Munir v Minister for Immigration

[2016] FCCA 1450

FEDERAL CIRCUIT COURT OF AUSTRALIA

MUNIR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1450

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal (Tribunal) – whether Tribunal incorrectly assumed that the definition of “proficient English” in reg.1.15D of the Migration Regulations 1994 (Cth) (Regulations) was an exhaustive definition.

DELEGATED LEGILSATION – Whether instrument made under reg.1.15D of the Regulations nominating a non-existent language test and score rendered invalid the regulation – regulation not invalid.

Legislation:

Migration Act 1958 (Cth), s.504

Migration Regulations 1994 (Cth), reg.1.03, 1.15B,1.15C, 1.15D, 1.15D(a), 1.15D(b), 1.15D(b)(i), 1.15D(b)(ii), 1.15E
Migration Regulations 1994 (Cth), Sch.2, cl.885.221
Migration Regulations 1994 (Cth) Legislative Instrument IMMI 09/073 - English Language Tests for General Skilled Migration

Cases cited:

Milanes v Minister for Immigration and Border Protection [2015] FCA 1105; (2015) 234 FCR 508
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597

Singh & Anor v Minister for Immigration & Anor [2016] FCCA 387; (2016)

304 FLR 396

Applicant: OSMAN MUNIR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1719 of 2014

Judgment of: Judge Manousaridis

Hearing date: 20 May 2015

Delivered at: Sydney

Delivered on: 24 June 2016

REPRESENTATION

Solicitors for the Applicant: Mr M Jones of Parish Patience Immigration Lawyers

Counsel for the Respondents: Mr M Smith

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1719 of 2014

OSMAN MUNIR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This application for judicial review raises two issues. The first concerns the proper construction of the expression “proficient English” that appears in reg.1.15D the Migration Regulations 1994 (Cth) (Regulations). The second concerns whether reg.1.15D of the Regulations is invalid.

Background

1. On 30 June 2010 the applicant applied for a Skilled (Residence) (Class VB) visa (Skilled visa).[1] The relevant subclass against which the application was assessed is Subclass 885 (Skilled – Independent). To have been entitled to such visa, the applicant had to satisfy, at the time of decision, cl.885.221 of Schedule 2 to the Regulations. That required the applicant achieve the “qualifying score” when assessed under Subdivision B of Division 3 of Part 2 of the Migration Act 1958 (Cth) (Act). In a manner which it is unnecessary to describe here, one set of points that could potentially have been available to the applicant to be assessed as part of the “qualifying score” were points for “proficient English”.

   [1] CB1-14

2. The expression “proficient English”, at the time the applicant applied for the Skilled visa, was defined in reg.1.15D of the Regulations as follows:

   If a person applies for a General Skilled Migration visa, the person has proficient English if the person satisfies the Minister that the person has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:

   (a)     an IELTS test score of at least 7 for each of the 4 test components of speaking, reading, writing and listening; or

   (b)     a score:

   (i) specified by the Minister in an instrument in writing for this paragraph; and

   (ii)     in a language test specified by the Minister in the instrument.

3. At the time the applicant applied for the Skilled visa, there was in effect an instrument in writing made for the purposes of reg.1.15D(b), namely, IMMI 09/073. Paragraph 4 of that instrument specified “a score of at least ‘B’ in each of the four components of an Occupational English Language test is a score of proficient English for the purposes of subparagraph 1.15D(b)(i) and (ii)”.

Construction of “proficient English”[2]

[2] This is ground 2 stated in the applicant’s amended application. The application as originally filed was amended to remove ground 1.

1. The applicant submits the Tribunal proceeded on the erroneous assumption that the definition of “proficient English” contained in reg.1.15D of the Regulations was an exhaustive definition. Mr Jones, who appeared for the applicant, accepts there is authority binding on this Court which may render this submission untenable. The cases to which Mr Jones referred concern the definition of “competent English” given by reg.1.15C of the Regulations. That regulation, in the form considered by the cases to which Mr Jones referred, is almost identical with reg.1.15D of the Regulations.

2. This part of the applicant’s claims is answered by the reasoning by which Katzmann J in Milanes v Minister for Immigration and Border Protection rejected the contention that the expression “competent English” given in reg.1.15C of the Regulations is not exhaustive.[3] Her Honour relied on a number of matters. Of particular relevance is the following matter:[4]

   If reg 1.15C was not intended to provide an exhaustive definition, then neither would any of these other provisions. How then would the decision-maker distinguish between “competent” and “proficient English” or “competent” and “vocational English”? What would he or she make of the term “concessional competent English”?

   [3] [2015] FCA 1105; (2015) 234 FCR 508

   [4] Milanes v Minister for Immigration and Border Protection [2015] FCA 1105; (2015) 234 FCR 508 at [78]

3. The same can be said about reg.1.15D of the Regulations. At the time the applicant applied for the Skilled visa, the Regulations defined “vocational English” (reg.1.15B), “competent English” (reg.1.15C), “proficient English” (reg.1.15D), and “concessional competent English” (reg.1.15E). If reg.1.15D of the Regulations was not intended to provide an exhaustive definition of “proficient English”, then neither would any of these other provisions. How then would the decision-maker distinguish between “proficient English” on the one hand and “competent English” or “concessional competent English” on the other? The decision-maker would be unable to distinguish the different expressions. This by itself is a determinative reason for not accepting the applicant’s submission that reg.1.15D of the Regulations does not exhaustively define “proficient English”.

