Ashurov v Minister for Immigration

[2015] FCCA 1521

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASHUROV v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1521

Catchwords:
MIGRATION – Application for review of the decision of the Migration Review Tribunal – whether Tribunal misconstrued reg.1.15C and cl.485.212 of Schedule 2 of the Migration Regulations 1994 (Cth) – whether reg.1.15C of the Migration Regulations 1994 (Cth) is an invalid exercise of the power to make regulations under the Migration Act 1958 (Cth) – whether “legislative instrument” in reg.1.15C of the Migration Regulations 1994 (Cth) is an invalid exercise of the power to make instruments under the Migration Act 1958 (Cth) – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.4, 31, 39, 44, 47, 48A, 54, 65, 84, 476, 504, 505, Parts, 1, 2, 9

Legislative Instruments Act 2003 (Cth), ss.13, 44

Migration Regulations 1994 (Cth), regs.1.03, 1.15B, 1.15C, Schedules 1, 2, 4, 5A, 6, 6A, 8, Parts 1, 2, 5

Migration Amendment Regulation 2011 (No. 3) (Cth)
Migration Amendment Regulation 2012 (No. 2) (Cth)
Migration Legislation Amendment Regulation 2013 (No.1) (Cth)

Explanatory Statement to the Migration Amendment Regulation 2011 (No.3) (Cth)

Berenguel v Minister for Immigration and Citizenship [2010] HCA 8
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235
Parmar v Minister for Immigration and Citizenship [2011] FCA 760; (2011) 195 FCR 186
Singh v Minister for Immigration & Anor [2013] FCCA 1439
Singh v Minister for Immigration and Border Protection [2014] FCA 185
Palanisamy v Minister for Immigration & Anor [2013] FCCA 1779
Baig v Minister for Immigration & Anor [2014] FCCA 1114
Datchinamurthy v Minister for Immigration & Anor [2014] FCCA 258
Endi v Minister for Immigration & Anor [2013] FCCA 1700
Pajarla v Minister for Immigration & Anor [2013] FCCA 1808
Brundavanam v Minister for Immigration & Anor [2013] FCCA 2298 Muthyala v Minister for Immigration & Anor [2013] FCCA 2299
Sidhu v Minister for Immigration & Anor [2014] FCCA 706
Badrujamaludin v Minister for Immigration & Anor [2014] FCCA 1004
Kaur v Minister for Immigration & Anor [2014] FCCA 830
Govind v Minister for Immigration & Anor [2014] FCCA 957
Munagala v Minister for Immigration & Anor [2014] FCCA 1015
Singh v Minister for Immigration and Border Protection [2014] FCA 185
Ajaya v Minister for Immigration and Border Protection [2014] FCA 718
Patel v Minister for Immigration and Border Protection [2014] FCA 823
Smith v R [1994] HCA 60; (1994) 181 CLR 338
Refrigerated Express Lines (A/Asia) Pty. Ltd. v. Australian Meat and Live-Stock Corporation [1980] FCA 38; (1980) 29 ALR 333
Yu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1477; (2004) 140 FCR 126
Qiu v Minister for Immigration and Ethnic Affairs (1994) 55 FCR 439; (1995) 37 ALD 443
South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 16
Re Austral Fisheries Pty Ltd v the Minister of Primary Industries and Energy [1992] FCA 351; (1992) 37 FCR 463

Applicant: ZARIF ASHUROV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2106 of 2013

Judgment of: Judge Nicholls

Hearing date: 3 July 2014

Date of Last Submission: 25 November 2014

Delivered at: Sydney

Delivered on: 5 June 2015

REPRESENTATION

Counsel for the Applicant: Mr S E J Prince

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Counsel for the Respondents: Ms R Graycar

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 9 September 2013 and amended on 17 June 2014 is dismissed.

2. The applicant pay the first respondent’s costs as agreed or as taxed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2106 of 2013

ZARIF ASHUROV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 9 September 2013 and amended on 17 June 2014 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 16 August 2013 which affirmed the decision of the Minister’s delegate to refuse the grant of a Skilled (Provisional) (Class VC) visa (“the visa”) to Mr Zarif Ashurov (“the applicant”).

2. The evidence before the Court is as follows:

   1)A bundle of relevant documents filed by the Minister (“the Court Book” – “CB”).

   2)Applicant’s Exhibit 1 (“AE1”), ASIC – “Current & Historical Company Extract”.

The Issue

1. The central issues in this case involve the choice of the relevant version, and the construction, of reg.1.15C of the Migration Regulations 1994 (Cth) (“the Regulations”), and cl.485.212 of Schedule 2 to the Regulations (as it was at 18 December 2012 or cl.485.212 of Schedule 2 to the Regulations at the time of the Tribunal’s decision) applied by the Tribunal in its decision.

Background

1. The applicant is a citizen of Uzbekistan. He applied for the visa on 18 December 2012 (CB 1 to CB 13). On 27 March 2013 the delegate wrote to the applicant requesting additional documents and information (CB 35 to CB 44). Relevantly, the delegate stated:

   “ENGLISH REQUIREMENTS

   Test Report

   In your application you advised that you had not undertaken an English language test in the last 24 months. Please advise whether you have undertaken an English language test in the last 36 months?

   Please note, if you did not undertake and successfully pass an English language test in the 36 months before you lodged your application, your application will be refused.”

2. The delegate refused to grant the visa on 30 April 2013 (CB 45 to CB 52). The delegate found that the visa for which the applicant had applied contained two subclasses. Ultimately, the application was found to be a valid application for a subclass 485 visa (see CB 50.2 and CB 52.1).

3. The delegate found that one of the mandatory requirements for the grant of the visa was what was set out at cl.485.215 of Schedule 2 to the Regulations at the relevant time. That is, “[t]he applicant has competent English” (CB 50.6).

4. The delegate noted that the term “competent English” was defined in reg.1.15C of the Regulations. The version relied on by the delegate was in the following terms (CB 50):

   “Regulation 1.15C Competent English

   (1) A person has competent English if:

   (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.”

5. The delegate reasoned as follows. The application for the visa was lodged on 18 December 2012. On 22 December 2012 the applicant provided a receipt for a booking for an English language test (“IELTS”) to be taken on 2 February 2013. There is no evidence that the Minister’s department received any information from the applicant as to the results of this test. The delegate also had regard to the applicant’s answer to the question on the visa application form as to whether the applicant had “…undertaken an English test within the last 24 months?”. The applicant had answered “No” (CB 50 to CB 51).

6. For reasons seen to be relevant to the wording of reg.1.15C(1)(b) of the Regulations, a letter was sent to the applicant on 27 March 2013 asking whether he “had undertaken an English language test within the last 36 months” (CB 51.2). There was no reply from the applicant.

7. The delegate found that she was not satisfied that the applicant had “…undertaken a language test in the 3 years immediately before the date on which [he] lodged [his] VC-485 visa application as prescribed in Regulation 1.15C(1)(b)” of the Regulations (CB 51.3).

8. The basis of the delegate’s decision was that as the applicant did not meet the requirements of reg.1.15C of the Regulations in its entirety, he did not meet the requirements of cl.485.215 of the Regulations. Therefore, he did not meet the relevant requirements for the grant of the visa.

