Munir v Minister for Immigration

[2015] FCCA 1629

FEDERAL CIRCUIT COURT OF AUSTRALIA

MUNIR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1629

Catchwords:
MIGRATION – Application for review of the Migration Review Tribunal – whether Tribunal misconstrued reg.1.15D of the Migration Regulations 1994 (Cth) – whether reg.1.15C of the Migration Regulations 1994 (Cth) is an invalid exercise of the power to make regulations under the Migration Act 1958 (Cth) – whether “legislative instrument” in reg.1.15C of the Migration Regulations 1994 (Cth) is an invalid exercise of the power to make instruments under the Migration Act 1958 (Cth) – whether Tribunal reasonably exercised a statutory discretion – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.363, 476

Migration Regulations 1994 (Cth), regs.1.03, 1.15C, 1.15D, Schedules 2, 6B

Akhter v Minister for Immigration & Anor [2015] FCCA 35
Milanes v Minister for Immigration & Anor [2015] FCCA 205
Parmar v Minister for Immigration and Citizenship [2011] FCA 760
Ghori v Minister for Immigration and Citizenship [2011] FCA 759
Sidhu v Minister for Immigration and Border Protection [2014] FCA 935
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235
Ashurov v Minister for Immigration & Anor [2015] FCCA 1521
Qui v Minister for Immigration and Ethnic Affairs (1994) 55 FCR 439
Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280
Berenguel v Minister for Immigration and Citizenship [2010] HCA 8

Applicant: IMRAN MUNIR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2689 of 2013

Judgment of: Judge Nicholls

Hearing date: 24 March 2015

Date of Last Submission: 24 March 2015

Delivered at: Sydney

Delivered on: 17 June 2015

REPRESENTATION

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

Solicitors for the Respondents: Ms L Buchanan of Australian Government Solicitors

ORDERS

1. The application made on 31 October 2013 and amended on 11 March 2015 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2689 of 2013

IMRAN MUNIR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made by Mr Imran Munir (“the applicant”) pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 31 October 2013, and amended on 11 March 2015, seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 26 September 2013 which affirmed the decision of the Minister’s delegate to refuse a Skilled (Residence) (VB) visa (“the visa”) to the applicant.

Background

1. In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”). The following background can be ascertained from those documents.

2. The applicant is a citizen of Pakistan. He applied for the visa on 20 May 2010 (CB 1 to CB 28, including attached documents). He was assisted by a registered migration agent (CB 5).

3. The delegate refused the application for the visa on 7 February 2013 (CB 29 to CB 45). The delegate was not satisfied that the applicant met the criteria for the grant of the visa. In particular, cl.885.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”), which was a mandatory criterion at the time of the decision for the grant of the visa. Clause 885.221 of the Regulations related to the “qualifying score” for the grant of the visa. This required the applicant to achieve a particular “qualifying score” for the grant of the visa. The relevant elements, and corresponding number of points which could be awarded to achieve the “qualifying score”, are set out in Schedule 6B to the Regulations (see further below).

The Tribunal

1. The applicant applied for review of the delegate’s decision to the Tribunal on 11 February 2011 (CB 46 to CB 56). He continued to be assisted by a registered migration agent (CB 52). The applicant attended a hearing before the Tribunal on 28 August 2013 (CB 67).

2. The Tribunal allowed the applicant until 24 September 2013 to provide IELTS test results that the applicant said he was expecting (CB 70). On 25 September 2013, the applicant’s representative contacted the Tribunal to request further time to await the result of a “re-mark” of “one of the modules”. The Tribunal refused the further adjournment, noting that the “Enquiry of Results Form” (submitted by the representative) indicated that the applicant was seeking a “re-mark” of two of the modules.

3. The Tribunal affirmed the delegate’s decision on 26 September 2013. Relevant to the grounds before the Court, the Tribunal found that the applicant had “competent English” as defined in reg.1.15C of the Regulations (assigned the 15 points, see Part 6B.3 of the Regulations), as opposed to “proficient English” as defined in reg.1.15D of the Regulations (did not assign the 25 points, see Part 6B.3 of the Regulations). Importantly, as a result, the applicant did not meet the required “pool mark” of 120 points, instead he received a pool mark of 110 marks. As such, the applicant did not meet the required pool mark, or qualifying score, for the grant of the visa.

