Kalusayakkarage v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1353
•25 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kalusayakkarage v Minister for Immigration and Citizenship [2025] FedCFamC2G 1353
File number: MLG 2551 of 2020 Judgment of: JUDGE GOSTENCNIK Date of judgment: 25 August 2025 Catchwords: MIGRATION – temporary graduate (class VC) (subclass 485) (post-study work) visa – where former Administrative Appeals Tribunal (Tribunal) affirmed delegate’s decision that the first applicant did not satisfy cl 485.212 of the Migration Regulations 1994 (Cth) (Regulations) – where visa application was not accompanied by evidence that the first applicant achieved the allowable score on her English language test as specified by the Minister in the IMMI 15/062 instrument – judicial review – whether cl 485.212 of the Regulations is invalid – whether cl 485.212 of the Regulations, to the extent it contains the words “[t]he application was accompanied by evidence” ought be severed – whether the requirement that the application be accompanied by an English language test is unreasonable or lacking in proportionality – Tribunal’s decision not attended by jurisdictional error – application for judicial review dismissed Legislation: Migration Act 1958 (Cth) ss 4(1), 4(2), 31(3), 476, 504, 504(1)
Migration Legislation Amendment Regulation 2013 (No.1) (Cth)
Migration Regulations 1994 (Cth) regs 2.03(1)(a), 2.12, sch 2, cls 485.212, 485.212(a), 485.212(a)(ii), 485.212(b), 485.231(3), 485.311
Cases cited: Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3, 249 CLR 1
Austral Fisheries Pty Ltd v Minister for Primary Industries and Energy [1992] FCA 351, 37 FCR 463
Brunswick Corporation v Stewart [1941] HCA 7, 65 CLR 88
Clements v Bull [1953] HCA 61, 88 CLR 572
Donohue v Australian Fisheries Management Authority [2000] FCA 901
Khan v Minister for Immigration and Border Protection [2018] FCAFC 85
Division: Division 2 General Federal Law Number of paragraphs: 40 Date of last submission/s: 2 June 2025 Date of hearing: 16 June 2025 Place: Melbourne Counsel for the Applicants: Mr O Jones Solicitors for the Applicants: MyVisa Lawyers Counsel for the First Respondent: Ms K McInnes Solicitors for the First Respondent: Clayton Utz Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 2551 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THILINI MADUSANKA WIJEDASA MATHARA KALUSAYAKKARAGE
First Applicant
THIMIRA SANGEETH PATHIRANAGE ATANIKITHA
Second Applicant
YENULI MOVINYA PATHIRANAGE
Third Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
25 AUGUST 2025
THE COURT ORDERS THAT:
1.The applicants’ application as amended by their amended application lodged on 12 November 2020 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Gostencnik
INTRODUCTION
On 24 June 2020, the former Administrative Appeals Tribunal (Tribunal) affirmed a decision of a delegate of the (then) Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refusing the first applicant’s application for a Temporary Graduate (Class VC) (Subclass 485) (Post-Study Work) visa and refusing the second and third applicants visas as members of the first applicant’s family unit. The delegate’s refusal decision made on 17 September 2019 was underpinned by the first applicant’s failure to provide evidence of a language test undertaken by her that met the minimum scores specified by the Minister in the relevant legislative instrument.
The applicants applied to the Court for judicial review of the Tribunal’s decision under s 476 of the Migration Act 1958 (Cth)[1] (Act), and by their amended application, abandoned their four grounds and in lieu, advanced a singular particularised ground of review by claiming that the Tribunal erred in applying cl 485.212 of Sch 2 to the Migration Regulations 1994 (Cth)[2] (Regulations) to the extent the clause was invalid.
[1] Unless otherwise specified or the content otherwise requires, any reference to the Act is a reference to the Act as it was then in force.
[2] Unless otherwise specified or the content otherwise requires, any reference to the Regulations is a reference to the Regulations as it was then in force.
The applicants’ application as amended will be dismissed. My reasons follow.
BACKGROUND
The first applicant is a citizen of Sri Lanka who arrived in Australia on 4 August 2017 on a Student (Subclass 500) visa. On 7 August 2019, the first applicant applied for a post-study work visa, and the second and third applicants were included in the visa application as members of the first applicant’s family unit. The first applicant provided the Department of Home Affairs various documents in support of her visa application, including a statement of results for an Occupational English Test (OET) taken by the first applicant on 23 February 2019 and an academic transcript and letter of course completion by the first applicant in a Master of Public Health with Australian Catholic University.
