Michan-Ranieri and Migration Agents Registration Authority
[2019] AATA 556
•27 March 2019
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 865Wagner 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 as a migration agent, the Applicant completed a further IELTs test on 24 February 2018, receiving the following results: Listening 6.0; Reading 6.5; Writing 6.5; Speaking 7.0; and Overall 6.5 (T7, 39).
On 20 August 2018 the MARA issued the Applicant a written ‘Notice of refusal of registration application’ (T11, 60). This informed the Applicant of the decision “to refuse your application for registration as a migration agent as I am satisfied that you must not be registered pursuant to section 289A of the Migration Act 1958 as you have not met the requirements specified in section 289A(c) or (d) of the Act.” The MARA found:
Prescribed Qualification
25.Section 289A provides that where an Applicant has never been registered, she must not be registered, unless the Authority is satisfied that she has passed a prescribed exam (per section 289A (C) or holds the prescribed qualifications per s 289A (d). There is no evidence before me to indicate that the Applicant is the holder of a current legal practising certificate (issued by an Australian body) to satisfy the prescribed qualification for the purpose of paragraph 289A (d) of the Act.
26.I find that the Applicant is not the holder of a prescribed qualification for the purpose of section 289A(d) of the Act (specified in regulation 5(6) of the Regulations as a current legal practising certificate issued by an Australian body authorised by law to issue it).
Prescribed Exam – class of persons
27.As the Applicant does not hold a prescribed qualification in order to satisfy section 289A, the Applicant would need to provide evidence that she has passed the prescribed exam provided by section 289A(c) of the Act. These requirements are defined in Regulation 5 of the Regulations.
28.The Applicant has not submitted that she was a class of person falling within educational pathway option 1 and/or education option 2. Therefore, the Applicant has not provided any relevant supporting documentation to meet these educational options.
29.On the basis of the information before me I find that the Applicant has not met all the elements of education option 1 and/or education option 2 and therefore is not in a class of person eligible to satisfy the prescribed exam required by s289A through subregulation 5 (2) of the Regulations.
English Language Proficiency Exam
30.Given my finding that the Applicant is not in a class of person for the purspose of subregulation 5(2), she would need to satisfy both elements of the prescribed exam, as required by subregulation 5(3). The first element is satisfied, evidenced by her completion of the Graduate Certificate and the passing of the common assessment items which form part of the prescribed course.
31.The second element requires the Applicant to achieve requisite scores in either an IELTS or TOEFL exam.
32.The current legislative Instrument, for the purposes of subsection 5(4) of the Regulations, specifies the minimum score specified for the IELTS Academic test is an overall score of 7.0 with a minimum score in each subtest as 6.5.
33.Whilst the current legislative instrument does not expressly prohibit a delegate from choosing different subtests to favour an applicant, given that the wording in the Instrument requires an applicant to achieve both an overall test score as well as a minimum test score, it is clear that each of the subtests is meant to be achieved in one test.
34.The Instrument does not confer on a delegate a discretion to select various subtests from different IELTS tests so that the applicant can meet the necessary English language requirements for registration purposes. Otherwise the Instrument would state that the best results of the subtests could be taken from various IELTS subtests, rather than a test.
35.The legislative intent underpinning the Instrument is that the English language proficiency of migration agents should be of a high standard comparable to those required for other professional occupations. Clients of registered migration agents must be able to depend upon the agent’s professional skills, especially those from non-English speaking backgrounds. If an agent’s English language proficiency is not at the required level, they may be unable to represent or assist clients adequately, which can lead to failed visa applications, unnecessary delays, unwanted expense to clients of registered migration agents, or litigation.
36.Further, registered migration agents need the required English proficiency in English to understand complex legislation and departmental policies and apply these to the client’s individual circumstances. They must be able to accurately and comprehensively prepare applications, supporting their clients’ claims against legislated visa criteria and be able to effectively advocate on behalf of their clients with the department, review bodies and other organisations.
The Applicant applied to the General Division of the Tribunal on 17 September 2018 to review the decision of the MARA (T2, 3-4). In her application she stated:
The Department of Home Affairs decided to refuse my application to register as migration agent because the registration Case Officer was not satisfied my English scores as a requirement to register. Her decision was made not according to law. It has been a very lengthy process for me and I would like the AAT to review my case.
The Applicant provided the Tribunal with a Statement of Facts, Issues and Contentions (SOFIC) indicating that three contentions form the basis of her application to the Tribunal:
1The Applicant has three contentions
16.1The Applicant’s application for registration was made on 9 March 2018
16.2The Applicant has met the requirements as they are set out in section 289A(c) of the Act and regulation 5(3)(b) of the Regulations.
16.3The legislation and policy should be flexibly applied to avoid IELTS profiteering and the English language testing system falling into disrepute.
The Respondent submitted in reply:
12.The respondent contends that the Applicant has not completed a prescribed exam within the prescribed period for the purpose of s 289A(c) of the Act.
…
17.On a plain reading, the requirement to obtain “an overall score” of 7 in the IELTS Academic test, requires an overall score of 7 in a single test. The applicant’s contention that the overall score can be achieved by selecting scores from across a number of tests clearly does not meet the legislative requirements.
