Berenguel v Minister for Immigration and Citizenship
[2010] HCATrans 41
[2010] HCATrans 041
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M66 of 2009
B e t w e e n -
MARCOS FLAVIO BERENGUEL
Plaintiff
and
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Defendant
FRENCH CJ
GUMMOW J
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 5 MARCH 2010, AT 10.02 AM
Copyright in the High Court of Australia
MR A. BONNICI: If it pleases the Court, I appear on behalf of the plaintiff. (instructed by S.V. Winter & Co)
MR S.B. LLOYD, SC: May it please the Court, I appear with MR R.C. KNOWLES for the defendant. (instructed by Clayton Utz, Lawyers)
FRENCH CJ: Yes, Mr Bonnici.
MR BONNICI: This case deals with the interpretation of or the construction of a phrase in subclause 213 of Schedule 2 of the Act. We have filed very extensive submissions on this matter and, really, that is our case. I have got nothing further to add to that. A matter might arise later on that I may want to respond to something, but at the present time we are relying on our submission. Thank you, your Honours.
FRENCH CJ: Thank you, Mr Bonnici. Yes, Mr Lloyd. I think we would be particularly assisted by your submissions in relation to the statutory construction issue. I know there are other matters which are raised.
MR LLOYD: If I cut to that, your Honour, I might start with the question of the structure of the criteria in Schedule 2. They can be found in the case book, at least the relevant bit of it, at page 65. The way that Schedule 2 works is that there is contained as a part of Schedule 2 ‑ ‑ ‑
FRENCH CJ: Now, all of those divisions into parts and divisions and so forth attract the application of section 13 of the Acts Interpretation Act via section 13 of the Legislative Instruments Act.
MR LLOYD: That is right.
FRENCH CJ: I think you noted that. So that the heading, time of application criteria, is a part of the regulations or the schedule?
MR LLOYD: That is right.
FRENCH CJ: What does that mean, by the way?
MR LLOYD: Time of application?
FRENCH CJ: No. What does being a part of the regulations mean? Is it more than a constructional influence?
MR LLOYD: Yes, in my submission, it has a substantive effect. It directs the delegate, when considering the matters under subdivisions – if I could get to that in just a moment. I was going to make some general observations about the structure of the schedule ‑ ‑ ‑
FRENCH CJ: Well if that suits you better, you can do that.
MR LLOYD: ‑ ‑ ‑ which is that all of Schedule 2 is divided into parts which have as its initial point a three‑digit number. In this case it is 885, but it starts with subclass, I think, 010 and it goes through. Then within each part there are divisions and the divisions are designated by one numeral after the decimal point. In every part it has the same structure. So point 1 is always “Interpretation” where there are definitions or references to definitions. Point 2 is always the “Primary criteria”, which is the criteria applicable to the principal visa applicant. Point 3 is always “Secondary criteria”, which is the criteria applicable to the family members of the principal applicant. I should say, those criteria are supported by section 31 of the Act which authorises those criteria to be made. Point 4 is always “Circumstances applicable to grant”. Anything in point 4 is supported by section 40 of the Act. Point 5 is “When visa is in effect”, that is, in substance, supported by subsections 29(2) and (3) of the Act. Point 6 is always “Conditions”, which is dealt with in section 41 of the Act, and point 7 is always “Way of giving evidence”, which is dealt with by section 70 of the Act.
Now, under Division 2 and Division 3 there are subdivisions which are designated by two decimal places after the three numeral primary part indicator and they are always “Criteria to be satisfied at time of application” and “Criteria to be satisfied at time of decision”. What we say about that is that they form part of the regulation and part of the regulation they say to the Minister or delegate exercising power under section 65 that when deciding when deciding whether or not the criteria are met – for a criteria to be satisfied at the time of application the delegate or Minister has to be satisfied that the criteria numerated in the three numerals after the decimal point, beginning point 21 up to whatever it goes up to, in this case 211 to 215, they all need to be met, or at least the Minister or delegate has to be satisfied that they were met as at the time of application, which is to say, the date of the making of the application. That is to be contrast with point 22 where the Minister has to be satisfied that they are met at the time of the decision. So that is how we say is the structure not just of this part ‑ ‑ ‑
FRENCH CJ: You say that. That you take just as a matter of inference from the text of those headings?
MR LLOYD: We say it is the operation of the headings. It is not just a vague direction. It is telling the decision‑maker these criteria are to be satisfied or you have to be satisfied of them as at the time of application. So we say they have a material operation.
GUMMOW J: How does 212 work, “The Minister is satisfied”? That is later.
MR LLOYD: I accept, your Honour, and that is throughout the regulations that there are instances of ‑ ‑ ‑
GUMMOW J: It is common sense too, if one can have such a thing.
MR LLOYD: There is instances of repetition of the Minister being satisfied and, bearing in mind that this criteria – putting aside whatever .21 means, the obligation to be satisfied arises in section 65 – there is a question of whether or not – there could theoretically be a question of whether the Minister has to be satisfied that the Minister is satisfied of something, which is strictly how it works. Section 65 says you have to be satisfied of the criteria. The criteria is that the Minister is satisfied of something. We say that it operates sufficiently clearly practically to not require satisfaction of satisfaction but just that it is, as it were, for emphasis.