Application Before the Court

1. The applicant proposed at the hearing before the Court to amend the application to the following grounds (leave was granted):

   “1. The Tribunal fell into jurisdictional error in determining whether the Applicant achieved the necessary points score for grant of a Skilled (Residence) Subclass VB visa.

   Particulars

   The Tribunal erred in construing Regulation 1.15D of the Regulations by reading the preliminary words of the regulation as though they read ‘only if’ instead of ‘if’ in circumstances where the statutory language does not import any exclusivity to the definition of ‘proficient English’.

   2. Regulation 1.15D is an invalid exercise of the power to make regulations under the Migration Act.

   Particulars

   The definition of ‘proficient English’ in reg 1.15D is unreasonable and/or may lead to manifest arbitrariness, injustice or partiality.

   3. The Legislative Instrument referred to in reg 1.15D, or the relevant part of it, is an invalid exercise of the power to make such instruments under the Migration Act.

   Particulars

   The test to which the relevant part of the Instrument refers does not exist and did not exist at the time of the making of the Instrument.

   4. The Tribunal’s refusal to allow the First Applicant more time to undertake a further IELTS test was arbitrary and unreasonable.

   Particulars

   The Applicant requested the Tribunal to delay its decision until he had received the results of a request to the IELTS testing centre to re-mark his exam. The Tribunal refused the request and decided the case on the next day. The Tribunal provided no intelligible justification for the refusal to exercise its discretion.”

2. Leave was also granted for the affidavit of Asha D’Silva, an employee of the law firm representing the applicant in these proceedings, made on 24 March 2015.

Relevant Legislation

1. Clause 885.22 of the Regulations, at the relevant time, was in the following terms:

   “885.22 Criteria to be satisfied at time of decision

   885.221 The applicant has the qualifying score when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act.

   Note That Subdivision of the Act provides in sections 92 to 96 for the application of a points system, under which applicants for relevant visas are given an assessed score based on the prescribed number of points for particular attributes, which is assessed against the relevant pool mark and pass mark.

   The prescribed points and the manner of their allocation are provided for in Division 2.6 and Schedule 6B of these Regulations. Pool marks and pass marks are set from time to time by the Minister by instrument (Act, section 96).”

2. Relevant to the application before the Court, reg.1.15C and reg.1.15D were in the following terms:

   “1.15C     Competent English

   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

   (ii)    a score:

   (A)     specified by the Minister in an instrument in writing for this sub‑subparagraph; and

   (B)     in a language test specified by the Minister in the instrument; or

   (b)    holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.

   …

   1.15D     Proficient English

   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 subparagraph; and

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

Consideration

1. The applicant submitted that grounds one to three of the amended application challenged the way in which the Tribunal interpreted the term “proficient English”. Ground four was an “independent challenge” to the Tribunal’s refusal to exercise its statutory discretion to grant a further adjournment to allow the applicant to obtain a “re-mark” of his IELTS test result.

Ground One

1. In relation to ground one, the applicant submitted that the Tribunal “assumed” that the definition of “proficient English” in reg.1.15D of the Regulations was an “exhaustive” list of acceptable evidence for the purposes of the regulation.

2. Further, the applicant submitted that decisions of this Court in Akhter v Minister for Immigration & Anor [2015] FCCA 35 (“Akhter”) and Milanes v Minister for Immigration & Anor [2015] FCCA 205 (“Milanes”), which found contrary to the applicant’s contention now, were “clearly wrong”.

3. The Minister submitted that the applicant appeared to acknowledge that a number of Federal Court judgments, by which this Court is bound, have found adversely to the applicant’s ground (Parmar v Minister for Immigration and Citizenship [2011] FCA 760 (“Parmar”); (2011) 195 FCR 186, Ghori v Minister for Immigration and Citizenship [2011] FCA 759 and Sidhu v Minister for Immigration and Border Protection [2014] FCA 935 (“Sidhu”)). The applicant “formally” submitted that those cases were wrongly decided on this point.