…
22.Second, the applicant applied for registration on 12 February 2018 (T4, p.8). Therefore, even if the applicant could combine scores from a number of IELTS Academic tests, the report dated 7 March 2018 (T7, p.39) could not assist the applicant.
23.Third, the fact that the IELTS Academic testing system, or those that administer it, may benefit financially from the same is not relevant to the task of statutory interpretation.
RELEVANT LEGISLATION
·Migration Act 1958 (Cth).
·Migration Agents Regulations 1998 (Cth) (the Regulations).
This appeal is heard pursuant to s 306 of the Act, which provides:
306 Review by the Administrative Appeals Tribunal
Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of a decision by the Migration Agents Registration Authority made under this Division.
Application was made to the Authority as required by s 288 of the Act:
288 Application for registration
(1)An individual may apply to the Migration Agents Registration Authority to be registered as a registered migration agent.
…
Relevantly, s 289(1) of the Act provides that:
289 Registration
(1)The Migration Agents Registration Authority must register an applicant by entering his or her name in the Register, unless this Part prohibits registration of the applicant.
Additionally, s 289A details prohibitive registration requirements referred to in s 289:
289A Applicant must not be registered if does not satisfy registration requirements
An 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 Definitions
In 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.
The Instrument further provides:
7 Exams
(1)For the purposes of subregulation 5(2) of the Regulations, if a person is in a class of persons specified in subsection (2), each of the following exams is specified to be a prescribed exam:
(a)The Capstone Assessment;
(b)the common assessment items relating to registration, if passed before 1 January 2018.
(2)For the purposes of subregulation 5(2) of the Regulations, each of the following classes of persons is specified:
(a)Persons who meet all of the following requirements:
(i) the person has successfully completed secondary school studies to the equivalent of Australian Year 12 level, with a minimum of 4 years’ study at secondary school or equivalent; and
(ii) the person has successfully completed a Bachelor degree, or a higher degree, with a minimum of 3 years’ equivalent full-time study; and
(iii) the person completed the secondary school studies and degree at one or more educational institutions in Australia, New Zealand, United Kingdom, Republic of Ireland, United States of America, Republic of South Africa or Canada; and
(iv) English was the primary language of instruction for the person’s secondary school studies and degree; and
(v) throughout the secondary school studies and degree, the person was resident of Australia, New Zealand, United Kingdom, Republic of Ireland, United States of America, Republic of South Africa or Canada.
(b)Persons who meet the following requirements:
(i) the person has successfully completed the equivalent of secondary school studies to Australian Year 10 or Australian Year 12 level; and
(ii) the person has at least 10 years of primary or secondary schooling at an institution in Australia, New Zealand, United Kingdom, Republic of Ireland, United States of America, Republic of South Africa or Canada; and
(iii) English was the primary language of instruction at the school that the person attended; and
(iv) throughout the schooling period the person was resident in Australia, New Zealand, United Kingdom, Republic of Ireland, United States of America, Republic of South Africa or Canada.
(3)For the purposes of paragraph 5(3)(a) of the Regulations, each of the following exams is specified:
(a) the Capstone Assessment;
(b)the common assessment items relating to registration, if passed before 1 January 2018.
(4)For the purposes of paragraph 5(3)(b) of the Regulations, each of the following exams in English language proficiency is specified:
(a)IELTS Academic test;
(b)TOEFL iBT test.
Note: if a person is not in a class of persons specified in subsection 7(2) of this Part, a prescribed exam is the combination of an exam specified in subsection 7(3) of this Part and an exam in English language proficiency specified in subsection 7(4) of this Part.
8 Minimum exam scores
(1)For the purposes of subsection 5(4) of the Regulations, the minimum score specified is:
(a)for the IELTS Academic test – an overall score of 7 with a minimum score in each subtest of:
(i) 6.5 in speaking;
(ii) 6.5 in listening;
(iii) 6.5 in reading; and
(iv) 6.5 in writing.
(b)For the TOEFL iBT test – and overall score of 94 with a minimum score in each subtest of:
(i) 20 in speaking;
(ii) 20 in listening;
(iii) 19 in reading; and
(iv) 24 in writing.
9 Period of completion
(1)For the purposes of subregulation 5(5) of the Regulations, each of the following periods for the completion of a course or exam is specified:
(a)for a course specified in section 6 – before the person applies for registration;
(b)for the Capstone Assessment – within the 12 month period before the person applies for registration;
(c)for the common assessment items relating to registration – within the 12 month period before the person applies for registration;
(d)for the IELTS Academic test – within the 2 year period before the person applies for registration;
(e)for the TOEFL iBT test – within the 2 year period before the person applies for registration.
The Migration (IMMI 18/003: Specified courses and exams for registration as a migration agent) Explanatory Statement notes:
7.A further purpose of this instrument is to update, for the purposes of subregulation 5(4) of the Regulations, the specified minimum scores for the TOEFL iBT test.
…
(e)Applicants who are not in a class of persons specified in the instrument for the purposes of subregulation 5(2) of the Regulations, must meet minimum English language requirements using either the International English Language Testing System (IELTS) Academic test or the Internet Based Test of English as a Foreign Language (TOEFL iBT).
The Instrument, the Regulations and the Explanatory Statement are to be construed for the purposes of the Migration Act 1958 (Cth).