On 17 September 2019, a delegate of the Minister refused the applicants’ visa applications and transmitted a copy of the delegate’s decision record to the first applicant by email. The delegate highlighted the relevant criteria for the grant of a post-study work visa which is specified in cl 485.212 of Sch 2 to the Regulations as follows:
485.212 The application was accompanied by evidence that:
(a) the applicant:
(i) has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and
(ii) has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument; or
(b) the applicant holds a passport of a type specified by the Minister in a legislative instrument made for this paragraph.
For the purposes of cl 485.212(a)(ii) of Sch 2 to the Regulations, an OET language test specified by the Minister in the relevant legislative instrument must satisfy the minimum prescribed scores for the following components: Minimum overall score: B; Listening: B; Reading: B; Speaking: B; and Writing: B.
As earlier noted, accompanying the applicants’ application made on 7 August 2019 was a statement of results for an OET test taken on 23 February 2019. The first applicant obtained the following scores in her OET test: Listening: B; Reading: B; Speaking: B; and Writing: C. The delegate relevantly considered that the test did not meet the requirement specified in cl 485.212(a)(ii) of Sch 2 to the Regulations because the first applicant’s score for the writing component was below the allowable score prescribed in the legislative instrument. As no other evidence was provided that the first applicant achieved, within the period specified, the score specified by the Minister in the instrument for the language test, the delegate was not satisfied the first applicant met cl 485.212(a). Furthermore, as the first applicant did not provide any evidence that she holds a passport of the type specified by the Minister in the relevant legislative instrument, the delegate was not satisfied the applicant met cl 485.212(b) of Sch 2 to the Regulations.
The delegate was thereby not satisfied that the applicant met the criteria prescribed in cl 485.212 of Sch 2 to the Regulations, and refused the first applicant’s application for a post-study work visa. As the first applicant’s application was refused, the dependent applicants consequently failed to meet cl 485.311 and their applications for visas were also refused.
TRIBUNAL PROCEEDING
On 5 October 2019, the applicants applied to the Tribunal for a review of the delegate’s decision and in their application, indicated they had appointed a registered migration agent as their representative. In support of their review application, the applicants submitted a copy of an International English Language Testing System (IELTS) test report of a test taken by the first applicant on 4 March 2017. On 11 October 2019, by email dispatched to the applicants’ representative, the Tribunal acknowledged receipt of the application and noted in its correspondence that the validity of the application had yet to be assessed. The Tribunal advised that it requested the Department to provide all documents and files relevant to the applicants’ application and stated that if they wish to provide any material or written arguments for its consideration to do so as soon as possible. The Tribunal enclosed a copy of an ‘Information for review applicants’ factsheet in its correspondence.
The applicants’ migration agent submitted a letter to the Tribunal in support of the review application. The letter explained that the first applicant uploaded the incorrect English language test as she was not in great health at the time she lodged her visa application, and had planned to submit the IELTS test report taken on 4 March 2017 with her visa application. The letter enclosed two medical certificates, the first by a general practitioner, Dr Hiran Fernando, from Keilor Medical Clinic dated 24 October 2019, advising that the first applicant, at the time, was around 22 weeks pregnant and her expected date of delivery was 21 February 2020. The second by Jessica Roberts, Emergency Deputy Registrar, from Western Health Emergency Clinic dated 6 March 2019 advising that the first applicant suffered a miscarriage without complications.
On 9 June 2020, by letter dispatched by email to the applicants’ migration agent, the Tribunal advised the applicants that it had considered the material before it but was unable to make a favourable decision on the information alone, and invited the applicants to attend a telephone hearing scheduled on 24 June 2020 to give evidence and present arguments relating to the issues in their case. The correspondence enclosed an ‘Information about hearings’ factsheet and a ‘Response to hearing invitation’ form to confirm attendances at the hearing and to provide the Tribunal with any additional or new information which the applicants might wish the Tribunal to consider. The applicants returned the ‘Response to hearing invitation’ form confirming that the first applicant would appear on her own at the scheduled hearing, and that she did not rely on any additional documents for the hearing, save for the document submitted contemporaneously with the Tribunal application. The first applicant attended the hearing on 24 June 2020 in the absence of the second and third applicants.