There is a decision in the Full Federal Court, which I do not immediately recall the name of, but I recall arguing – I think that your Honour the Presiding Judge was in that case – a decision involving, I think, student visas and the Full Federal Court accepted in that case that where there is a criteria which, in effect, say are you satisfied of being satisfied does not require two levels of satisfaction.
FRENCH CJ: It would be handy to have that reference. The same point arises really with 1.15B(5), does it not, because it is ministerial satisfaction as an element of that criterion?
MR LLOYD: Sorry, which one are we looking at?
FRENCH CJ: The definition of “vocational English”, regulation 1.15B(5).
MR LLOYD: Yes, that is so.
FRENCH CJ: So ministerial satisfaction is an element of this criterion by virtue of the definition of “vocational English”?
MR LLOYD: That is so. In my submission, it does not require, as it were, satisfactions of satisfactions. It is just everything, in a sense, is through the prism of section 65 which requires the satisfaction of the Minister and it simply reinforces that. In a sense, the Act does the same. In section 36 of the Act the Minister has to be satisfied that the person is a person to whom you owed a protection obligation, but section 65 says you have to be satisfied of that satisfaction. No one has ever said you have to be satisfied of the satisfaction in section 36. So we contend that the way that matter should be construed is that ‑ ‑ ‑
FRENCH CJ: This is not a double satisfaction problem, though. This is just a timing problem. This is going to the question of when the ministerial satisfaction has to arise. Ministerial satisfaction is built into the criterion itself. That raises the tension between the criterion and the heading “Criteria to be satisfied at time of application”. It is not a question of double satisfaction. It is just a question of tension between the heading and the substance of the criterion, is it not?
MR LLOYD: Well, in my submission, the definition in 1.15B(5) in substance just gets read into 213 and it would be no practical difference between that and, for example, 212, that it does import satisfaction into it but it is still a satisfaction to be assessed at the time of application. In the present case, for example, we say the applicant needed to have vocational English at the time of the application, which we say means he needed to have the relevant test score at that time. There is also the requirement in ‑ ‑ ‑
CRENNAN J: What if the applicant sat for the test the day after the date of the application? How would that work?
MR LLOYD: Well, then he would not pass because the requirement in 1.15B(5) is that he has achieved a test score and so he would not have achieved the test score on the relevant date. It is not, in my submission, accidental. There is a history which I can take the Court to of 1.15B and, in a sense, you can see in 1.15B itself. In subsection (2), that is a grandfathering provision which deals with applications made prior to 1 July 1999 and at that point in time it was sufficient that the person satisfied the Minister that the person is proficient at least to a standard.
Then the standard is referable to what was required of Part 3 of Schedule 6, which had several things, one of which was an IELTS test score; another one was a different kind of test score; a third one was that you had studied in a course conducted in English for two years. At that time all that was required to meet the criterion was that you could persuade the Minister that, we would say, if it is a time of application criteria, at the time of application you had English of the relevant standard, you would not have required a test. Then from 1 July going forward there was a requirement, which is now reflected in (3) and (4), although there is one variation which I will note. That then brought in (3) is a prima facie requirement that you have achieved the test score but (4) gave the Minister a discretion of sorts.
Perhaps if I fill in the gap, because there has been an amendment. As it was originally enacted you either had to have achieved the test score or the Minister determined that it was not reasonably practicable or necessary and then you were satisfied that you had the same level of proficiency. The Minister could do that on any basis and so there was a discretion. Then there was an amendment, which is reflected in this version, which is, obviously a lot of people failed the test and then they went to the Minister and said, “Notwithstanding that I failed the test, you should be satisfied that I am good enough to pass the test” and that apparently annoyed the Minister enough to change the rules. So the effect of (4) is, you can only access the discretion of the Minister if you have not sat a test; so if you have not tried and failed.
Then in 2007 1.15B(5) was enacted and (3) and (4) were varied. Your Honours will see that in (3) and (4) there is an exception, “other than a General Skilled Migration visa”. So that rule, which includes the discretion, was available for everyone other than a General Skilled Migration visa. The plaintiff applied for a General Skilled Migration visa which brought in (5) and the extrinsic material shows what is the effect itself, that there is no discretion for (5). There was a clear intention to remove the discretion. It was intended that you had to get the test score if you were applying for a General Skilled Migration visa. Now, in my friend’s list is the explanatory statement for the 2007 amendment and if it is of assistance to the Court, I will take the Court to where it explains that that was the intention, certainly the effect. So we say that is the intention and that is how it operates. You have to have the test score.
Having said that, turning back to 885, we accept that “vocational English” and “competent English” for that matter, are definitions which are used both in time of application criteria and time of decision criteria. It is not our contention that the wording of 1.15B(5) itself mandates that the test has to be undertaken prior to the time of decision. We say that that is the effect of being in subdivision .21. That comes from being “satisfied at the time of application”.