4. The applicant submitted that the list at reg.1.15D of the Regulations “cannot be considered exhaustive” for the following reasons. First, that there was “nothing in the language of the regulation that necessarily implies exclusivity”. Second, the term is a common English expression. In this regard the applicant relied on the decision of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 (“SZGIZ”). Third, the applicant submitted that “any semblance of an exhaustive definition” was “destroyed by the uncertainty, ambiguity and irrationality” as discussed in grounds two and three.

5. The Minister submitted that while the Federal Court judgments referred to above (at [15]) considered reg.1.15C of the Regulations, their reasoning applied equally to reg.1.15D of the Regulations. The Minister submitted that these cases had been properly decided and stood squarely against the applicant (see in particular Parmar at [18] and Sidhu at [6] – [11]).

6. The current case, as set out above, invokes reg.1.15D of the Regulations. The Minister relies on Federal Court authorities in relation to reg.1.15C of the Regulations. These cases considered arguments in relation to reg.1.15C of the Regulations which were similar, if not identical to, the arguments raised by the applicant in the current case, in relation to reg.1.15D of the Regulations.

7. The applicant submitted, possibly “pre-emptively”, that these cases were “wrongly decided”. That is not an argument that can assist the applicant in the current proceedings. The central proposition in ground one is that the Tribunal erred because it assumed that the definition of “proficient English”, as it appears in reg.1.15D of the Regulations, was exhaustive. This argument, in relation to reg.1.15C of the Regulations and “competent English”, was rejected in the authorities referred to above.

8. The applicant has not otherwise argued that the reasoning in these authorities should not be applied to reg.1.15D of the Regulations. In any event, I accept the Minister’s submissions that it does apply. On this basis, reg.1.15D of the Regulations provides an exhaustive definition of “proficient English”. There is no error in the Tribunal considering the application before it on that basis.

9. The applicant posits three specific reasons to argue that this ground is made out. None of the reasons provide a basis to distinguish the current circumstances from those considered by the authorities. Nor has the applicant submitted that any such distinction should be drawn.

10. The first is that the language used in reg. 1.15D of the Regulations does not imply exclusivity. He states that the key relevant word used is “if”, and not “only if” as the Tribunal applied it.

11. A similar argument was raised in Ashurov v Minister for Immigration & Anor [2015] FCCA 1521 (“Ashurov”) [I note that the same firm of solicitors represented the applicant in that case]. In that case, the applicant argued that the Tribunal had misread reg.1.15C of the Regulations and relied on the same cases of Parmar and SZGIZ. The relevant wording is the same for reg.1.15D of the Regulations. I adopt my reasoning in that case as follows (Ashurov at [53] – [65]):

    “[53] The applicant relied on what he said was the Tribunal’s mistaken reading of part of reg.1.15C of the Regulations (see above at [50]). That is, the Tribunal read the word ‘if’ as it appears in reg.1.15C(1), as meaning ‘if and only if’. The thrust of the applicant’s relevant submission was that reg.1.15C of the Regulations, in its terms, did not purport to be exhaustive. That is, it was non-exhaustive.

    [54] The Minister’s response was that the applicant’s proposition that reg.1.15C of the Regulations is not an exhaustive definition of ‘competent English’ was put to the Federal Court in Parmar at [9] and [18] – [19].

    [55] In that case the argument was described as follows (Parmar at [9]):

    ‘…Three points were made: first, on its proper construction the definition of competent English in reg 1.15C(a)(i) – an achievement by an applicant of ‘an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening’ – specified a sufficient, but not a necessary, requirement in order to demonstrate that an applicant had competent English. Put another way, an applicant might prove that he or she was competent in English by achieving a score of at least 6 for each of the 4 test components (and thereby fall within the definition in reg 1.15C) but this was only one such method and there remained the possibility that an applicant might prove possession of competent English by some other means. Secondly, Mr Parmar argued that the definition of ‘competent English’ in the regulation was invalid. The invalidity arose, so he submitted, because when one examined the IELTS test itself one could see that those who had designed it had intended that competent English would be made out by an overall score of at least 6 across the four components rather than a score of at least 6 in each individual component. It should be recalled, in that context, that Mr Parmar had achieved just such a score in his test of 9 May 2009 (and also on 7 November 2009). Thirdly, even if the definition were not invalid for that reason, it was in any event invalid because it operated by impermissibly delegating to the various organisations who administered the IELTS test the task of determining whether a particular applicant had competent English and this involved removal from judicial scrutiny of that important function. So viewed, the regulation was said to be neither ‘necessary’ nor ‘convenient’ for the purposes of the Migration Act 1958 (Cth) and this mattered because the only regulations authorised by s 504 of that Act were regulations having that quality.’

