Milanes v Minister for Immigration & Anor
[2015] FCCA 205
•5 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MILANES v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 205 |
| Catchwords: MIGRATION – Skilled visa – refusal – review of Migration Review Tribunal (“Tribunal”) decision. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error - “competent English” – whether definition of “competent English” in the Migration Regulations 1994 was exhaustive – whether language test may be undertaken after visa application is lodged – whether regulatory provisions or instruments were invalid. |
| Legislation: Migration Act 1958, ss.474, 504 Evidence Act 1995, s.144 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Berenguel v Minister for Immigration & Citizenship (2010) 84 ALJR 251 Parmar v Minister for Immigration & Citizenship (2011) 195 FCR 186 Sidhu v Minister for Immigration & Border Protection [2014] FCA 935 Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 Yu v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 140 FCR 126 Constantino v Minister for Immigration & Border Protection [2013] FCA 1301 |
| Applicant: | MELCHOR MILANES |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3149 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing date: | 28 January 2015 |
| Date of Last Submission: | 28 January 2015 |
| Delivered at: | Sydney |
| Delivered on: | 5 February 2015 |
REPRESENTATION
| Solicitor for the Applicant: | Mr M. Jones of Parish Patience |
| Counsel for the Respondents: | Mr T. Reilly |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3149 of 2013
| MELCHOR MILANES |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a citizen of the Philippines, applied for a Skilled (Provisional) (Class VC) subclass 485 visa on 20 December 2012. On 7 June 2013 his application was refused by a delegate of the first respondent (“Minister”) on the basis that he did not satisfy reg.1.15C of the Migration Regulations 1994 (“Regulations”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant legislation
The criteria for the grant of a subclass 485 visa are set out in pt.485 of sch.2 to the Regulations. One of the criteria which the applicant had to satisfy was cl.485.215 which, in the version of the clause which applied at the time he lodged his application and continued to apply to him, required that he have “competent English” at the time of making his application: item 9 of sch.2 and item 1 of sch.6 to the Migration Legislation Amendment Regulation 2013 (No 1).
“Competent English” has the meaning given to it by reg.1.15C. Since 1 July 2012 reg.1.15C has provided:
1.15C Competent English
(1)A person has competent English if:
(a)the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and
(b)the test was conducted in the 3 years immediately before the day on which the application was made; and
(c)the person achieved a score specified in the instrument.
(2)A person has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.
The instrument referred to in reg.1.15C was Legislative Instrument F2012L01287 (IMMI 12/018) which relevantly provided:
3.SPECIFY for applications lodged on or after 1 July 2012 tests, test scores and passports as follows:
…
D. For the purposes of paragraph 1.15C (1)(a) the following language tests:
· an IELTS test; and
· an OET.
E. For the purposes of paragraph 1.15C(1)(c) the following scores:
· an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or
· a test score of at least ‘B’ in each of the four components of an OET.
F. For the purposes of subregulation 1.15C(2) a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland, to a citizen of that country.
…
The instrument can be understood to have stated that “IELTS test” referred to a language skills test administered by the “International English Language Test System” and that “OET” referred to an “Occupational English Test”.
Background
As noted earlier, the applicant lodged his application for a subclass 485 visa on 20 December 2012. He indicated on the application that he had undertaken an IELTS test on 1 December 2012 and provided a corresponding test reference number. He also indicated that his English language ability was “competent”.
In refusing the applicant’s visa application, the delegate stated that the test report form which corresponded with the test reference number provided by the applicant indicated that he had achieved a score of 6 for listening, 6 for reading, 5.5 for writing, and 6.5 for speaking. As the applicant had not achieved a score of 6 in each of the test components as prescribed by the Regulations and had not provided any evidence of having undertaken any other English language tests in the three years immediately prior to lodging his application, the delegate was not satisfied that he had “competent English”.
On 28 June 2013 the applicant sought review of the delegate’s decision with the Tribunal. At the Tribunal hearing the applicant confirmed that he had not achieved the required score in the IELTS test he had undertaken on 1 December 2012.
The Tribunal’s decision and reasons
The Tribunal affirmed the delegate’s decision to not grant the applicant a Skilled (Provisional) (Class VC) visa.