The Tribunal

1. The applicant applied for review to the Tribunal on 1 May 2013 (CB 57 to CB 67). He was represented by a registered migration agent (CB 63). On 10 July 2013 the applicant was sent a letter, inviting him to a hearing scheduled for 9 August 2013 (CB 88 to CB 90).

2. The letter also contained the following  (CB 89 to CB 90):

   “Your application for a subclass 485 (Skilled – Graduate) visa was made on or after 1 July 2011.Your visa application was refused by the officer of DIAC because the officer was not satisfied that you have competent English.

   For visa applications made on or after 1 July 2011 and before 1 July 2012 the definition of competent English provides that to show competent English, you must hold a passport of a specified country (UK, USA, Canada, New Zealand or Republic of Ireland) issued to a citizen of that country or have achieved a specified score in a language test that was conducted in the 2 years immediately before the day on which the visa application was made. The specified English language tests and scores are: an International English Language Testing System (IELTS) test score of at least 6 in each of the 4 test components of speaking, reading, writing and listening; or an Occupational English Test (OET) score of at least ‘B’ in each of the four components.

   For visa applications made on or after 1 July 2012, the definition of competent English is the same, save that the language test was conducted in the 3 years immediately before the day on which the visa application was made.

   If you have evidence of competent English, please provide it to the tribunal as soon as possible prior to the hearing but no later than the hearing date. If you are unable to provide the relevant evidence, the tribunal will require a good reason to grant you additional time.”

   [Emphasis in the original.]

3. The applicant, and his migration agent, attended the hearing on 9 August 2013 (see [4] – [5] at CB 105), and the applicant gave evidence. There is no transcript of the hearing before the Tribunal in evidence before the Court.

4. The Tribunal affirmed the delegate’s decision on 16 August 2013 (CB 104 to CB 106). The Tribunal identified the issue in the case before it as being whether the applicant had “competent English” as required by cl.485.215 of the Regulations ([7] at CB 105). The Tribunal set out the terms of reg.1.15C of the Regulations, which defined “competent English”, and which it considered was relevant at the time ([7] at CB 105):

   “The issue in the present case is whether the applicant has competent English as required by cl.485.215. Competent English is defined in r.1.15C. It provides:

   (1) A person has competent English if:

   (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.”

5. The Tribunal noted that for the purposes of reg.1.15C(1)(a) and (c) of the Regulations, the Minister had specified two English languages tests and relevant scores to be achieved in each of the tests respectively. The tests were: International English Language Testing System (“IELTS”) and Occupational English Test (“OET”). The Tribunal made reference to the relevance of the IELTS and OET at [8] of its decision record (at CB 105).

6. The Tribunal noted that the applicant had indicated in his visa application that he had not undertaken, in context, either of the English language tests in the 24 months before the making of the application for the visa ([9] at CB 105).

7. It considered the applicant’s evidence that he had submitted a “receipt” to sit for an IELTS test after the date of the making of the visa application, and that he had not had time to sit for an IELTS test prior to the making of the visa application.

8. The Tribunal recorded that at the hearing it told the applicant of the requirements of reg.1.15C of the Regulations ([10] at CB 106). It reported that the applicant’s response was that he had applied for the visa because his existing student visa “was expiring”, and he did not have time to sit for the IELTS test prior to the lodging of the application. He further told the Tribunal that after speaking to his “agents” he called the Minister’s department and “was told he could submit the evidence after he made his visa application” ([10] at

   
   

   CB 105 to CB 106).

9. It should be noted that the regulation relied on by the Tribunal refers to a period of 3 years prior to the making of an application. The applicant’s earlier evidence referred to a period of “24 months”. The applicant’s attention had been drawn to the 3 year requirement by the delegate (see [4] above and CB 38). Ultimately, there was no evidence before the Tribunal of the applicant having applied, sat for, or undertaken, any such test in the 3 years prior to the making of the visa application.

10. The Tribunal proceeded on the basis that it had no discretion in relation to the requirement that the applicant needed to have sat for the test in the 3 years up to the making of the application, and achieved the requisite score in that period (see reg.1.15C(1)(a), (b) and (c) of the Regulations).

11. The Tribunal, therefore, found that the applicant had not provided any evidence such as to satisfy the requirements of reg.1.15C(1) of the Regulations and, therefore, did not meet the definition of “competent English”. The Tribunal also found he did not have a passport of a type specified by the Minister for the purpose of reg.1.15C(2) of the Regulations. The applicant, therefore, did not satisfy the requirements of cl.485.215 of the Regulations. The delegate’s decision was affirmed on this basis.

Application Before the Court

1. The grounds of the amended application are in the following terms:

   “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 it if were exhaustive, which it is not.

   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.

   c. 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’.

   d. The Tribunal read into the words ‘immediately before the day on which the application was made’ the word ‘first’ before the word ‘made’; in circumstances where the statutory scheme, and in particular ss47(2), 54 (2)(c) and 55 suggest that no such temporal limitation on the meaning of when an application is made.

   2. The Tribunal erred in construing Item 485.212 of Schedule 2 of the Regulations.

   Particulars

   a. The Tribunal read ‘had competent English’ as importing the definition in Regulation 1.15C which defines when a person ‘has competent English’.

   b. The Tribunal construed the item as requiring that the evidence accompanying the application must include evidence which is conclusive and accepted (or that the person must have competent English as an objective fact rather than provide some evidence); rather than construing the item as merely requiring some evidence (including the declaration of the applicant) to have been provided.

   c. The Tribunal erred by construing the item as imposing a requirement that must be satisfied at the date of the application being first lodged; rather than a requirement to be met at the time of the decision by reference to the events when the application was made consistently with item 485.2 (final sentence) of Schedule 2.

   d. The Tribunal erred by reading into the words ‘when the application was made’ the word ‘first’ before the word ‘made’; in circumstances where the statutory scheme, and in particular ss47(2), 54 (2)(c) and 55 suggest that no such temporal limitation on the meaning of when an application is made.

   3. 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.

   4. 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.”

Before the Court

1. Both parties made comprehensive oral submissions at the hearing. The applicant filed written submissions prior to the hearing on 25 June 2014. At the hearing the applicant sought to file a “corrected copy” of the written submissions filed on 25 June 2014. No objection was raised by the Minister, and the corrected written submissions were filed before the Court. The applicant filed supplementary post hearing submissions on 25 November 2014. The Minister filed written submissions prior to the hearing on 30 June 2014 and supplementary post hearing submissions on 15 August 2014.

2. In his submissions before the Court, the applicant initially identified two “principal issues” in this case. They were said to be the issue of construction of relevant regulations, and the issue of their validity. That submission can be broadly understood as relating to grounds one and two, and grounds three and four, respectively. However, in the subsequent submissions, both oral and written, he raised a number of more narrowly described issues. In some instances, these were issues which the Minister says were not strictly pleaded. Further, they were issues that related in varying degrees to different grounds. While the parties made submissions on this question, I have proceeded on the basis of addressing each of the issues arising from the totality of the applicant’s case as presented, and the Minister’s response to it, rather than seeking to divine what was “strictly” pleaded and what was not.

Consideration

1. As against that introductory background, the following issues arise in the consideration of this case.

The “Correct” Version of Clause 485 to be Applied and When is the Application Made?