    [Emphasis added.]

    [56] His Honour set out the arguments made in support of this proposition at [16] – [17] of Parmar. The arguments and submissions in the current case, if not inspired in part by these arguments, echoed and parallel those arguments.

    [57] His Honour did not accept the applicant’s arguments in Parmar. The relevant reasoning was as follows (Parmar at [18]):

    ‘I cannot accept this argument. It is tolerably clear that the meaning of ‘competent English’ in reg 1.15C is the same as it is in the criteria set out for the visa in cll 485.212 and 485.222. As a matter of ordinary construction one would approach the interpretation of the Regulations on the basis that the expression ‘competent English’ has a uniform meaning throughout the Regulations unless the context otherwise demanded: Queensland v Forest [2008] FCAFC 96; (2008) 168 FCR 532 at 540-541 per Black CJ applying the well-known statement of Hodges J in Craig, Williamson Pty Ltd v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450 at 452. In this case, the context does not demand that it be given different meanings in those different places. To the contrary, it is clear that cll 485.212 and 485.222 and reg 1.15C travel together as a package of provisions dealing with the position of skilled occupation visas. As such, I do not accept that it is open to read ‘competent English’ in the criteria as meaning ‘competent English or competent English as defined’. Nor is it possible to approach the matter so as to say that the definition in reg 1.15C is not exhaustive. 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.’

    [Emphasis added.]

    [58] It is the case, as the applicant submitted, that the form of the regulation considered in Parmar is not the form of the regulation in the current case. There may be some argument to say, therefore, that what was said in Parmar is not strictly binding in the circumstances of this case.

    [59] However, as the Minister submitted, there is no basis for assuming that the reasoning in Parmar does not apply to the current version of reg.1.15C of the Regulations. In my respectful view, that reasoning, which is directed to the common elements between the two versions, is not only applicable to the current circumstances, but in terms of the correct approach to be taken by this Court, is binding on this Court.

    [60] Thus, respectfully drawing on that analysis, reg.1.15C(1) of the Regulations in its current form, states that a person has ‘competent English’ if they achieve a certain score in a language test specified by the Minister in an instrument and that test must have been conducted in a particular period.

    [61] The text of reg.1.15C(1) of the Regulations does not support, or infer, a non-exhaustive interpretation. This is not a situation where the words of the text operate to require the Minister, or the Tribunal, to make his, or its, own assessment of an applicant’s English language competence. Such competence is to be determined only by the achievement of a specified score in a test as identified by the regulatory scheme.

    [62] As stated above, the applicant sought to draw on the reasoning of the Full Federal Court in SZGIZ. In that case, amongst other matters, the Full Court considered whether the word ‘includes’ as it appears in s.48A of the Act, had the effect of making the relevant definition contained in that section non-exhaustive.

    [63] The answer to the applicant’s submission in this regard is that reg.1.03 of the Regulations defines ‘competent English’ as ‘has the meaning given by regulation 1.15C’. That regulation does not state that ‘competent English’ ‘includes’, the matters set out at reg.1.15C of the Regulations. A person ‘has’ ‘competent English’ ‘if’ the matters set out in reg.1.15C of the Regulations are met.

    [64] This construction of the regulation does not allow for a person to have competent English on any other basis. In my view, the conjunction ‘if’, as it appears in reg.1.15C of the Regulations, means that for a person to have ‘competent English’ it is contingent upon the three elements set out reg.1.15C(1)(a), (b) and (c), or reg.1.15C(2) of the Regulations. There is nothing in that language, or the placement of the word ‘if’, to suggest that what is meant is some non-exhaustive interpretation.