On 24 June 2020, the Tribunal made an oral decision affirming the decision under review, and notified the applicants of the outcome of review on even date by email transmission to their migration agent, enclosing an ‘Information about decisions – MR Division’ factsheet. On 29 June 2020, the first applicant requested a written copy of the Tribunal’s Statement of Decision and Reasons (Decision) which was provided by email dispatched to the first applicant’s email address on 8 July 2020.
TRIBUNAL’S DECISION AND REASONS
The Tribunal set out the application for review at [1]–[2] of the Decision noting it had given oral reasons when deciding the application on 24 June 2020. Its written record of those reasons is said to follow at [3]–[15]. The Tribunal’s decision affirming the decisions under review is recorded at [16] and [17].
The Tribunal recorded some background and preliminary matters at [3]–[5] of the Decision. At [6] the Tribunal recites parts of the delegate’s decision dealing with the English test. The Tribunal noted at [8]–[9] the report of the IELTS test taken by the first applicant on 4 March 2017, the letter submitted by the applicants’ migration agent, and the first applicant’s claim by reference to medical reports that she was not in good health at the time of lodging her visa application and uploaded the wrong English language test results.
The Tribunal next deals with the requirement of cl 485.212 of Sch 2 to the Regulations that the visa application be accompanied by evidence the first applicant had undertaken the requisite language test and had achieved, within the specified period, the requisite score. The Tribunal noted that the wording of cl 485.212 was very specific, requiring the application to be ‘accompanied’ by evidence. The Tribunal observed that although the IELTS test report the first applicant provided the Tribunal satisfied the criteria, the test did not accompany the visa application nor was it provided to the delegate before the decision under review was made: Decision at [10]. The Tribunal reasoned at [12]–[14]:
12. . . . that evidence of satisfactory English accompanied your application. As I said this is not a matter in which the Tribunal has discretion.
13. The English language requirement is one of the mandatory requirements that must be met at the time of lodging the subclass 485 post-study work stream visa application.
14. As your application was not accompanied by evidence of you having successfully completed a specified English test within the three years immediately before the day on which you lodged the application, you do not satisfy Regulation 485.212.
The Tribunal concluded that as there was no evidence that the first applicant held a passport from a country specified by the Minister in the relevant legislative instrument, the first applicant also did not satisfy cl 485.212(b) of Sch 2 to the Regulations. Accordingly, the Tribunal was satisfied that the first applicant did not meet cl 485.212 for the grant of a post-study work visa and affirmed the decision under review: Decision at [15]–[17].
CONSIDERATION
As earlier mentioned, by their amended application the applicants advance a single ground of review as follows:
1.The Second Respondent made a jurisdictional error by applying cl 485.212 in Sch 2 to the Migration Regulations 1994 (Cth) to the extent that the clause was invalid.
Particulars
a. Clause 485.212 required that the “application be accompanied by evidence that the Applicant “has undertaken a language test specified by the Minister” and “has achieved, within the period specified by the Minister” a score also specified by the Minister;
b. The instrument making the specifications under cl 485.212 was IMMI 15/062;
c. Clause 3 of IMMI 15/062 specified, for the IELTS test, a minimum overall score of 6 and a minimum score of 5 for each component of the IELTS test;
d. Clause 4 of IMMI 15/062 specified that the test must have been completed within the three years before the day on which the application was made;
e. The Applicant made her application on 7 August 2019;
f. The Applicant completed an IELTS test on 4 March 2017, within the timeframe and to the standard required by IMMI 15/062;
g. However, the Applicant’s application was not “accompanied by evidence” of the IELTS test, with such evidence instead being provided to the Tribunal on 5 October 2019;
h. The Tribunal therefore held, at paragraph 14 of its decision, that cl 485.212 was not satisfied, with the result that the Applicant could not be granted the visa;
i. Delegated legislation, including cl 485.212, may be reviewed by the courts for legal unreasonableness or lack of proportionality: Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; (2013) 249 CLR 1 at [48], [51] and [58] per French CJ;
j. There are perfectly proper reasons for requiring, as does cl 4 of IMMI 15/062, the IELTS test to have been completed before the day on which the application was made: Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 at [16]-[17] per Tracey, Charlesworth and Derrington JJ;
k. However, there is no relevant justification for, or proportionality in, requiring the evidence of having undertaken the test to the required standard and at the relevant time to accompany the application for the visa. It is legally unreasonable or disproportionate to require, as in the present case, the decision-maker to close his or her eyes to a clear satisfaction of IMMI 15/062;
l. Clause 485.212 is, to the extent it contains the words "[t]he application was accompanied by evidence that". Those words ought to be severed and the matter remitted to the Tribunal for the valid balance of cl 485.212 to be applied by the Tribunal in relation to the Applicant.
