Shine v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3)
[2022] FedCFamC2G 132
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shine v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FedCFamC2G 132
File number(s): MLG 2114 of 2018 Judgment of: JUDGE A KELLY Date of judgment: 2 March 2022 Catchwords: MIGRATION – Temporary Graduate visa – where evidence that accompanied visa application included score achieved by applicant within 36 months of date of lodgment – where cl 485.212 of Migration Regulations 1994 prescribe criteria for valid visa application – where IMMI 15/062 specifies that test must be undertaken within a period of 36 months before date application lodged – where applicant undertook test outside three year period but achieved score within such period – whether application accompanied by evidence of valid IELTS score within three year time limit –– limitation periods – whether ‘score’ is to be construed as being achieved at time test undertaken or at time result achieved – ‘score’ not synonymous with ‘test’.
STATUTORY INTERPRETATION – where Migration Act 1958 (Cth) provides that regulations may prescribe criteria for visas of specified classes – applicable principles where literal meaning unambiguous – where legislative intention clear from context and legislative history – mistake in drafting recognisable and can be identified as error –constructional choice – construction which will avoid inconvenience and injustice to be preferred.
DELEGATED LEGISLATION – where Act authorises making of regulations not inconsistent, prescribing matters permitted, required, necessary or convenient for Act – proper construction of cl 485.212 of Migration Regulations – where cl 485.212(a) requires evidence to accompany visa application that applicant: (i) has undertaken language test specified by the Minister in a legislative instrument made for that paragraph; and (ii) has achieved, within the period specified by the Minister in the legislative instrument, the score specified by the Minister – where legislative instrument IMMI 15/062 specifies that test must have been undertaken within three years before date on which application made – where IMMI 15/062 does not specify the period within which applicant must have achieved requisite score – whether IMMI 15/062 to be read down as being, in part, in excess of power – IMMI 15/062 otherwise valid.
Legislation: Acts Interpretation Act 1901 (Cth), s 15AA, 15AB,
Legislation Act 2003 (Cth), ss 8, 12, 13
Migration Act 1958 (Cth), ss 29, 30, 31, 45, 46, 46AA, 54, 55, 65, 498, 504, 505
Migration Regulations1994 (Cth), regs 1.03, 1.15B, 1.15C, 1.15D, 1.15EA, 1.15F, 2.01, Sch 1 item 1229, Sch 2 cll 476.213, 485.1, 485.111, 485.2, 485.21, 485.212, 485.215, 485.222, 485.223, 485.31, 485.4, 485.5, 485.6, 885.213
Migration Amendment Regulation 2007 (No 7) (Cth)
Migration Amendment Regulation 2011 (No 3) (Cth)
Migration Legislation Amendment Regulation 2013 (No 1) (Cth)
Migration Amendment (2015 Measures No 1) Regulation (Cth)
Federal Circuit Court Rules 2001 (Cth), r 44.12
Explanatory Statement No 33 of 2013, Migration Legislation Amendment Regulation 2013 (No 1) (Cth)
Explanatory Statement No 257 of 2007, Migration Amendment Regulation 2007 (No 7) (Cth)
Explanatory Statement No 74 of 2011, Migration Amendment Regulation 2011 (No 3) (Cth)
Explanatory Statement No 34 of 2015, Migration Amendment (2015 Measures No 1) Regulation 2015 (Cth)
Ministerial Instrument IMMI 15/062 (Cth), cll 1a, 2, 2a, 3, 4, 5, 6Cases cited: ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1
AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 222
Australian Maritime Officers’ Union v Assistant Minister for Immigration and Border Protection (2015) 230 FCR 523
Berenguel v Minister for Immigration and Citizenship (2010) 84 ALJR 251
Bussa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 94 ALJR 497
Collector of Customs v Agfa-Gavaert Ltd (1996) 186 CLR 389
Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (2020) 384 ALR 668
Cooper Brookes (Wollongong) Pty Ltd v Commission of Taxation (1981) 147 CLR 297
CPJ17 v Minister for Immigration and Border Protection (2018) 258 FCR 495
Craig v South Australia (1995) 184 CLR 163
Da Costa Da Rocha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 206
Desire v Minister for Immigration [2020] FCCA 1241
Ghouri v Minister for Home Affairs [2019] FCCA 1559
Ilyas v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 328
Kaur v Minister for Immigration & Border Protection [2018] FCA 1765
Kaur v Minister for Immigration & Border Protection [2018] FCCA 1657
Kaur v Minister for Immigration and Border Protection (2015) 233 FCR 507
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108
Khan vMinister for Immigration and Border Protection [2018] FCAFC 85
Khan vMinister for Immigration and Border Protection [2018] HCASL 278
Kumar v Minister for Immigration & Border Protection [2017] FCCA 2406
Kumar v Minister for Immigration & Border Protection [2018] FCA 140
Milanes v Minister for Immigration (2015) 234 FCR 508
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2020) 94 ALJR 818
Owino & Ors v Minister for Immigration [2020] FCCA 3004
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
SAS Trustee Corporation v Miles (2018) 265 CLR 137
Sebastian v Minister for Immigration [2020] FCCA 2331
Shimshon v MLC Nominees Pty Ltd [2021] VSCA 363
Shine & Anor v Minister for Immigration and Border Protection (No 2) [2020] FCCA 2808
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
Thiruvenkatasamy v Minster for Immigration & Anor [2020] FCCA 2353
Thlork v Minister for Immigration and Border Protection [2019] FCA 333
Ugyen v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 274Dennis Pearce and Robert Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019)
Dennis Pearce and Stephen Argument, Delegated legislation in Australia (LexisNexis Butterworths, 5th ed, 2017)
Perry Herzfeld and Thomas Prince, Interpretation (Thomson Reuters, 2nd ed, 2020)Division: Division 2 General Federal Law Number of paragraphs: 175 Date of hearing: 17 February 2021 Place: Melbourne Counsel for the Applicants: Mr C. McDermott Counsel for the Respondents: Ms N. Campbell Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 2114 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SEELIYA SHINE (nee ANTONY PUTHENPURACKAL)
First Applicant
JOHN SHINE
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE A KELLY
DATE OF ORDER:
2 MARCH 2022
THE COURT ORDERS THAT:
1.Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth) and ss 202-203 of the Federal Circuit and Family Court of Australia Act 2001 (Cth), direct the parties may appear and make submissions before the Court via audio and video link.
2.The amended application dated 27 November 2020 be allowed.
3.An order in the nature of a writ of certiorari issue directed to the second respondent quashing its decision dated 21 June 2018 (case number 1726492).
