Sapkota v Minister for Immigration and Multicultural Affairs

[2025] FedCFamC2G 19

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Sapkota v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 19

File number(s):

SYG 1096 of 2023

Judgment of:

JUDGE LAING

Date of judgment:

15 January 2025

Catchwords:

MIGRATION – application for review of a decision by the Administrative Appeals Tribunal – interpretation of IMMI 15/062 – Shine v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FedCFamC2G 132 – materiality and futility – application dismissed

Legislation:

Migration Act 1958 (Cth) s 504

Migration Regulations 1994 (Cth) Schedule 2, cl 485.212

Migration Amendment (2015 Measures No. 1) Regulations 2015 (Cth) r 1.03

Cases cited:

Anand v Minister for Immigration and Citizenship [2013] FCA 1050; (2013) 215 FCR 562

Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 84 ALJR 251

BXS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 20; (2023) 296 FCR 63

Cooper Brookes (Wollongong) Pty Ltd v Commission of Taxation (1981) 147 CLR 297

Kumar v Minister for Immigration and Border Protection [2018] FCA 140

Shine v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FedCFamC2G 132

Thlork v Minister for Immigration and Border Protection [2019] FCA 333

Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495

Division:

General

Number of paragraphs:

59

Date of hearing:

29 October 2024

Place:

Sydney

Counsel for the Applicant:

Mr D Godwin

Solicitor for the Applicant:

O’Connell Solicitors

Counsel for the First Respondent:

Mr G Johnson

Solicitor for the First Respondent:

HWL Ebsworth Lawyers

Second Respondent:

Submitting notice, save as to costs

ORDERS

SYG 1096 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

RABIN SAPKOTA

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE LAING
DATE OF ORDER:	15 JANUARY 2025

THE COURT ORDERS THAT:

1.The application be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LAING:

1. The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) (as it was). By that decision, the Tribunal affirmed a decision by a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Temporary Graduate (Post-Study Work Stream) (Class VC) visa (temporary graduate visa).

2. For the following reasons, the application must be dismissed.

   BACKGROUND

3. The applicant is a citizen of Nepal. On 28 September 2021, the applicant applied for the temporary graduate visa that is the subject of this proceeding.

4. The Delegate refused the application on 3 October 2022. The Delegate was not satisfied that cl 485.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) had been met.

5. The applicant applied to the Tribunal for review of the Delegate’s decision on 18 October 2022. The applicant attended a hearing before the Tribunal on 23 May 2023.

6. On 13 June 2023, the Tribunal affirmed the Delegate’s decision.

   RELEVANT PROVISIONS

7. The criterion at issue before the Tribunal was cl 485.212(1) of Schedule 2 to the Regulations, which provided:

   485.212

   (1)       The application was accompanied by evidence that:

   (a)       the applicant:

   (i) has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and

   (ii) has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument; or

   (b) the applicant holds a passport of a type specified by the Minister in a legislative instrument made for this paragraph.

8. The parties were in agreement that the relevant instrument was IMMI 15/062.

9. The instrument specified language tests at [1]. It specified tests that needed to be completed in a single test sitting at [2]. At [3], it specified the minimum required overall test score and the minimum required scores for each of the test components for applicable tests. At [4], it provided:

   4.SPECIFY for subparagraphs 476.213(a)(ii) and 485.212(a)(ii) of the Regulations the following English language tests must have been undertaken within the three years before the day on which the application was made:

   a.        an International English Language Test System (IELTS) test;

   b.a Test of English as a Foreign Language internet-based test (TOEFL iBT);

   c.        a Pearson Test of English Academic (PTE Academic); or

   d.        a Cambridge English: Advanced (CAE) test; or

   e.        an Occupational English Test…

10. The instrument then specified that the Cambridge English: Advanced (CAE) test needed to have been undertaken on or after a specified date at [5], before specifying passports at [6].

    THE TRIBUNAL’S DECISION

11. The Tribunal noted the applicable criterion and instrument at [6]-[8] of its decision.

12. The Tribunal then reasoned as follows at [9]-[17]:

    9.The applicant in this case stated in the visa application that he had not undertaken an English test in the last 36 months and had not provided evidence of having achieved the relevant scores in an English language test as required by the relevant instrument.

    10.On 19 October 2022, the applicant provided to the Tribunal a receipt for an English language test to be undertaken on 17 November 2021.