ISSUES
The Tribunal must determine whether the Applicant met migration agent registration requirements pursuant to s 289A of the Act.
EVIDENCE
The Tribunal received the following evidence:
·Exhibit A1 – Applicant’s Statement of Facts, Issues and Contentions (SOFIC) dated 6 December 2018, including
oST1 – 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 Contention
17.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 Contention
23.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 as
Each 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 explains
The 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 Contention
47.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 $250.7m
51.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 said
It’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.)
The Respondent contends:
12.The respondent contends that the applicant has not completed a prescribed exam within the prescribed period for the purpose of s 289A(c) of the Act.
13.First, in order to satisfy this requirement, the applicant must demonstrate that she achieved the minimum overall score and minimum score in each subset in a single test.
14.The issue for the Tribunal to determine is essentially one of statutory interpretation.
15.As is well established, “the task of statutory construction must begin with a consideration of the [statutory] text. So must the task of statutory construction end. The statutory text must be considered in its context.” Further, “[t]he language which has actually been employed in the test of the legislation is the surest guide to legislative intention.”
16.The ordinary meaning of the relevant legislative provisions is that the requisite results must be obtained in a single test. Thus:
a.The Act requires the applicant to have passed “a prescribed exam” (see s289A(C));
b.The Regulations define “a prescribed exam” to include “an exam” in English language proficiency (see reg 5(3));
c.IMMI 18/03 specifies the “IELTS Academic test” as an exam in English language proficiency (item 7(4));
d.IMMI 18/03 refers to “a course or exam” (item 9(1)); and
e.IMMI 18/03 refers to the requirement to obtain “an overall score” in the IELTS Academic test (item 8(1)).
17.On a plain reading, the requirement to obtain “an overall score” or 7 in the IELTS Academic test, requires an overall score of 7 in a single test. The applicant’s contention that the overall score can be achieved by selecting scores from across a number of tests clearly does not meet the legislative requirements.
18.The fact that an exam for the purpose of reg 5(3)(a) can include a capstone assessment or “common assessment items” does not assist the construction pressed by the applicant.
19.The construction pressed by the respondent is also supported by extrinsic material, which reinforces the legislative intent apparent on the face of the legislation to impose a strict standard of English language proficiency.
20.Regulation 5, as currently drafted, was introduced by the Migration Legislation Amendment Regulation 2012 (No. 3). The explanatory memorandum to the Migration Legislation Amendment Regulation 2012 (No. 3) states that:
As outlined above, the purpose of the amendments to the Regulations is to ensure that RMAs have a demonstrated level of proficiency in the English language, which is an essential factor in providing immigration assistance to clients. In particular, RMAs require proficiency in English to:
· Understand the relevant legislation and departmental policies, and apply those to the client’s individual circumstances.
· Accurately and comprehensively prepare applications, as well as other documentation, supporting their client’s claims against legislated visa criteria; and
· Effectively advocate on behalf of their clients with the department, review bodies and other organisations.
Clients of RMAs must be able to rely on the agent’s professional skills, especially those from non-English speaking backgrounds. Where a registered migration agent fails or is unable to adequately represent advice or assist clients because they do not have proficient skills in English, this can result in failed visa applications or unnecessary delays in status resolution, unwanted expense incurred by the clients or RMAs, or litigation
…
The effect of this amendment is that not only must an applicant seeking registration as a migration agent pass certain prescribed courses and exams, but they must also possess a prescribed level of English language proficiency.
The purpose of substituting regulation 5 is to ensure that registered migration agents are sufficiently proficient in the English language to be able to give effective immigration assistance as defined in section 276 of the Act.
21.Accordingly, the English language requirements operate by reference to the passing of a prescribed exam to a prescribed standard, and not merely by the attainment of a more general and less specific standard of English language proficiency: Chen v Migration Agents Registration Authority (No. 2) [2016] FCA 865 at [26]. The applicant’s construction of the requirements is thus inconsistent with both the plain meaning and intent of the provisions.
22.Second, the applicant applied for registration on 12 February 2018 (T4, p.8). Therefore, even if the applicant could combine scores from a number of IELTS Academic tests, the report dated 7 March 2018 (T7, p.39) could not assist the applicant.
23.Third, the fact that the IELTS Academic testing system, or those that administers [sic] it may benefit financially from same is not relevant to the task of statutory interpretation.
24.For the above reasons, the Authority respectfully contends that the correct decision in the present case is that the applicant does not meet the language requirements in s 289A(c) of the Act and accordingly, the Authority’s decision should be affirmed.
HEARING
The matter was heard in Perth on 11 March 2019. The Applicant was represented by Ms Copeland of SCALES Community Legal Centre. The Respondent was represented by Ms Oliver of Sparke Helmore.
The Applicant submitted: (Transcript pp4-9)
MS COPELAND: So this case is obviously about interpretation of the legislation and regulations and also policy, although, of course, we argue that the policy while it can be constructive has to be consistent with the legislative instrument and can't go beyond that. You've seen from our statement of issues, facts and contentions that we submit there's nothing in either the legislation or the regulations that require that the scores required for the IELTS test be done in, or obtained in one test. Quite the opposite, we say, on a number of bases.
