Michan-Ranieri and Migration Agents Registration Authority - [2019] AATA 556

Michan-Ranieri and Migration Agents Registration Authority [2019] AATA 556 (27 March 2019)
Division:GENERAL DIVISION
File Number: 2018/5281
Re:Michan-Ranieri
APPLICANT

AndMigration Agents Registration Authority
RESPONDENT

DECISION
Tribunal:Member C Edwardes
Date:27 March 2019
Place:Perth

The decision under review is affirmed.
...........[Sgd].........................................................
Member C Edwardes
CATCHWORDS
MIGRATION AGENT REGISTRATION – application for registration – prohibition on registration conditional on satisfaction that applicant meets particular requirements – meaning of ‘passed a prescribed exam’ – components of prescribed exam – English language testing – requirement for minimum scores in overall English test and each sub-test – requirement not satisfied through aggregated scores – decision affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 288, 289, 289A, 306
Migration Agents Regulations 1998 (Cth), reg 5
CASES
1512972 (Migration) [2016] AATA 3482
Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14
Chen v Migration Agents Registration Authority (No. 2) [2016] FCA 865
Wagner and Migration Agents Registration Authority [2016] AATA 957
SECONDARY MATERIALS
Migration (IMMI 18_003 Specified courses and exams for registration as a migration agent) Instrument 2018, r 7, r 8
Migration (IMMI 18_003 Specified courses and exams for registration as a migration agent) Instrument 2018 – Explanatory Statement
REASONS FOR DECISION
Member C Edwardes
27 March 2019
THE APPLICATION

The Applicant seeks review by the Administrative Appeals Tribunal (the Tribunal) of a decision of the Migration Agents Registration Authority (MARA) dated 20 August 2018 (the decision) to refuse an application for registration as a migration agent, on the basis that the Applicant did not satisfy s 289A(c) or s 289A(d) of the Migration Act 1958 (Cth) (the Act)(T11, 60).
The Tribunal has jurisdiction to hear this matter pursuant to s 306 of the Act.
INTRODUCTION
The Applicant completed and was awarded the Graduate Certificate in Australian Migration Law and Practice at Murdoch University on 10 February 2017. In addition she completed a number of International English Language Testing (IELTs) and Test of English as a Foreign Language Internet-based (TOEFL iBT) Examinations:
·
On 6 May 2017 the Applicant completed an IELTs test, receiving the following results: Listening 5.5; Reading 5.5; Writing 6.0; Speaking 8.5; and Overall 6.5

(T5, 25).
·
On 17 June 2017, the Applicant completed an IELTs test, receiving the following results: Listening 8.0; Reading 5.5; Writing 5.5; Speaking 8.0; and Overall 7.0

(T5, 26).
·On 9 September 2017, the Applicant completed a TOEFL iBT test, receiving the following results: Reading 18, Listening 19, Speaking 22, Writing 24, with an Overall Score of 83 (T5, 18).
·On 4 November 2017, the Applicant completed a TOEFL iBT test, receiving the following results: Reading 17, Listening 20, Speaking 23, Writing 21, with an Overall Score of 81 (T5, 20).
·On 2 December 2017, the Applicant completed an IELTs test, receiving the following results: Listening 6.0; Reading 5.5; Writing 6.0; Speaking 7.5; and Overall 6.5 (T5, 28). This test was later re-marked, without change (A1).
·After commencing the application for registration…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 556
Decision Date: 27 March 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for registration as a migration agent by Ms. Michan-Ranieri. The dispute centred on whether the applicant had satisfied the English language proficiency requirements stipulated by the *Migration Act 1958* (Cth) and its associated regulations. The applicant had submitted results from multiple IELTS tests taken on different dates, arguing that these collectively met the required minimum scores for each component and the overall test.