1. The applicant alleged that the Tribunal fell into error in importing into its understanding of reg.1.15C, and cl.485, of the Regulations a temporal limit as to when the application for the visa could be, and was, “made”. The argument was that this had consequences as to the time or point in the visa application process when the relevant criterion was to be satisfied.

2. I understood the threshold question raised by the applicant’s “temporal” argument to be whether the Tribunal used the “correct” version of the relevant regulations, or whether it applied the wrong version of the relevant regulation for the subclass of visa for which the applicant had applied.

3. As stated above, the applicant had applied for a Skilled (Provisional) Class VC visa on 18 December 2012. He lodged his application electronically (CB 1). There was no dispute between the parties that the applicant had applied for a subclass 485 visa (see Sch. 2 to the Regulations).

4. The applicant’s first and second grounds both derive from, or rely on, albeit in different ways, the regulatory requirements for “competent English”. As at 18 December 2012, that is, the date on which the visa application was lodged, cl.485.215 of the Regulations, which was a criterion for the grant of the visa, stated “[t]he applicant has competent English”. This item appeared in cl.485 of Sch.2 to the Regulations, under the heading of “485.21 Criteria to be satisfied at time of application”.

1. At that time, and as at the time of the Tribunal’s decision (16 August 2013), “Note 2” to cl.485.111 of Sch.2 to the Regulations (which was, and is, headed “Interpretation”) was, and is, in the following terms:

   “Regulation 1.03 provides that competent English has the meaning set out in regulation 1.15C.”

2. The text of reg.1.15C of the Regulations was, and is, set out as follows:

   “(1) A person has competent English if:

   (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.”

3. The current version of reg.1.15C of the Regulations became operational on 1 July 2012 (see Migration Amendment Regulation 2012 (No. 2) (Cth) - Select Legislative Instrument 2012 No. 82). That is, the text of reg.1.15C was the same as at, and from, the time of the lodging of the application for the visa and the Tribunal’s decision.

4. However, that is not the case with cl.485 of Sch.2 to the Regulations. The provisions of cl.485 were amended by Migration Legislation Amendment Regulation 2013 (No.1) (Cth) – Select Legislative Instrument No 33, 2013. The relevant amended provision concerning “competent English” is set out at cl.485.212 of Sch.2 to the Regulations:

   “When the application was made, it was accompanied by evidence that the applicant had competent English.”

5. There was no dispute between the parties that this applies in relation to “an application for a visa made on or after 23 March 2013” as detailed in the amending instrument. The dispute between the parties is, however, as follows. The applicant submitted that an application for a visa was made at all points in time from when it is first lodged until the requirement to consider the application for the visa ceases, as set out at s.47(2) of the Act. Further, that as the application was not “the subject of a refusal” until 30 April 2013 (the date the delegate refused the visa application), then the application was made (that is continued to be “made”) on or after 23 March 2013. Therefore, the Tribunal was in error in applying the previous version of cl.485 of Sch.2 of the Regulations (then cl.485.215). It should have applied the version which was said to apply to applications made on or after 23 March 2013.

6. The Minister’s position was that the application for the visa was lodged on 18 December 2012. Therefore, it is governed by the former version of cl.485 of Sch.2 to the Regulations. The Minister argued that the applicant has not explained how or why an application is said not be “made” when it is “lodged”.

7. The applicant’s argument in relation to the cl.485 of Sch.2 to the Regulations point appeared to have two bases. First, the applicant asserted that the relevant statutory scheme supported the proposition on which he sought to rely.

8. Section 47(2) of the Act provides that the Minister consider an application for a visa until it is withdrawn, the visa is refused or granted, or the grant of the visa is prevented by operation of s.39, or s.84, of the Act. Section 54(2)(c) of the Act provides that the Minister must have regard to all information in an application (s.54(1) of the Act), and that further information may be given until the Minister has made a decision whether or not to grant the visa (with reference to s.55(1) of the Act).

9. In my view, these parts of the statutory scheme are directed to the proposition that an applicant may give the Minister additional relevant information at any time up to the making of the decision on the visa application. This is in the context of the requirement to consider a visa application continuing (“continues” – s.47(2) of the Act) until that point.

10. It does not, in my view, say anything about when an application is “made”. In my view there is a distinction between that act (the “making of the application”), as opposed to the Tribunal’s continuing obligation to consider such an application, and the continuation of that obligation until the application is finalised, in any of the ways referred to immediately above. A distinction may be drawn from the language of the sections that the applicant sought to rely upon, with the proposition he espoused.

11. What “continues”, with reference to s.47(2) of the Act, is not the “making” of the application across a temporal spectrum, but the requirement to “consider” the application for the visa which has been made. In that context, the applicant may give “additional relevant information” during that period of consideration. In discharging his obligation pursuant to s.54(1) of the Act, the Minister is to treat any “additional relevant information” as being part of the (“in that”) application. The temporal continuum, therefore, is directed to the Minister’s (or Tribunal’s) relevant obligation, not to the question of when an application is “made”.

12. In all, the statutory scheme does not support the applicant’s contention that the Tribunal fell into error by finding that the application for the visa was made on 18 December 2012, and proceeding with the version of cl.485 of Sch.2 to the Regulations relevant to that date, and not as if the application was made on, or after, 23 March 2013, which would have required the application of the subsequent version of cl.485 of Sch.2 to the Regulations (with reference to particular (d) of ground two).

13. In his argument, the applicant also pressed the link between cl.485 of Sch.2 and reg.1.15C of the Regulations. That is, that in erroneously limiting the time of the making of the visa application to the time of lodgement, the Tribunal applied the “wrong”, or earlier, version of cl.485 to the resolution of the matter before it.

14. The Minister submitted that, as set out above, while there was a “change” in the wording of cl.485 of Sch.2 to the Regulations, there was no relevant change to the definition of “competent English” as set out at reg.1.15C of the Regulations. I understood the import of this to be that the issue before the Tribunal, and the issue for resolution before the Court now, derives from the wording of reg.1.15C of the Regulations, and not necessarily cl.485 of Sch.2 to the Regulations.

15. That is, the definition of “competent English” is contained in reg.1.15C of the Regulations, and not cl.485 of Sch.2 to the Regulations. The applicant was required by cl.485 of Sch.2 to the Regulations to meet the requirement of “competent English” such that the visa (all other things being satisfied) must be granted. However, the definition of “competent English” is not contained in cl.485 of Sch.2 to the Regulations. It is, and was, in reg.1.15C of the Regulations.

16. It is to be remembered that the reason that the Tribunal found adversely to the applicant was that it found that he did not provide evidence to demonstrate “competent English” as that term was defined in reg.1.15C of the Regulations. It is that definition, at reg.1.15C(1)(b) of the Regulations, which gives rise to the specific complaint made by the applicant about the Tribunal’s focus on the 3 year period immediately before the date of lodging of the visa application “…the 3 years immediately before the day on which the application was made” (emphasis added). The applicant’s attack does not derive, in this argument, from cl.485 of Sch.2 to the Regulations, but from reg.1.15C of the Regulations.