    [65] As stated above, the applicant submitted that the word ‘if’ was understood and applied, by the Tribunal, as meaning ‘if and only if’. I agree. However, it did so in circumstances where the use of the word ‘if’ does posit an exhaustive definition. None of the applicant’s arguments asserting ambiguity establish, on balance, that there is such ambiguity, or that a non-exhaustive interpretation is to be preferred to an exhaustive one.”

1. In all, and for the reasons set out above, ground one is not made out.

Grounds Two and Three

1. Grounds two and three challenge the validity of reg.1.15D and the relevant legislative instrument referred to in reg.1.15D of the Regulations. First, the applicant submitted that the references to the “IELTS test” in reg.1.15D(a) of the Regulations were ambiguous and incapable of practical administration, as it was not defined, or explained, in the legislation.

2. Second, that the reference to the “Occupation English Language Test” was similarly ambiguous, and incapable of practical administration for two reasons. One, because the instrument IMMI 09/073 referred to “Occupational English Language Test” and reg.1.03 of the Regulations refers to the “Occupation English Test”. Two, that reg.1.03 of the Regulations specifies that the test referred to is one that is conducted by the “National Language and Literacy Institute of Australia”.

3. The applicant referred to annexure “A” of the affidavit of Asha D’Silva of 24 March 2015 that indicated that this organisation ceased to exist no later than 2005. In these circumstances, the applicant submitted that the Tribunal had considered, erroneously, that the applicant had available to him an alternative way of demonstrating his English language capacity by sitting a test which did not exist at the time.

4. The Minister submitted, in relation to ground two, that the test for “unreasonableness” was a “high one”. He referred to Qui v Minister for Immigration and Ethnic Affairs (1994) 55 FCR 439, in which the validity of an English language criterion in the Regulations was challenged. In that case, in dismissing the claim that the regulation was “unreasonable and uncertain”, Lockhart J stated (at 446):

   “When the validity of a regulation is challenged on the basis that it is ‘unreasonable’ such that it goes beyond the regulation-making power, the word ‘unreasonable’ in this context means that the regulation is so oppressive and capricious that no reasonable mind can justify it.”

5. Further, the Minister submitted that a similar argument, in relation to reg.1.15C of the Regulations, was rejected by the Federal Court in Parmar at [20] – [28] per Perram J:

   “[20] I turn then to the first of Mr Parmar’s attacks on the validity of reg 1.15C. Mr Parmar says reg 1.15C rests for its lawfulness upon the regulation making power which authorises it and that that power may be used only to make regulations which are not disproportionate to the attainment of the objects of the Migration Act. Regulation 1.15C implements the IELTS test but, so Mr Parmar submitted, the requirements of IELTS for competent English are only that an applicant achieve an overall score of 6 across the four components and not that he or she achieve a score of 6 in each of them. Since the regulation was expressly utilising the IELTS, the absence of some explanation as to why a different approach to the test had been embraced in reg 1.15C meant that it was not possible to discern a rational basis for the regulation. Put another way, the IELTS required only an overall score of 6 for competent English and it was irrational for reg 1.15C to implement the IELTS test whilst using a standard – 6 in each component – which was materially different to the IELTS standard itself. Without some understanding for this disparity in approach, reg 1.15C was to be seen as illogical or at least irrational.

   [21] To understand this submission it is necessary to say something of the IELTS tests.  From the tests which Mr Parmar sat the following facts about IELTS may be gleaned:

   (a)    IELTS is an acronym for International English Language Testing System;

   (b)    the testing system is operated by the British Council, an entity known as IDP IELTS Australia and the University of Cambridge;

   (c)     the tests administered to examinees under the IELTS are performed by a variety of centres and institutions;

   (d)    the IELTS system provides for two kinds of tests: the general training test and the academic test;

   (e)     the general training system test (with which this appeal is concerned) assesses an examinee across four bands: listening, reading, writing and speaking;

   (f) that the general training test awards a score for each component and also an overall score.