The applicants’ contention of invalidity focuses on the requirement in cl 485.212 of Sch 2 to the Regulations that the visa application be “accompanied by evidence that the applicant has undertaken a language test specified by the Minister in a legislative instrument … [and] has achieved, within the period specified by the Minister … the score specified by the Minister in the instrument . . .”.
The applicants’ complaint is thus confined to requirement cl 485.212 of Sch 2 to the Regulations that evidence the first applicant completing the necessary English language test to the requisite standard accompany the visa application. The applicants do not contest that the first applicant’s OET language test result which accompanied her visa application disclosed a score below the requisite score specified by the Minister in the relevant instrument. They also take no issue that their visa application was not accompanied by evidence that the first applicant fulfilled the language requirements in cl 485.212. However, the applicants contend the first applicant’s IELTS test results for the test undertaken on 4 March 2017 and attached to the applicants’ application to the Tribunal provided a proper basis for establishing that the first applicant possessed the requisite language skills – the test was taken within the three-year time period before the visa application was made and the results evidence the first applicant met the required standard.
The applicants contend that cl 485.212 of Sch 2 to the Regulations has two aspects. First, an applicant is required to meet the requisite standard of English within the prescribed window before making the post-study work visa application. Second, at the time of making the application, the applicant must prove that fact by providing evidence of the achievement along with the application. So much may be accepted.
The applicants accept that the requirement that the test for English language proficiency be completed before a visa application is made is rational. They accept there are good reasons why an applicant should acquire the requisite standard of English before the application for a post-study work visa is made. The requirement to achieve a certain level of English language proficiency is a proper aim. But the applicants say that reasoning does not extend to the procedural requirement here at issue – that the relevant evidence must be strictly submitted at the time of making the visa application, even where subsequent evidence establishes full substantive compliance with the English language requirements. The applicants contend that the “accompanied by evidence” requirement of cl 485.212 of Sch 2 to the Regulations imposes a rigid and formalistic barrier preventing consideration of substantive compliance with the actual language requirements set out in cl 485.212.
The applicants submit that the inflexible rule that contemporaneous evidence of meeting the English language requirements accompany the visa application, results in a decision-maker having to close their eyes to the self-evident satisfaction of the English language requirement at the time the application was made through evidence subsequently provided. The applicants claim that, in the instant case, the “accompanied by evidence” requirement effectively compelled the Tribunal, in its duty to review, to ignore the obvious satisfaction by the first applicant of the English language requirements as evident in the IELTS test results subsequently provided. The applicants say that the “accompanied by evidence” requirement of cl 485.212 prevents consideration of substantive compliance which is inherently unreasonable or disproportionate. And they say on that basis, there is no reasonable or proportionate basis for requiring evidence to accompany the application.
The applicants also submit that the temporal limitation in cl 485.231(3) of Sch 2 to the Regulations which requires that visa applicants meet the Australian study requirement in the period of 6 months ending immediately before the day the application was made, could mean that if the visa application is refused in the circumstances which here pertained, the requirement in cl 485.231(3) would not be fulfilled in respect of any subsequent application, thereby acting as a bar to an applicant reapplying for the subclass 485 visa. Moreover, even if the temporal limitation is met, a geographical limitation remains. Section 48 of the Act prohibits non-citizens from reapplying for certain visas if that visa had been refused or cancelled, subject to prescribed exceptions. The applicants say that the visa application here in issue is not excepted and so the first applicant does not have an unqualified right to reapply for the post-study work visa. The applicants submit that the scope to reapply is here constrained and so, although an unconstrained ability to reapply might salvage the impugned provision, here the constrained capacity does not salvage the “accompanied by evidence” requirement of cl 485.212 from a conclusion that it is unreasonable or lacking proportionality.
The applicants contend the “accompanied by evidence” requirement of cl 485.212 of Sch 2 to the Regulations is invalid and is severable. The applicants submit that if severed, the clause would still have a clear and coherent operation. For reasons that follow, the applicants’ contentions cannot be accepted.