4.An order in the nature of a writ of mandamus issue directed to the second respondent requiring it to determine, according to law, the application made to it by the applicant for review of the decision of a delegate of the first respondent made on 10 October 2017 under s 65 of the Migration Act 1958 (Cth).
5.The first respondent pay the applicant’s costs and disbursements (if any) as agreed or assessed, such costs to be paid to pro bono counsel for the applicant.
6.Declare that payment made pursuant to paragraph 5 of this Order shall satisfy the said liability for costs to the extent of such payment.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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
KELLY J
INTRODUCTION
By amended application filed on 27 November 2020, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 21 June 2018 affirming a decision of a delegate of the first respondent (Minister) refusing to grant the first applicant a Temporary Graduate (Class VC, Subclass 485) visa (visa) pursuant to s 65 of the Migration Act 1958 (Cth) (Act). These reasons should be read with Shine v Minister for Immigration and Border Protection (No 2) [2020] FCCA 2808 in which orders were made pursuant to r 44.12 of the then Federal Circuit Court Rules 2001 (Cth) (Rules) that the application be adjourned for final hearing and that the Minister show cause why an order for the relief claimed should not be made. At that time, two grounds appeared to be reasonably arguable.
By way of overview, cl 485.212 of the Migration Regulations 1994 (Cth) (regulations) contains certain criteria that must be satisfied for such a visa including that the visa application be accompanied by evidence that the applicant had undertaken a language test as specified by the Minister in a legislative instrument (IMMI 15/062) and had achieved, within the period specified by the Minister in such instrument, the score specified by the Minister in that instrument. For the reasons below, the application should be allowed.
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.
Here, the distinction between the requirement to undertake a ‘test’ and to achieve a ‘score’ is of no little significance. As is common ground, the applicant undertook her test more than 36 months before the date of her visa application, but she achieved a satisfactory score within that 36 month period. Evidence of that score and test were supplied with her visa application.
The applicant could not have achieved, within the period specified by IMMI 15/062, the score specified by the Minister, unless and until that score had been determined by the body which conducted the language test. So too, the applicant could not have supplied evidence of her test score until it had been so determined. The score as determined upon the applicant having successfully undertaken her English test was so determined, and issued, by the IELTS administrator on 27 August 2014. This score was achieved within the three year limitation period as fixed by IMMI 15/062, properly construed. The conclusions to the contrary, as reached (or as assumed) by the delegate and the Tribunal, misconstrued par 485.212(a) and IMMI 15/062 in a material way. The application should be remitted for reconsideration.
Background
The first applicant (applicant), an Indian citizen, is married to the second applicant. The third applicant is their son. On 25 August 2017, the applicant applied for her visa. Her application was made in the Post-study work stream for a Temporary Graduate (Class VC, Subclass 485) visa. The applicant stated that she sought to become a registered nurse in Australia and further, having studied for two years at Deakin University, had attained a Master’s in Public Health.
By her visa application the applicant named her husband and son as dependents and stated that she intended to work in the health care industry. Accompanying her application was a letter from the University confirming the applicant’s completion of her tertiary study and that all of the courses she had undertaken over the period 2015-2017 had been taught in English.
The applicant stated she had undertaken an English IELTS test on 16 August 2014, provided the test reference number and attached a document entitled International English Language Testing System, which variously recorded: the applicant’s details; her test results; her overall Band Score of 7.0; the date of the assessment of her test, and; the Administrator’s signature. The record stated the scores that she had attained were 7.5 for Listening, 8.5 for Reading, 6.5 for Writing and 6.0 for Speaking, and; her total Band Score of 7.0.
The applicant’s visa application was accompanied by evidence comprising her IELTS record. It disclosed: she had undertaken her test on 16 August 2014 at a single sitting; her score had been assessed on 27 August 2014, and; she had achieved a score 7.5. It was common ground that the minimum overall score required for an IELTS test was 6.
Delegate’s decision
On 10 October 2017, a delegate of the Minister refused to grant the application. The delegate’s accompanying Decisional Record, also dated 10 October 2017, recorded the finding that the criteria for the visa were not met. Having found that a valid visa application had been made, the delegate reasoned that a visa could not be granted unless the criteria, in cl 485.212(a) of the regulations had been met as at the date of her decision. After setting out the text of cl 485.212, the delegate considered various matters said to have been specified by the Minister in legislative instrument, IMMI 15/062.
The delegate recorded that the applicant’s visa application had been lodged on 25 August 2017 and she had provided evidence of having “undertaken an IELTS test on the 14 August 2014 with test reference number [provided]” and, upon that basis, stated:
This test cannot be used to meet the criteria of grant of your VC 485 application as the test was not conducted within the three years immediately before the day on which the application was made, therefore you do not satisfy regulation 485.212(a)(ii).
The reasoning adopted by the delegate was that because the applicant had undertaken her IELTS English test on 16 August 2014, this conclusion was dispositive of the question whether the criteria of cl 485.212(a)(ii) had been satisfied.
By her Decisional Record, the delegate further stated that:
The English language requirement is one of the mandatory requirements that must be met at the time of lodging the Temporary Graduate (post-study Work) (Subclass 485) visa application. As you have not provided evidence of having done an acceptable English test within the three years immediately before the day on which this application was made, you do not satisfy regulation 485.212(a)(ii).
Again, the tenor of this reasoning confirms that the delegate was concerned with whether the applicant had “done an acceptable English test” within three years immediately preceding the lodgement of her application and, upon that reasoning, concluded the applicant had not satisfied the criterion in cl 485.212(a). So much is confirmed by the delegate’s further reasoning:
As you have not provided evidence of an English language test as specified in the instrument by the Minister to satisfy the English Language requirements for the Temporary Graduate (Post-Study Work) (Subclass 485) visa identifier, I find that you do not meet the requirements of regulation 485.212(a)
Having observed that the applicant did not, in the alternative, hold a passport of a kind specified for the purposes of this regulation, the delegate concluded:
You have not satisfied the criteria for the English language ability requirement described in 485.212(a)(ii) of the Regulations. As the requirements for subclause 485.212(a)(ii) of the Regulations are not met, I have not assessed the application against the remaining requirements of this subclass.
Having decided that the criteria for 485.212(a)(ii) were not met, the application was refused.
Three aspects of the delegate’s Decisional Record are notable. First is the absence of any express reference to the text of the relevant Ministerial Instrument. Secondly, having set out the text of cl 485.212(a)(i), the focus of the delegate’s reasoning was upon the date on which the applicant’s IELTS test was undertaken. Thirdly, recognising the text of 485.212(a)(ii), the Decisional Record contains no reference to the fact that it was only on 27 August 2014 that the IELTS’ authority assessed the score that had been achieved by the applicant.