The applicant’s representatives had submitted that on the authority of Berenguel v Minister for Immigration & Citizenship (2010) 84 ALJR 251 the Tribunal should have offered the applicant an opportunity to be assessed on the basis of IELTS tests conducted after the date of the application. The Tribunal rejected that submission on the basis that Berenguel’s case had considered a different and earlier version of reg.1.15C. The Tribunal found that the version of reg.1.15C(1) which applied in this case precluded it from considering a test undertaken after the visa application was made. Therefore, given that the evidence before it indicated that the applicant had not achieved the requisite scores in the test he had taken in the three years immediately before the day on which the application was made, the Tribunal found that he did not have “competent English” as defined by reg.1.15C(1) to the Regulations.
Proceedings in this Court
In his amended application the applicant alleged:
1.The Tribunal misapplied the law.
Particulars
The Tribunal found that Regulation 1.15C requires the applicant to have a prescribed IELTS score at the time of application for the visa rather than at the time of decision on the visa application.
2.The Tribunal misinterpreted reg 1.15C.
Particulars
The Tribunal interpreted reg 1.15C as if it were an exhaustive definition of the term “competent English”, which it is not.
3.The Legislative Instrument referred to in reg 1.15C is an invalid exercise of the power to make such instruments.
Particulars
The instrument is ambiguous, uncertain and incapable of practical administration. It refers to a test (“the Occupational English test”) which, as defined by reg 1.03, does not exist, and its description of the “four test components” of the IELTS test is incapable [of] proper interpretation since there are six distinct components of that test.
4.Paragraph 1.15C(2) is an invalid exercise of the power to make regulations in s 504 of the Migration Act 1958.
Consideration
Ground 1
The applicant submitted that the reference in reg.1.15C(1)(c) to “a score” was not just a reference to a score achieved in a language test undertaken in the three years immediately before a visa application was made but also included a language test taken at a later time. That argument relied in particular on the following passage from the High Court’s reasons in Berenguel’s case:
… There is nothing to prevent relevant information being submitted to the Minister after lodgement of the application. Indeed, s 55 of the Act expressly provides for that to be done and requires the Minister to have regard to such information. The Act specifically provides that the Minister may have regard to up-to-date information and, where the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained, a construction which would deprive him of the most recent information seems to be antithetical to that purpose. (at 255 [26])
However, as the Tribunal noted, material differences existed between the version of reg.1.15C which was considered by the High Court in Berenguel’s case and the version of the regulation relevant to this case. Those differences lead to the conclusion that an applicant may only rely on a language test taken before making application for a visa.
In Berenguel’s case, the regulation was in the following terms:
(1)If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person:
(a)has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(i) an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or …
The most significant difference between that version of the regulation and the one which applies in the present case is that the earlier one spoke of “a test conducted not more than 2 years before the day on which the application was lodged” whereas the present version speaks of a “test … conducted in the 3 years immediately before the day on which the application was made”. The High Court held in Berenguel’s case that the requirement in the former wording was:
… susceptible of the construction that the test was conducted no earlier than two years before the application was lodged. So construed, it does not require that the test has to be conducted before the application is lodged. (at 255 [25])
However, the words of the present reg.1.15C(1)(b) are not susceptible of a similar interpretation. In plain terms they require that any test sought to be relied on be undertaken in the three year period immediately preceding the making of the visa application.
The applicant sought to avoid the consequences of the rewriting of the regulation by submitting that “score” in reg.1.15C(1)(c) was not limited to a score achieved in a test referred to in reg.1.15C(1)(a) or (b) because such an interpretation would be contrary to the purpose of the regulation as explained by the High Court in Berenguel’s case and quoted above at [14]. However, the High Court’s explanation was made in the context of its finding that reg.1.15C, as it stood then, did not require a test to be conducted before the visa application was lodged. The rewriting of the regulation and the terms in which it was rewritten evince a clear intention that the Minister is not to take into account results of tests undertaken after application is made for a visa even if that means being deprived of the most recent information concerning an applicant’s English language competence.