It is uncontroversial that delegated legislation may be invalid if it is sufficiently unreasonable or disproportionate. Put another way, the regulation here at issue will be invalid if it is so capricious and oppressive that no reasonable mind can justify it by reference to the purpose of the power: Attorney-General for the State of South Australia v Corporation of the City of Adelaide [2013] HCA 3, 249 CLR 1 at [51] and [52] citing Brunswick Corporation v Stewart [1941] HCA 7, 65 CLR 88 at 99 and Clements v Bull [1953] HCA 61, 88 CLR 572 at 577. And as the first respondent correctly points out, a challenge to the validity of delegated legislation must meet a much sterner onus than judicial review of an administrative decision: Donohue v Australian Fisheries Management Authority [2000] FCA 901 at [18]; Austral Fisheries Pty Ltd v Minister for Primary Industries and Energy [1992] FCA 351, 37 FCR 463 at 477.
Determining whether the impugned provision is unreasonable is assessed objectively: Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 at [16] and requires examination of the nature and purpose of the power to make the regulation and considering whether the measure in question is a reasonable means of attaining the purposes of the power. In other words, taking account of the purpose of the power, the impugned provision will be unreasonable if it is not a rational mechanism by which to regulate the subject matter, or it imposes a burden which lacks a rational justification, or it has no real connection with the purpose of the power: Attorney-General (SA) at [52]. An impugned provision lacks proportionality if the means employed go further than is reasonably necessary to achieve the legislative object. There is an obvious synergy between the two. As Crennan and Kiefel JJ observed in Attorney-General (SA):
198. A test of reasonableness has been applied to the making of by-laws by local authorities under statutory power for a long time. In earlier decisions the test was severely constrained. It was thought that an attack on a by-law on the ground that it was unreasonable was not likely to succeed, because it was assumed that the local authority was to be the sole judge of what was necessary, subject only to the qualification that a by-law might be held invalid if it were such that no reasonable person could pass it.
199. The approach which is now adopted is that of Dixon J in Williams v Melbourne Corporation. There, his Honour pointed out that it may not be enough to consider whether, on its face, a by-law appears to be sufficiently connected to the subject matter of the power to make it. The true character of the by-law, its nature and purpose, must be considered in order to determine whether it could not reasonably have been adopted as a means of attaining the purposes of the power. It will often be necessary to examine the operation of the by-law in the area in which it is intended to apply.
. . .
201. Dixon J's statement of a test of reasonableness bears an obvious affinity with a test of proportionality. So much has been recognised in later cases. In South Australia v Tanner, Wilson, Dawson, Toohey and Gaudron JJ equated the test with that of reasonable proportionality applied by Deane J in The Tasmanian Dam Case. In Coulter v The Queen the relevant criterion of validity was said to be whether the impugned rules "are a reasonable means of attaining the ends of the rule-making power", by reference to Williams v Melbourne Corporation. An analysis of the relationship between means and ends necessarily raises questions similar to those considered in the context of the implied freedom of political communication.
Proportionality in the Lange test
202.These reasons should be read in conjunction with the reasons of Crennan, Kiefel and Bell JJ in Monis v The Queen so far as they concern the Lange test. As is there explained, the first inquiry of the second limb of the Lange test concerns the relationship between a valid legislative object and the means provided for its attainment. The means must be proportionate to that object. If the means employed go further than is reasonably necessary to achieve the legislative object, they will be disproportionate and invalid for that reason. A test of reasonable necessity has been adopted by the Court in relation to the freedoms spoken of in s 92, in Betfair Pty Ltd v Western Australia. It may consistently be applied with respect to the implied freedom of political communication.
(footnotes omitted)
By s 4(1) of the Act, the object of the Act is to regulate, in the national interest, the coming into, and presence in Australia, of non‑citizens. And by s 4(2), to advance its object, the Act provides for visas permitting non‑citizens to enter or remain in Australia. Section 31(3) provides that regulations may prescribe criteria for a visa or visas of a specified class. Regulation-making power is found in s 504(1), providing that the Governor-General “may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act …”.
The regulation making power in s 504 of the Act is, as the first respondent points out, concerned with the effective administration of the Act. Regulation 2.03(1) of the Regulations provides that, for the purposes of s 31(3) of the Act, the prescribed criteria for granting a person a visa of a particular class are the primary criteria, and any secondary criteria set out in a relevant part of Sch 2.