Tribunal hearing
On 29 October 2017, the applicant applied to the Tribunal for a review of this decision.
Having been invited to a hearing, the applicant indicated she did not require an interpreter.
Although it was properly accepted before me to be legally irrelevant to the issues arising upon her application for judicial review, it was common ground that for the purposes of her application to the Tribunal, the applicant supplied a more recent English test, the score for which was issued on 8 March 2018 and indicating a higher level of performance in each of listening, reading, writing and speaking English than she had achieved in 2014.
The manner in which the Tribunal conducted a hearing was the subject of consideration in Shine v Minister for Immigration and Border Protection (No 2) [2020] FCCA 2808 at [12]:
On 15 June 2018, the applicants attended the hearing without an interpreter or representative. From the hearing record it appears that the merits review by the Tribunal involved a hearing which commenced at 10:07am. and adjourned at 10:13am., before resuming at 10:48am and closing at 10:50am. The evidence before this Court also suggests, somewhat curiously, that the Tribunal conducted a “group hearing and was very short in time.”
On 15 June 2018, the applicant attended the hearing without an interpreter or representative.
Tribunal’s decision
On 21 June 2018, the Tribunal affirmed the decision under review and provided a statement of its reasons for that decision (Reasons). Within the 14 paragraphs comprising those Reasons, the Tribunal identified the dispositive issue as being whether the applicant satisfied cl 485.212 at the time of making the visa application, by supplying evidence, that she had “undertaken a language test specified in an instrument; and has achieved, within the period specified in the instrument, the score specified, in accordance with any specified requirements (cl 485.212(a))”: Reasons, [6]. The Tribunal then correctly identified “The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062” and found that, as there was no evidence the applicant held a passport of the requisite kind to satisfy the criterion provided by cl 485.212(b), the only available requirement for the application was that the applicant satisfied the criteria in cl 485.212(a): Reasons, [7].
As to the limitation period specified by IMMI 15/062, the Tribunal found that the instrument “created a three year period in which any specified English language test could be undertaken the results of which could be used to satisfy cl 485.212, . . .” Reasons, [8]. It also found that the relevant period ended “with the arrival of the day on which the visa application was made: 25 August 2017”: Reasons, [8]. The Tribunal further found that the applicant had provided evidence of an IELTS test which she had sat on 16 August 2014: Reasons, [9].
Upon those findings the Tribunal was not satisfied that the application was accompanied by evidence which satisfied the requirements of cl 485.212(a) and so affirmed the decision under review: Reasons, [11]-[14]. Again, in common with the delegate’s Decisional Record, the Tribunal’s Reasons contain no reference to the fact that the applicant’s IELTS score had been issued on 27 August 2014; that is, within the relevant three year period.
Procedural history
On 20 July 2018, the applicants filed an application for judicial review of the Tribunal’s decision together with an affidavit affirmed by the first applicant to which she exhibited a copy of the Reasons and adduced further evidence by two affidavits and which are addressed in Shine v Minister for Immigration and Border Protection (No 2) [2020] FCCA 2808, [39]-[40].
By her application, three grounds were relied upon as demonstrating jurisdictional error.
On 24 August 2018, a response was filed on behalf of the Minister opposing the relief sought and in which an order was sought for dismissal of the application on the basis that the Tribunal’s decision was not affected by jurisdictional error and that the application in truth invited a merits review of the Tribunal’s decision.
On 10 December 2019, an order was made by consent that the application be listed for a show cause hearing pursuant to r 44.12 of the Rules. At that hearing, the applicant was self-represented before me. Following an adjournment of the initial show cause hearing, on 14 October 2020, the Court was satisfied that on the further evidence which had been adduced, the applicants had raised two grounds of review which appeared reasonably arguable such that the Court should exercise its discretion to allow the matter to go forward to a full hearing. An order was made pursuant to r 44.12(b) that the application be adjourned for final hearing and that the Minister show cause why an order for the relief claimed should not be made.
A certificate issued requesting the provision of legal assistance to the applicants from the pro bono committee of the Victorian Bar. Commendably, counsel having specialist experience in this jurisdiction accepted the request and furnished particular assistance both to the applicants and the Court, including by the preparation of an amended application together with a detailed written outline and in representing the applicant at the hearing. The Court records its gratitude for such assistance, particularly having regard to the nature of the issues presented. Often times, as in such cases, the Court could scarcely function without such assistance. For the avoidance of doubt, the lawyers representing the Minister discharged their role with their customary attention to detail and rendered all due assistance both in the course of the show cause hearing and later to pro bono counsel in enabling the conduct of a final hearing.
By her amended application, the original grounds of review were abandoned and replaced with a single ground of review. The applicant now contends jurisdictional error was committed in circumstances where the Tribunal ought to have construed IMMI 15/062 as requiring her to provide evidence of having achieved the requisite minimum score for the IELTS test within three years of the visa application lodgment date, rather than evidence of having undertaken an English test within three years of the visa application lodgment date. Her ground reads:
The [Tribunal] failed to perform its statutory task of assessing whether or not the [Minister] satisfied cl 485.212(a) of Part 485 of Sch 2 to the [Regulations] having regard to the evidence she presented in the course of the Applicants’ review of a decision of a delegate of the [Minister] not to grant [her] a Subclass 485 visa.
PARTICULARS
a.The First Applicant provided evidence of her having achieved the requisite minimum score for each component part of, and overall for, [an] IELTS test (the score) in the instrument made by the Minister under cl 485.212(a) (IMMI 15/062).
b.The score was achieved on the date it was issued on the Test Report Form as signed by the administrator of the IELTS test, being 27 August 2014, such date being within 3 years of the date of the First Applicant’s visa application on 25 August 2017.
c.The Tribunal found that the First Applicant undertook the IELTS test on 14 August 2014, and therefore did not meet the specified requirement in instrument IMMI 15/062 of having undertaken [an] IELTS test within 3 years of the date of the visa application.
d.In consequence of (c), the Tribunal found that the First Applicant did not satisfy cl 485.212(a) (the conclusion).
e.The conclusion was materially erroneous having regard to the evidence put forward by the First Applicant, being the score, and cl 485.212(a), properly construed.
f.The Tribunal ought to have construed IMMI 15/062 as requiring the First Applicant to provide evidence of having achieved the requisite minimum score for the IELTS test within 3 years of the visa application lodgement date, rather than the First Applicant had to have undertaken a IELTS test within three years of the visa application lodgement date.