17. Therefore, any change to the wording of cl.485 of Sch.2 to the Regulations does not assist the applicant’s argument. As no change occurred to the wording of reg.1.15C of the Regulations, the Tribunal was correct to proceed in the way that it did.

18. In this light, to the extent that particular (d) to ground one relied on the same argument in relation to particular (d) of ground two, it also is not made out given the reasoning immediately above, and in particular given that no relevant change was made to reg.1.15C of the Regulations during the period of consideration of the visa application.

19. The second base from which the applicant sought to support the proposition set out at [27] above, is with reference to certain authorities. He argued that what was said in these authorities informed the current consideration and was primarily linked by the applicant’s approach to the question of when the criterion in reg.1.15C of the Regulations must be satisfied. It is therefore convenient to deal with those authorities also in that context below.

Regulation 1.15C of the Regulations: An Exhaustive Definition

1. Parts of ground two are linked to, or consequent upon, the propositions in particulars (a) and (c) of ground one being made out. At the core of the argument is the proposition that the Tribunal fell into error by interpreting reg.1.15C of the Regulations as being an “exhaustive” definition of “competent English”.

2. In short, the applicant claimed that the Tribunal fell into error in asserting that reg.1.15C of the Regulations was an exhaustive statement or definition of “competent English”. The applicant’s position was that the terms of the regulation did not purport to be exhaustive.

3. The applicant relied on what he said the High Court said in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 (“Berenguel”) (see further below) and sought to draw on the reasoning of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 (“SZGIZ”). Further, he sought to distinguish what was relevantly said in the later case of Parmar v Minister for Immigration and Citizenship [2011] FCA 760; (2011) 195 FCR 186 (per Perram J) (“Parmar”).

4. The applicant relied on what he said was the Tribunal’s mistaken reading of part of reg.1.15C of the Regulations (see above at [50]). That is, the Tribunal read the word “if” as it appears in reg.1.15C(1), as meaning “if and only if”. The thrust of the applicant’s relevant submission was that reg.1.15C of the Regulations, in its terms, did not purport to be exhaustive. That is, it was non-exhaustive.

5. The Minister’s response was that the applicant’s proposition that reg.1.15C of the Regulations is not an exhaustive definition of “competent English” was put to the Federal Court in Parmar at [9] and [18] – [19].

6. In that case the argument was described as follows (Parmar at [9]):

   “…Three points were made: first, on its proper construction the definition of competent English in reg 1.15C(a)(i) – an achievement by an applicant of ‘an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening’ – specified a sufficient, but not a necessary, requirement in order to demonstrate that an applicant had competent English. Put another way, an applicant might prove that he or she was competent in English by achieving a score of at least 6 for each of the 4 test components (and thereby fall within the definition in reg 1.15C) but this was only one such method and there remained the possibility that an applicant might prove possession of competent English by some other means. Secondly, Mr Parmar argued that the definition of ‘competent English’ in the regulation was invalid. The invalidity arose, so he submitted, because when one examined the IELTS test itself one could see that those who had designed it had intended that competent English would be made out by an overall score of at least 6 across the four components rather than a score of at least 6 in each individual component. It should be recalled, in that context, that Mr Parmar had achieved just such a score in his test of 9 May 2009 (and also on 7 November 2009). Thirdly, even if the definition were not invalid for that reason, it was in any event invalid because it operated by impermissibly delegating to the various organisations who administered the IELTS test the task of determining whether a particular applicant had competent English and this involved removal from judicial scrutiny of that important function. So viewed, the regulation was said to be neither ‘necessary’ nor ‘convenient’ for the purposes of the Migration Act 1958 (Cth) and this mattered because the only regulations authorised by s 504 of that Act were regulations having that quality.”

   [Emphasis added.]

7. His Honour set out the arguments made in support of this proposition at [16] – [17] of Parmar. The arguments and submissions in the current case, if not inspired in part by these arguments, echoed and parallel those arguments.

8. His Honour did not accept the applicant’s arguments in Parmar. The relevant reasoning was as follows (Parmar at [18]):

   “I cannot accept this argument. It is tolerably clear that the meaning of ‘competent English’ in reg 1.15C is the same as it is in the criteria set out for the visa in cll 485.212 and 485.222. As a matter of ordinary construction one would approach the interpretation of the Regulations on the basis that the expression ‘competent English’ has a uniform meaning throughout the Regulations unless the context otherwise demanded: Queensland v Forest [2008] FCAFC 96; (2008) 168 FCR 532 at 540-541 per Black CJ applying the well-known statement of Hodges J in Craig, Williamson Pty Ltd v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450 at 452. In this case, the context does not demand that it be given different meanings in those different places. To the contrary, it is clear that cll 485.212 and 485.222 and reg 1.15C travel together as a package of provisions dealing with the position of skilled occupation visas. As such, I do not accept that it is open to read ‘competent English’ in the criteria as meaning ‘competent English or competent English as defined’. Nor is it possible to approach the matter so as to say that the definition in reg 1.15C is not exhaustive. The opening words of the definition – ‘If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person [achieves certain results]’ – does not textually lend itself to a non-exhaustive interpretation. The provision is in a familiar form in which a state of affairs is made conditional on the state of mind of a Minister. If it is read non-exhaustively then its legal operation becomes radically different. No longer is the question whether the Minister is satisfied the criteria have been met. Instead, ‘competent English’ becomes a legal standard to be determined by a Court. I do not think that such a profoundly different operation of the regulation is a plausible interpretation of it.”

   [Emphasis added.]

9. It is the case, as the applicant submitted, that the form of the regulation considered in Parmar is not the form of the regulation in the current case. There may be some argument to say, therefore, that what was said in Parmar is not strictly binding in the circumstances of this case.

10. However, as the Minister submitted, there is no basis for assuming that the reasoning in Parmar does not apply to the current version of reg.1.15C of the Regulations. In my respectful view, that reasoning, which is directed to the common elements between the two versions, is not only applicable to the current circumstances, but in terms of the correct approach to be taken by this Court, is binding on this Court.

11. Thus, respectfully drawing on that analysis, reg.1.15C(1) of the Regulations in its current form, states that a person has “competent English” if they achieve a certain score in a language test specified by the Minister in an instrument and that test must have been conducted in a particular period.

12. The text of reg.1.15C(1) of the Regulations does not support, or infer, a non-exhaustive interpretation. This is not a situation where the words of the text operate to require the Minister, or the Tribunal, to make his, or its, own assessment of an applicant’s English language competence. Such competence is to be determined only by the achievement of a specified score in a test as identified by the regulatory scheme.

13. As stated above, the applicant sought to draw on the reasoning of the Full Federal Court in SZGIZ. In that case, amongst other matters, the Full Court considered whether the word “includes” as it appears in s.48A of the Act, had the effect of making the relevant definition contained in that section non-exhaustive.

14. The answer to the applicant’s submission in this regard is that reg.1.03 of the Regulations defines “competent English” as “has the meaning given by regulation 1.15C”. That regulation does not state that “competent English” “includes”, the matters set out at reg.1.15C of the Regulations. A person “has” “competent English” “if” the matters set out in reg.1.15C of the Regulations are met.