So the first one is that the section refers to an exam but in referring to an exam it's actually referring to a number of exams and tests. So these arguments are outlined at paragraph 24 of our facts, issues and contentions document and you have the statement of Professor Maryanne Kenny that takes you through what the set-up is for the tests referred to.
…
MS COPELAND: We say that it would be very inconsistent to insist on wording that refers to a test as one particular test when all the way through the legislation, regulations and, indeed, policy that same use of language does not refer to one test, it refers to a number of tests. The point of requiring a level of English language proficiency obviously in this context is self-evident and the way that the Department and the Minister have decided that could be done are limited. So you have the IELTS test or you have the TOEFL test and those are simply the ones that you can use.
We say that an exam in the legislation refers to prescribing that particular test. So it's saying there is a specific one so in that way it's an exam but it doesn't indicate that it has to be done in one. They've chosen - the Minister and the Department have chosen to ensure that candidates have a level of language and to use TOEFL and IELTS as that evidence. Now, whether those tests are the best tests I think is an issue that is quite debateable. In fact, you saw in our facts, issues and contentions we raised the comments of Dr David Ingram who was, in fact, one of the inventors of the IELTS test and he is quite adamant that it is not something - proficiency in language cannot be measured in just one test and he understands that the IELTS test is being used in that way in a way that it wasn't designed to be used.
So we say that because of these limitations the regulations need to be applied flexibly or shouldn't be interpreted beyond what they actually say. There are limitations with the way the test administered and marked, in our submission, also. I mean, you can see that from the applicant's own results. In one test she gets eight for speaking and in the next she gets 6.5 in one - - -
…
MS COPELAND: So there has to be some kind of flexibility in the way that it's applied. In our submission, if it isn't it becomes too easy for the test to become a bit of a cash cow, if you like, to require that people resit and resit to prove proficiency that they clearly have but simply can't evidence in just the one test. We say that if these tests are designed - if what they're designed to do is determine whether she has a particular level of English, then reaching that level across all of the different aspects of the test including overall, and that's a crucial point as to why we say some of the case law relied on by the respondent doesn't apply here.
In this case you have to have an overall test of seven on one of the tests as well as each individual section. If she's achieved that she's achieved proficiency and that should be sufficient for the purposes of this test. In fact, we say that if the requirement had been that it be done in one test it would have been very easy to insert that into the regulations, very easy to add one phrase, but they haven't done that. So the respondent does assert in their facts, issues and contentions at one point that the applicant wants to achieve an overall score of seven from multiple tests but can we just be really clear at this point that it's not what the applicant is doing. She has achieved an overall score of seven in one of tests. So it's not taking lots of tests to reach the requirement - - -
MEMBER: So it's not cherry-picking.
MS COPELAND: It's not cherry-picking in that same sense, exactly. She has met the proficiency across all of the criteria. So the respondent also asserts that the English requirements operate by reference to the passing of a prescribed exam to a prescribed standard and we agree with that statement. That, in fact, was the crux of the Chen decision that we've referred to and sent with our authorities. So in that case the applicant had not achieved and IELTS test score but tried to point to his other qualifications to indicate that he'd met the requirement and in that case the court said, "No, you can't do that." It can't be substantial compliance, you have to actually comply with what we've set out and we're saying that the applicant here has complied with what has been set out.
There is no requirement in what's set out that it be done in one test and she has achieved those competencies, those prerequisite levels across all of the ones that are prescribed. We also wanted to bring your attention to the latter decision of Wagner v MARA because that was a similar case to Chen and that followed the case in Chen. In that case the applicant had achieved accreditation as a translator. So the same government, if you like, that had given her that accreditation as a translator was now saying that she had to sit a further language test and she argued, "No, no, I've clearly got the competency or you wouldn't make me a translator. I shouldn't have to do the IELTS now."
Now, in paragraph 30 of that decision the Member, Member Webb clearly says that it's possible to satisfy the prescribed exam specified in limited circumstances in other ways and he says at first he was very persuaded by her submission, again at paragraph 44:
I must say there is some force to her submission on this point and I was initially attracted to the possibility that the NAATI accreditation testing might be sufficient to satisfy.
So clearly in the mind of Member Webb; there are ways that you can show proficiency that may not directly match what's set out in those regulations. What happened then is Webb went on to realise that her accreditation through NAATI was for a translator, not an interpreter meaning obviously she's working in written language, she has to be able to read and write, she's translating documents. She hasn’t been tested through the NAATI system on listening and speaking and so the Member said, "Well, that can't be enough because you need to have those levels across all for MARA."
So even though the Member found against that applicant we would say that the reasoning in that case really shows that there can be and should be a flexible application and in this case the applicant has met all of those requirements. So it's not a substantial compliance as in Chen but it's simply applying what's in the legislation and nothing more. We also would like to point to the fact that the MARA itself acknowledges that it's not explicitly stated in the instrument. If you look at paragraph 16 in the T documents, page 63 which is, of course, the decision from MARA, it quite clearly acknowledges - so first of all I think in paragraph 16, the last part of that paragraph says:
Although not explicitly stated in the instrument IME 18/003 or in the authorities written policy this was consistent across the Department and took into account the particular nature of the IELTS system.