As earlier mentioned, the requirements for the grant of a post-study work visa are described in cl 485.212 of Sch 2 to the Regulations which prescribe that the visa application was accompanied by evidence that the applicant has undertaken a language test specified by the Minister and has achieved the allowable score specified by the Minister within the period specified by the Minister. The relevant instrument prescribing these specifications for the purposes of para 485.212(a) is IMMI 15/062 (Specification of English Language Tests, Scores and Passports 2015) which details, inter alia, the allowable scores assigned to each relevant test and that the test must have been undertaken within the three years before the day on which the application was made.
The ‘time of application’ criterion in cl 485.212 of Sch 2 to the Regulations is but one of several provisions of this kind conditioning the grant of a visa. Through such conditions, the Regulations facilitate efficient decision-making, provide visa applicants with certainty, and guard against delay by visa applicants who are not ready at the time of the visa application to meet the criteria required for the grant of the visa. The ‘time of application’ provision of cl 485.212 of Sch 2 to the Regulations is strict and inflexible for good reason. It serves to prove that an applicant possesses competent English by requiring evidence of an English language proficiency to the requisite standard to accompany the visa application. If the evidence does not accompany the application or the evidence which accompanied the application does not show achievement of the requisite standard, the visa application fails. It is this requirement that gives effect to the aim – that the applicant must possess competent English skills before an application is made. And to the broader purpose of the Act – to fulfil administrative efficiency and guard against delays in the visa assessment process. Allowing an applicant to delay acquiring the skills or to provide evidence necessary to fulfil the substantive visa criterion by severing the relevant words in the provision being, “[t]he application was accompanied by evidence that …”, cl 485.212 would ultimately violate the integrity and administrative efficiency of the visa assessment process. This is inimical to administrative certainty and involves consequences tending to encourage delays, as an application with accompanying evidence could not be assessed efficiently at the time of lodgement.
As Tracey J explained in Khan, when considering the ‘time of application’ criterion conditioning the grant of a skills visa in cl 485.233:
16. . . . An obvious mischief addressed by the provision is to provide clarity to the visa applicant as to the person’s readiness to apply for the visa and the matters he or she needs to have done before he or she commences the visa application process.
17.The provision aims to ensure that a person who applies for a visa has applied for his or her skill assessment and is therefore ready and willing to undergo the assessment at the earliest opportunity. If the provision was not enacted in that form, a visa applicant might use the visa application process, including processes associated with merits review by the Tribunal, to expand the time in which he or she acquires the skills necessary to fulfil the substantive visa criterion. In that way, the Regulations facilitate efficient decision-making and guard against delay by visa applicants who are not ready at the time of the visa application to undergo the necessary assessments.
So understood, the requirement that evidence accompany the application has a rational foundation and, though it may have a seemingly harsh consequence in a particular case, the requirement falls a long way short of being oppressive or capricious, much less that no reasonable mind could justify the regulatory requirement.
As the first respondent also correctly observed, the regulatory history of cl 485.212 supports the view that its requirement for evidence to accompany the application serves an evidently justifiable and coherent purpose. Before amendments made with effect from 16 July 2014, cl 485.215(b) contained a ‘time of decision’ criteria requiring that ‘the applicant has competent English’. From 16 July 2014, cl 485.212 required that “[w]hen the application was made, it was accompanied by evidence that the applicant had competent English”. And from 1 July 2015, and including the period when the Tribunal decided the applicants’ merits review application, cl 485.212 required the application was accompanied by evidence as provided in cl 485.212(a)(i)–(ii) as earlier set out. The Explanatory Statement to the Migration Legislation Amendment Regulation 2013 (No.1) (Cth) relevantly explained the amendment which took effect on 16 July 2014 as follows:
Previously, clause 485.215 was a criterion that the applicant had to satisfy at the time they apply for a subclass 485 visa. Clause 485.212 retains that by inserting the phrase ‘When the application was made’.
A further difference is that clause 485.212 requires that the visa application must include evidence that the applicant has competent English whereas previous clause 485.215 only required that the applicant has competent English. The requirement to provide evidence reflects the practical reality that applicants should provide evidence to support their claim to satisfy a criterion. The amendment explicitly provides for that practical reality.