15. This construction of the regulation does not allow for a person to have competent English on any other basis. In my view, the conjunction “if”, as it appears in reg.1.15C of the Regulations, means that for a person to have “competent English” it is contingent upon the three elements set out reg.1.15C(1)(a), (b) and (c), or reg.1.15C(2) of the Regulations. There is nothing in that language, or the placement of the word “if”, to suggest that what is meant is some non-exhaustive interpretation.

16. As stated above, the applicant submitted that the word “if” was understood and applied, by the Tribunal, as meaning “if and only if”. I agree. However, it did so in circumstances where the use of the word “if” does posit an exhaustive definition. None of the applicant’s arguments asserting ambiguity establish, on balance, that there is such ambiguity, or that a non-exhaustive interpretation is to be preferred to an exhaustive one.

17. In all, I understood the reasoning in Parmar, with respect, to be applicable to the current case. The applicant has not provided any persuasive argument that it is not. I note also that in Parmar, the Court considered the same version of reg.1.15C of the Regulations as in Berenguel (see further below). In all, therefore, I find that the Tribunal did not err in its interpretation of reg.1.15C of the Regulations, or in its construction of cl.485.212 of Sch.2 to the Regulations.

When Must “Competent English” Be Satisfied?

1. The question that is also posed by grounds one and two is the time at which the relevant criterion of competent English must be satisfied. The applicant asserted that the Tribunal fell into error in construing the words, in reg.1.15C(1)(c) of the Regulations, “…the person achieved a score” as being confined to achieving that score “in the test undertaken for the purposes of paragraph (b)”.

2. In all, the applicant asserted that the Tribunal was in error to require a “score” as relevant to “competent English” to be achieved in a test undertaken in the three years immediately before the visa application was “made” (lodged). He argued that the regulation also allowed for a relevant language test to be taken at a later time, up to the grant, or refusal, of the visa.

3. In essence, the applicant relied here on Berenguel. In Berenguel, the High Court considered an earlier version of the regulation relevant to the current case. Relevantly, reg.1.15B of the Regulations, as it then was, required the applicant in that case to provide evidence of “vocational English”. To do that he was required to “satisfy the Minister that the person has achieved, in a test conducted not more than two years before the day on which the application was lodged”, a particular test score.

4. The High Court held that this did not require the test to have been completed by the date of the lodging of the application for the visa. The High Court understood this requirement to be directed to the “currency” of English language ability. Therefore, it read this provision as requiring the test to have been conducted no earlier than two years before the lodging of the application and for that time to continue until the making of the decision.

5. I do not accept the applicant’s construction of reg.1.15C(1) of the Regulations. There is no support for his contention to be found in the language of reg.1.15C(1) of the Regulations. The version of reg.1.15C of the Regulations, which relates to the entire relevant period of this case, was amended following the judgment in Berenguel, and took effect from 1 July 2012 (that is, before the application for the visa was made) (Migration Amendment Regulation 2012 (No. 2) (Cth) - Select Legislative Instrument 2012 No. 82).

1. I agree with the Minister’s submissions that the amended regulation, including the form that is relevant to the current case, was amended following Berenguel to clarify the period of time in which a relevant language test had to be conducted. That is, “in the 3 years immediately before the day on which the application was made” (emphasis added, see Explanatory Statement to the Migration Amendment Regulation 2011 (No. 3) (Cth) - Select Legislative Instrument 2011 No. 74, Schedule 1, Item 2, page 6):

   “[T]he Regulations amend the Principal Regulations to:

   •   Amend several definitions relating to English language qualifications to clarify the time frame within which an English language test  must have been conducted for the purposes of a visa application;

   …

   Schedule 1 – Amendments relating to the points test

   …

   Item [2] – Regulations 1.15C to 1.15E

   …

   New regulations 1.15C, 1.15D and 1.15E also clarify that the person will only have 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 [General Skilled Migration] visa was made.”

2. As the Minister submits there is a large body of authorities of the Federal Court and this Court that have been handed down since that amendment, which support the Minister’s contention (Singh v Minister for Immigration & Anor [2013] FCCA 1439 at [10]-[13]; affirmed by the Federal Court (Barker J) in Singh v Minister for Immigration and Border Protection [2014] FCA 185 at [15]-[17], Palanisamy v Minister for Immigration & Anor [2013] FCCA 1779 at [20], Baig v Minister for Immigration & Anor [2014] FCCA 1114 at [8], Datchinamurthy v Minister for Immigration & Anor [2014] FCCA 258 at [6] and [18], see also Endi v Minister for Immigration & Anor [2013] FCCA 1700, Pajarla v Minister for Immigration & Anor [2013] FCCA 1808, Brundavanam v Minister for Immigration & Anor [2013] FCCA 2298, Muthyala v Minister for Immigration & Anor [2013] FCCA 2299, Sidhu v Minister for Immigration & Anor [2014] FCCA 706, Badrujamaludin v Minister for Immigration & Anor [2014] FCCA 1004, Kaur v Minister for Immigration & Anor [2014] FCCA 830, Govind v Minister for Immigration & Anor [2014] FCCA 957; and Munagala v Minister for Immigration & Anor [2014] FCCA 1015). Since the hearing of this case, see also Singh v Minister for Immigration and Border Protection [2014] FCA 185, Ajaya v Minister for Immigration and Border Protection [2014] FCA 718 and Patel v Minister for Immigration and Border Protection [2014] FCA 823). In all, the applicant’s argument in this regard is not made out.

Is the Instrument Valid?

1. Ground four asserts that the instrument referred to in reg.1.15C of the Regulations is an invalid exercise of the power to make such instruments under the Act. This is said to be because the English language tests, to which the instrument refers, are described in such a way that it is ambiguous, uncertain, misleading and incapable of practical administration.

2. At [8] (at CB 105) of its decision record, the Tribunal states:

   “For r.1.15C(1)(a) and (c), the Minister has specified 2 language tests and scores: the International English Language Test System (IELTS) test and a test score of at least 6 for each of the 4 test components; and the Occupational English Test (OET), and a test score of at least ‘B’ for each of the 4 test components.  For 1.15C(2) the Minister has specified passports issued by the United Kingdom, Ireland, New Zealand, the United States and Canada.”

3. There is no express reference to the legislative instrument identified as “IMMI 12/018” (see the Regulations – Specification of Language Tests, Scores and Passports – IMMI 12/018: F2012101287). However, there was no dispute between the parties that this was the instrument made for the relevant purposes of reg.1.15C of the Regulations and to which the Tribunal referred at [8] (at CB 105). The relevant parts of the text of the instrument are as follows:

   “...

   3. SPECIFY for applications lodged on and after 1 July 2012 tests, test scores and passports as follows:

   A. For the purposes of paragraph 1.15B(1)(a) of the Regulations the following language tests:

   - an International English Language Test System (IELTS test); and

   - an Occupational English Test (OET).

   B. For the purposes of paragraph 1.15B(1)(c) of the Regulations the following test scores:

   - an IELTS test score of at least 5 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.

   C. For the purposes of subregulation 1.15B(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.

   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.

   G. For the purposes of paragraph 1.15D(a) the following language tests:

   - an IELTS test; and

   - an OET.

   H. For the purposes of paragraph 1.15D(c) the following scores:

   - an IELTS test score of at least 7 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.

   I. For the purposes of paragraph 1.15EA(a) the following tests:

   - an IELTS test; and

   - an OET.