    11.On 9 May 2023, The Tribunal sent the applicant a natural justice letter which referred to the Department refusing the Subclass 485 visa as the applicant had not met the requirements of reg.485.212 as the applicant has not undertaken a specified English language test and achieved the minimum results withing the three years before the date on which the visa application was made. Nor did the applicant hold a specified passport. The Tribunal provided a copy of the relevant legislative instrument which set out the specified language tests and scores and the period within which the specified scores are to be achieved.

    12.The Tribunal also referred to in its letter of 9 May 2023, to the PTE English language test results for the test undertaken on 17 November 2021 and stated that since the test was undertaken after the date of your application it cannot be relied upon to meet the requirements of reg.485.212. The Tribunal then explained that as the applicant’s Subclass 485 visa application was not accompanied by evidence that he had undertaken an English language test between 27 September 2018 to 27 September 2021 where he achieved the relevant test scores, the Tribunal may find that the applicant does not meet the requirements of reg.485.212. Further, if the Tribunal makes this finding, then the Tribunal will affirm the Department’s original decision.

    13.On 10 May 2023, the applicant responded to the Tribunal’s letter of 9 May 2023 by stating that his test bookings were impacted by a surge during the COVID outbreak and dates were not available for tests. He also stated that the Department was flexible and allowed Subclass 485 visa applications to be lodged without English evidence as test were not available. The applicant also stated that he was an essential worker in Bathurst and Dubbo and had to travel to Sydney to do his test which he finally managed on 17 November 2021.

    14.At the hearing the Tribunal explained the requirements of cl.485.212 and the contents of the Tribunal’s letter and the applicant stated that the understood the requirements. The applicant referred to the COVID-19 and most of the test centres were affected and the Department allowed them to apply without the English test with the application. This is why he provided the test late. The Tribunal referred to the applicant being able to sit a test prior to the outbreak of COVID and the applicant stated that he completed his studies July 2021 and then went to Bathurst where he worked as a COVID cleaner and there are no test centres in Dubbo and Bathurst. The main reasons was that at the time of the application he could apply without the test result and there were no test centres open and he could give the test later.

    15.The Tribunal explained the requirements again and the applicant stated that the decision must be made later as he is outside of Australia and will return on 09 June 2023. The Tribunal sated that it would delay the decision for a short period and advised that the applicant seek advice.

    16.As the applicant has not undertaken a language test specified in an instrument and therefore, has not achieved, within the period specified in the instrument, the score specified the Tribunal is satisfied that the applicant does not meet the requirements of cl.485.212(20(a).

    17.The Tribunal is not satisfied that the application was accompanied by evidence that meets cl 485.212.

    (As per the original)

13. Having regard to the above, the Tribunal found that the applicant was unable to meet the criteria for the visa and affirmed the Delegate’s decision (at [18]-[19]).

    BEFORE THIS COURT

14. The applicant commenced this matter through an application filed on 5 July 2023. The applicant ultimately relied upon the following ground in an amended application filed on 13 August 2024:

    1.The Tribunal erred in concluding that the applicant had not undertaken a language test specified by IMMI 15/062 and so did not meet cl 485.212 of schedule 2 of the regulations.

    Particulars

    a.cl 485.212 (1)(a)(ii) requires that the applicant has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in accordance with the requirements (if any) specified by the Minister in the instrument.

    b.IMMI 15/062 was the instrument made for the purposes of cl 485.212 (1)(a)(ii);

    c.IMMI 15/062 prescribed a time period within which a test had to be undertaken and not a time period within which the score had to be achieved.

    d.The specification in IMMI 15/062 of a prescribed a time period within which a test had to be undertaken was not a valid prescription for the purposes of cl 485.212 (1)(a)(ii)

    e.there is No specification in IMMI 15/062 of a time period within which a score had to be achieved.

    f.on 17 November 2021, prior to the decision of both the delegate and the Tribunal, the applicant achieved a minimum overall score of 50, with a minimum score of 36 for each category (being listening, reading, speaking and writing) in a PTE Academic test.

    g.by achieving this score prior to a decision being made on his application the applicant satisfied cl 485.212.