Further, the applicant’s argument depends on the words “a score” in reg.1.15C(1)(c) being able to refer to something other than a score in a test taken in the three years before application is made for a visa but the interdependent nature of reg.1.15C(1)’s three paragraphs makes that interpretation untenable. In context, the reference in reg.1.15C(1)(c) to “a score specified in the instrument” can sensibly only refer to a score in a test specified by the Minister in an instrument made for the purposes of reg.1.15C(1)(a). In turn, the time requirement in reg.1.15C(1)(b) specifically refers to the test taken pursuant to reg.1.15C(1)(a). I find that the “score” referred to reg.1.15C(1)(c) is a score obtained after an applicant takes a language test prescribed for the purposes of reg.1.15C(1)(a) at some point in the time period referred to in reg.1.15C(1)(b).
For those reasons I find that the Tribunal did not err as alleged in the first ground of the amended application.
Ground 2
In the second ground of the application it was alleged that the Tribunal was wrong to treat reg.1.15C as an exhaustive definition of “competent English”. The applicant submitted that the regulation did not, in terms, purport to be exhaustive and that on this question the Court was not bound by authority.
It is true that the cases to which reference was made and which considered whether reg.1.15C prescribes an exhaustive definition of “competent English” did not consider that regulation in its present form: Parmar v Minister for Immigration & Citizenship (2011) 195 FCR 186 at 192-193 [18]; Sidhu v Minister for Immigration & Border Protection [2014] FCA 935 at [11]. Consequently, they are not binding in the strict sense. However, the reasoning of Perram J is, with respect, just as applicable to this case as it was to Parmar’s case. His Honour said that:
… The opening words of the definition — “If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person [achieves certain results]” — does not textually lend itself to a non-exhaustive interpretation. The provision is in a familiar form in which a state of affairs is made conditional on the state of mind of a Minister. If it is read non-exhaustively then its legal operation becomes radically different. No longer is the question whether the Minister is satisfied the criteria have been met. Instead, “competent English” becomes a legal standard to be determined by a court. I do not think that such a profoundly different operation of the regulation is a plausible interpretation of it. (at 193 [18])
Regulation 1.15C in its present form states that a person “has competent English” if he or she achieves certain results and so it too does not textually lend itself to a non-exhaustive interpretation. Further, it is not plausible to interpret the regulation as a criterion which requires the Minister to make his own assessment of the English language proficiency of each applicant for a visa where “competent English” is a criterion for its grant. The sensible and efficient operation of the regulation in its current form depends on an applicant’s English language proficiency being determined only by the third party testing processes identified by the Regulations.
For those reasons I find that the Tribunal did not misinterpret reg.1.15C as alleged in the second ground of the amended application.
Ground 3
As noted earlier, IMMI 12/018 specified particular scores in IELTS tests and OETs for the purposes of reg.1.15C(1)(c). The third ground of the amended application alleged that IMMI 12/018 was an invalid exercise of the regulation making power because it was ambiguous, uncertain and incapable of practical administration. There were two bases for the allegation. The first was that the Regulations did not define “IELTS test” with adequate specificity and the second was that OETs were no longer available because the company which used to conduct them has been deregistered. The implication of the allegation was that the Tribunal erred by applying IMMI 12/018.
Regulation 1.03 relevantly provides:
IELTS test means the International English Language Testing System test.
Occupational English Test means an Occupational English Test conducted by the National Language and Literacy Institute of Australia.
IELTS
In his written submissions the applicant said:
An entity known as the International English Language Testing System does exist and does administer English language tests. Whether or not this is the test referred to in the regulations, or whether it is the only test that might meet that description, is by no means clear. What is clear from the Tribunal’s decision is that this is the test that it considers is referred to in the regulations. (references omitted)
In his submissions the applicant referred to the IELTS website but none of its content was admitted into evidence.
The inference to be drawn from the wording of the Regulations is that there is only one International English Language Testing System. The applicant did not demonstrate that there was more than one or any reason to suspect that there was more than one. He merely pointed to the possibility that there might be more than one. In those circumstances I find no relevant ambiguity in the Regulations or difficulty in their application. Further in this connection I observe that “IELTS” is defined in reg.1.03 as the International Language Testing System whereas IMMI 12/018 referred to the International Language Test System. It has not been demonstrated that this difference was a matter of substance.