   [22] I am unable to determine what the maximum score in each band, or the overall band score, are.  It is not disclosed in the test result forms themselves.  It is true that the print-out from the IELTS website suggests the existence of a 9-band scale ranging from Band O (test not attempted) through to Band 9 (expert user).  The result of the Minister’s hearsay objection and my earlier s 136 direction is, however, that this material is not to be used for a hearsay purpose.  I cannot find, therefore, what the bands are but I can find that IELTS has said that Band 6 is that of ‘a competent user’ who has ‘generally effective command of the language despite some occasional inaccuracies, inappropriateness, and misunderstandings.  Can use and understand fairly complex language, particularly in familiar situations’.  IELTS has also said on the same webpage that these band scores correspond not only to each of the four components of listening, reading, writing and speaking but also to the overall band score.  Thus the IELTS site does say that an overall band score of 6 signifies the level of a competent user.  This evidence has a non-hearsay relevance: the rationality, proportionality or logicality of the regulation in question may be susceptible to a comparison between what reg 1.15C says about competent English and the IELTS test, on the one hand, and what IELTS itself says about it, on the other.  On this view, reg 1.15C fixes as the threshold for competent English an achievement of a score of 6 in each section whereas what IELTS itself appears to advocate is an overall score of 6.

   [23] It is not necessary to investigate with any precision the intricacies of the doctrines of irrationality attending the making of regulations or those dealing with the proportionate achievement of a statute’s objects (cf Minister for Primary Industry and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 at 384 per Lockhart J; Yu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 140 FCR 126 at 134 [43] per Kiefel J; Qiu v Minister for Immigration and Ethnic Affairs (1994) 55 FCR 439 at 446 per Lockhart J).  This is because I do not think the suggested difficulty arises.  This, in turn, is for the simple reason that the same website also shows that IELTS does not regard its own standards as definitive.  One section says ‘There is no pass or fail in IELTS.  Scores are graded on the 9-band system.  Each educational institution or organisation sets its own levels of IELTS scores to meet its individual requirements’.

   [24] It follows that no difficulty arises from reg 1.15C’s requirement that band scores of 6 in each of the four components be attained to constitute competent English whilst the IELTS apparently regards such English to be demonstrated more generously by achievement of an overall mark of 6. That same conclusion is supported by an examination of the Explanatory Statement which accompanied the introduction of the present form of the Regulations. It explained in some detail the reasons for the present selection of the band scores. The statement notes that the Regulations draw a distinction between four classes of English:

   (a)    Vocational English;

   (b)    Competent English;

   (c)     Proficient English; and

   (d)    Concessional competent English.

   [25] Generally speaking, the Explanatory Statement indicates that vocational English is the acceptable level of English for persons seeking a general skilled migration visa who have nominated a trade as their occupation.  An IELTS score of at least 5 in each of the four components is required.  Competent English is required for those persons seeking a skilled migration visa who wish to pursue a professional occupation.  An IELTS score of at least 6 is required for each of the four components.  Proficient English is not required of any applicant for any visa but consists nevertheless of an IELTS score of at least 7 in each of the four components.  Applicants who have ‘proficient English’ are entitled to additional points under the general assessment system.  Concessional competent English is a form of competent English where the applicant has made arrangements to attend English language training in Australia.  An average score of 5.5 across the four components is required.  The Explanatory Statement also shows that these standards were formulated following an evaluation of the general skilled migration categories by three academics in March 2006.

   [26] Two points flow from this:

   (a)    The regulations exhibit a carefully structured set of distinct English speaking standards;

   (b)    The means adopted to do so is an internationally accepted independent testing mechanism.

   [27] Quite apart from the fact that the IELTS website says that it permits institutions and organisations to adopt their own standards I do not think, in those circumstances, that it would be open to this Court to conclude that this regulation was irrational or disproportionate. In that context, a few matters need to be kept in mind. To begin with, the IELTS tests not just spoken English and listening skills but also, just as importantly, reading and writing skills. It is all too easy to fall into the trap of thinking that because a person appears to speak English with reasonable fluency that their reading and writing skills are necessarily of the same order. The regulations in question, and the IELTS in particular, test all four of these matters and do so in a uniform and independently administered fashion. It is not to be thought that the Court’s perception of the English language skills of a litigant is a superior mechanism for determining that issue. The viva voce encounter between a judge and a self-represented appellant in a skilled migration visa appeal does not provide an effective forum in which reading and writing skills may be examined. It gives an increased, and undue, emphasis on oral skills but it is, of course, not just with such skills that the migration system is concerned. Furthermore, once it is appreciated that the Regulations draw distinctions between vocational, competent and proficient English by means of band scores it would be altogether too much to think that a Court could make the kinds of subtle judgment necessary to observe these distinctions merely by the manner in which an appellant happened to speak in Court.