Well, we have some issues with that comment. First of all, the particular nature of the IELTS system I'm not sure what that's based on in that decision because there's mounting evidence as we referred to just now that the IELTS system is not the best way to test, particularly if you're relying on one test alone but also it's consistent across the Department, that is problematic. The Department has to act consistently with the law. There's no doubt that in bureaucracies and because of the bulk of work that has to be gotten through there are certain shortcuts that are taken on by departments in the way they do things, it's natural that they would take from one area and say, "Well, okay, let's do that here as well because it seems to apply." But that doesn't make it lawful and if there's no legal basis for that kind of application, we say, it should not be applied in that way - policy should not be applied in that way.
So they go onto assert that in the skilled migrant aspect they use it in this way where it has to be done in one test. There are quite a few differences between the skilled migrant area and this area which we'd like to point out. Obviously this argument finds some support in the case of Bodrudaza. So we'll address some of the issues through looking at that case as well. First of all, the case involved the interpretation of the migration regulations, here we're talking about migration agent regulations, so completely separate regulations. It's one thing perhaps to argue that a policy that applies within one legislative instrument can apply across, even then we'd have issues with it, but I think it's even more difficult to stretch it over to another set of regulations.
The decision in that case involved the interpretation of item 6A31. Now, it obviously gets quite complicated because these instruments have changed and the wording has changed as they have been updated but item 6A31 requires that the applicant provides evidence of having achieved a IELTS test score of at least six for each of the four test components of speaking, reading, writing, listening in a test conducted. First thing to note there's no overall score requirement so the comments made by the High Court in that case says, "You could just concentrate on one and do really well till you got it and then do another and we don't want that", have a different context. You could, indeed, do that by just sitting one and ignoring the other and getting zero in it, but in this context you can't do that, you have to have the overall of seven. So it's a completely different legislative and regulatory framework.
So we also say that because of the wording in a test it pretty clearly sets out that it should be done and this was really the phrase that was picked up on by the court in that case that there's an apparent objective requiring a particular level overall competency in English that would be achieved if the item were to be satisfied by doing lots of tests. They said it doesn't work, it's in a test because that's what it says. We would also further point out that the role of the IELTS test in this context is quite different to the role in the current case and that is that depending on how well you do in the IELTS test or, rather, how many points you achieve in the skilled migration point system in other areas depends on what levels you have to get in IELTS, so it's part of the points system.
So you're actually looking at not just proficiency in language because it's not a let's check you've got enough language, it's a if you've got more you get more points and then it doesn't matter if you're a little bit older or if you don’t have as much education. So it's a different context again. In this context all that they are looking for is do you have the language skills at this level? We can't let you be a migration agent unless you have the language skills at this level and we say that our client has, the applicant has proven that she has the language skills at that level. She's also proven that she has the skills across the board.
As I said, the overall score of seven has been achieved by her in a test. She also has achieved well beyond the requirement in many of the sections in many of the tests. She's gone to eights in a number of times so she's more than proven that she's got that competency. So in this case then in contrast to the skilled migration context regulation 5(3)(b) refers to an exam in English proficiency and regulation 4 states that for the purposes of (3)(b) an applicant is taken to have passed an exam in English proficiency if the applicant achieves at least the minimum score specified by the Minister in the instrument in writing and then that takes us to those scores which are set out and the wording for those scores, I can just go right there. For the purposes of subsection 5(4) of the regs the minimum score is for the IELTS test overall of seven. The score in each subsection sub-test is 6.5. For TOEFL it's a different level.
In our submission, this is about proficiency in English and if you meet those levels that is showing that you have that proficiency in English. There is no requirement on the face of that in the regulations or the instrument to say that it has to be done in one test. Very different from the situation under the skilled migration and the Bodrudaza case where it said clearly in a test. I think that probably is all that I have at this time. So we say that the applicant has clearly shown her proficiency to the standard required by the regulation by the instrument and that the Department can't go further and demand more if there's no basis for it in law.
The Respondent submitted: (Transcript pp9-13)
MS OLIVER: Thank you, Member. In the applicant's facts, issues and contentions a first contention is raised about the date that the application for registration can be taken to have been received. Said there that it could be taken to be received on 9 March 2018 which is when the IELTS test that is dated 24 February was provided. Now, the Minister's position in relation to that is that the application is submitted on 9 February 2018 and it's noted in the T documents as having been received on 12 February 2018 and that's at T8, page 45, and so 9 February is the date on which the application was made and if 9 February is the date on which the application was made regardless of whether or not you can combine different test results, the later test results of 24 February couldn't be taken into account because they are the results of tests that was completed after the application was made and in that regard the instrument provides in section 9, subsection (1), paragraph (d) that the IELTS test is within the two-year period before the person applies for registration. So it's after she's applied for registration and, therefore, can't be taken into account. That's the starting point.
Now, if the tribunal thought that the application taken to be received on 9 March, as the applicant contends, that would present a different difficulty for the applicant and that is because she would then not meet the requirements of regulation 5, sub-regulation (3), paragraph (a) because the common assessment items that are relied upon as part of her graduate certificate were finalised on 10 February 2017 and pursuant to regulation 5 and section 9, subsection (1), paragraph (c) of the instrument the prescribed period for completion of those common assessment items is within the 12-month period before the person applies for registration so it would then put those out beyond the 12 months, so then she wouldn't meet that requirement but we say it can't be taken to be received at a different date, the date it was submitted is the date that it was lodged which would then make the later test outside of the timeframe.