Submissions
The applicant submitted the Tribunal materially erred in its conclusion that the applicant’s visa application was not accompanied by evidence that met the requirements of cl 485.212(a). She submitted cl 485.212(a), properly construed, required her application to be accompanied by evidence that she had achieved a score (at or above 6) within three years before the date on which her application was lodged. The applicant’s submission focussed upon: (a) the scope of the power conferred by cl 485.212(a) to promulgate legislative instruments and, in particular, to specify the period within which an examinee must have achieved a score after having undertaken an English language test; (b) the ordinary and natural meaning of the words employed – ‘test’, ‘undertaken’, ‘score’ and ‘achieved’, and the expression “within the period” as employed in par 485.212.(a)(ii) with reference to the score so achieved; (c) drafting techniques that have (and so, could have) been employed in other regulations as to other forms of language tests; (d) the legislative history of the relevant provisions; (e) the need to examine authority and extrinsic materials; (f) how drafting errors in legislation may be resolved.
The Minister contended that, given consideration of the context and purpose of cl 485.212, the Tribunal was correct in concluding that the test was to be undertaken within the 36 months preceding the application and that the Tribunal had no discretion to depart from the regulation. In support of that contention it was submitted that the natural meaning of cl 485.212(a) was that a “score is achieved at the time that the test is taken, not at the time that the test was assessed” and that this construction was consistent with the text, context and purpose of the provision, and would result in the applicant’s score being achieved outside the 36 month period.
Applicable principles
Although the applicable principles were not in dispute, it is useful to contextualise the issues under consideration. Those issues invoke principles informing the proper construction of legislation, regulations and statutory instruments and, where conflict arises internally or from a hierarchy of competing provisions, or errors are identified from the drafting, how the Court should resolve such conflicts so as to achieve a harmonious, and not inconvenient, result.
Part 5 of the Acts Interpretation Act 1901 (Cth) is entitled, General interpretation rules, and comprises ss 12-25D. Within Pt 5, the following rules of interpretation are provided: (identification of the material which comprises an Act, including the headings appearing above each of its provisions: (s 13(2)); the requirement to construe the provisions of an Act that would best achieve its purpose or objects (s 15AA); extrinsic materials, including explanatory memoranda, may be employed to confirm the ordinary meaning of a provision having regard to its context in the purpose or objects of the Act (s 15AB(1)(a)).
Subject to considerations which are not material in this case, such extrinsic materials may also be employed to determine the meaning of a provision in cases whose intended meaning may be ambiguous or obscure: Acts Interpretation Act, ss 15AB(1)(b), 15AB(2)(e). However, it is long settled that such extrinsic materials cannot be employed to displace the clear meaning of statutory text: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, [47] and cases cited, (Hayne, Heydon, Crennan and Kiefel JJ).
The relevant provisions of an Act, regulations and legislative instruments should be construed so that, viewed as a whole, their language is given a consistent meaning. Meaning should be given, and given consistently, to every word: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]-[71]. There, the plurality identified the need to construe an instrument on the basis that its provisions were intended to give effect to harmonious goals, stating at [70] that where conflict appeared to arise from the text of particular provisions, “the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions”; see also, [34]-[41]; Cooper Brookes (Wollongong) Pty Ltd v Commission of Taxation (1981) 147 CLR 297, 304-5 (Gibbs CJ), 311-313 (Stephen J), 320-1, 323 (Mason and Wilson JJ), (Aickin J diss’); Acts Interpretation Act 1901 (Cth), s 15AA.
In Cooper Brookes (1981) 147 CLR 297, 305, Gibbs CJ observed that not infrequently, the Court would invoke the rule that where two constructions of a provision were open, the construction which was considered to avoid inconvenience or injustice will be applied. The reasoning of the majority in Cooper Brookes is instructive as informing the approach to be taken in cases where it is possible “to recognise the nature of the draughtsman’s error and to identify it as error” (1981) 147 CLR 297, 304 (Gibbs CJ), 311 (Stephen J), 320, 323 (Mason and Wilson JJ). Cooper Brookes was especially important for confronting the principles to be applied in cases where the literal meaning of the words used was unambiguous. Gibbs CJ at 304-305 emphasised the caution to be adopted in construing provisions which, construed literally, were unambiguous, observing, “The danger that lies in departing from the ordinary meaning of unambiguous provisions is that ‘it may degrade into mere judicial criticism of the propriety of the acts of the legislature’” (citations omitted). However, the Chief Justice qualified those statements by the following principle, adding:
On the other hand, if two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice. Since language, read in its context, very often proves to be ambiguous, this last mentioned rule is one that not infrequently falls to be applied.
See also Pearce & Geddes, Statutory Interpretation in Australia, 9th ed, (2019), [2.59]; Pearce and Argument, Delegated Legislation in Australia 5th ed, (2017), [12.14], [30.4]; Herzfeld & Prince, Interpretation, 2nd ed, (2020), [5.290].
As to the proper construction of regulations, in Milanes v Minister for Immigration (2015) 234 FCR 508, [49]-[50], Katzmann J applied Project Blue Sky, holding that the definition of Competent English provided by reg 1.15C must be read with the criteria provided in cl 485.215 of Sch 2. Her Honour recognised that where a clear drafting error could be identified, the Court may construe the provision, correcting the mistake: (2015) 234 FCR 508, [89]. However the authorities to which Katzmann J referred, concerned the principles to be applied in cases of ‘simple’ mistakes. The present case cannot be resolved on that basis and instead turns upon the more fundamental principle stated in Cooper Brookes and the authorities examined below.
In SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 the Court accepted there would be circumstances where the choice presented by an ambiguous provision was such that the ordinary meaning of words must yield to the statutory purpose of the provision having regard to its context and object. Kiefel CJ, Nettle and Gordon JJ stated, [14]:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if it’s ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
Detailed consideration was given to the principles of statutory interpretation in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner, (2020) 384 ALR 668; see at [3]-[6], [13], [33]-[34], (Allsop CJ), [116]-[119] (White J). Allsop CJ, while agreeing in the statement of principles by White J, and the reasoning of Flick J, preferred to focus the question of statutory construction upon the words of the legislation. The Chief Justice recognised that the “so-called clarity of plain meaning” could not reliably be ascertained without regard to context, observing that the task of construction required “the search for applicable principle, not an emphasis on the literality of words of judgments as if they were the text of a statute”. His Honour stated [4]:
The principle is clear: Meaning is to be ascribed to the text of the statute, read in its context. The context, general purpose and policy of the provision and its consistency and fairness are surer guides to meaning than the logic of the construction of the provision. The purpose and policy of the provision are to be deduced and understood from the text and structure of the Act and legitimate and relevant considerations of context, including secondary material.