FRENCH CJ: So that all comes from the heading?
MR LLOYD: Your Honour puts it at the heading. We say it is part of the schedule. It is the structure of the schedule.
FRENCH CJ: Yes. Well, that is what I asked you. What does “part of” mean? It is a heading. It does not connect grammatically to anything. What does it mean to say it is part of?
MR LLOYD: We say what it means is the structure of the schedule is such that each of the matters listed under that heading are things which, at the time when the delegate makes a decision, he has to turn his mind to whether or not he is satisfied that those things were met as at the date of the application being made, that is, we say, it is the whole structure of the scheme and has been so for 20 years and has been applied that way for 20 years and there is scope, even within this. For example, in 885.22 there is a reference there to getting a qualifying score “under Subdivision B of Division 3 of Part 2”. That is the so‑called points test. Now, I do not think it is in the material before the Court, but that points test allocates points for a number of things. One of them is English language proficiency; you get certain points if you have proficient English, different points if you have competent English and different points if you have vocational English.
FRENCH CJ: There is a concessional competent English as well, is there not?
MR LLOYD: Well, concessional competent English. Now, my client accepts that if, between the time of application and the time of decision, somebody – say, the applicant – if he had sat, say, for example, the test and had vocational English at the time of application, but at the time of decision had proficient English, he would then get the points attributable to proficient English. That is because we do not say that 1.15B(5) or 1.15C in and of itself operates to limit the matters to the date of application. So we are not re‑running the Kamal point at all.
We are saying that the requirement that it be passed at the time of application comes from not just the structure, but also the terms of the subdivision heading, or the subdivision, which is – there are two parts of section 13 which are relevant, perhaps. There is the bit which says that part headings, division headings and subdivision headings are part of the Act and the also the bit which is the schedule as part of the Act. In this case 885.21 is a subdivision heading and is referred to in the regulations as being a subdivision heading. We say it is part of the legislation and it requires the delegate to turn their mind to the situation at that time and that is what this delegate did and did not err in doing so.
GUMMOW J: I am just looking at the text of 885.21. The problem may be the product of patching the regulations over a period of time, but 214 is clear enough, “The application is accompanied by evidence”, 215 is clear enough, “The application is accompanied by evidence”, but 212 and 213 are obscure. Save that, 212 looks as if it is saying, “The Minister is satisfied” and that must mean when the decision has been made “that the applicant has applied”. You say it means the Minister is satisfied when making the decision that the applicant before making the application had applied, do you not?
MR LLOYD: Our submission is that “The Minister satisfied that” at the time of the application “the applicant has applied for an assessment of the applicant’s skills for the nominated skill occupation” ‑ ‑ ‑
GUMMOW J: Yes, but the criteria is the satisfaction of the Minister.
MR LLOYD: If it is read in that way, then everyone would lose because the Minister on the day of the application would never be satisfied because the Minister would not know on the day of the application.
GUMMOW J: Yes, I know, but the specific text suggests that the draftsman of the heading is, what shall we say, not thinking very clearly or, to put it more accurately, perhaps, thinking generally but not really directing the mind to the specifics that then followed and the question of some contradiction between the generality and the specific. In other words, the heading becomes aspirational, as it were.
MR LLOYD: I understand what your Honour is saying but, in my submission, the structure is important because the structure gives the legislator a choice as to when these steps have to be done by and it is clear that by ‑ ‑ ‑
GUMMOW J: Not the legislator.
CRENNAN J: The Minister.
MR LLOYD: The Minister or the governor. There is a choice. When the relevant step has to be met – and there are some things which the Minister, if I put it that way, wants to have been done procedurally before an application is made and they go into the criteria to be satisfied at the time of the application. There is other things that can be done up to the time the decision is made. The fact that this has been included here shows, we say, clearly intention that the applicant has to have applied for the relevant assessment at that time. The Minister then has to be satisfied of that. It does not necessarily require, unlike 214, that the application be accompanied by evidence of that at the time of the application. You could perhaps send in evidence of that application after the date. So there is a bit more flexibility, as opposed to 214 which requires that the application actually have evidence at the time of the application.
GUMMOW J: The question then, Mr Lloyd, is, what is the criterion in each case, and the nature of the criterion seems to shift from a state of mind to production of material to a state of fact? It is all jumbled together, without any harshness to the draftsmen.
MR LLOYD: I accept that is true of this and probably every other category, but they can all still be made sensibly as referring to things that need to be done as at the time of application.
CRENNAN J: What would be the purpose of construing 213 the way you do, having regard to the fact that the purpose of regulation 1.15B(5) is surely, is it not, to ensure that there has been a current test pass so that the Minister can be satisfied of the currency of the applicant’s vocational English?