In relation to the issue that my friend's addressed in relation to whether you can combine the IELTS test to get the minimum scores, we say that that interpretation is not actually open on the legislation. The legislation starts with a prohibition on registration and a person can only be registered if they satisfy the requirements set out in the legislation and as the Federal Court said in Chen v MARA that that regulation sets out a detailed prescriptive approach to the requirements that need to be met before the person can be registered and when you go through the different pieces of legislation that apply here, consistently it's a reference to a prescribed exam and that's a reference in a singular form.
That starts from the very section 289A of the Act and that section provides that the applicant has completed a prescribed course within the prescribed period and has passed a prescribed exam within the prescribed period. So there's a reference to singular from the very start in the Act itself. Then when you turn to the regulations, the regulation 5, sub-regulation (3), as I understand it there's no dispute that the applicant's not in a class of persons specified so she must meet the requirements of sub-regulation (3) and that is that a prescribed exam is a combination of - paragraph 8 - an exam specified by the Minister and an exam in the English language proficiency specified by the Minister. So again, it's a repetition of a singular test.
Then sub-regulation (4) of regulation 5 provides that 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. So again, it's repetition of an, a singular. And then when reference is had to the instrument, the instrument provides that each of the following exams - and this is in section 7, subsection (4) - each of the following exams in English language proficiencies specified, the IELTS academic test and the TOEFL test. The instrument again goes on in section 8 to talk about the minimum scores and says that for the purposes of sub-regulation (5), paragraph (4) of the regulations the minimum score specified for the B IELTS academic test is an overall score of seven with a minimum score in each subset of 6.5 specifying each subset there.
So again, an overall test with a minimum score in each subset, in our submission, is talking about one test because in order to get the overall score that's derived from the subsets contained in each exam we would say the submission made on behalf of the applicant that you could have no real score from one test and then take other components from other tests would render that sentence moot because if they had intended that that would be the case the legislation would've read - look, first of all there would be no need for an overall score because you could just meet the proficiency in each category and if it meant that you could meet any in any number of tests it would say that for the academic test a score of at least 6.5 in each subset whether obtained in one test or more than one test but it hasn't used that language, instead it's used the singular again with the an overall score with a minimum in each subset.
So we say that interpretation there again is consistent with the one test. And we see again repetition of language that's consistent with one or singular test in section 9 which is the section of the instrument that deals with the prescribed periods and it refers to there in paragraph (d) for the IELTS academic test. So again, the, as in the singular test, not for any IELTS test, it's talking about the test. So again, that's repetition of this theme of singularity in relation to the test to be relied upon and the similar language applies in relation to the prescribed course requirement and that doesn't come up here because the applicant meets the prescribed course requirement in that she has completed the graduate certificate and, therefore, she's completed the prescribed course but again, similar language is used throughout there where the reference is to a course or the graduate certificate, it's singular language being used throughout.
Again, in relation to the prescribed exam requirement as opposed to the prescribed English proficiency exam there's a similar theme of singularity in the language used in the legislation. So, for example, regulation 5, paragraph (3) - sorry sub-regulation (3), paragraph (a) talks about an exam specified and then when you go to section 7 of the instrument where it talks about the following exams is specified and it's the capstone assessment or the common assessment items relating to registration if passed before 1 January 2018. So I just pause there. Obviously that we're in March 2019 the only way to meet that requirement is to do the capstone assessment because the time in which to complete the common assessment items has passed.
The applicant in the facts and contentions makes a fair bit about the fact that the common assessment items relating to registration allows completion of a number of different assessments and resitting of assessments and the like but if you have regard to the actual definition of common items relating to registration and that's in section 4 of the instrument and that defines that to mean assessment items which form part of a prescribed course specified in item 6, subsection (2) of this instrument. So again, a comes back into it, the singularity comes back into it. So those assessment items are part of a prescribed course. So it is the case that throughout the common language is singular, that you complete a course, an exam, not this option to pick and choose results from multiple exams.
There's also, we would say, a difference between the completion of an exam or a test of the nature of IELTS and a course in the nature of the common assessment task type of course. An exam or a test such as the IELTS is a test of a person's competency at a point in time. So that test consists of the four components that a person needs to complete, they receive a mark in each of those components and then an overall score is calculated based on the performance in each of the four subsets of the test. There's no capacity to reset one of the subsets in the IELTS test, you have to sit the whole test again.
By contrast, a course will involve a number of assessment items and may involve exams and other methods to test a person's proficiency and there could be capacity to redo parts of an assessment or an exam or redo a component but that's very different to what the exam in the nature of the IELTS is designed to be. Another difficulty with the applicant's construction of the legislation is that the legislation prescribes there be the overall score of seven with a minimum score in each subset. Now, on the applicant's construction if you can pick a result from a different subset in a number of different tests then IELTS would never have calculated an overall score. What would fall then is to MARA or to the applicant to calculate what the overall score is but there would never have been an overall score assigned by the IELTS.