   [28] There are additional, broader, issues too.  The visas in question are high volume visas for which the number of applications is very large.  There needs to be not only a way of testing the language skills of applicants which is suitable to be applied to the large number of applications made but, just as importantly, that system needs to be reliably uniform in its application.  The imposition of precise score requirements rationally serves this end.  In such a system there will always be those who fall close to the line but that is to be seen as the price to be paid for certainty, efficiency and the species of fairness constituted by consistency.  In those circumstances, the challenge to reg 1.15C based on the IELTS website fails, however harsh or frustrating this appears in Mr Parmar’s case.”

6. That reasoning is directly applicable to the circumstances of this case and stand in answer to the applicant’s grounds.

7. In relation to ground three, the affidavit of Asha D’Silva shows that the ‘National Language and Literacy Institute of Australia’ ceased to exist prior to the making of the instrument (IMMI 09/073). The argument was that in these circumstances the instrument was therefore an invalid exercise of the power to make such instruments. The Minister submitted that identical arguments were considered by Judge Cameron in Milanes (at [33]) and Judge Driver in Akhter (at [67]). The Minister submitted both cases were correctly decided, and as Judge Driver held “the apparent ineffectiveness of the specification of the ‘Occupational English Test’ does not impact upon the effectiveness of the specification of the IELTS test” (see Minister’s written submissions at [29]). I cannot see that these were wrongly decided. I respectfully agree with the approach taken and conclusions reached.

8. In all, grounds two and three are not made out.

Ground Four

1. In relation to ground four, the applicant submitted that the Tribunal’s refusal to allow the applicant further time was “arbitrary and unreasonable” with reference to the High Court’s decision in Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”) and the Full Federal Court’s decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280 (“Singh”), which the applicant submitted was “indistinguishable” from the current circumstances.

2. The Minister submitted that an “intelligible justification” for the refusal of the further extension of time was discernible. The Minister drew attention to the evidence contained in the Court Book of a “case note”, where the applicant’s migration agent was advised of the reason for the refusal decision (see CB 73). Further, that at [14] (at CB 80) to [15] (at CB 81), the Tribunal referred to the applicant’s “ample opportunity” to achieve the relevant score, that the applicant was seeking to have “two modules” re-marked instead of the one advised by the migration agent, and, further, that the test results had not been provided.

3. The Minister submitted that in these circumstances, it was “tolerably clear” that the Tribunal considered whether to exercise its discretion and whether it would “make a difference to the outcome of the review”, and rejected the request as “there was no evidence before it which suggested that the applicant would meet the relevant requirements as a result of the re-mark” (see the Minister’s written submissions at [33]).

4. The part of the Tribunal’s record relevant to this ground is [15] (at CB 80 to CB 81).

   “The Tribunal is satisfied on the evidence before it that the applicant has 'competent English' as defined in r.1.15C as he has provided an IETLS test result number indicating that he has achieved scores of 6.0 for listening; 6.0 for reading; 6.0 for writing and 6.0 for speaking. However, the applicant has not provided any evidence that he has achieved a score of at least 7 in each of the 4 test components of an IELTS test, or a score of at least B in each of the 4 test components of an Occupational English Test. The Tribunal considers that the applicant has had ample opportunity to undertake IELTS or Occupational English Tests and to achieve the relevant score given that the application was lodged over 3 years ago. The applicant has not provided the results of his most recent IELTS test, but the evidence he has provided indicates he is seeking to have two test components remarked. In these circumstances, the Tribunal is not satisfied that any further time to enable the applicant to have his IELTS tests remarked is warranted. The Tribunal finds, therefore, that the applicant does not have 'proficient English' as defined in r.1.15D and that he is entitled to 15 points only on the basis of his IELTS test score.”

5. At the Tribunal hearing on 28 August 2013 the applicant asked for further time so as to provide English language test results for a test which he said he was to take on 7 September 2013. The Tribunal agreed to this and gave the applicant until 24 September 2013 to submit the results.