Flick J, who accepted that courts should be hesitant to read words into a legislative provision and that it was no function of the courts to fill gaps in legislation, considered it to be “an entirely different course of reasoning to construe a legislative phase by reference to the context in which that phrase appears and to read that phrase in a manner which gives effect to its presumed legislative object and purpose”, citing Project Blue Sky. His Honour distinguished between a process of statutory construction which involved reading into a section words which did not appear in the text, from giving the provision a construction “which follows from the natural and ordinary meaning of the words employed in that provision, albeit a meaning derived from the legislative context in which they appear.”
More recently, in SAS Trustee Corporation v Miles (2018) 265 CLR 137 at [20], the plurality addressed the approach to be taken when legislation presented a constructional choice:
The starting point for ascertainment of the meaning of a statutory provision is, of course, the text of the provision considered in light of its context and purpose. Where the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies. (Citations omitted)
Gageler J stated at [41]:
Statutory construction is the process by which meaning is attributed to statutory text. In a doubtful case, it involves constructional choice. The statutory text must be considered from the outset in context and attribution of meaning to the text in context must be guided so far as possible by statutory purpose. (Citations omitted)
Edelman J at [64] distilled the applicable principles in these terms:
The task of statutory construction involves the legal application of the meaning of statutory words, as interpreted, to the facts of a case. In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd, this Court said that the task of statutory construction must begin and end with the text of the statute. That statement does not mean that the text of a statute must be interpreted only according to the range of semantic meanings of the individual words. It means only that the interpretation of a statute, like any other legal instrument, is an interpretation of its words. Those words are interpreted in their context and in light of their purpose although legal rules can sometimes exclude or restrict the use of some context. In ascertaining the reasonably intended meaning of Parliament context is, literally, those matters to be considered (simultaneously) together with the text. Context can give words an interpretation that is the opposite of their ordinary meaning and grammatical sense. Context can also permit a construction of words that excludes their application to matters that would have fallen within the application of their literal meaning. However, as with contractual interpretation, where "the clearer the natural meaning the more difficult it is to justify departing from it", so too in statutory interpretation "questions of degree arise" and it will be more difficult to displace an interpretation that "has a powerful advantage in ordinary meaning and grammatical sense". (Emphasis added, citations omitted)
Those principles were applied in Shimshon v MLC Nominees Pty Ltd [2021] VSCA 363, [62]; KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108, [30]; AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 222, [57].
Delegated legislation
The general principles relating to statutory construction are applicable also to the interpretation of delegated, or subordinate, legislation: Collector of Customs v Agfa-Gavaert Ltd (1996) 186 CLR 389, 398 (per curiam). Accordingly, the appropriate enquiry “in the construction of delegated legislation is directed to the text, context and purpose of the regulation, the discernment of relevant constructional choices, if they exist, and the determination of the construction that, according to established rules of interpretation, best serves the statutory purpose”: ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1, [28] (French CJ, Crennan, Kiefel and Keane JJ); CPJ17 v Minister for Immigration and Border Protection (2018) 258 FCR 495, [62]; Pearce and Argument, Delegated Legislation in Australia, 5th ed, (2017), [30.1]; Herzfeld & Prince, Interpretation, 2nd ed, (2020), [14.20].
Powers conferred by or under the Act are to be exercised in accordance with any applicable regulations: Act, s 498(1). The regulation making power conferred by s 504(1) is constrained by the requirement that such regulations are not inconsistent with the Act. Otherwise such regulations may prescribe all matters which may be required or permitted or are necessary or convenient for the carrying out or giving effect to the Act. Although s 505 addresses the subject, Regulations about visa criteria, this section says nothing with respect to regulations providing limitation periods, including as to evidence accompanying visa applications.
In Delegated Legislation in Australia, Pearce and Argument endorse a threefold approach to determining the validity of delegated or subordinate legislation: first, to determine the meaning of the words used in the principal Act to describe the subordinate legislation which an authority is authorised to make; secondly, to determine the meaning of the subordinate legislation itself, and; thirdly, to decide whether the subordinate legislation complies with that description: [12.4] and cases cited; [29.1]. Further, “the Court does not limit its enquiry simply to placing a meaning on the delegated legislation. The further step is taken of determining the true scope of the measure and its legal effect”: see also, Herzfeld & Prince, Interpretation, [13.60].
A number of grounds may be identified upon which delegated legislation may be invalid. Relevantly, “delegated legislation may deal with a subject not within the scope of the power provided by the empowering Act. Alternatively, it may deal with such a subject but may exceed the prescribed limits within which the legislation must fall”: Pearce and Argument, [12.9]. The learned authors observe that cases of invalidity falling within this category “are, of necessity, dependent very much on their own facts”: [12.13]. Pearce and Argument endorse the statement in Australian Maritime Officers’ Union v Assistant Minister for Immigration and Border Protection (2015) 230 FCR 523, [75] (Gordon, Katzmann and Griffiths JJ), that the question of validity falls “to be determined having regard to all relevant circumstances and will be guided by the general principle that the power is limited by the subject matter, scope and purpose of the legislative provisions.”
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.
As noted, reg 504(1) of the Act confers a regulation making power confined in terms to the making of regulations “not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act. . . .” The metes and bounds of such common empowering provisions has been considered over many decades. In substance, “The ambit of the Power must be ascertained by the character of the statute and the nature of the provisions it contains. An important consideration is the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned”: Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402, 410 (The Court); New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR 1, [415], [765]. Morton was one of the authorities relied upon by the Court in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [83] (Nettle and Gordon JJ) in stating that the construction of the Act was integral to a proper understanding of the limits of the power conferred so as “to determine whether a decision-maker has made an error, and whether any error is jurisdictional.” Their Honours proceeded to state: “A finding of jurisdictional error is a conclusion that the decision-maker has failed to comply with an essential pre-condition to, or limit on, the valid exercise of the particular statutory power. It reflects a distinction between acts unauthorised by law, and acts that are authorised.”
As concerns provisions such as s 540 of the Act, it is settled that the conferral of a power framed in terms that authorises the making of regulations to the extent necessary, convenient or expedient is confined in scope to make regulations which complement, not supplement, the subject matter with which a regulation is concerned: Carbines v Powell (1921) 36 CLR 88, 92 (Isaacs J); see also, Pearce and Argument, Delegated Legislation in Australia, [14.5]; Herzfeld and Prince, Interpretation, [13.70]-[13.90]. Assistance may also be gained from the following statement by Pearce and Argument in Delegated Legislation in Australia at [14.7]:
The scope of a necessary or convenient empowering clause will vary according to the content of the Act in which it is included, the more detailed the Act, the more limited the power to make regulations; the more general the Act, the more it is apparent that the legislature has deliberately left it to the Executive to spell out the details in the regulations.
