter’s application for a visa, the criteria for the subclass 885 visa were set out in Schedule 2 to the Regulations which including the following clause:
885.1 Interpretation
Note 2 For competent English: see Regulation 1.15C.…
885.21 Criteria to be satisfied at time of application
…
885.213
The applicant has competent English.
Regulation 1.15C provided, and continues to provide, as follows:
(1) A person has competent Englishif:
(a) the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and
(b) the test was conducted in the 3 years immediately before the day on which the application was made; and
(c) the person achieved a score specified in the instrument.
(2) A person has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.
The Minister specified by legislative instrument Migration Regulations 1994 – Specification of Language Tests, Score and Passports[36] the purposes of regulation 1.15C the following:
(3)… for applications lodged on and after 1 July 2012 tests, test scores and passports as follows:
[36] IMMI 12/018
…
C.For the purposes of paragraph 1.15C (b) a valid passport issues by the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland, to a citizen of that country.
D.For the purposes of paragraph 1.15C (1)(a) the following language tests:
· an IELTS test; and
· an OET.
E.For the purposes of paragraph 1.15C(1)(c) the following scores:
· an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or
· a score of at least ‘B’ in each of the four components of an OET.
F.For the purposes of subregulation 1.15C(2) a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland, to a citizen of that country.
IELTS and OET are referred to in the instrument as acronyms for the International English Language Testing System and the Occupational English Test. The following definitions are contained in regulation 1.03 of the Regulations:
“competent English” has the meaning given by regulation 1.15C.
“IELTS test” means the International English Language Testing System test.
“Occupational English Test” means an Occupational English Test conducted by the National Language and Literacy Institute of Australia. (emphasis added)
I prefer the submissions of the Minister on the issue of the validity of the regulation. The complaint of ambiguity has no substance in relation to the regulation. That regulation relevantly establishes the power of the Minister to specify an English language test and particular types of passports.
The applicants’ real complaint concerns the Legislative Instrument made by the Minister in purported exercise of the power so conferred. I am, in my opinion, bound by the decision of the Federal Court in Parmar that the reference to the IELTS testing scheme is unambiguous. I accept that it would appear that the specification of the OET conducted by the National Language and Literacy Institute of Australia is otiose because the Institute was deregistered on 11 March 2005. However, I also accept the Minister’s submission that the apparent ineffectiveness of the specification of that test does not impact upon the effectiveness of the specification of the IELTS test. I note that Judge Cameron reached a similar conclusion in Milanes at [33], although I differ from his Honour in so far as he made a finding of partial invalidity.
The challenge to the passports specification has more substance because of the impact of s.10 of the RDA. It is arguable that the specification of passports in the Instrument has more to do with race than English language proficiency, given that it is a matter of public record that there are numerous countries, in addition to the ones specified, where English is not only an official language but is also the language of instruction in higher education. Those additional countries include Belize, Botswana, Cameroon, Fiji, Gambia, Ghana, Guyana, Jamaica, Kenya, Lesotho, Liberia, Malawi, Mauritius, Namibia, Nigeria, Papua New Guinea, Seychelles, Sierra Leone, Singapore, Solomon Islands, South Africa, Swaziland, Tonga, Trinidad & Tobago, Uganda, Vanuatu, Zambia and Zimbabwe.
Interesting though that assertion is, however, and as is conceded by the applicants, a conclusion of invalidity is not available to me in the face of the authority of the Full Federal Court decision in Macabenta, in particular in relation to the distinction between “national origin” and “nationality”. As in Macabenta, the material discrimen in the Instrument is nationality or citizenship rather than national or ethnic origin.
The applicants have failed to establish any jurisdictional error in the decision of the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed.
I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 9 February 2015
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