6. The focus of ground four, however, is on a subsequent request made on 26 September 2013, where the applicant sought additional time, so as to seek a “re-mark” of the IELTS test for which he had already sat. The Tribunal stated in its decision record that further time was not “warranted”.

7. In Li, the High Court held that the consideration by the Tribunal of the statutory discretion to adjourn the review (in this case s.363(1)(b) of the Act) must be exercised reasonably. The joint judgment of the plurality in Li, per Hayne, Keifel, and Bell JJ, explained that at [76]:

   “As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion ‘if upon the facts [the result] is unreasonable or plainly unjust.’ The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

8. The Full Court in Singh provided direction in further understanding Li. First, the correct approach to the disposition of the current case does not invoke a comparison of the current facts with the facts in Li (at [41]). Li did not create a “factual checklist” to be followed (Singh at [42]).

9. Second, as the Full Court stated (Singh at [42]):

   “…Unlike some grounds of review, legal unreasonableness is invariably fact dependent, so that in any given case determining whether an exercise of power crosses the line into legal unreasonableness will require careful evaluation of the evidence before the court, including any inferences which may be drawn from that evidence. Ultimately, however, the outcome will depend on the application of the principles which emerge from Li, and the earlier authorities discussed in it, rather than on mere factual similarities or differences.”

10. Third, the Full Court also said (Singh at [47]):

    “This question highlights the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power. Although it is not necessary for the purposes of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v The King [1936] HCA 40; (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.”

11. As set out above, in the current case, the Tribunal’s decision record does purport to give reasons for refusing further time to await the results of the re-mark. The question, now, therefore, is whether the reasons provide an “intelligible justification” for the refusal. That is, there must be some exposure of how the Tribunal reached the conclusion that further time should not be given (Li at [82]).

1. Before the Court, the respondent also submitted that the applicant’s request for more time for a re-mark should be seen as a continuation of the time that the Tribunal had already provided. That is, the Tribunal had accepted that, consistent with the relevant statutory and regulatory scheme and authorities, the applicant could provide evidence of proficient English up to the time of the making of the decision if such evidence were available to him (Berenguel v Minister for Immigration and Citizenship [2010] HCA 8). It gave him time for that purpose.

2. The applicant’s submission was that the subsequent request relating to the re-mark (whether for one or two modules) was a continuation of the same process. The re-mark was just one particular type of “finalisation” of the process commenced by sitting for the examination and as allowed for by the procedures of the testing authority, and for which the Tribunal had given extra time. In this sense, the applicant submitted that the Tribunal’s refusal was also unreasonable.

3. In my view, the Tribunal has provided an intelligible justification in its decision record for refusing any further extension of time.

4. It is important to note that while the Tribunal made reference in its reasons to the applicant having an “ample opportunity” to undertake the relevant test in the three years since he applied for the visa, I did not understand the Tribunal to refuse any further time simply on that basis.

5. Rather, on a fair reading, the Tribunal reasoned as follows. It noted the basis for the request for further time. That is, that the applicant had “missed out” in one module by 0.5 of a mark (6.5, he needed 7.0). It compared this with other evidence before it, including evidence provided by the applicant himself that he was seeking a re-mark of two test components, not one. The applicant had had three years to achieve the relevant score. Even in that circumstance, his latest attempt to achieve that score was by having two components of the latest test “re-marked”. This did not warrant further time to be given to him.

6. On a fair reading, this is not a situation where the Tribunal simply rejected the request for further time because the applicant had had ample time to provide the required results. Rather, the reasoning was that given the time that had been available, a re-mark of two modules of the latest test was not such as to suggest, in the circumstances, that further time was warranted. That is, that there was not a level of confidence that the applicant would be able to achieve proficient English and, therefore, that the outcome of the review could be different.

7. A different decision maker may have reasoned differently. However, the relevant test is whether, having regard to the reasons given, an evident justification for the refusal to exercise the discretion is available. In my view, for the reasons set out above, ground four is not made out.

Conclusion

1. The grounds of the application are not made out. It is appropriate to dismiss the application. I will make an order accordingly.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 17 June 2015