Now, I know my friend says that they rely on the fact you can get an overall score in one test and rely on that but, of course, the overall score has to be derived from the results in the four subsets, not an overall score in one test and then rely on subsets from a different - a construction like that is contrary to the actual wording of the legislation. We say the applicant's construction is inconsistent with the plain language of the legislation but as I say, sets a very clear repetitive reference to singularity of a test, the test, an exam and it's also inconsistent with the detailed prescriptive approach that is talked about in Chen that's clearly a deliberate prescriptive approach set up for meeting those requirements.
In our submission, the only interpretation of the relevant provisions that would give effect to the objects and purpose of the legislation is that the IELTS test results must be obtained within a single test. So far as my friend refers to deficiencies in the IELTS tests are being asserted, it doesn't change what the legislation requires. There might be deficiencies in the system, it may not be the most ideal test; however, that is the prescribed test, so that is the test that needs to be met and there's no scope for any discretion in relation to the application of the test or the provisions, unlike other sections of legislation that may allow for a discretion to be exercised to not require compliance, that doesn't appear anywhere in the text of this legislation. Strict compliance is, therefore, required and that's the prescribed test.
So whether or not there are deficiencies with it is not relevant, what matters is has the applicant met that test requirement and the fact that it said in the facts and contentions that the IELTS academic testing system or those who administer may benefit financially - - -
MEMBER: No, I don't accept that so I've moved on from that.
MS OLIVER: Thank you.
MEMBER: Sorry, Ms Copeland, it was a good try.
MS OLIVER: So what you're left then with is a legislative scheme that sets, we say, a very clear message of singularity. So whilst it doesn't say in one test, the only interpretation that is open through the consistent use of language through the document is that it's a single test from which the overall score based on results in the four subsets can be achieved and in this case the applicant hasn't met that. So we say the decision should be affirmed.
Both representatives made further submissions (Transcript p13):
MS COPELAND: Sorry. Could I just point out one little aspect?
MEMBER: Yes, sure.
MS COPELAND: Just in terms of my colleagues comments around the use of a prescribed exam and an exam, if I could just point out that far from saying it has to be one, you're actually talking a prescribed exam means the one that's prescribed by the Minister. So "a" is grammatically correct in that context and doesn't have anything more in it than that.
MEMBER: Yes.
MS COPELAND: Then you get to the regulation and it says - sorry, an exam. The only reason it doesn't say the exam in English in 5(3)(b) is because it's actually two, there's TOEFL or IELTS.
MEMBER: Yes.
MS COPELAND: So you can't say the, it's going to be confusing, it has to be an exam. So we say that that language doesn't actually lend anything to this idea that it has to be one test and then if you went further to the instrument it would be so easy to say in one test in that instrument but it's not there at all. So all of that, in our submission, doesn't in any way point to the fact it's supposed to be - - -
MEMBER: Interesting argument. Did you want to respond to that?
MS OLIVER: Well, Member, we would say though it's still deliberate language of talking about singularity because they could've used the exam specified and then specify one of two exams and there's no - it's always difficult when you're looking at legislation but what is clear here throughout all three, the Act, the regulations and the instrument is this theme of singularity, we say.
CONSIDERATION
First Contention
The Applicant submits that she completed her application for registration as a migration agent with the MARA on 9 March 2018, in submitting the results from an IELTS test she completed on 24 February 2018. The Tribunal notes correspondence between the Applicant and the MARA dated 13 March 2018 in which a Registration Officer notified the Applicant that if she wished to “undergo another IELTS test, OMARA will afford you another opportunity to sit for the IELTS test, which would need to be undertaken within one month of the date of this email” (T8, 43).
The date of application for registration with the MARA is of consequence in advancing the Applicant’s construction of the legislative requirements for registration, in that the final IELTS test undertaken on 24 February 2018 was the test in which the Applicant achieved the requisite scores in the Reading and Writing subtests, while failing to achieve the minimum score in the Listening or Overall components. As the Applicant failed to achieve the minimum test scores as provided for in the Instrument in any of the tests she completed prior to application for registration, or indeed in any of the tests she completed, the date of application is immaterial for the purposes of this review.
Second Contention
The Applicant notes in her SOFIC that “arguments about whether a person can submit several test results to demonstrate English competency have come before the Tribunal before.” While those matters differ as they concerned English language competency for the purposes of Visa applications, they addressed the issue of whether words in the singular include the plural, for the purpose of English language competency requirements.
In Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 (Bodruddaza), the High Court found that in reference to English language requirements for the purposes of the Subclass 880 visa as provided for in the Migration Regulations 1994 (Cth):
The plaintiff required 20 points in the language skills qualification to meet the points test, so that he had to satisfy Item 6A31 rather than Item 6A33.
The plaintiff undertook two tests, one on 17 September 2005 and the second on 17 December 2005. He only achieved a score of at least six in three of the four components in any one test, although taking the two tests together he achieved a score of at least six in each of the four test components. The delegate construed Item 6A31 as requiring that the score of at least six for each of the test components be obtained at the one test rather than in one or more tests undertaken within the qualifying period. Accordingly, the delegate awarded the plaintiff only 15 points for language, because he satisfied Item 6A33.