See also Project Blue Sky (1998) 194 CLR 355, [34] (Brennan CJ).
Since the Acts Interpretation Act applies to a legislative instrument as if it was an Act and as if each provision in it was a section of an Act, it is to be read and construed subject to the enabling legislation and so as not to exceed the power of the person to make that instrument: Legislation Act, s 13(1). Unless a contrary intention appears, expressions used in any such instrument “have the same meaning as in the enabling legislation as in force from time to time” and “is to be read and construed subject to the enabling legislation as in force from time to time, and so as not to exceed the power of the person to make the instrument”: Legislation Act, pars 13(1)(b)-(c). Section 13(2) of the Legislation Act requires, in effect, that if an instrument would otherwise be construed as being in excess of the power, “it is to be taken to be a valid instrument to the extent to which it is not in excess of that power.”
Legislative & regulatory framework
Part 2 of the Act, which is arranged in 25 divisions and comprises ss 13-274, addresses the subjects, Arrival, presence and departure of persons. Power is conferred on the Minister to grant a non-citizen permission, to be known as a visa, to travel to, enter or remain in Australia, whether permanently or on a temporary basis: Act, ss 29-30. The Act provides for prescribed and other classes of visa and that the regulations may prescribe criteria, including for visas of a specified class: Act, s 31. A non-citizen who wishes to apply for a visa must apply for a visa of a particular class: Act, s 45(1).
The regulations may also prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application: Act, s 46(3). A visa must not be granted unless the application satisfies the applicable criteria that relate to the grant of visas of that class as provided by the Act and prescribed by the regulations: Act, 46AA(4)(b). The Minister is required, when deciding whether to grant or refuse to grant a visa to have regard to all of the information provided with the application including any information which is attached to it: Act, ss 54(1), par 54(2)(b). Although by s 55(1) of the Act, an applicant may give the Minister any additional relevant information up to the point where the Minister has made a decision, this provision is not of immediate relevance because the issue with which the present application is concerned is the identification of evidence that accompanied the visa application. Subject to provisions which are not material, if, after considering a valid application for a visa, the Minister is satisfied, amongst other things, that the criteria as prescribed by the Act or regulations have been satisfied, the application must be granted. Conversely, if the Minister is not so satisfied, it must be refused: Act, s 65(1)(a)(ii), 65(1)(b).
Part 2 of the regulations, Visas, is arranged in 11 divisions and comprises regs 2.01 – 2.106. Within Div. 2.1, Classes Criteria, Conditions et cetera, reg 2.01(1)(a) provides that for the purposes of s 31, the prescribed classes of these are those as set out in the items to Sch 1. Schedule 1, containing 1404 items, includes item 1229, Skilled (Provisional) (Class VC) visas, and provides by item 1229(10) for a Subclass 485 (Temporary Graduate) visa.
Subclass 485 – Temporary Graduate visa
In Div. 485 of Sch 2, Subclass 485 visa, criteria are provided for a Temporary Graduate visa. Criteria for the grant of a Skilled Graduate visa are contained within Div. 485 of Sch 2 to the regulations, operative at 25 August 2017, when the visa application was made.
In Sch 2 of the regulations, Div. 485, arranges the criteria for a Subclass 485 visa as follows: 485.1, Interpretation; 485.2, Primary criteria; 485.21, Common criteria; 485.31, Criteria; 485.4, Circumstances applicable to grant; 485.5, When visa is in effect, and; 485.6, Conditions. The Note to cl 485.21 states that these criteria apply to all applicants seeking to satisfy the primary criteria for the grant of a Subclass 485 visa.
Primary criteria are provided by reg 485.2 which provides that Sub-div 485.21 and 485.23 prescribe the primary criteria for an applicant for a Subclass 485 visa in the Post-Study Work stream. The Common criteria specified in cl 485.21, and as material to this application includes cl 485.212, the text of which (at the material time) read as follows:
The [visa] 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 bracket 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.
The requirements of par 485.212(b) of the regulations are of no immediate relevance.
While it is convenient to examine the legislative history of reg 485.212 in further detail below, at this point, it is useful to contrast sub-cl 485.21 with reg 1.15C. When Subclass 485 was inserted by the 2007 regulations the defined terms, vocational English and competent English picked up the definitions provided by regs 1.15B and 1.15C respectively. The original criteria for the English language test as defined by reg 1.15C were framed as follows:
1.15C Competent English
If a person applies for a General Skilled Migration these are, the person has competent English if the person satisfies the Minister that the person:
(a)has achieved, in a test conducted not more than two 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-paragraph; 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.
Structurally, in its original form, reg 1.15C did not confer power on the Minister to make a legislative instrument fixing the time within which an applicant must have undertaken a test; par 1.15C(a) above did that work itself. To the extent this regulation conferred power to make such an instrument, sub-par 1.15C(ii)(A) confined the power to specifying the score which must be achieved by a visa applicant having conducted such a test.
IMMI 15/062
Clause 485.212 in Sch 2 of the regulations is the source of power for the Minister to promulgate legislative instruments for the purposes there specified. Each of sub-pars 485.212(a)(i) and (ii) confer power on the Minister to issue legislative instruments addressing the subject matter with which those provisions are concerned. As noted, absent a contrary indication, the Acts Interpretation Act applies to IMMI 15/062 “as if it were an Act and as if each provision of the legislative instrument were a section of an Act”: Legislation Act, s 13(1)(a). By IMMI 15/062, the Assistant Minister, acting under cll 476.213 and 485.212 of Sch 2 of the regulations respectively, specified the matters set out in the six items comprising that instrument. Each of those six items expressly addressed both cll 476.213 and 485.212 of the regulations. The Assistant Minister specified for sub-par 485.212(a)(i) that an IELTS test, amongst others, was a test of a kind an applicant could undertake: IMMI 15/062, cl 1a.
By way of overview, as concerned sub-par 485.212(a)(ii), the Assistant Minister specified in cll 2, 3 and 4 of IMMI 15/062 that: (1) an IELTS test, amongst others, was a test of a kind that must be undertaken by an applicant at a single sitting; (2) the “Minimum overall Score” for an IELTS test must be a score of 6; (3) an IELTS was one of the English language tests that must have been undertaken within three years before the day on which the application was made.
So far as material, IMMI 15/062 reads:
I, MICHAELIA CASH, Assistant Minister for Immigration and Border Protection, acting under clauses 476.213 and 485.212 of the [Regulations]:
1.SPECIFY for subparagraphs . . . 485.212(a)(i) of the Regulations the following language tests:
a. an International English Language Test System (IELTS) test;
b. - e. . . . ; and
2.SPECIFY for subparagraphs . . . 485.212(a)(ii) of the Regulations the requirement that the following tests must be completed in a single test sitting:
a. an International English Language Test System (IELTS) test;
b. - e. . . . ; and
3.SPECIFY for subparagraphs . . . 485.212(a)(ii) of the Regulations the following minimum required overall test score and the minimum required scores for each of the test components: . . .