    (As per the original)

15. The applicant relied upon Shine v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FedCFamC2G 132 (Shine). In the applicable version of cl 485.212 in that case, the numbering was slightly different in that sub-cll numbers (1) and (2) were subsequently added. However, cl 485.212(a) was materially the same as the version of cl 485.212(1)(a) under consideration in this case. The applicable instrument was also IMMI 15/062. His Honour summarised the following conclusions regarding the interpretation and validity of IMMI 15/062 at [3] of the judgment as follows:

    3.The determination of this application turns on the proper construction of cl 485.212 and whether the three year limitation period created by IMMI 15/062 applies as a criterion to the applicant having undertaken a ‘test’ as required by par 485.212(a)(i), and/or having achieved a ‘score’ as required by par 485.212(a)(ii) of the regulations. A constructional choice is presented by the issue including whether IMMI 15/062 is framed in terms which are in excess of the power conferred by cl 485.212. In summary, I consider it is erroneous to apply the three year limitation period so prescribed to the requirement in par 485.212(a)(i) to having undertaken a test. Paragraph 4 of IMMI 15/062 states that the “English language test must have been undertaken within three years before the day on which the application was made.” The drafting of par 4 erroneously addresses the requirements of par 485.212(a)(i) (i.e., having undertaken a test), instead of those provided by par 485.212(a)(ii) (i.e., having achieved a score). Properly construed par 4 of IMMI 15/062 says nothing, relevantly, to par 485.212(a)(i). Insofar as it is material, par 4 of IMMI 15/062 speaks only to par 485.212(a)(ii). The clear drafting error presents a constructional choice in which the literal, unambiguous, text of par 4 in IMMI 15/062 must yield to the evident purpose of the overall statutory scheme having regard to the objects of the Act, regulations and legislative instrument. To the extent par 4 of IMMI 15/062 purportedly fixes a three year time limit as the period within which a visa applicant must have undertaken a language test, it exceeds the limits of the power conferred by cl 485.212(a) and must be read down and construed as referring to the period within which an applicant must have achieved a score upon undertaking a prescribed test. The time limit as prescribed by IMMI 15/062 applies to the achievement of a score, not the undertaking of a test. Otherwise, the validity of IMMI 15/062 is preserved and operates according to its terms.

16. As I understand it, two essential conclusions arise from the decision in Shine:

    (a)first, to the extent para 4 of IMMI 15/062 purported to fix a three year time limit as the period within which a visa applicant must have undertaken a language test, it exceeded the limits of the power conferred by cl 485.212(a) of Schedule 2 to the Regulations; and

    (b)second, that para 4 of IMMI 15/062 must be read down and construed as referring to the period within which an applicant must have achieved a score on the relevant test.

17. The applicant contended that the first of these should be followed. However, the applicant contended, by reference to various authorities, that the second finding of principle went beyond the power of this (or any other) Court.

18. The Minister contended that the first was erroneous and ought to be departed from by the Court. Alternatively, the Minister submitted that the application should be dismissed on the basis of the second of the essential findings in Shine or, alternatively, on the basis of futility or because materiality had not been demonstrated.

    The decision in Shine

19. The decision in Shine is a detailed decision that does not readily lend itself to pithy summary. A fair and proper consideration of the decision requires consideration of the decision in its totality. However, for the purposes of this judgment, I will endeavour to summarise, as aptly as possible, my understanding of the decision.

20. In Shine, the applicant had undertaken her test more than 36 months before the date of her visa application, but achieved a satisfactory score within that 36-month period. Evidence of the test and score were provided with her visa application (at [4]).

21. His Honour considered applicable principles regarding statutory interpretation at [33]-[42] of the judgment. There, his Honour considered, inter alia, the principles articulated in Cooper Brookes (Wollongong) Pty Ltd v Commission of Taxation (1981) 147 CLR 297 (Cooper Brookes), which were considered “especially important for confronting the principles to be applied in cases where the literal meaning of the words used was unambiguous”. His Honour considered the observation by Gibbs CJ at 305 that where two constructions of a provision are open, the construction which avoids inconvenience or injustice will be applied. His Honour had regard to cases in which the potential for ambiguity to be demonstrated by context was considered, as well as cases indicating circumstances in which “the ordinary meaning of words must yield to the statutory purpose of the provision having regard to its context and object”.