The Tribunal was required to determine the meaning of "passed a prescribed exam" in the context of English language proficiency for migration agent registration. Specifically, it needed to ascertain whether the legislative framework permitted an applicant to aggregate scores from different sittings of an English language test, such as the IELTS Academic test, to demonstrate the required proficiency, or if the minimum scores had to be achieved in a single test. The applicant contended that the legislation did not explicitly mandate a single test and that her aggregated scores should suffice.

The Tribunal reasoned that while the *Migration Agents Regulations 1998* (Cth) and the relevant legislative instrument (IMMI 18/03) did not explicitly state that all required scores must be achieved in one sitting, the interpretation of "an exam in English language proficiency" in Regulation 5(3)(b) and the subsequent provision in Regulation 5(4) implied a singular achievement. Regulation 5(4) states an applicant is taken to have passed if they achieve the minimum score specified in an instrument. The Tribunal found that the applicant's argument for flexibility based on the nature of the IELTS test and potential profiteering was not supported by the legislative text. The Tribunal affirmed the decision under review, finding that the applicant had not met the prescribed English language proficiency requirements.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Tribunal must determine whether the Applicant met migration agent registration requirements pursuant to s 289A of the Act.EVIDENCEThe Tribunal received the following evidence:·Exhibit A1 – Applicant’s Statement of Facts, Issues and Contentions (SOFIC) dated 6 December 2018, includingoST1 – Letter from ISDP IELTS dated 9 January 2018.oST2 – Letter from ECU (undated).oST3 – Statutory Declaration of Associate Professor Mary Anne Kenny dated 1 December 2018.·Exhibit A2 – Hearing Certificate dated 22 November 2018.·Exhibit R1 – T Documents (T1-T14, 1-85).·Exhibit R2 – Respondent’s SOFIC dated 18 January 2018.·Exhibit R3 – Hearing Certificate dated 22 November 2018. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address it. Relevant aspects of the evidence and material before the Tribunal will be referred to below. As noted, the Applicant in her SOFIC advanced three contentions which form the basis for her application to the Tribunal:First Contention17.The Applicant’s application for registration was received by OMARA on 9 March 2018, when she submitted the IELTS Academic tests showing she met the minimum scores required. (Tdocs p44)…22.The Applicant made her application for registration with IELTS results obtained within the previous 2 years from the date the application was made, on 9 March 2018.Second Contention23.The Applicant has met the requirements for English Language proficiency as they are set out in section 289(A) and regulation 5(3)(b)Applicable law…26.The exam referred to in regulation 5(3)(a) which is also referred to as “an exam” is made up of “common assessment items relating to registration” as set out in clause 7(3) of the Instrument (IMMI 18/03).27.The common assessment items in turn, are made up of several components, undertaken at different times throughout the prescribed course. This is set out in the attached statutory declaration of Associate Professor Mary Anne Kenny from Murdoch University.28.Therefore, it would be inconsistent to argue that the wording in regulation 5(3)(b) is limited to one test, when the same wording in regulation 5(3)(a) clearly refers to many tests taken separately to show competence.29.The exam in English language proficiency referred to in sub-regulation 5(3)(b) is defined in clause 7(4) of the Instrument asEach of the following exams in English language proficiency is specified(a) The IELTS Academic test:(b) TOEFL iBT test.30.Throughout the Regulations that relate to this requirement, there are references to “an item” or “a prescribed exam” or “an exam” that are actually references to more than one assessment, often taken at distinct times, and the results brought together to show competence.31.Furthermore, the IELTS test itself is not one exam, sat on one occasion. As the IELTS website explainsThe Listening, Reading and Writing components of all IELTS tests are completed on the same day, with no breaks in between them. The Speaking component, however, can be completed up to a week before or after the other tests. Your test centre will advise. The total test time is 2 hours and 45 minutes.32.All of the above points to the fact that there is no intention, explicit or implied, that the legislative framework requires that the minimum scores in the subtests be achieved in one single IELTS exam.33.Arguments about whether a person can submit several test results to demonstrate English competency have come before the Tribunal before, however, those cases can be distinguished, as they applied to the Migration Regulations 1994 not the Migration Agents Regulations 1998.34.In the case of 1512972 (Migration) [2016] AATA 3482 (15 March 2016), the Tribunal was asked to consider the Migration Regulations 