   J. For the purposes of paragraph 1.15EA(c) the following scores:

   - an IELTS score of at least 8 in each of the 4 test components of speaking, reading, writing and listening; or

   - a score of at least “A” in each of the four components of an OET…”

4. It must be remembered that the ground pleads that the instrument is not valid because it is ambiguous, uncertain, misleading and incapable of practical administration. The applicant made a number of diverse complaints in relation to the allegation that the instrument is an invalid exercise of the power to make such instruments. By his submissions, I understood the applicant’s argument to centre on the proposition that the instrument does not give meaningful effect to the definition of “competent English”, as found in reg.1.15C of the Regulations. In all, the applicant made six separate complaints in relation to invalidity.

5. First, the applicant complained that the instrument “delineates tests, test scores and passports” by reference to the date on which an application was lodged, in circumstances where the Regulations contain no wording to authorise this approach.

6. To the extent that this complaint sought to draw generally, by way of background, on the arguments above, relating to the definition itself, then what is relevantly set out above stands in answer.

7. A more specific complaint, appears to be that the actual reference point of the date of the lodging of the visa application, and as that relates to the relevant test, test scores and passports, was not authorised by the Regulations.

8. As the Minister submitted, the date of the commencement of the current version of reg.1.15C of the Regulations was 1 July 2012 (Migration Amendment Regulation 2012 (No. 2) - Select Legislative Instrument 2012 No. 82). Therefore, the reference to “applications lodged on or after 1 July 2012 tests, test scores and passports” plainly relates to specifying, for the purposes of reg.1.15C of the Regulations, those matters relevant to applications made on, or after, the date of the commencement of reg.1.15C of the Regulations.

9. Second, the applicant submitted that “item A” in the instrument specifies a test, but “item B” does not (that is, at [3] of IMMI 12/018). It specifies a “score” in a specified component of the language test. The complaint was that such a provision is not permitted by the terms of reg.1.15C of the Regulations. On a plain reading of the instrument, the references in the submissions to items “A” and “B” should have been references to items “D” and “E” (see [76] above). At best the applicant’s explanation for this assertion was that there was no specific mention in reg.1.15C of the Regulations of components of the test. He did not satisfactorily explain, however, why this would make the instrument invalid.

10. Regulation 1.15C(1)(a) of the Regulations establishes that an element of “competent English” is that a person undertook a language test specified in an instrument made for the purposes of reg.1.15C(1) of the Regulations. Another element of “competent English” is that the applicant achieves a score specified in the instrument (reg.1.15C(1)(c) of the Regulations).

11. Part D (at [3] of IMMI 12/018) of the instrument specifies two tests for the purposes of reg.1.15C(1)(a) of the Regulations (IELTS and OET). Part E (at [3] of IMMI 12/018), with direct reference to reg.1.15C(1)(c) of the Regulations, refers to “a score” specified in the instrument. That is, ultimately, to “a score” in an IELTS test. In my view, that the instrument then goes on to specify further detail in explanation of how that score is to be achieved (in a numerical target for each separate component of the test), does not mean the instrument has gone beyond specifying “a score”.

12. Third, the applicant submitted that the OET is defined in reg.1.03 of the Regulations as “an occupational English test conducted by the National Languages and Literacy Institute of Australia”. He argued that the National Languages and Literacy Institute ceased to exist in 2005. Further, that while there continues to be some other test called the “Occupational English Test” it cannot be assumed that it is the test referred to in the Regulations.

13. I note in this regard, the applicant produced an “ASIC” documents (extract) (marked “AE1”). This was said to show that an organisation known as the “National Language and Literacy Institute of Australia Pty Ltd” had been “deregistered” in 2005.

14. This was said to be relevant because of the reference, as referred to above, in reg.1.03 of the Regulations to: “Occupation English Test means an Occupational English Test conducted by the National Language and Literacy Institute of Australia”. It is to be remembered that in IMMI 12/018 there is a reference to “…[3] [D]. For the purposes of paragraph 1.15C(1)(a) of the following languages test….

    
    

    – an OET”. It may be accepted that the National Language and Literacy Institute of Australia did not exist at the time that IMMI 12/018 was signed by the Minister, or indeed at any time after.

15. The Minister submitted that neither reg.1.15C of the Regulations, or IMMI 12/018, refers to the National Language and Literacy Institute of Australia. The argument was that the reference is simply to OET, and as the applicant’s written submissions demonstrate (see footnote 1 to [57](iii)), information about the OET is readily available on the internet. Therefore, the test to which the legislative instrument refers is not “ambiguous, uncertain, mistaken and/or incapable of practical administration”.

16. This argument overlooks the definition in reg.1.03 of the Regulations. This, as set out above, does refer to the National Language and Literacy Institute of Australia. At the time of the making of the legislative instrument, on the evidence, no such body existed. Therefore, the reference to “OET” in the legislative instrument is meaningless. It cannot be implemented. In these circumstances that part of IMMI 12/018 could not have been within the scope of what was intended in s.504 of the Act. I find that part of the instrument is invalid.

17. However, I agree with the Minister’s subsequent submissions that that part of IMMI 12/018, which refers to OET, and by the operation of reg.1.03 of the Regulations, to the National Language and Literacy Institute of Australia, is severable from the other part of the instrument referring to IELTS tests which can continue to operate for the purposes of reg.1.15C of the Regulations (see s.13(2) Legislative Instruments Act 2003 (Cth)).

18. Before the Court, the applicant did not satisfactorily explain how the invalidity in one part of the instrument affected the validity of the whole of the instrument. On the applicant’s evidence and arguments, I accept that there cannot be, and would not be, since the making of the instrument, any OETs, as this is defined by the Regulations. That is, an OET being a test conducted by the National Language and Literacy Institute of Australia.

19. I note that the Minister sought leave after the completion of the hearing to read an affidavit made by Ms Felicity Anne Bisiani, Manager, on 15 August 2014. An Application in a Case was filed to this effect on 9 September 2014. The applicant resisted the Application in a Case. The Minister’s reliance on the evidence of Ms Bisiani, specifying the relevant listing and what is said to be “the continued existence of the OET”, did not assist the Minister. While the test itself may have continued in different iterations, it was not as at the making of IMMI 12/018, nor subsequently, an OET administered by the National Language and Literacy Institute of Australia. At the hearing of the Application in a Case, I agreed with the applicant’s objection that the affidavit was not relevant to a fact in issue. Leave was not granted for the filing of the affidavit.

20. In any event, notwithstanding the situation with the OET, the same cannot be said of the IELTS test. Applications which relied on “competent English” could continue to rely on the results, or “scores”, of any IELTS test undertaken by an applicant, in the relevant timeframe as otherwise required by reg.1.15C of the Regulations. That is, that part of the legislative instrument can operate independently from, and unaffected by, the invalid parts of the instrument. In this light, there is no legal error in the Tribunal’s analysis which referred to the necessity for evidence from the applicant of an IELTS test to have been undertaken in the three years immediately before the application for the visa. There is no evidence before the Court that the applicant ever provided such evidence to the Tribunal.