MR LLOYD: In my submission, the purpose of having it as a time of application criteria is that people do not even apply until they have passed the test. So they do not spend money and wait and spend time. If they cannot pass the test, they should not apply at all, and that is why it is put there, as opposed to other criteria where it is not put there, like in Kamal. There is a decision that has been made in the Kamal instance to put it as the time of decision criteria. What would be the point of putting it in a time of application criteria if it did not have a different effect? We say it is intended to have a different effect. It is a legislative choice to require the test to be passed before ‑ ‑ ‑
GUMMOW J: It is not a legislative choice, it is an executive choice.
MR LLOYD: Of delegated legislation, but it is a choice of the scheme in administering the scheme that somebody has to have the test in advance of making the application, which is an entirely legitimate basis for having a scheme and quite plausible to save people the expense of putting it in and, if they do not pass the test, then having paid sometimes considerable amounts of money for an application which they cannot ultimately pass.
FRENCH CJ: On your construction, of course, the application form which he lodged was fatally flawed on the face of it, was it not? Because it made clear he was applying for an 885, it made clear that his test was booked for 10 May, and they still took his $2,060.
MR LLOYD: It is true when your Honour says is it fatally clear on the face of it. It is clear that – I mean, on this criteria, if in fact he had sat a test, he could still pass the criteria. So it is not a case where it says the application has to be accompanied by evidence ‑ ‑ ‑
FRENCH CJ: No, but the application in this particular case made clear that his test was booked for 10 May which post‑dated the lodgement of the application.
MR LLOYD: That is so, and that is because that form is also used for other kinds of criteria. Perhaps I should make this clear. There are other criteria ‑ ‑ ‑
GUMMOW J: It looks as if your client took this man’s money under a mistake.
MR LLOYD: My client does not read through the paper at the time the form is lodged and, in fact, it is lodged electronically usually, or at least it can be lodged electronically, and it is all sent in. The whole scheme is for people to get advice in advance and the problem for this applicant, which is perhaps no doubt greatly disappointing for him, is that he did not get advice. He could well have passed this test ‑ ‑ ‑
GUMMOW J: It will be no answer that it is a mistake of law after Air Canada and the revenue cases in Australia. Anyhow, that is another question maybe for another day, but it should be thought about.
MR LLOYD: Certainly there are different visas which have as a criterion that you have booked an application at the time of application. So there is again a clear choice in the scheme, that it is not one of the ones where booking an application is enough. It is one of the ones where you are meant to have passed the test in advance. We say that that is what criteria to be satisfied at the time of application is. That is how that notion of criteria to be satisfied at the time of application has been read and applied, I think including by this Court. I do not say this Court has ever perhaps focused upon it as an issue.
GUMMOW J: We are only focused upon this issue today because of the jurisdictional structure which the Commonwealth persists in preserving, which means that the only avenue for your opponent to get any judicial scrutiny of what is going on is this Court.
MR LLOYD: I understand that, your Honour. In any event, our submission is that the heading to the subdivision “Criteria to be satisfied at time of application” has a legal substantive effect on all of the clauses underneath it, as does the next one. It tells the person who is reaching the relevant state of satisfaction the time at which the substantive thing had to have been done or had to have been satisfied. I am not sure if it would assist the Court, but the delegate’s decision applied it in the way that I espoused. I can take the Court to that if that is of any assistance. That is at page 46 of the book.
FRENCH CJ: Yes. The delegate followed that construction.
MR LLOYD: That is so. Now, in relation to Kamal 178 FCR 379 – I think I have made this clear already – my client did not appeal from the decision in Kamal. In that case two competing constructions were advanced for an expression which is similar to the expression in this case and they are set out in paragraph 12 on page 382. One is:
an IELTS test that was taken within the period of two years before the date of the application.
That was the view advanced by the Minister. The other was that it be no earlier than two years. The court, although making it clear that they were not, according to the sort of determined construction of similar but different clauses elsewhere in the regulations, noting that the complexity of the regulations did not really allow for comparisons to be usefully made, nevertheless adopted the view favoured by Mr Kamal and were not asking the court to come up – to say that the analogous expressions in clause 1.15B(5) should be construed differently. When it refers to “in a test conducted not more than two years before the day on which the application, was lodged” we accept that that can include after the date of application if the words “vocational English” is in a criteria to be determined after the date of application, but if it is to be determined at the time of application, then it has to be achieved at the time of application. That is how we say is the intention of the provision ‑ ‑ ‑
FRENCH CJ: This rather emphasises, does it not, everything turns on those words, that is, the subdivision heading or designation?
MR LLOYD: Indeed, and when your Honour ‑ ‑ ‑
FRENCH CJ: That is what controls the construction of everything else so far as your submissions go.
MR LLOYD: That is so, and, I must say, I had not apprehended from my friend’s written submissions he challenged the meaning of that subdivision or that that was in issue. As I now apprehend the Court sees it as being the critical point, I would appreciate if I could have a bit of time to discuss with my client, because I am sure my client would be sort of gravely concerned as to the consequences for any number of visas if it was not going to operate according to the way that they have perceived it to operate, and to put in a follow‑up submission on any relevant authorities that have construed that phrase. It may be of assistance to the Court.