22. At [43]-[50], his Honour considered principles applicable to interpretation of delegated legislation. His Honour observed at [44] that the regulation making power conferred by s 504(1) of the Migration Act 1958 (Cth) (Act) was constrained by the requirement that such regulations were not inconsistent with the Act. At [47], his Honour considered:

    47.In Delegated Legislation in Australia, Pearce and Argument caution upon the approach to be taken in applying principles of severance but accept that a Court may “endeavour to place a more limited meaning on the words used to ensure the validity of the legislation” and that “if it is possible to spell out from the enactment a basis on which the law can operate in relation to the matters falling within power, then the Act should be read down so as to apply to those instances alone.” The learned authors further state that “A similar approach has been evidenced by the courts when considering the meaning to be given [to] expressions used in delegated legislation that appear in the Act empowering the making of the legislation”: [29.12]. The learned authors also endorse the application of the general principle that where there are possible competing interpretations, a construction which would bring it within power is to be preferred: [30.7]. Those principles align with the settled statements of principle identified above, including those extracted from Cooper Brookes, SZTAL and CFMMEU v ABCC.

23. The legislative and regulatory framework was considered at [51]-[57], in which his Honour also considered the terms of cl 485.212 and IMMI 15/062. At [65], his Honour observed that it was only in sub-para 485.212(a)(ii) that express power was conferred to make a legislative instrument imposing a temporal requirement. His Honour observed that no such power was conferred by sub-para 485.212(a)(i).

24. His Honour considered that the ordinary and natural meaning of the word “test” was “a means by which a person’s competence may be assessed”. The word “undertaken” was said to denote that “the applicant has entered upon and committed himself or herself to the process of assessment”. This was contrasted with the ordinary meaning of the word “score”, which was directed to the resultant product of a test. His Honour recognised that the words “score” and “test” had distinct meanings and were not synonymous (at [66]-[70]).

25. His Honour considered the legislative history of cl 485.212 in some detail at [72]-[78]. His Honour considered that other provisions in the Regulations illustrated that cl 485.212 “could have, but does not, expressly require the applicant to have undertaken the test within a period referrable to the date on which the application was lodged” (at [76]). His Honour reasoned as follows at [78]:

    78.Six matters should be noted. First is that the regulations adopt a variety of different criteria in relation to language tests, one of which are those prescribed by cl 485.212. Secondly, while a process of comparison may be somewhat instructive, it is wrong to conflate the regulatory criteria of one language test regime with the criteria of another. Thirdly is to recognise the fundamental changes effected to cl 485.212. From 1 July 2015, a criterion was introduced requiring that evidence which must accompany the application of a certain kind. Fourthly, the earlier criteria, which evolved from a requirement that an applicant had competent English (a matter to be determined by reference to the definition in reg 1.15C) or had made arrangements to undertake a test to demonstrate the criteria had been met, was discarded in favour of criteria which introduced an evidence based requirement, such evidence to be provided at the time of application. Fifthly, in light of those changes, the criteria for competency in English shifted from a forward-looking requirement (“has made arrangements to undergo a language test”), to a backward-looking requirement (“accompanied by evidence that the applicant had achieved, within the period specified by the Minister, the score specified by the Minister”). Sixthly, cl 485.212 now requires proof of an historical fact – proof that a requisite score has been achieved. These conclusions are confirmed by extrinsic materials.

1. His Honour then considered extrinsic materials relating to the legislative history of the provision in some detail at [79]-[99]. I do not propose to reproduce his Honour’s detailed work in this regard, which can be found in his Honour’s judgment. However, I will note the following explanation given in the Explanatory Statement (2015 ES) regarding amendments made to reg 1.03 through the Migration Amendment (2015 Measures No. 1) Regulations 2015 (Cth) (extracted at [93] of Shine):

   Schedule 2 – English language test requirements

   …

   Item 2 - Regulation 1.03

   This item amends regulation 1.03 to include a new definition of “score”. The amendment is consequential to the insertion of new clauses 476.213 and 485.212 (items 12 and 14 below).

   The purpose of this amendment is to make clear that the term score – when used in relation to an English Language Test – means any score or result and any combination of a score or result from an individual component of a test or from a general score awarded in relation to the whole test.

   The effect of the amendment to include a definition, in relation to an English language test, of ‘score’ is to provide the Minister with the flexibility to specify scores in any or all components of a particular test, and/or an overall score, as appropriate, in relation to the particular test.

2. I will also note the following explanation that was given regarding amendments to cl 485.212 (extracted at [96] of Shine):

   Schedule 2 – English language test requirements

   …

   Item 14 – Clause 485.212 of Schedule 2

   Clause 485.212, which is a criterion for grant of a Temporary Graduate (subclass 485) visa, removes the reference to “competent English” and replaces it with a requirement that, at the time of application, the applicant has undertaken a specified language test, and achieved a specified score.