[IELTS: Minimum overall score 6] . . .
4.SPECIFY for sub-paragraphs . . . 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. - e. . . . ; and
5.SPECIFY for sub-paragraphs . . . 485.212(a)(ii) of the Regulations that the Cambridge English: Advanced (CAE) test must have been undertaken on or after 1 January 2015; and
6.SPECIFY for subparagraphs . . . 485.212(a)(ii) of the Regulations, a valid passport issued by one of the following countries . . .
As noted, neither cll 5 nor 6 of IMMI 15/062 are of any present relevance.
IMMI 15/062 has been entered on the Federal Register of Legislative Instruments as bearing the identifying number, F2015L00564. It became operative on 18 April 2015 and, upon registration, is taken to be, and bears the character of a legislative instrument: Legislation Act, ss 8(2)(b), 8(3), 12(1)(a), 12(3).
Text & context
An essential purpose in determining the proper construction of cl 485.212(a) is to ascertain the scope of the power that it conferred to promulgate the legislative instrument, IMMI 15/062.
The text of cl 485.212(a)(i) and (ii) express distinct and cumulative requirements. Paragraph 485.212(b) expresses an alternative criterion to those prescribed by cl 485.212(a) which is only of relevance as indicating there will be applicants for a Subclass 485 visa who need not undertake an English language test because they hold any one of five identified passports.
In contrast with IMMI 15/062, cl 485.212(a) permits the Minister by instrument to specify, relevantly, three matters: (1) the forms of test that may be undertaken by a visa applicant: cl 485.212(a)(i); (2) the minimum score for the specified language test which must be achieved, with such specified requirements (if any): cl 485.212(a)(ii); and (3) the period within which a specified score must be achieved: cl 485.212(a)(ii) (as distinct from the test undertaken).
It is only in sub-par 485.221(a)(ii) that express power is conferred to make a legislative instrument imposing a temporal requirement; that is, fixing the period within which a visa applicant must achieve a score. No such power is conferred by sub-par 485(a)(i).
In the present case it is necessary to focus upon certain of the words employed in cl 485.212(a); namely, ‘test’; ‘undertaken’; ‘score’, and; ‘achieved’. In Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, 395, the Court observed that the question whether a word or phrase in the statute was to be given its ordinary meaning or some technical or other meaning was a question of law; see also, Herzfeld & Prince, [2.10]. Apart from the defined term score, the words under consideration are non-technical and bear their ordinary and natural meaning:
(a)in sub-par 485.212(a)(i), the terms, ‘test’ and ‘undertaken’ are employed. Neither of those terms is defined by reg 1.03 or in cl 485.111 in Sch 2. Giving those words their ordinary and natural meaning: (i) a test is commonly understood as a means by which a person’s competence may be assessed; (ii) the requirement to have ‘undertaken’ a test denotes that the applicant has entered upon and committed himself or herself to the process of assessment. While the LexisNexis Australian Legal Dictionary separately considers the nature of objective and subjective tests, in the present context it is clear the result of the test must be evaluated and determined by an independent examiner;
(b)in sub-par 485.212(a)(ii), the terms, ‘score’ and ‘achieved’ are employed. Neither of those terms is defined in cl 485.111 in Sch 2. The term ‘score’ is defined in reg 1.03:
score, in relation to a language test, means any score or result, however described from the test, including any combination of scores or results from the test or components of the test.
The definition of ‘score’ was inserted in reg 1.03 by the 2015 regulations. Ordinary meanings of the word ‘achieved’, being the past tense of achieve, include having finished, carried out successfully, brought to an end and attained a successful result.
A ‘score’ is the resultant product of a test, and is known only at the conclusion of the process of scoring by those administering it. A ‘score’ is not ‘achieved’ until it is recognised as having been achieved. Such recognition is entirely in the hands of those who administer the test and who then issue the score. An applicant has not achieved a score until that score has been recorded and comes to be known (which may be a short time after the test, including the very day of the test), or sometime after the test, including as a result of any challenge to the quality of the scoring of a test (which results in a subsequent re-scoring).
The score always results after the test is completed, not before it is started or during the attempt to complete it. Contextually, the word ‘test’ has not been used in cl 485.212(a)(ii) but does so appear in cl 485.212(a)(i). Giving meaning to the whole of these words as employed in cl 485.212(a), it cannot be right to regard a test undertaken and a score achieved as being synonymous. Conceptually, the first – a test undertaken – refers more naturally and ordinarily to an event: the sitting of a test. Relatedly, for the purposes of cl 485.212(a), a score is the result achieved by the examinee upon the assessment by an independent examiner.
It is only when that assessment has been made, and not before, that any score has been achieved. The mere fact of having undertaken a test cannot, in or of itself, result in the achievement of any certain score. Before commencing the test, an examinee’s score would be nil. Ordinarily, at the moment of completing the test, the score would be unknown. The score could not be determined until the examiner had completed the process of assessment. As a matter of common sense, in the context of cl 485.212(a), where the primary purpose of that criterion is to enable a visa applicant to furnish evidence of their competence in the English language, it would be beyond the power of the examinee to do so until he or she had been informed by the examiner of the score which had been achieved by the test.
This conclusion is confirmed by the definition of the word ‘score’ in reg 1.03 set out above and which repeatedly employs the phrase “from the test.” As pro bono counsel for the applicant noted, the words ‘score’ and ‘test’ are distinct, should be treated distinctly, not interchangeably, and even though the words clearly bear a practical connection. They are not synonymous.
Consideration of the scope of the power so conferred is assisted by contrasting the text in sub-pars 485.212(a)(i) and (ii). By par 485.212(a)(i), power is conferred to ‘make’ a legislative instrument concerning the type of language test that may be undertaken by an applicant for a Subclass 485 visa. Paragraph 485.212(a)(i) does not expressly confer power to make an instrument specifying the period within which such a test must be undertaken. The subject matter of the power conferred by par 485.212(a)(ii) to make an instrument relates to 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 . . .” Only by par 485.212(a)(ii), and not par 485.212(a)(i), is a power expressly conferred to specify a period within which an applicant must achieve a requisite score.
Legislative history
Division 485 in Sch 2, including cl 485.212, has been the subject of extensive amendment.
In 2007, the Subclass 485, Skilled – Graduate visa was inserted as Div. 485 in Sch 2 to the regulations: Migration Amendment Regulations 2007 (Cth) No. 257, 2007; Items [52], [77].