21. In the current case there is no evidence that the applicant sought or would seek to rely on an OET test. No part of his visa application was based on an OET test. In all these circumstances, therefore, there was no legal error evident in the Tribunal’s implicit reliance on that part of the instrument which referred to the IELTS test.

22. Fourth, the applicant asserted that there is uncertainty about what is meant by the term “IELTS test” as set out in the instrument. He submitted that there were a number of tests that could fit that description. Further, that the instrument refers to the test as having four components instead of the six which he asserted it contains.

23. It is the case that the instrument refers to an IELTS test. “IELTS” is defined in reg.1.03 of the Regulations to mean “International Language Testing System test”. In the circumstances, and notwithstanding the various elements of the test to which the applicant referred, there is no uncertainty as to what is meant by an IELTS test, as set out in the legislative instrument, and with reference to the regulation (see Parmar at [21] – [22]).

24. Fifth, the applicant submitted that s.504 of the Act requires that, in effect, the specification of a language test must be set out in the regulations, and not in any statutory instrument. As the Minister submitted, no authority was put in support of this proposition. It must be said that the wording of s.504 of the Act is wide (“without limiting the generality of the foregoing…”).

25. I do not understand there to be any limitation in the wording, such as to limit the specification of English language tests as being tests referred to only in the regulations, and not in a legislative instrument made within the scope of the purpose of a regulation. I find that that part of the instrument dealing with IELTS tests was not invalid, and no error is revealed in the Tribunal’s decision as a result.

26. The applicant also proposed that IMMI 12/018, and, by extension, its dependence on reg.1.15C of the Regulations, were not authorised by the Act. The argument drew attention to s.31(3), and s.505, of the Act which evoked a response from the Minister directed to s.504 of the Act.

27. Section 31(3) of the Act provides that the Regulations may prescribe criteria for certain classes of visa. Section 65 of the Act provides that after considering a valid application for the visa, the Minister must grant the visa where relevant criteria have been satisfied.

28. Section 504 of the Act provides for a general power to make regulations. The applicant submitted that other than a reference in s.504(1)(a)(ii) of the Act to the making of regulations for the charging and recovery of fees for English language tests, there is no other reference to the making of regulations dealing with English language tests.

29. Section 505 of the Act provides for regulations to be made for the purpose of prescribing a criterion, or criteria, for classes of visas. The applicant submitted this may, for that purpose, enable regulations to be made to allow the Minister “to get a specified person or organisation …to …make an assessment of a specified matter” (s.505(a)(ii) of the Act, in this case, relevantly, a body to assess “competent English”). The applicant submitted that the relevant regulation referred to in s.31(3) of the Act is a type of regulation referred to in s.505(a)(ii)) of the Act. That is, with reference to an IELTS or OET English language test.

30. The dispute between the parties derived from the applicant’s assertion that the relevant Notice did not prescribe a particular function to be carried out by a specified person or organisation, as referred to in s.505 of the Act.

31. I agree with the Minister that the central regulation making power resides in s.504 of the Act. The terms of that section make it clear that the power is broad (“…without limiting the generality of the foregoing”) and to be determined, and exercised, in the context of, and for the purposes of, the Act.

32. That context and breadth includes, relevantly, the objects of the Act to regulate the entry and stay of non-citizens into Australia (s.4(1) of the Act) and to provide for visas permitting such persons entering into and remaining in Australia (s.4(2) of the Act). Section 31(3), as set out above, provides that the Regulations may prescribe the criteria for the grant of visas.

33. The applicant argued that s.505 of the Act is the relevant regulation making power, and the alleged deficiency in IMMI 12/018 derived from the absence of “a specified person or organisation…”.

34. For the former proposition, the applicant relied on the maxim “generalia specialibus non derogant” to argue that s.505 of the Act, with its specific focus, should prevail over s.504 of the Act, with its more general focus.

35. It is the case that this phrase identifies a rule of statutory construction where a specific provision in a statute should prevail over a general provision (see for example Smith v R [1994] HCA 60; (1994) 181 CLR 338 at [21] per Mason CJ, Dawson, Gaudron and McHugh JJ and Refrigerated Express Lines (A/Asia) Pty. Ltd. v. Australian Meat and Live-Stock Corporation [1980] FCA 38; (1980) 29 ALR 333 at 347 per Deane J).

36. However, I respectfully understand the relevant authorities to apply this principle in circumstances where there is a conflict between the two provisions. That is, in this case, if there were conflict as between s.504 and s.505 of the Act.

37. However, I understand words “[t]o avoid doubt” as they appear at the beginning of s.505 of the Act, and as they immediately follow s.504 of the Act, to emphasise that s.505 is to be read as providing some particularity to s.504 of the Act, in relation to regulations made for the purpose of prescribing criteria for visas. That is some specific matters that may be provided for in these regulations in relation to whether an applicant for a visa satisfies criteria for that visa.

1. That is, s.505 of the Act seeks to clarify, or particularise, one aspect of what regulations made under the Act, for the purposes of prescribing criteria for the visa, may provide. The applicant’s argument that the Minister’s construction left no work for s.505 of the Act must be rejected. That “work” is to ensure that there is “no doubt” that when the power in s.504 is exercised to make regulations “for carrying out or giving effect to the Act”, then the regulations “may” provide for the Minister to do those things set out at s.505(a) and (b) of the Act.

2. Further, it is important to note the use of the word “may” as it appears in s.505 of the Act. That is, the regulations “may provide that the Minister”, does not mean that the relevant regulations “must” so provide, in line with what follows these words.

3. In this light, the applicant has not addressed the question of whether any inconsistency exists between reg.1.15C of the Regulations, IMMI 12/018 and s.504 of the Act. This aspect of his argument is not made out.

4. I ultimately understood the complaints above to also be a part of the wider complaint of invalidity of the instrument, and reg.1.15C of the Regulations, as it was said to derive from both being unreasonable, irrational, partial and capricious as a basis to determine English language competence. In this way, and linked to ground four, ground three directed attention to reg.1.15C(1) of the Regulations as being an invalid exercise of the power to make regulations under the Act.

5. It is important to note that for such delegated legislation to be held to be irrational or capricious or oppressive it must be unreasonable such “that no reasonable mind could justify it” (Yu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1477; (2004) 140 FCR 126 (“Yu”) at [42] per Kiefel J). That is, that the regulation (and the instrument) could not have been within the scope of the Parliamentary intention in authorising, in this case, Ministers to enact law (Yu at [42]).

6. Some direction is also available to the Court from Qiu v Minister for Immigration and Ethnic Affairs (1994) 55 FCR 439; (1995) 37 ALD 443. This was a case where the validity of an English language criterion in the Regulations was challenged on the basis that the regulation was unreasonable and uncertain. Justice Lockhart stated (at 446):

   “When 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…”

7. In Parmar, in addition to the arguments set out above, the applicant in that case also submitted that reg.1.15C of the Regulations was invalid (at [20]):

   “I turn then to the first of Mr Parmar’s attacks on the validity of reg 1.15C. Mr Parmar says reg 1.15C rests for its lawfulness upon the regulation making power which authorises it and that that power may be used only to make regulations which are not disproportionate to the attainment of the objects of the Migration Act. Regulation 1.15C implements the IELTS test but, so Mr Parmar submitted, the requirements of IELTS for competent English are only that an applicant achieve an overall score of 6 across the four components and not that he or she achieve a score of 6 in each of them. Since the regulation was expressly utilising the IELTS, the absence of some explanation as to why a different approach to the test had been embraced in reg 1.15C meant that it was not possible to discern a rational basis for the regulation. Put another way, the IELTS required only an overall score of 6 for competent English and it was irrational for reg 1.15C to implement the IELTS test whilst using a standard – 6 in each component – which was materially different to the IELTS standard itself. Without some understanding for this disparity in approach, reg 1.15C was to be seen as illogical or at least irrational.”