   The purpose of this amendment is to enable lower English language test scores for individual components of a test (while maintaining a minimum average score) to be specified for the Temporary Graduate visa so that test results can be more flexible and these visas can be more responsive to Australia’s labour market requirements. The available tests and the acceptable scores will be specified in an instrument made by the Minister.

3. His Honour considered (inter alia) at [99]:

   99.The 2015 ES does not evince an intention that par 485.212(a)(ii) was intended to confer power so as to permit the Minister to mandate that the language test be conducted within the three year period prior to the lodgement of the visa application. The focus of this extrinsic material was to enable a more flexible approach to be conferred by Ministerial instrument, both as to the specification of tests and the minimum scores to be achieved. It would seem inimical to a policy objective of introducing such flexibility to insert a rigid limitation period in relation to the date by which a test had been undertaken, provided the score had been achieved within a specified period (as indeed the power conferred by par 485.212(a)(ii) provides)…

4. His Honour then considered various decisions that had been relied upon by the parties (at [100]-[130]). His Honour acknowledged that in Kumar v Minister for Immigration and Border Protection [2018] FCA 140 at [24] (Kumar) it had been held that there was “no arguable ambiguity in the terms of either cl 485.212 or IMMI 15/062”. His Honour acknowledged Thlork v Minister for Immigration and Border Protection [2019] FCA 333 (Thlork), in which it was held that their combined effect was “fixed and inflexible”, “mandatory” and required that the test have been undertaken within the period of three years before a visa application was made (at [3]-[12]). However, his Honour considered that those decisions were distinguishable as they did not determine the particular challenge of construction that his Honour had been asked to determine (at [126]-[129]). His Honour therefore considered that the Court was “authorised to make a constructional choice” (at [130]).

5. At [133]-[154], his Honour found that IMMI 15/062 was beyond power in fixing a three-year limit for undertaking a test, which was held not to have been authorised by cl 485.212.

6. In coming to this conclusion, his Honour relied upon the contrasting language between sub-paras (i) and (ii) of cl 485.212(a) (at [135]-[136], [139]-[140], [151] and [153]-[154]). His Honour considered that:

   (a)sub-para 485.212(a)(i) conferred authority to specify the type of language test required to be “undertaken” by an applicant, rather than the period in which the test was able to be undertaken (at [135]-[136]);

   (b)sub-para 485.212(a)(i) did not confer power to make an instrument dealing with the undertaking of an English test (at [136]);

   (c)a more natural location for any power to fix the period in which the test was to be undertaken would have been sub-para 485.212(a)(i) (at [139]);

   (d)in deploying “language derived from cl 485.212(a)(i)”, “the clause erroneously grafts the language of cl 485.212(a)(i) into par 4 and purportedly fixes a period within which the test must be undertaken” (at [140]);

   (e)contrastingly, para 485.212(a)(ii) was concerned with the score achieved rather than the test itself (at [151]);

   (f)the evidentiary requirements of sub-paras 485.212(a)(i) and (ii) were different; with the first being concerned with an event (a test), and the second being concerned with a result (a score) (at [153]);

   (g)a “clear error” was “created in para 4 of IMMI 15/062 by importing the language of para 485.212(a)(i) rather than the words in para 485.212(a)(ii)” (at [154]).

7. His Honour considered that the purpose for which power was conferred by cl 485.212(a)(ii) was to enable the period within which an applicant must have achieved “the score” to be specified by legislative instrument (at [138]).

8. His Honour observed that other provisions in the Regulations fixed the period in which a test may be undertaken. His Honour considered that if this had been intended in prescribing the evidence required for a Subclass 485 visa application, then “the precedent was at the Minister’s immediate disposal” (at [141]). It was observed that reg 1.15C employed this approach in defining “competent English” (at [142]). The 2015 ES removed this criterion, supporting a conclusion that a choice was made to remove the requirement that the test be undertaken within three years before lodgement of the visa application (at [143]-[144]). The “essential purpose” of the criteria in cl 485.212(a) was said to be to inject a measure of “practical reality” to the requirement of English competency. Further, the 2015 ES was said to confirm the intent of the amendments as allowing lower test scores to satisfy the criteria and “to introduce a greater degree of flexibility for the Minister when determining whether or not these criteria had been satisfied” (at [148]).