OETs
In relation to the second element of this allegation the applicant read an affidavit to which was annexed a copy of an ASIC search which recorded that the National Languages and Literacy Institute of Australia Pty Ltd was deregistered on 11 March 2005. The affidavit was admitted into evidence subject to a finding on its relevance. I find that the affidavit and its annexure are relevant because they relate to an allegation expressly made by the applicant. The evidence would not be relevant if the allegation had been struck out or not pressed but the fact that the argument might not be successful does not make the evidence inadmissible.
Although the Minister argued that the affidavit was not relevant, and implicitly also submitted that this part of the allegation was otiose, because when making his visa application the applicant had relied on an IELTS test, not an OET, the issue raised by the allegation was, strictly, whether any part or parts of the instrument were invalid for uncertainty. Depending on the answer to that question, it may not be necessary to consider whether the applicant or his application was affected by any such uncertainty.
The evidence demonstrates that the National Languages and Literacy Institute of Australia was not in existence at the time IMMI 12/018 was signed by the Minister or subsequently. Consequently, those parts of IMMI 12/018 which refer to OETs are meaningless and cannot be applied, used or implemented. Such provisions could not have been within the scope of what Parliament intended could be prescribed pursuant to s.504 of the Act: Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 at 384, 399-401. Consequently those parts of the instrument are invalid. However, as the applicant did not base his visa application on any of those provisions, their invalidity is of no practical significance for this matter.
The implication in the applicant’s allegation was that the meaningless nature of the references to OETs rendered other parts of the instrument which were more relevant to the facts of his case, or perhaps the whole instrument, invalid but he did not advance any submissions on why that might be so. As there can be no more OETs as defined by the Regulations, there will be no applications made which rely on them and any applications which require “competent English” will depend on the results of IELTS tests. In those circumstances, the instrument can continue to operate even if parts of it are entirely redundant and so invalid. It would be inconvenient and unnecessary to strike down parts of the instrument which can operate unaffected by invalid provisions which will never be relied on by applicants.
In those circumstances no legal error attached to the Tribunal’s application of that part of the instrument which referred to IELTS tests.
Ground 4
Section 504 of the Act relevantly provides:
504 Regulations
(1)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 …
In combination, reg.1.15C(2) and IMMI 12/018 provided that a person would be deemed to have “competent English” if he or she held a passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland.
The applicant alleged that reg.1.15C(2) was inconsistent with the regulation making power found in s.504 and submitted that this was so because it was irrational, capricious and absurd to determine a person’s English language competence for the purposes of the Regulations by reference to the person’s passport and regardless of whether they actually had any English language skills. He submitted that the operation of that provision could subvert the purpose of the regulation by deeming a person to have competent English when they did not have that facility to an appropriate degree or at all. He also pointed out that the passport holder need not be a citizen of the countries in question.
It can be assumed that some residents, citizens and passport holders of the United Kingdom, the United States of America, Canada, New Zealand and the Republic of Ireland have English language skills which would not satisfy the IELTS test standard for “competent English”. However, it is a notorious fact, and a matter of which notice may be taken pursuant to s.144 of the Evidence Act 1995, that English is the principal language of those countries. That being so, the holders of those countries’ passports could generally, even if not uniformly, be expected to have good English language skills.
Before delegated legislation will be declared invalid on the basis that it is irrational, capricious and absurd it has be so unreasonable that no reasonable mind could justify it and so it could not have been within the scope of what Parliament intended when authorising the subordinate legislative authority to enact laws: Yu v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 140 FCR 126 at 134 [42]; Minister v Austral Fisheries at 384, 399-401. It has to be an extreme case: Minister v Austral Fisheries at 384; Constantino v Minister for Immigration & Border Protection [2013] FCA 1301 at [44].
Because holders of passports issued by the United Kingdom, the United States of America, Canada, New Zealand and the Republic of Ireland can generally be expected to have good English language skills, the exemption does not demonstrate the sort of irrationality, capriciousness and absurdity which justifies a finding that reg.1.15C(2) is invalid. But in any event, the Tribunal made no reference to that sub-regulation and so its decision was unaffected by any issues concerning it.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 5 February 2015
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