1994, and specifically regulation 1.15C which defined “competent English”.35.In addition, those regulations applied to a completely different section of the Migration Act as it applied to the grant of a skilled visa, rather than the registration of an individual as a migration agent. The Tribunal referred to a decision of the High Court in the case of Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14, adopting its reasoning.36.In Bodruddaza, the High Court was also asked to interpret the Migration Regulations 1994. In doing so, the Court looked at Item 6A31 from Schedule 6A of the Migration Regulations 1994, which sets out how many points an individual could be awarded for English competency for the purposes of a skilled visa.37.Item 6A31 states “The applicant provides evidence of having achieved an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening in a test conducted” (emphasis added).38.In that case, the court stated that the text was clear because Item 6A31 fixes upon what transpired “in a test”.39.In contrast, the relevant regulations in this case refer to “an exam in English language proficiency” and regulation 5(4) states for paragraph (3)(b) “an applicant is taken to have passed an exam in English language proficiency if the applicant achieves at least the minimum score specified by the Minister in an instrument in writing for this subregulation.”40.It is the Applicant’s contention that the text in regulation 5(4) is open to being interpreted as a person will pass the exam if they achieve the minimum scores set out in the Instrument.41.The Instrument (IMMI18/03) does not specify that the results have to be in one test.…43.The Applicant has achieved the required scores: Overall score of 7 (obtained in test sat on 17 June 2017), 7 in speaking (obtained in test sat on 24 February 2018), 8 in listening (obtained in test sat on 17 June 2017), 6.5 in reading (obtained in test sat on 24 February 2018) and 6.5 in writing (obtained in test sat on 24 February 2018).44.OMARA admitted in the decision record (at [16] and [33] Tdocs p60-67) that it isn’t explicitly stated in the legislative instrument or policy that the results must be obtained in a single test, but argue nevertheless that this is policy on the basis that“this was consistent across the Department and took into account the particular nature of the IELTS system” (para 16)OMARA then refers to PAM3 regarding IELTS results for General Skilled Migration.45.The structure of the Act and Regulations is such that the policy contained in PAM3 applies to a different set of Regulations and do not apply to s289A. Therefore, they should carry no weight in this case.46.The Applicant has already undertaken and passed the prescribed course at the level of a Graduate Certificate in the English language. Therefore, the English language requirements should be applied in a flexible way that is different from the way they are applied to those applying to come to Australia on a skilled visa.Third Contention47.The legislation and policy should be flexibly applied to avoid IELTS profiteering and the English language testing system falling into disrepute.48.The Applicant spent a total of $1496.00 on re-sitting tests to prove English language proficiency. During that time, she achieved assessment of her skills that varied substantially, pointing to the fact that the assessment of IELTS tests lacks consistency.49.When she requested a remark, [sic] there was no change in her marks and no feedback given. Some research reports that less than 1% of remarks result in a change to the mark, while the process provides the IELTS system with millions of dollars of revenue each year.50.The IELTS testing system overall delivers large profits to those who administer it. IDP Australia report that they earn 40% gross profit on the revenue that they collect for delivering IELTS’s testing services. IDP report that the IELTS test is the largest source of income amassing them $213.5m in 2015, $237.1m in 2016, and $250.7m51.According to one of the inventors of the test, linguist Dr David Ingram, the IELTS test was not designed to be used in this way. While giving evidence to the Productivity Commission Inquiry into Migration Intake, Dr Ingram saidIt’s important to realise that language is not unitary but a complex set of different forms, that is, varieties and registers. Hence, proficiency cannot be accurately measured in a single test with a particular content not necessarily related to the language of the candidate and experience or needs in the future.52.The high cost of sitting the IELTS test, particularly when it is necessary to re-sit it various times, must be seen against the context of deficiencies of the test itself.53.As there is no legislative requirement that the minimum scores must be achieved in one single test, the legislation should be interpreted to allow the minimum scores to be evidenced across different tests sat at [sic] different dates.54.Any policy that applies to this legislation must be consistent with the legislation and should be applied flexibly, particularly in the context of mounting criticism of the IELTS system.(Original emphasis.)