9. His Honour considered that the Act and Regulations spelled out their respective requirements in particular detail. This was considered to militate in favour of the power specified in cl 485.212(a)(i) and (ii) being construed more narrowly (at [146]).

10. His Honour accepted the Minister’s submission that an essential purpose of para 485.212(a)(ii) was to set parameters, including a timeframe, within which an applicant was required to demonstrate his or her proficiency in English to a prescribed standard. However, his Honour considered that an interpretation that best achieved this would have regard to the most up-to-date information of a score (at [147]). His Honour considered that a construction of para 4 of IMMI 15/062 that deprived the adjudicator of the most recent evidence confirming English competency would be “antithetical to the purposes of acting upon up-to-date information” (at [150]).

11. His Honour considered that at least two constructions of para 4 of IMMI 15/062 were open. His Honour considered that the Court should therefore prefer the one considered to avoid inconvenience and injustice: cf Cooper Brookes, 305 (Gibbs CJ) (at [150]). At [155]-[167], it was considered that a “literal construction of par 4 of IMMI 15/062 must yield to its purpose and objects”.  His Honour considered that IMMI 15/062 did not expressly proscribe that a score achieved within the period of three years before the date of the application was an invalid score (at [164]). His Honour concluded at [167]:

    167.Upon my consideration of the applicable principles and the materials and authorities examined above, I conclude, par 4 of IMMI 15/062 is tainted by a clear drafting error and should be read so as to refer to a score achieved from a language test of a kind specified in the same instrument within three years before the day on which the visa application is made, and not otherwise.

12. As the Tribunal was found to have misconstrued this in circumstances where the applicant had been awarded the requisite score within the 3-year period prior to her application (albeit in a test undertaken outside of it), his Honour found that the Tribunal’s decision was affected by jurisdictional error (at [168]-[173]). His Honour further considered at [175]:

    175.If contrary to my conclusion, the Tribunal’s decision was not attended by jurisdictional error, I would have concluded this was within the special category of cases in which the matter ought to have been placed before the Minister for consideration: Act, s 351. As pro bono counsel submitted, the applicant, who holds a Master’s degree in nursing and whose English is well above the specified minimum requirement, has dedicated herself to the discharge of her calling throughout the Covid pandemic by working in aged care facilities. If this does not inform the ‘practical realities’ about which the various Explanatory Memoranda speak, it is difficult, with respect, to see why the dictates of a criterion of the kind under consideration should be erected as an insuperable barrier to the provision of current information as to the competency of a visa applicant in the English language, a necessary criterion for ministerial satisfaction. To observe as much does not gainsay the scope of the mandatory, inflexible criteria under consideration. It is only to recognise their underlying purpose and how the criteria are properly construed.

    Consideration

13. Both parties contended, respectfully, that the decision in Shine was plainly wrong (albeit in different respects). The Minister contended that para 4 of IMMI 15/062 was valid and within power, on its terms. The applicant contended that the decision in Shine overstepped in construing the requirement that the “tests must have been undertaken within the three years” as a requirement that the score be achieved within that period (even if the test had been undertaken outside of it). This was in circumstances where the applicant in this case, unlike in Shine, had not achieved a relevant score prior to the date of his visa application.

14. The Minister’s argument relied upon the breadth of the language in cl 485.212(a)(ii), which relevantly required evidence that the applicant “has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument” (emphasis added).

15. The role of the emphasised language in cl 485.212(a)(ii) was considered in Shine at [145]:

    145.The words in cl 485.212(a)(ii), ‘with the requirements (if any) specified by the Minister in the instrument’ do not provide scope for the specification of the time within which a language test is to be conducted; those words pertain to how the score may be proved as a matter of permissible evidence (i.e., as to prescribed components comprising the overall score).

16. The Minister suggested that this reasoning, in contrast to the otherwise detailed reasoning given in Shine, did not analyse in detail the potential for these words in cl 485.212(a)(ii) to support the approach taken in IMMI 15/062. The Minister submitted that this was explicable by the Minister’s submissions in Shine, which (for whatever reason) were said to have omitted consideration of arguments that were relied upon in this proceeding. Whilst I do not have before me the Minister’s submissions in Shine, I accept that such arguments are not referenced in his Honour’s judgment. I therefore accept that it is possible that his Honour did not have the benefit of the arguments made before me in this proceeding.

