Elizabeth Wang and Migration Agents Registration Authority
[2012] AATA 463
•20 July 2012
[2012] AATA 463
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0714
Re
Elizabeth Wang
APPLICANT
And
Migration Agents Registration Authority
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 20 July 2012 Place Sydney The decision under review is affirmed.
........................................................................
Senior Member A K Britton
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – application for registration as a migration agent – fit and proper person to give immigration assistance – Migration Agents Registration Authority – policy – requisite English language standard – decision under review affirmed.
LEGISLATION
Migration Act 1958 (Cth) – ss 287, 290(1)(a), 290(2)(h)
CASES
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690
REASONS FOR DECISION
Senior Member A K Britton
Australian citizen Ms Elizabeth Wang has lived in Australia since 1992. Her first language is Korean. Her application for registration as a migration agent was refused by the Migration Agents Registration Authority (the Authority), the Respondent in these proceedings, on the ground that she is not a fit and proper person to provide immigration assistance because she does not meet the requirement of demonstrated proficiency in the English language. She seeks review of that decision by the Administrative Appeals Tribunal.
STATUTORY FRAMEWORK
Division 3 of Part 3 of the Migration Act 1958 (Cth) (the Act) requires the Authority to maintain a register of individuals who are registered as migration agents (s 287). The Authority or Tribunal acting as substitute decision-maker must not register a person who applies to become a migration agent if satisfied that the applicant is not a fit and proper person to give immigration assistance (s 290(1)(a)). In making that assessment, the decision-maker must take into account “any other matter relevant to the applicant's fitness to give immigration assistance” (s 290(2)(h)).
THE ENGLISH LANGUAGE STANDARD
In August 2009 the Authority introduced a policy that an applicant’s proficiency in the English language must be taken into account in the assessment of their fitness to give immigration assistance. On 1 January 2010 that policy was amended to require all applicants for initial registration as migration agents to demonstrate their proficiency in the English language by meeting the Authority’s “English Language Standard” (the Standard). Under the Standard, proficiency in the English language can only be satisfied if the applicant provides documentary evidence that they meet one of four criteria, namely:
·achieving an IELTS [International English Language Testing System] test score of 7.0 with a minimum score of 6.5 in each sub-test;
·an internet based TOEFL [Test Of English as a Foreign Language] score of 100 with a minimum score of 22 in each sub-test;
·holding a current legal practicing certificate;
·successful completion of secondary school studies to the equivalent of year 12 with a pass in English … AND a bachelor degree or higher degree with a minimum of three years equivalent full time study. This requires that the secondary school studies and degree studies were conducted in Australia, New Zealand, the UK, Canada or Ireland and that English was the language of instruction.
Ms Wang does not meet any of the above criteria: she has not achieved an IELTS score of at least 7.0, has not undertaken the TOEFL test; does not hold a certificate which would permit her to practice law in Australia; has neither completed secondary school studies nor a bachelor degree or equivalent, where English was the language of instruction.
Ms Wang contends that her qualifications and experience taken as a whole demonstrate that she is proficient in the English language. The Authority does not dispute that Ms Wang has undertaken numerous courses but points out that she is yet to complete a bachelor degree or higher as required by the Standard and furthermore most of her studies to date have been in the area of information technology, which, it asserts, does not require a high degree of English language proficiency. To put these submissions in context, it is necessary to examine Ms Wang’s education and employment history.
EDUCATIONAL HISTORY
Ms Wang graduated from Sungshin Women’s University, Korea, with a Bachelor of Law in 1992. Since arriving in Australia she has been awarded a number of certificates and diplomas, including:
·Certificate III in English for Further Study, TAFE NSW (December 1997)
·Certificate IV in English for Academic Purposes, TAFE NSW (August 1998)
·Graduate Diploma in Professional Computing, University of Western Sydney (April 2009)
·Certificate IV in Community Services Work, TAFE NSW (November 2008)
·Graduate Certificate in Australian Migration Law and Practice, Australian National University (July 2010)
·Graduate Certificate in TESOL (Teachers of English to Speakers of Other Languages) University of Western Sydney (September 2011)
In addition, Ms Wang has undertaken studies in, but not completed, a number of courses, including:
·Certificate IV in Accounting (1998–2001)
·Certificate III in Information Technology (1998)
·Bachelor of Computer Science, University of Western Sydney (1991–2001)
·Associate Degree in Policing Practice, Charles Sturt University (2006–2007)
·Certificate I, Access to Work and Educational Opportunities TAFE NSW (2007–2008)
·Graduate Diploma of Divinity, Australian College of Theology (2009 – 2011)
Ms Wang is currently enrolled in the NSW Legal Practitioners Admission Board diploma-in-law course. She has successfully completed two subjects through the Board and will be given credit for some subjects already undertaken. She hopes to complete the course next year. In addition, Ms Wang is currently enrolled in a graduate certificate in Project Management at the University of Technology, Sydney.