8. The Court stated that reg.1.15C of the Regulations exhibited “…a carefully structured set of distinct English speaking standards” and “means adopted to do so is an internationally accepted independent testing mechanism” (see Parmar at [26]). Further, the Court stated that (Parmar at [27] – [28]):

   “[27] Quite apart from the fact that the IELTS website says that it permits institutions and organisations to adopt their own standards I do not think, in those circumstances, that it would be open to this Court to conclude that this regulation was irrational or disproportionate. In that context, a few matters need to be kept in mind. To begin with, the IELTS tests not just spoken English and listening skills but also, just as importantly, reading and writing skills. It is all too easy to fall into the trap of thinking that because a person appears to speak English with reasonable fluency that their reading and writing skills are necessarily of the same order. The regulations in question, and the IELTS in particular, test all four of these matters and do so in a uniform and independently administered fashion. It is not to be thought that the Court’s perception of the English language skills of a litigant is a superior mechanism for determining that issue. The viva voce encounter between a judge and a self-represented appellant in a skilled migration visa appeal does not provide an effective forum in which reading and writing skills may be examined. It gives an increased, and undue, emphasis on oral skills but it is, of course, not just with such skills that the migration system is concerned. Furthermore, once it is appreciated that the Regulations draw distinctions between vocational, competent and proficient English by means of band scores it would be altogether too much to think that a Court could make the kinds of subtle judgment necessary to observe these distinctions merely by the manner in which an appellant happened to speak in Court.

   [28] There are additional, broader, issues too. The visas in question are high volume visas for which the number of applications is very large. There needs to be not only a way of testing the language skills of applicants which is suitable to be applied to the large number of applications made but, just as importantly, that system needs to be reliably uniform in its application. The imposition of precise score requirements rationally serves this end. In such a system there will always be those who fall close to the line but that is to be seen as the price to be paid for certainty, efficiency and the species of fairness constituted by consistency. In those circumstances, the challenge to reg 1.15C based on the IELTS website fails, however harsh or frustrating this appears in Mr Parmar’s case.”

9. As stated above, the reasoning in Parmar is binding on this Court. The applicant’s argument as to invalidity in this regard is not made out (see further above in relation to the applicant’s argument that Parmar is distinguishable).

10. In oral argument, the applicant also raised a number of other arguments in support of his application. The applicant directed attention to s.504 of the Act, reg.1.15C(2) of the Regulations and IMMI 12/018. As stated above, reg.1.15C(2) of the Regulations and the delegated instrument provide, in concert, that a person would be taken to have “competent English” if he or she held one of a number of passports specified in IMMI 12/018 (with reference to reg.1.15C(2) of the Regulations).

11. In short, the applicant’s argument was that it was irrational, capricious and absurd and, therefore, an invalid exercise of the power, to determine an applicant’s English language competence, for the purposes of the regulations, by referring to a person’s passport, and not to whether they actually had any English language skills. The argument was that, when regard was had to the nature of the countries specified (the UK, USA, Canada, New Zealand and Republic of Ireland), the Regulations and the statutory instrument were irrational, and not adapted to the relevant purpose. That is whether a person actually had competent English. This was said to be not proportionate to the scheme of the legislation.

12. The submission was that this would be an attempt to reintroduce the “White Australia Policy”. This appeared to derive from, or be inspired by, what Perram J said in Parmar (at [1]) concerning the English language test available to Australian immigration officers to administer up until 1958.

13. However, I also note what Perram J said at [2] (of Parmar):

    “Experiences such as these have led to a natural caution in the legal mind about the use of language tests in an immigration setting. On the other hand, there is no doubt that proficiency in the predominant language of any country is a legitimate concern of those charged with the administration of its immigration system. I will record at the outset, therefore, that the language tests with which this appeal is concerned are neither capricious nor a discreet tool for the implementation of concealed policies. To the contrary, the test process under challenge is rational.”

14. It may be that some passport holders of these countries would not satisfy the IELTS standard for “competent English” (with reference to reg.1.15C(2) of the Regulations). However, I take judicial note that English is principally spoken in all those countries. Therefore, those holding passports from those countries may be expected generally, but plainly not universally (for example French speakers from Quebec), to have competent English skills.

15. However, what the Court “thinks” of the regulation is not sufficient to establish the proposition for which the applicant now contends. For example, as was said in South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161 (at [12]) “…[i]t must be so lacking in reasonable proportionality as not to be a real exercise of the power…” (per Wilson, Dawson, Toohey and Gaudron JJ).

16. Ultimately, what the applicant is required to show in the current proceedings, such that the regulations and statutory instrument would be found to be invalid, is that the regulation was not within the scope of the legislative intention (Re Austral Fisheries Pty Ltd v the Minister of Primary Industries and Energy [1992] FCA 351; (1992) 37 FCR 463). The applicant has been unable to show that the specification of the passports of certain countries was not within the relevant legislative intention, and therefore is not authorised by the Act.

17. In oral submissions, and in seeking to distinguish Parmar from the circumstances of the current case, the applicant also made a sixth complaint that the form of the regulations considered in Parmar relevantly referred to the Minister being satisfied that the applicant had competent English. The current version of reg.1.15C of the Regulations refers only to the person having competent English, rather than the Minister being satisfied of this fact.

18. The difficulty for the applicant is that it was not made clear why the lack of any such reference rendered the regulation invalid. As the Minister submitted, no authorities were cited to support this assertion. In any event, “satisfaction” is still a part of the relevant decision maker’s consideration, in the sense that the fact of an applicant having, or not having, provided evidence of competent English is a part of the criteria to be satisfied for the grant of the visa (cl.485.212 of Sch.2 to the Regulations). Ultimately, the decision maker’s satisfaction is mandated by the statute such that the visa must only be granted in such a circumstance (s.65 of the Act).

19. As part of the argument concerning the proper construction of reg.1.15C of the Regulations and the legislative instrument, the applicant also submitted that the legislative instrument could not validly specify the matters it purports to specify because the legislative instrument was not subject to Parliamentary scrutiny.

20. I agree with the Minister’s submissions that s.44 of the Legislative Instruments Act 2003 (Cth) expressly exempts the instrument at issue in these proceedings from disallowance (see s.44, item 26 – Legislative instruments (other than regulations) under Part 1, 2 or 9 of the Migration Act 1958 (Cth), or legislative instruments under Part 1, 2 or 5, or Schedule 1, 2, 4, 5A, 6, 6A or 8, of the regulations made under that Act). The applicant’s complaint is also not made out in this regard.

Conclusion

1. In all, none of the grounds of the amended application, and as explained and expanded in submissions, are made out. The application should be dismissed. I will make an order accordingly.

I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 5 June 2015