17. The Minister submitted that the “first step” in his argument was that para 4 of IMMI 15/062 should be read to mean what it says. The Minister relied upon earlier authorities, including Federal Court authorities, said to support the Minister’s construction of IMMI 15/062. This included Kumar, in which Robertson J had considered at [24] that “there is no arguable ambiguity in the terms of … IMMI 15/062”. This was in the context of what was considered to be the “Minister’s specification for the purposes of cl 485.212(a)(ii) of Sch 2 to the Migration Regulations that the IELTS test must have been undertaken within the three years before the day on which the application was made” (at [23]). The Minister submitted that this was consistent with the language of para 4 of IMMI 15/062, which required that the specified “tests must have been undertaken within the three years before the day on which the application was made” (emphasis added).

18. The next step in the Minister’s argument was that para 4 of IMMI 15/062 – in imposing a time period in which a test had to have been undertaken – was relevantly supported by cl 485.212(a)(ii). The Minister observed that provision for the Minister to specify in an instrument “the requirements (if any)” pertaining to the achievement of the score confirmed that sub-para (a)(ii) had more work to do than setting the period in which a test score must be achieved (although this was one of its purposes). The Minister submitted that the words requiring that the score be achieved “in accordance with the requirements (if any) specified by the Minister in the instrument” must be given some work to do.

19. The Minister submitted that the scope of “the requirements” permitted to be imposed by sub-para (a)(ii) was to be determined by reference to the terms and purposes of the provision. The Minister submitted that there was no reason to find that such “requirements” were unable to extend to matters relating to the achievement of a test score. Such matters, it was submitted, were able to extend to things like the timing of the sitting of the test, and how the test was to be sat. It was submitted that (without being exhaustive) those requirements permissibly extended to a restriction on whether the test was able to be undertaken on multiple occasions (para 2 of IMMI 15/062), or when the test was required to be undertaken (paras 4 and 5).

20. This is a difficult case. It falls to be considered in circumstances where the decision in Shine does not appear to have been the subject of consideration by any subsequent decision of this Court (or higher). It is not easy to depart from a decision of a colleague, especially a colleague as respected as the colleague in question. However, I consider that I am obliged to do so in the present case.

21. I have found the Minister’s submissions regarding interpretation of cl 485.212(a)(ii) persuasive. The language in sub-para (a)(ii), which required the score specified by the Minister to have been achieved “in accordance with the requirements (if any) specified by the Minister in the instrument”, was broadly expressed. I accept the Minister’s submission that its natural meaning permitted the Minister to specify requirements in connection with the achievement of a score. There is nothing on the face of sub-para (a)(ii) excluding from those potential requirements, or proscribing, specification of the timing of the test through which the score was achieved as a requirement attaching to the applicant’s achievement of the requisite score.

22. A contrary conclusion is not required by the contrasting language used in sub-paras (a)(i) and (a)(ii). On its face, sub-para (a)(i) was directed towards a limited purpose (i.e. specification of the test to be undertaken). The general power permitting specification of requirements attaching to the achievement of the requisite score, and the specific requirement that the score be achieved within a period specified, were found in sub-para (a)(ii). The fact that the words “test” and “undertaken” were used in sub-para (a)(i) did not preclude the related sub-para (a)(ii) from permitting a requirement that any score achieved in a test of the type prescribed be achieved in one that was undertaken within a particular period (as required in both paras 4 and 5 of the instrument).

23. A contrary conclusion is also not required by the fact that other provisions in the Regulations specified the period in which the test was able to be undertaken, nor by the legislative history and related extrinsic materials regarding cl 485.212(a)(i). I accept that a conscious drafting choice appears to have been made in the version inserted by the 2015 amendments not to specify the period in the Regulations. As was considered in Shine at [148], the 2015 ES confirms that an intention of the amendments was “to introduce a greater degree of flexibility for the Minister when determining whether or not these criteria had been satisfied”. This intention was consistent with the broad language utilised in cl 485.212(a)(ii), which permitted the relevant Minister to specify by instrument “requirements (if any)” in accordance with which the relevant score was to be achieved. The fact that the Regulations left such matters to specification by instrument favours the broader interpretation of cl 485.212(a)(ii).