EMPLOYMENT AND SOCIAL HISTORY
Ms Wang was employed between March 2011 and June 2012 as a local delivery manager for the telecommunications company Orange Business Services. She has worked in a voluntary capacity with the NSW Police and with the Burwood Welfare Community, each for about two months. In addition, she has assisted, on an informal basis, three victims of domestic violence to navigate the legal and social security systems.
Ms Wang was awarded a certificate of appreciation by former Prime Minister John Howard following nomination by the Korean Baptist church for her work in the church choir and band.
Ms Wang claims that she only speaks English to her two Australian-born children who are now in their late teens.
INTERNATIONAL ENGLISH LANGUAGE TESTING SYSTEM (IELTS)
There is little information before me about IELTS. Its website, boasts that IELTS is the “world’s most popular English testing system” and claims:
You can trust the quality and security of IELTS because it is jointly owned by three reputable, international organisations: British Council, IDP: IELTS Australia and the University of Cambridge ESOL Examinations (Cambridge ESOL).
Ms Wang sat the IELTS test in 1998, 2010 and most recently in July 2011. As the table below reveals, on all occasions she has failed to achieve the minimum overall score of 7 and sub-test score of 6.5 in all categories as prescribed by the Standard.
Overall
Listening
Reading
Writing
Speaking
Authority’s minimum score
7
6.5
6.5
6.5
6.5
Ms Wang’s 1998 score
5.5
6
5.5
5
6
Ms Wang’s 2010 score
6
6
6.5
6.5
5.5
Ms Wang’s 2011 score
6
6
6
5.5
6
According to Ms Wang, the test is flawed, as demonstrated by the fact that there has been no discernible improvement in her results between 1998 and 2011 despite having undertaken throughout that period extensive studies where English was the language of instruction. She asserts that it is simply implausible that her English reading and writing skills declined between 2010 and 2011, as the results on testing suggest.
She claims that many candidates who sit the IELTS test receive intensive coaching and this places candidates such as herself, who do not, at a significant disadvantage. She suggests that one possible explanation for the decline in her marks was the subject matter of the most recent test — science and geography — topics with which she is unfamiliar.
DETERMINATION
My task is to determine whether the Authority’s decision to refuse to register Ms Wang as a migration agent on the ground that she is not a fit and proper person to give immigration advice, is the preferable decision. In undertaking that task, I must apply Government policy unless there are cogent reasons not to do so: Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 644-5. Nonetheless, my role at all times is to make the preferable decision, even when that decision does not accord with government policy: Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690 at [69].
There can be no argument that proficiency in the English language, the sole ground for the Authority’s decision regarding Ms Wang, is highly relevant to an assessment of a person’s fitness to give immigration assistance. While a multicultural and multi lingual society, English is the official language of Australia and its legal and public administration systems. Given the vulnerability of persons who turn to migration agents for assistance and the complexities of Australian migration law, in my opinion it is entirely appropriate that the Authority has decided to make demonstrated proficiency in the English language a pre-condition for registration as a migration agent.
The tool selected by the Authority to determine proficiency in the English language — the Standard — is inherently arbitrary. It deems a person to be proficient in the English language if they meet one of four criteria. On occasion, this may lead to unfair and bizarre results. A person, for example, who holds a current legal practicing certificate but has failed the IELTS and TOEFL tests is deemed to be proficient in the English language. On the other hand, a person whose first language is English and has completed secondary school studies in Australia but does not hold a bachelor degree or legal practicing certificate; or undertaken either of the two prescribed tests, is deemed not to be proficient in the English language.