Well, we say, and perhaps there is no dispute about this, on our construction the decision of the delegate was correct on the circumstances of this case and if our construction is accepted, then the questions should be answered – the questions are in the book at page 12. The first one should be answered no. The second one should be answered, we say, in the form we have proposed in paragraph 38 of our written submissions. The reason for that is that the question, upon further reflection, did not quite capture the full possibility of the case. So the answer I have suggested in paragraph 38 to question 2 is:
The plaintiff could not satisfy the English language requirements of clause 885.213 in Schedule 2 to the Regulations by lodging an IELTS Test Report that relates to an IELTS test undertaken after the plaintiff had lodged his visa application.
The reason why I put it in that way is because the question as asked theoretically could be answered by saying – and we would accept that if he lodged after the date of application a report pertaining – that was achieved before the date of the application, that would be adequate. So that is why we have ‑ ‑ ‑
GUMMOW J: Say that again, Mr Lloyd.
MR LLOYD: In relation to question 2, we would accept that if somebody lodged an IELTS test report on a date after the date on which he applied his application, if the report in fact predated the application, that would meet the test, we say. So in further reflection, we thought a slightly more sophisticated answer rather than yes or no would be to the effect that:
The plaintiff could not satisfy the English language requirements of clause 885.213 in Schedule 2 to the Regulations by lodging an IELTS Test Report that relates to an IELTS test undertaken after the plaintiff had lodged his visa application.
GUMMOW J: So you are seeking a revision of question 2?
MR LLOYD: I am seeking an answer to it which is more accurate than a yes/no answer.
GUMMOW J: What is the text of the answer?
MR LLOYD: It is set out in paragraph 38(b) of my submissions.
CRENNAN J: That is to accommodate a test filed after the date of the application but undertaken before the date of the application?
MR LLOYD: A result sent in after the application.
CRENNAN J: A result.
MR LLOYD: It is just the way the question was asked, it does not say. I think it was assumed by those who drafted it, which may well have been me, I am not sure, that the test would relate to a test after the application. But what it is meant to exclude is the achievement of a test score after the update of application. That is the relevant criterion, we say.
CRENNAN J: You said before, as I understood it, that you might need some time in relation to cases which indicate an appreciation of the distinction between “at the time of application” and “at the time of decision”, but you have set those out, have you not, in paragraph 36 of your written submissions? You have made that point.
MR LLOYD: They are the cases where this Court has addressed it. All I was pointing to there, I think, all I had in mind at that point was just simply to say that that distinction has been sort of identified and applied. What I was proposing to look for or to have an opportunity to do was to address, as it were, more fully the meaning of that heading, the .21 division “Criteria to be satisfied at time of application”.
FRENCH CJ: But you relied upon that in your submissions. I mean, what is the novel point?
MR LLOYD: Well, it was not put against us that that did not mean – the case that we had to meet was that Kamal determines the position, or the Kamal construction. We answered that by saying, well, it does not because of this clause and there was no challenge to the operation of the meaning of that clause. That clause, in fact, is not even mentioned in the plaintiff’s submissions.
CRENNAN J: But you have always known that the plaintiff’s contention about regulation 1.15B(5) is that it is contended that the requirement could be satisfied by taking the test after the application but not more than two years prior to the application. That has always been the central point of debate.
MR LLOYD: I think, as I understand it, from the beginning my client has always not disputed that the Kamal construction could have applied in this case but said that it does not matter.
CRENNAN J: Because of the distinction between “criteria as at the date of application” and “criteria as at the date of decision”?
MR LLOYD: That is right.
CRENNAN J: That is the way in which you dispose of Kamal?
MR LLOYD: That is so. The plaintiff does not even mention that in their submissions and has not advanced a case as to the construction of that or the operation of that. They just do not mention it at all.
FRENCH CJ: I do not understand that. It is central to your submission.
GUMMOW J: That is right. It is really a repost by you.
MR LLOYD: I am not sure that I can take it ‑ ‑ ‑
GUMMOW J: Any reliance by your opponent on the earlier Federal Court decision.
MR LLOYD: I am not sure that I can say anything further, but all I am saying is that – well, we could address it in more detail if it would be of assistance to the Court.
FRENCH CJ: The global significance of this constructional point may be limited. It depends upon the particular interaction between the heading and the phrase, the terminology, the particular criteria and, as Justice Gummow put to you earlier, there seem to be different natures, if you like, in the criteria that are set out even in 885; some of them satisfaction some of them fact, some of them presentation of the material at the time of application and so forth.
MR LLOYD: Yes. But then what we would apprehend that we would do is to draw out different examples of where, for example, the English language test has been looked at and to draw to the Court’s attention, for example, criteria where it says that at the time of application you can book a test, you can make a booking for a test and that is enough. We say if you read that in conjunction with this, you would not construe them as meaning exactly the same thing, whereas, that would be the result of a plaintiff’s case, that you would have two criteria which are expressed in different ways. In fact, in that context, in the context of the case where it says at the time of application it is enough to have a booking, at the time of decision it will generally say you have to have vocational English, and so it shows, we say, that you can see that this part of the scheme is clear that choices have been made and that it is meant to be ‑ ‑ ‑
FRENCH CJ: And it all hangs together beautifully.