24. Respectfully, I am unable to agree that the Minister’s interpretation is contrary to the purpose of the Minister acting on up-to-date information. In Shine, it was accepted (at [147]) that an applicant was not, in light of amendments and case law subsequent to the decision in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 84 ALJR 251, permitted to rely upon a score that was achieved after the visa application had been lodged. What the constraint in para 4 of IMMI 15/062 did was prevent reliance upon scores from tests undertaken more than 3 years before the date of the visa application. The apparent purpose of this was to preserve the currency of the information obtained through the testing process, by not relying upon scores resulting from tests undertaken more than 3 years before the application date.

25. I accept that IMMI 15/062 did not, in terms, state a period within which a score may be achieved. Even if this meant that no such period had been prescribed, notwithstanding the contemplation under cl 485.212(a)(ii) that an instrument do so, this would not necessarily render the balance of the matters prescribed under the instrument beyond power. In any event, for reasons given below, I accept the Minister’s submission that IMMI 15/062 did, in effect, prescribe a period in which the score was required to be achieved.

26. The applicant submitted that a further reason the Minister’s construction ought not to be accepted is that it enabled two different time periods to be specified (one for the score and one for the test) which were inconsistent. It was submitted that this frustrated the expressed power to provide the time period for a score because it reduced the effective time period for the score.

27. If the period were required by cl 485.212(a)(ii) to have been set at a numerical number, then there would have been greater force to the applicant’s submission. However, I have not been persuaded that “period” must be defined in this manner. It is therefore not clear to me that a “period” was unable to be set by reference to one or more events, such as the period between the taking of a test undertaken within 3 years of the date of the visa application, and the date of the visa application. As the Minister submitted, this is effectively what was required by IMMI 15/062. Read together with the requirement in cl 485.212 that the visa application be accompanied by evidence of the relevant score, the score was required to have been achieved in the period between the timing of a test undertaken within the 3 years prior to the date of the application, and the date of application. It follows that I accept the Minister’s submission that IMMI 15/062 did, in effect, prescribe a period in which the score was required to be achieved. This is so even though it did not do so in terms. I am not persuaded that this necessarily results in any conceptual inconsistency regarding the setting of the relevant periods (even if the periods involve different, but related, timeframes). The periods in question were capable of working together.

1. As I have found para 4 to be the product of an available drafting choice, I am unable to accept the finding in Shine that it was the product of a “clear drafting error”. I am therefore unable to follow the conclusion in that case that the reference to undertaking a test ought to be read as the achievement of a score.

   Materiality and futility

2. The Minister contended that even if the applicant’s contentions regarding the decision in Shine were accepted, he could not (and cannot) meet cl 485.212. This is because, unlike in Shine, the applicant in the present case had not sat the test in question (let alone achieved the relevant score) at the time of application. The Minister therefore submitted that his application could not have been “accompanied by evidence” that he had undertaken the requisite test. The Minister submitted that materiality had therefore not been demonstrated by the applicant and that remittal would, in any event, be futile.

3. The applicant relied upon cases indicating that the words “accompanied by” may, in certain circumstances, have some flexibility. Such cases included BXS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 20; (2023) 296 FCR 63 and Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495. However, those cases occurred in different contexts to the present and concerned different requirements for the visas in question. They did not concern a situation where evidence of a test having been “undertaken” was required to accompany a visa application.

4. The applicant also relied upon Anand v Minister for Immigration and Citizenship [2013] FCA 1050; (2013) 215 FCR 562, which was said to have occurred in a more similar context. In that case, Katzmann J rejected that evidence of an application for an Australian Federal Police check submitted after a delegate’s decision (5 months after the date of the visa application) “accompanied” the visa application. However, some elasticity in the term was accepted, with her Honour accepting that, in some circumstances, evidence accompanying an application could be supplied after the application is lodged.

   However, as the Minister submitted, even accepting that there may be some flexibility in the term “accompanied by”, this is a case in which not only was evidence not in existence at the time of the visa application, but the relevant event that the evidence was meant to demonstrate had not even taken place at the time of application. I have been taken to no authority suggesting that, in these circumstances, cl 485.212 would be able to be met. Cases such as Kumar and Thlork are to the contrary.

5. Having regard to the above, I am not persuaded that materiality has been demonstrated even if error had been demonstrated on the part of the Tribunal. I also accept the Minister’s submission that remittal of this matter would be futile.

   CONCLUSION

6. For the reasons given above, the application must be dismissed.

7. I will hear from the parties in relation to costs.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Associate:

Dated:       15 January 2025