The real question raised by Ms Wang’s application is whether this is an appropriate case to depart from the Standard, which, as the Authority acknowledges, should not be inflexibly applied. In my opinion, departure from the policy should only be countenanced where there is clear and unambiguous evidence that the applicant has demonstrated proficiency in the English language to a level necessary to practice as a migration agent.
I accept Ms Wang’s argument that her failure to achieve the requisite IELTS score should not be seen as fatal to her claim. Indeed, even on a strict application of the Standard it would not be determinative.
Ms Wang has an impressive academic record, including a diploma in migration law. While she has undertaken a large number of courses across a range of disciplines her academic results are nonetheless uneven. This may be the result of any number of factors, including competing demands on her time; selecting subjects not suited to her talents, or inadequate language skills. Whatever the reason, I am not persuaded that her academic qualifications can be considered equivalent to the completion of secondary school studies and a bachelor degree or higher, where English was the language of instruction. Nor am I satisfied that they demonstrate Ms Wang possesses the necessary level of proficiency in the English language.
Ms Wang submits that it is illogical that on the one hand she is recognised as being qualified to teach English, holding a Graduate Certificate in TESOL but on other that she has been found not to satisfy the Authority’s English language requirement. While her teaching qualification is supportive of Ms Wang’s claim, it is not determinative. It does not necessary follow that a person who is qualified to teach English to persons whose first language is not English has the demonstrated level of English language proficiency required by a migration agent with its demands for specialist language of law and communication skills.
I am not satisfied on the information before me that Ms Wang’s employment history establishes that she possesses the necessary degree of language proficiency. Her employment in each of the positions was for relatively short periods. While I accept that Ms Wang sincerely believes that each of the subject positions required high level language skills equivalent at least to those required by a migration agent, and that in the performance of her duties she demonstrated that she possessed those skills, the evidence before me is insufficient to support that belief.
Ms Wang relies on a letter of recommendation provided by Marianne Dickie, the Sub-Dean of the Migration Law Program at the Australian National University College of Law in support of Ms Wang’s application for study at Seoul National University. Ms Dickie wrote:
Ms Wang has been an excellent student. The program she has studied deals with one of the most complex areas of law in Australia and in terms of complexity of legislation, paucity of legislation and jurisprudence.
…
Her ability to undertake and complete study is evidence in the large range of courses she has successfully completed …
…
This program is predominantly taught online. Many students fail to interact with each other during their class ‘discussions’ and resort to posting independent observations without taking into account the contributions of other students. Ms Wang was mindful at all times that her discussions were public. She ensured that she responded to and interacted with other students’ ideas and answers. In this way her work was integral to class problem solving and her contributions valued.
While this letter indicates that Ms Dickie considers Ms Wang to be a strong student, it does not expressly address her language skills. While it can be inferred from Ms Dickie’s favourable comments about Ms Wang’s online “discussions” with students that she considers Ms Wang to be proficient in written English, she has not proffered an opinion on her speaking and listening skills. It may be, as Ms Wang asserts, that Ms Dickie believes that she has demonstrated proficiency in the English language, however that could not be inferred from the reference provided, the only material before me about Ms Dickie’s opinion about Ms Wang’s language skills.
The evidence makes plain that Ms Wang has a degree of proficiency in the English language. This is borne out by her academic record, including Graduate Certificates in Migration Law and TESOL together with her employment history. The real issue raised is whether the material before me taken as a whole demonstrates that she is proficient to the level necessary to practice as migration agent. The policy sets the requisite level of proficiency at a high level. While Ms Wang’s experience and qualifications taken as a whole place her close to the line, I am not satisfied on balance that she has demonstrated the necessary level of proficiency in the English language.
I note that it is open to Ms Wang to take the TOEFL test or re-sit the IELTS test at any time.
Having found that at this point in time Ms Wang has not demonstrated her proficiency in the English language by meeting the Authority’s “English Language Standard” or the equivalent, I am unable to be satisfied that she is a fit and proper person to give immigration advice. I must therefore affirm the decision under review.
I certify that the preceding 28 (twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton ........................................................................
Associate to Senior Member A K Britton
Dated 20 July 2012
Date(s) of hearing 26 June 2012 Applicant In person Solicitors for the Respondent Ms M Stone, DLA Piper Australia
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