MR LLOYD: I accept that it is a scheme which has evolved over at least 16 years, this particular regulation.
GUMMOW J: That is the root of the problem.
MR LLOYD: That is so. I mean, I cannot take it any further than to say if it would be of assistance to the Court, we could draw out other, as it were, aspects which support the reason why the Court would not construe 213 and vocational English as being the, in effect, material identical to another clause which allows for just a booking to be made and that is, of course, the substance of – in fact, on the plaintiff’s case they would say, presumably, they do not even have to make a booking. They could do nothing at the time of application so long as they pass the test by the time of decision, which then means it is not even a criterion at all because it is already a criterion in 885.221. Anyway, I think I have said probably largely what I would say in the follow‑up submissions anyway, just I have not given the references to anything. I do not know if it is of assistance to the Court to address the procedural fairness ground or ‑ ‑ ‑
FRENCH CJ: I do not think we need to hear from you on that, Mr Lloyd.
MR LLOYD: Unless there is anything further.
FRENCH CJ: Thank you. Yes, Mr Bonnici.
MR BONNICI: After sitting down, sir, and hearing my learned opponent address the Court, I became more confused than ever why we have an 855 there. I would submit, with respect, that in fact if the interpretation of 1.15B(5) were to be as my learned opponent wishes to press, then the terminology would have been different. As stated in the plaintiff’s submissions, there are four time elements there and if that is what they meant, they should have said it. Two of the time submissions there state quite clearly that it is six months before the application and that is finished and you cannot argue with that. But the language of that phrase, one cannot help but follow Kamal in that reasoning and also on the basis, if one is understanding properly why the changes were made in reading the explanatory memorandum and recency is the most important thing, knowledge of English.
In other words, when the delegate sits down at the end of the day and he has all the material before him, his decision is, does this qualify the aspirations of the Australian community through the Parliament? The answer there is that the delegate wants to be quite satisfied that in fact the language capacity of the applicant and his skills and all what is required – after all the key issue, the key factor in 855 is the points system and at the end of the day that is what is going to decide the case; how many points. Surely, a person cannot be left out of this purely because he could not get an earlier date. I have got nothing further to add because I am repeating what I put in my submissions, sir.
FRENCH CJ: Yes, thank you, Mr Bonnici. The Court will adjourn briefly to consider what course it takes.
AT 10.48 AM SHORT ADJOURNMENT
UPON RESUMING AT 10.59 AM:
FRENCH CJ: The following are the reasons of the Court.
The plaintiff, Marcos Berenguel, is a citizen of Brazil who entered Australia on 3 November 2004 as the holder of a temporary student visa. He was granted further temporary student visas, the last of which expired on 22 June 2008. On 21 April 2008 the plaintiff applied to the Minister for Immigration and Citizenship for a Skilled (Residence) (Class VB) visa Subclass 885 (Skilled – Independent).
It is a criterion for the grant of such a visa that the applicant have vocational English or the highest standard of competent English. Either of those criteria is established where the applicant satisfies the Minister that he or she has achieved, in a test conducted not more than two years before the day on which the application was lodged, the requisite IELTS test score in each of four test components of speaking, reading, writing and listening. The particular provisions of the Migration Regulations 1994 relevant to that criterion are referred to later in these reasons.
The plaintiff booked an IELTS test on 26 February 2008, nearly two months before he lodged his application, however, the earliest date upon which the test could be administered to him was 10 May 2008. At the time of lodging his visa application on 21 April 2008, he paid a prescribed fee of $2,060 to the Department of Immigration and Multicultural Affairs, as it was then known.
The application which he filled out contained a number of questions, including question 29 headed “Language requirements” which was:
What evidence are you providing of your English language ability?
Two alternatives were indicated. The first was the use of IELTS or OET test results. The second alternative was defined by the words:
You have booked an English language test – provide details.
The plaintiff crossed that box and inserted against the words “Date of booking”, “10/05/2008”. There was a note to question 29 advising that an applicant for a subclass 885 visa, inter alia:
must provide evidence of his or her English ability at the time he or she applies.
The plaintiff sat the IELTS test at the Hawthorn English Language Centre on 10 May 2008 and secured a score of six in respect of each of the prescribed components. That score, according to the legend on the test results, indicates that the test subject:
Has generally effective command of the language despite some inaccuracies, inappropriacies –
a word used in the criterion –
and misunderstandings. Can use and understand fairly complex language, particularly in familiar situations.
This meant that he satisfied the standard of competent English and thereby the lesser standard of vocational English. The plaintiff provided the Department of Immigration and Citizenship with the test result on 7 June 2008. On 12 December 2008, a delegate of the Minister refused the plaintiff’s application. The delegate assessed the plaintiff’s application against criteria for all visa subclasses in Class VB. The relevant adverse finding related to visa subclass 885 and to the criterion 885.213 which would be satisfied by the plaintiff demonstrating either that he had vocational English or the highest standard known as competent English. The delegate concluded:
You have not provided an IELTS test result test conducted not more than 2 years before the day on which the application was lodged and therefore have not met the regulatory requirement of having vocational English at time of application.