…
It is unnecessary further to pursue this question. This is because, in any event, there was no error by the delegate of any description.
The plaintiff relies on the presumption that words in the singular number include the plural. However, any such presumption must yield to the particular text involved.
Item 6A31 fixes upon what transpired “in a test”. That test must have been conducted not more than 12 months before the day on which the application is made or during the process of the application. From that test the applicant must be able to provide evidence of having achieved a score of at least six for each of the four components of that test, namely, speaking, reading, writing and listening.
The Minister correctly submits that the apparent objective of requiring a particular level of overall competence in the English language would not be achieved if Item 6A31 were to be satisfied by sitting the test on several occasions, concentrating on different components, until there was accumulated a sufficient collection of scores.
(Emphasis added.)
In 1512972 (Migration) [2016] AATA 3482 (1512972) the Applicant similarly sought that “his results be mixed and matched to achieve the desired outcome”, as “although none of the tests achieved a score of 6 in each category overall he managed to get a 6 score in all categories at different times.” The Tribunal found that the provision in the written instrument of the term “an IELTS test”:
…contemplates a score in a single test. This construction is, in general terms, supported by judicial consideration of an item in Schedule 6A which refer to scores achieved in ‘an IELTS test’. The Tribunal notes the High Court decision in Bodruddaza v MIMIA [2007] HCA 14 228 CLR 651 in considering similarly worded provisions concerning English language skills that the apparent objective of requiring a particular level of overall competence in the English language would not be achieved if the requirement were to be satisfied by sitting the test on several occasions, concentrating on several different components, until there was accumulated a sufficient collection of scores.
Relevantly, the Migration (IMMI 18_003 Specified courses and exams for registration as a migration agent) Instrument 2018 – Explanatory Statement (the Explanatory Statement) provides:
7.A further purpose of this instrument is to update, for the purposes of subregulation 5(4) of the Regulations, the specified minimum scores for the TOEFL iBT test.
…
(a)Applicants who are not in a class of persons specified in the instrument for the purposes of subregulation 5(2) of the Regulations, must meet minimum English language requirements using either the International English Language Testing System (IELTS) Academic test or the Internet Based Test of English as a Foreign Language. (TOEFL iBT).
The tribunal finds the provision in the Regulations (at 5(3)(b)) for “an exam in English language proficiency specified by the Minister in an instrument in writing for this paragraph”, when read together with the score requirements detailed in the Instrument as a reference to (at 7(4)) both the “IELTS Academic test” and “TOEFL iBT test” contemplates score requirements in a single test.
In Chen v Migration Agents Registration Authority (No. 2) [2016] FCA 865 Griffiths J found in reference to s 289A of the Act that:
It is made clear in the terms of s 289A that the Authority is prohibited from registering an applicant unless it is satisfied that the applicant has inter alia passed a prescribed exam within the prescribed period. This prohibition operates by specific reference to the question whether or not an applicant has passed a prescribed exam and not merely by having obtained a more general and less specific standard of English language proficiency.
This prohibitive approach to English language requirements provided for by the Act was affirmed in Wagner and Migration Agents Registration Authority [2016] AATA 957 (Wagner) in which Member Webb found:
63.The decision to be made is whether Ms Wagner meets the requirements for registration as a migration agent. It is one that gives expression and force to policy, and in that regard it may be considered to be operational. As I mentioned above, the decision to be made does not involve exercise of discretion, but rather involves applying a policy benchmark or threshold established by operation of the legislation and conferral of authority on the Minister, below which registration is not permitted. Departure from the established policy would, itself, require a policy decision.
The Tribunal finds that the legislative requirements for registration as a migration agent, as provided for in the Act, Regulations and Instrument, establish a policy benchmark below which registration is not permitted. In the present matter this requires completion of a prescribed exam to a prescribed standard, within a prescribed period. Although the Applicant has completed a prescribed exam, she has not achieved the minimum required results in any of the exams completed.
Third Contention
The Applicant submits in her SOFIC that “the legislation and policy should be flexibly applied to avoid IELTS profiteering and the English language testing system falling into disrepute.”
The Tribunal notes that the English language testing requirements pursuant to s 289A(c) are required of all prospective migration agents seeking registration. Member Webb noted in Wagner:
74.Ms Wagner asserts that she will be put to additional costs if she has to sit further English language tests, and that may be so. But it is not unconscionable that she be required to do so when the same tests apply to all applicants within the terms of reg 5(3). Furthermore, Ms Wagner embarked upon the course she has set in full knowledge of the requirements.
Whether those conducting English language testing benefit financially from the administration of testing is immaterial to the matter before the Tribunal. The Tribunal notes that all applicants seeking registration as migration agents are subject to the same requirements, and the Applicant in the present matter chose to complete multiple tests in support of her application. Had she obtained the requisite results in the first test attempted, she would have had no need of further testing.
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.
I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes
...........[Sgd]...........................................................
Associate
Dated: 27 March 2019
Date of hearing: 11 March 2019 Advocate for the Applicant: Ms A Copeland Solicitors for the Applicant: SCALES Community Legal Counsel for the Respondent: Ms E Tattersall Advocate for the Respondent: Ms S Oliver Solicitors for the Respondent: Sparke Helmore
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