4. This part of the applicant’s claims, therefore, fails.

Invalidity of reg.1.15D of the Regulations

1. The applicant claims reg.1.15D of the Regulations is invalid for two reasons. The first is that the regulation is “ambiguous, uncertain and incapable of practical administration because it refers to “the 4 test components” of the IELTS test, whereas there were 6 components of that test”.[5] Although that is the claim stated in the amended application, a different claim was advanced at the hearing.

   [5] Applicant’s amended application, Ground 3

2. In his written submissions, Mr Jones, on behalf of the applicant, submits reg.1.15D(a) of the Regulations is “ambiguous and incapable of practical administration”.[6] He relies on two matters. First, it is said that the expression “IELTS test” was defined in reg.1.03 of the Regulations to mean “the International English Language Testing System test” yet, although there is an entity known as “International English Language Testing System” (IELTS), and that entity administers English language tests, it is “by no means clear” whether the tests IELTS administers are the only tests intended to be covered by the definition in reg.1.03. Second, reg.1.03 of the Regulations defined “the IELTS test”, thus implying there is one test, yet the test on which the Tribunal relies has two versions. In support of that submission, Mr Jones, in a footnote to his written submissions, referred to a Uniform Resource Locator (URL).[7] I attempted to access the website through that URL, but it took me to an “error” page on the IELTS website. Nevertheless, the website had a link titled “About the test”, which I followed. That took me to a page which stated there were two IELTS tests.[8] One is identified as “IELTS Academic”, and the other as “IELTS General Training”. The website stated that the “IELTS General Training” “is typically for those who are going to English-speaking countries to do secondary education, work experience or training programs”, and “[p]eople migrating to Australia, Canada, New Zealand and the UK must take the General Training test”.  

   [6] Applicant’s written submissions, 6.05.2015, [23]

   [7] takers information/test takers fags/about the ielts test.aspx.

   [8] accessed on 4 June 2016

3. If I ignore, which I do, the information I accessed from the IELTS website, I am not satisfied there is any ambiguity in the definition of “IELTS” given in reg.1.03 of the Regulations. Nor is there any evidence on the basis of which I could conclude that the definition is incapable of practical application. If I were not to ignore the information I accessed from the IELTS website, I would not only not be satisfied there was no evidence on the basis of which I could conclude the definition of IELTS was incapable of practical application; I would have positively found that the definition was capable of practical application.

4. This part of the applicant’s claim, therefore, fails.

5. The second matter on which the applicant relies for claiming that reg.1.15D of the Regulations is invalid is that IMMI 09/073 is incapable of practical administration. Mr Jones points to IMMI 09/073 referring to “an Occupational English Language Test” (OELT). That expression is not defined in the Regulations, although the similar expression “Occupational English Test” was defined in reg.1.03 to mean “an Occupational English Test conducted by the National Language and Literacy Institute of Australia”. Further – and this is the matter on which Mr Jones principally relies for submitting IMMI 09/073 is incapable of practical administration – the National Language and Literacy Institute of Australia is an entity that did not exist at the time IMMI 09/073 was made. [9]

   [9] Applicant’s amended application, Ground 4

6. In Singh & Anor v Minister for Immigration & Anor I considered a similar submission in relation to an identical instrument made for the purpose of reg.1.15C of the Regulations.[10] I there concluded that it may be accepted that it would be beyond the regulation-making power conferred by s.504 of the Act to make a regulation or an instrument pursuant to a regulation made under s.504 of the Act that prescribes a criterion for the granting of a visa that cannot conceivably be met; and that it may be accepted that the purported specification by an instrument made under reg.1.15C of the Regulations of an English test and score that do not exist render the instrument invalid. I concluded, however, that the invalidity of the instrument did not affect the validity of reg.1.15C because, on the proper construction of reg.1.15C, its validity did not turn on the Minister specifying by instrument in writing any score and English language test.

   [10][2016] FCCA 387; (2016) 304 FLR 396 at [47]

7. In my opinion, the same reasoning applies to an instrument made for the purposes of reg.1.15D of the Regulations. There is nothing in reg.1.15D that suggests that its operation or validity is conditional on the Minister specifying for the purposes of reg.1.15D(b) any score and English language test. On its proper construction, reg.1.15D of the Regulations, like reg.1.15C, confers a discretion on the Minister to specify such additional score and language test as he or she may consider appropriate and at such time as he or she considers appropriate. Regulation 1.15D, again like reg.1.15C, permits, but does not oblige, the Minister to specify an additional score and an additional language test.

8. If that is the correct construction of reg.1.15D of the Regulations, the non-existence of the OELT when IMMI 09/073 was made could not have affected the validity of reg.1.15D of the Regulations. Whether or not an additional score and language test should be specified under reg.1.15D was a matter within the discretion of the Minister. That the Minister made an instrument that specified an additional score and language test that did not exist is equivalent to the Minister not having exercised the discretion to specify such test. The instrument was invalid and, for that reason, it lacked any legal foundation, and was properly to be regarded as no instrument at all.[11] The IELTS score prescribed by reg.1.15D(a) remained available as the means by which “proficient English” may have been demonstrated. In those circumstances, an applicant, like the applicant in the case before me, had to satisfy only one score under one English language test, being the score and test prescribed by reg.1.15D(a) of the Regulations.

   [11] Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [51] (Gaudron and Gummow JJ)

9. This part of the applicant’s claims, therefore, also fails.

Disposition

1. I propose to dismiss the application. I will also order that the Administrative Appeals Tribunal be substituted for the Tribunal as second respondent.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 24 June 2016