The delegate did not consider the competent English requirement in dealing with subclass 885, but such consideration would have made no difference to the outcome having regard to the basis upon which the decision was made, namely, that the IELTS test had not been conducted prior to the application.
The plaintiff commenced proceedings in this Court on 29 June 2009 under section 75(v) of the Constitution. He sought mandamus to direct the Minister to determine his application in accordance with law. He also sought certiorari to quash the decision of the Minister made on 12 December 2008. The primary ground upon which relief was claimed was that the delegate fell into jurisdictional error by misconceiving regulation 1.15B(5) of the Migration Regulations in concluding that the plaintiff had not provided an IELTS test result within the requisite period. Other grounds relating to breach of procedural fairness, failure to take into account relevant considerations and unreasonableness were also raised.
On 9 October 2009, her Honour Justice Crennan made an order extending the time limits within which the application could be brought, gave leave to the plaintiff to further amend his application and referred a special case agreed by the parties pursuant to rule 27.08.1 of the High Court Rules to a Full Court for hearing. The following questions were agreed as the questions for determination on the hearing of the special case. Question 1, did the delegate, the defendant, misconstrue subregulation 1.15B(5) of the regulations in finding that the plaintiff had:
not provided an IELTS test result test conducted not more than 2 years before the day on which the application was lodged and therefore have not met the regulatory requirement of having vocational English at time of application?
Question 2, in the circumstances of the present case, could the plaintiff satisfy the English language requirements of clause 885.213 in Schedule 2 to the regulations by lodging an IELTS test report with the defendant’s Department on a date after the date on which he lodged his visa application with the defendant’s Department? Question 3, by whom should the costs of the proceeding in this Court be borne?
The statutory and regulatory framework. The Migration Act 1958 empowers the Minister for Immigration and Citizenship to grant a non‑citizen a visa to remain in Australia. Section 31 of the Act provides for prescribed classes of visas and authorises the making of regulations prescribing criteria for a visa or visas of a specified class. A non‑citizen who wants a visa must apply for a visa of a particular class. Subdivision AB of Division 3 of Part 2 of the Act sets out a code of procedure for dealing fairly, efficiently and quickly with visa applications. It covers sections 51A to section 64 inclusive. Section 54 requires:
The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.
This includes that which is “set out in the application” and in any “document attached to the application when it is made” or information “given under section 55”. Section 65 requires that if after considering a valid application for a visa the Minister is satisfied that the health criteria for the visa, if any, and other criteria for it prescribed by the Act or regulations have been satisfied along with other conditions not material for present purposes, the Minister is to grant the visa. If not so satisfied, the Minister is to refuse to grant the visa. Regulation 2.01 of the Migration Regulations as they stood in April 2008 provides that:
For the purposes of section 31 of the Act, the prescribed classes of visa are:
(a)Such classes (other than those created by the Act) as are set out in the respective items in Schedule 1 –
The regulation also refers to transitional classes. By operation of regulation 2.02 there may be one or more subclasses in each class of visa and these are set out in Schedule 2. For the purposes of section 31(3) regulation 2.03 provides, inter alia, that:
the prescribed criteria for the grant to a person of a visa of a particular class are:
(a)the primary criteria set out in a relevant Part of Schedule 2 –
The criteria for the grant of a skilled independent visa are to be found in Part 885 of Schedule 2 to the regulations. The primary criteria are contained in Division 885.2 of Part 885 and are divided into two categories designated time of application criteria and time of decision criteria. By virtue of section 13(1)(a) of the Legislative Instruments Act 2003 of the Commonwealth where:
(1) If enabling legislation confers on a rule-maker the power to make a legislative instrument, then, unless the contrary intention appears:
(a) the Acts Interpretation Act 1901 applies to any legislative instrument so made as if it were an Act and as if each provision of the legislative instrument were a section of an Act.
The Migration Regulations fall within the definition of a “legislative instrument” in sections 5 and 6 of the Legislative Instruments Act. This will attract to them the application of section 13. The headings of the parts, divisions and subdivisions into which an Act is divided are deemed to be part of the Act. Every schedule to an Act is deemed to be part of it. So Schedule 2 of the Migration Regulations is part of those regulations. Thus, the criteria designations appearing as headings not otherwise defined in Schedule 2 may be taken as part of the Migration Regulations. There is no provision otherwise giving substantive operation to the headings in which the designations appear, nor are they otherwise defined.
Item 1136 in Part 1 of Schedule 1 designates a class of permanent visa known as Skilled (Residence) (Class VB). Paragraph (8) of item 1136 refers to the subclasses of that class of visa which include 885 (Skilled ‑ Independent). Schedule 2 includes an item headed “Subclass 885 Skilled – Independent”. Clause 885.111 under heading “885.1 Interpretation” includes a number of notes. Among them are:
Note 2 For competent English, see regulation 1.15C
. . .