Decision

Reasons for decision

The Tribunal finds the Applicant’s contentions regarding IELTS profiteering to be spurious and will not address them further.CONCLUSION For the reasons detailed above, the decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

Additionally, s 289A details prohibitive registration requirements referred to in s 289:289A Applicant must not be registered if does not satisfy registration requirementsAn applicant:(a)who has never been registered; or(b)who is applying to be registered more than 12 months after the end of his or her previous registration;must not be registered unless the Migration Agents Registration Authority is satisfied that he or she:(c)has completed a prescribed course within the prescribed period and has passed a prescribed exam within the prescribed period; or(d)holds the prescribed qualifications. For the purpose of s 289A(c) of the Migration Act, ‘a prescribed exam’ is defined in Regulation 5 of the Regulations. Regulation 5 provides that:(1)For paragraph 289A(c) of the Act, a prescribed course is a course specified by the Minister in an instrument in writing for this subregulation.(2)For paragraph 289A(c) of the Act, if a person is in a class of persons specified by the Minister in an instrument of writing for this subregulation, an exam specified by the Minister in an instrument of writing for this subregulation is a prescribed exam.(3)For paragraph 289A(c) of the Act, if a person is not in a class of persons specified by the Minister in an instrument of writing for subregulation (2), a prescribed exam is a combination of:(a)An exam specified by the Minister in an instrument in writing for this paragraph; and(b)An exam in English language proficiency specified by the Minister in an instrument in writing for this paragraph.(4)For paragraph (3)(b), an applicant is taken to have passed an exam in English language proficiency if the applicant achieves at least the minimum score specified by the Minister in an instrument in writing for this subregulation.(5)For paragraph 289A(c) of the Act, the prescribed period for the completion of a particular course or exam is the period specified by the Minister in an instrument of writing for this subregulation.(6)For paragraph 289A(d) of the Act, a current legal practising certificate issued by an Australian body authorised by law to issue it is a prescribed qualification. The Migration (IMMI 18/003: Specified courses and exams for registration as a migration agent) Instrument 2018 (the Instrument) provides:4 DefinitionsIn this instrument:IELTS Academic test means the International English Language Testing System Academic test.…TOEFL iBT test means the Internet Based Test of English as a Foreign Language test.…6 Courses(1)For the purposes of subregulation 5(1) of the Regulations, each of the following courses is specified:(a)The Graduate Diploma in Australian Migration Law and Practice offered by Murdoch University;(b)the Graduate Diploma in Migration Law offered by Victoria University;(c)the Graduate Diploma of Australian Migration Law and Practice offered by Griffith University;(d)the Graduate Diploma in Australian Migration Law offered by Western Sydney University;(e)the Graduate Diploma in Migration Law and Practice offered by The University of Technology Sydney;(f)the Graduate Diploma in Australian Migration Law and Practice offered by the Australian Catholic University;(g)The Master of Australian Migration Law and Practice offered by Griffith University.(2)For the purposes of subregulation 5(1) of the Regulations, each of the following courses, if completed before 1 January 2018, is specified:(a)The Graduate Certificate in Australian Migration Law and Practice offered by the Australian National University;(b)The Graduate Certificate in Australian Migration Law and Practice offered by Griffith University;(c)The Graduate Certificate in Australian Migration Law and Practice offered by Murdoch University;(d)The Graduate Certificate in Australian Migration Law and Practice offered by Victoria University.