The amendment, reflected in the now impugned provision, was thus a policy choice. The requirement seems plainly directed to ensuring that an application is assessed efficiently and on its merits at the time of lodgement and so supports timely decision-making and administrative certainty. Applicants either possess and produce the requisite evidence at the time of application or do not meet the criterion. Such a requirement is not capricious nor arbitrary. And I accept the first respondent’s contention that the provision reflects an intelligible and reasonable policy choice, requiring an applicant to show attainment of the requisite English language standard at the relevant time by providing contemporaneously with the visa application, the evidence that the requirement is satisfied. Because the central requirement of cl 485.212 is that at the time they apply for the visa, applicants must satisfy the English language standard requirements, there is nothing oppressive or capricious about requiring applicants to show when making the application, evidence that the English language standard requirements have been met.
As earlier noted, cl 485.212 will lack proportionality if the means of attaining the object or ends of the empowering provision go further than is reasonably necessary.
I accept the first respondent’s contention that cl 485.212 is properly characterised as “necessary or convenient” for the purposes of s 504(1) of the Act. The clause gives effect to the regulatory framework governing eligibility criteria for visas, and so it facilitates the broader purpose of the Act – as earlier noted, the orderly and lawful entry and stay of non-citizens in Australia. Evidence of English language proficiency being provided at the time of application, as already observed, serves the administration of the visa system by ensuring that eligibility criteria are met at the outset. Clause 485.212 adopts a rational and proportionate mechanism to achieve its purpose. I accept that the requirement is not arbitrary nor excessive. It appears proportionally tailored to ensure administrative efficiency and integrity in the visa assessment process. That the ‘time of application’ requirement of cl 485.212 might result in harsh outcomes in certain cases does not mean it is disproportionate. Laws frequently propound general rules or criteria which operate strictly. But though harsh consequences may sometimes flow, this does not of itself invalidate such a law where it is otherwise reasonably and proportionately directed to achieving legitimate statutory purposes.
The applicants’ real complaint is that the temporal requirement that evidence accompany the visa application operates harshly on the first applicant who had evidence she met the criteria but supplied the wrong material. But the temporal requirements in this and other similarly conditioned provisions in Sch 2 of the Regulations do not import notions of fairness to avoid an apparently harsh outcome. The ‘time of application’ criterion does not turn on concepts of blameworthiness or deservedness. A visa application is either accompanied by the requisite evidence or it is not: Khan at [15].
Moreover, as Tracy J observed in Khan, that the law operated harshly to the applicant in that case was explained by his inability to apply for a skills assessment at an earlier time for reasons associated with the late completion of his studies: at [22]. So too here the harsh operation is the product of the first applicant’s provision of evidence which did not satisfy the requisite criteria. His Honour went on to observe that the “law may operate harshly for the very reason that it gives primacy to considerations of administrative efficiency and the need for visa applicants to assume responsibility for putting in train external assessment processes before the visa application is made. Where that is not done and the visa application is unsuccessful, there is nothing to prevent a subsequent application being made. Whether or not the subsequent application may be subject to additional or more difficult criteria and so cause inconvenience or hardship is not the concern of the legislature”. In similar vein here, it was for the applicant to provide evidence when making the visa application that the requirements in cl 485.212 were satisfied. The obstacles to any further visa application to which the applicants point do not render the requirement unreasonable or disproportionate. Any resultant obstacle is a product of the first applicant not meeting the ‘time of application’ evidentiary requirement because of her unfortunate error in providing the wrong evidentiary material, and because of the operation of other regulations reflecting other choices by regulation makers about the conditions for applying or reapplying for visas, not because the ‘time of application’ evidentiary requirement is unreasonable or disproportionate so as to render invalid the impugned provision.
In considering whether the ‘time of application’ requirement in cl 485.212 of Sch 2 to the Regulations is unreasonable or disproportionate, one need not decide whether the course chosen is the best means for achieving its designated purpose or object. That is a matter for the regulation maker. It is the regulation maker that must decide on the regulatory framework which aims to achieve the ends intended. The Court is concerned only with whether the relevant provision is reasonable or proportionate. For the reasons explained earlier, I do not consider the ‘time of application’ requirement in cl 485.212 of Sch 2 to the Regulations to be unreasonable nor disproportionate. The provision is valid, and the applicants’ ground of review fails.
DISPOSITION
The application as amended is dismissed. I will hear the parties on costs.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 25 August 2025
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