Note 6 For vocational English, see regulation 1.15B.
Part 885.2 sets out “Primary criteria”. Under the heading 885.21 “Criteria to be satisfied at time of application” there appears the following:
885.213 Either:
(a)the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupation, and the applicant has vocational English; or
(b)the applicant has competent English.
By way of relevant contrast, clauses 885.214 and 885.215 require the application to be accompanied by evidence of an Australian Federal Police check and arrangements that the applicant has made to undergo a medical examination. There is no such requirement in respect of proof of compliance with the vocational English or competent English criterion. Regulation 1.03 contains definitions of vocational English and competent English in the following terms:
“competent English” has the meaning given by regulation 1.15C.
. . .
“vocational English” has the meaning given in regulation 1.15B.
The relevant parts of the regulations dealing with vocational English and competent English are regulations 1.15B and 1.15C. Regulation 1.15B relevantly provides in subregulation (1):
Vocational English, for a person, has the meanings given in subregulations (2), (3), (4) and (5).
Then going to subregulation (5):
If a person applies for a General Skilled Migration visa, the person has vocational English if the person satisfies the Minister that the person has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(a)an IELTS test score of at least 4 for each of the 4 test components of speaking, reading, writing and listening –
Regulation 1.15C makes provision in relevantly identical terms for the competent English criterion, save that the minimum test score required is 6. Regulation 1.15B was introduced by the Migration Amendment Regulation 2006 (No 6) of the Commonwealth. Its structure was retained in the regulations at the date relevant to the plaintiff’s application. However, by the Migration Amendment Regulations 2007 (No 7), the additional subregulation (5) was added to regulation 1.15B. New regulations 1.15C, 1.15D and 1.15E were introduced at the same time to provide definitions to “competent English”, “proficient English” and “concessional component English” respectively. Their operative terms were relevantly identical to the new regulation 1.15B. The explanatory statement accompanying the Migration Amendment Regulations (2007) said with respect to regulation 1.15(5):
The effect of this amendment is that applicants for a new General Skilled Migration visa may establish that they have vocational English, if required to do so to satisfy a criterion for grant of the relevant visa, on the basis of a test taken within the previous two years (rather than the previous 12 months for applicants required to have vocational English under other current regulations) –
The passage supports the inference that the purpose of requiring an applicant to undergo a language test is to establish that the applicant currently has an appropriate standard of English competency. The Minister submitted in the present case that the criterion which the delegate found was not met was that in clause 885.213 which is a time of application criterion. It was submitted that the test score must therefore have been achieved at the time of application because the Minister and delegate were bound by section 65 and the regulations to reach a state of satisfaction as to the position at that time.
In the present case it is said in circumstances where the plaintiff had received no test score at all at the time of application the delegate could not be satisfied that clause 885.213 was met. The delegate, it was submitted, had no discretion to have regard to test scores achieved after the making of the application.
The evident purpose of the alternative criteria 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. It does not follow that the criterion can only be satisfied by evidence provided to the Minister at the time of submitting the application. In this connection it is useful to note the contrast between the requirements of clauses 885.213 and 885.214 and 885.215.
The requirement in regulation 1.15B, that the requisite test has been conducted “not more than 2 years before the day on which the application was lodged” is susceptible of the construction that the test was conducted no earlier than two years before the application was lodged. So construed, it does not require that the test has to be conducted before the application was lodged. That requirement can only be imposed by some direct operation of the undefined heading “Criteria to be satisfied at time of application.”
Although clause 885.213 is part of the group of clauses headed “Criteria to be satisfied at time of application”, the heading does not connect grammatically to its terms. Applying section 13 of the Acts Interpretation Act, it may be regarded as “part of the regulations”. It may therefore inform their construction. But the text of Div 885.2 does not support any general conclusion that the criteria in Div 885.2 speak exclusively to satisfaction at the time of application. For example, clause 885.212 reads:
The Minister is satisfied that the applicant has applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority.
Moreover in this case, the construction for which the Minister contends leads to such plain unfairness and absurdity that is not to be preferred. The alternative construction for which the plaintiff contends does not compromise the purpose of the regulations. There is nothing to prevent relevant information being submitted to the Minister after lodgement of the application. Indeed, section 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 apathetical to that purpose.
In our opinion, questions posed in this special case should be answered in favour of the plaintiff in the following way:
Question 1, yes.
Question 2, yes.
Question 3, the defendant.
Is there any reason, having regard to the answers to those questions, why this Court should not proceed directly to order final relief?
MR LLOYD: I do not think so, your Honour.
FRENCH CJ: All right. The orders will be made effectively in terms of the relief sought in the application which I think is reproduced at page 54 of the special case book. So the first order will be:
1.That the decision of the defendant’s delegate made on 12 December 2008 be quashed.
2.The defendant determine the plaintiff’s application according to law.
3.The defendant pay the plaintiff’s costs of the proceedings, including costs reserved.
The Court will now adjourn until 10.15 next Tuesday morning.
AT 11.17 AM THE MATTER WAS ADJOURNED
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