It is not useful to examine the text of the 16 iterations of Subclass 485 issued over the period 2007– 2021. Suffice to say, the power to make legislative instruments specifying criteria concerning an applicant’s required standard of English has been framed in the following forms:
(a)from 1 September 2007, cl 485.215(b)-(c) prescribed at time of decision criteria providing that “the applicant has competent English” and, adopting for this purpose, the definition in reg 1.15C or that the application was “accompanied by evidence that the applicant has made arrangements to undergo a language test specified by the Minister in an instrument in writing for this paragraph”. Further, by cl 485.222(b), a time of decision criterion was that “the applicant has competent English”;
(b)from 27 October 2008, cl 485.215(b) prescribed at time of decision criteria, which required that “the applicant has competent English”. The earlier requirement, to provide evidence of arrangements for a test was, for a time, dispensed with;
(c)from 16 July 2014, cl 485.212 prescribed common criteria to be satisfied at time of application, including that “When the application was made, it was accompanied by evidence that the applicant had competent English”;
(d)from 1 July 2015, to the compilation including amendments up to 4 February 2022, cl 485.21 has prescribed as common criterion, including that the application was accompanied by evidence as provided in the terms set out in par 485.212(a)(i)-(ii):
With effect from 1 July 2015, the language criterion no longer depended upon or employed the definition in reg 1.15C of competent English. It adopted the quite different regime as explained in further detail by the Explanatory Statement No. 34, 2015, Item 14; see also Milanes v Minister for Immigration (2015) 234 FCR 508, [9]. In that appeal, Katzmann J observed that the phrase, competent English, was not defined in Div. 485; instead, reg 1.15C described the circumstances in which a person was to be recognised as having competent English.
So too, regs 1.15B-1.15EA provide definitions for the expressions Vocational English, Competent English, Proficient English and Superior English respectively. These definitions refer expressly to the Minister having invited a person to apply for a visa where he or she has undertaken a language test and “the test was conducted in the three years immediately before the date of the invitation”. That such regulations prescribe criteria framed upon a temporal limit fixed by reference to the date of a test and the date of an application stands in contrast to the power conferred by reg 485.212: cf, Berenguel v Minister for Immigration and Citizenship (2010) 84 ALJR 251, [17]-[19]. Those other regulations illustrate that the subject regulation, reg 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.
Clause 485.212(a) does not confer power in terms authorising the imposition of a temporal link between the date on which a test was undertaken and the date of an application. The express requirements in the definitions provided by reg 1.15B – 1.15EA that a person invited to apply for a visa has undertaken a test conducted within that three year period stand in sharp contrast with the text of IMMI 15/062. Indeed, each of those regulations obviate the need for any legislative instrument so as to create criteria of that kind.
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.
Extrinsic materials
By ss 15AB(1)-(2)(e) of the Acts Interpretation Act, resort to extrinsic materials is authorised for the purpose of confirming the ordinary meaning conveyed by the text of a provision, read in context and in light of the objects of the legislation, or determining the meaning of provisions in cases where the precise meaning of a provision is ambiguous or obscure. In CFMMEU v ABBC, Allsop CJ was in no doubt that, for the purposes of gaining an understanding of a provision from its context and purpose, secondary material such as Explanatory Memoranda could be considered before any suggested ambiguity was demonstrated.
Clause 485.212 and cognate provisions in Sch 2 of the regulations have been the subject of repeated amendment. Subject to certain limitations, the Court may have regard to extrinsic material, including explanatory memoranda, if it is capable of assisting in the ascertainment of the proper construction of a provision: Acts Interpretation Act 1901 (Cth), s 15AB(2)(c); see, e.g., CFMMEU v ABBC, [5]-[6], [34], [36], [68], [96], [118]-[121], [156], [167], [176].
In the following examination of the legislative history, it is important to recognise the distinct subject matters under consideration. As will appear, some of the extrinsic materials examined do not relate directly to cl 485.212. Nonetheless, they inform the different approaches taken to amending other regulations (including regs 1.15C-1.15EA), and the context in which this occurred. It would be erroneous to conflate the legislative amendments effected to other regulations with the process by, or manner in, which cl 485.212 in Sch 2 was amended.
2007 amendments
In Part 1 of Sch 1 to the Migration Amendment Regulations 2007 (No 7) (Cth) No. 257 of 2007 (2007 regulations), the following amendments, amongst others, were effected to the regulations: definitions of competent English, proficient English and concessional competent English: items, [2], [14]. In Part 2 of Sch 1 to the 2007 regulations, a series of general amendments were effected to Sch 1 including, by Item [52] of Sch 1, the insertion of a new subclass, Skilled (Provisional) (Class VC) visa (Item 1229). In Part 3 of Sch 1 to the 2007 regulations, a series of general amendments were effected to Sch 2 including, by item [77] the prescribed criteria for the Subclass 485 Skilled – Graduate visa application. Notably, at the point of creating this new subclass and inserting the designated criteria, cl 485.215 prescribed that, at the time of making the visa application, three alternative criteria could be satisfied; namely, that the visa applicant had vocational English or competent English or that his or her application was “accompanied by evidence that the applicant has made arrangements to undergo a test specified by the Minister in an instrument in writing for this paragraph.”
The primary purpose of the 2007 regulations was to “increase the level of English language requirements to be satisfied by applicants for [General Skilled Migration] GSM visas”: Explanatory Statement No 257, 2007 (2007 ES). Attachment B to the 2007 ES inserted in Sch 1 of the regulations a definition of “competent English”, such definition being made applicable for the purposes of reg 1.15C. In Attachment B, Item [14] inserted new regs 1.15C, 1.15D and 1.15E (being definitions of competent, proficient and concessional competent English) and prescribed a criterion, including that for the purposes of reg 1.15C, a General Skilled Migration (GSM) visa applicant has competent English:
. . . if the person achieved a test score of at least 6 for each of the four test components of speaking, reading, writing and listening on an International English Language Testing System (IELTS) test conducted within the two years before the date of the application; or has achieved a test score specified by the Minister in an instrument in writing under a law language test that is also specified within the two years before the date of the application; or holds a passport of a type specified by the Minister in an instrument in writing. (Emphasis added)
Self-evidently, as at 2007, it was intended that having achieved a score within the requisite two year period would suffice, and would do so on the basis that the “introduction of the power of the Minister to specify, as an alternative to an IELTS test, a score to be achieved on additional specified tests allows flexibility to quickly respond to changing language requirements . . .”
Item [52] of Attachment B to the 2007 ES stated that there would be a new Item 1229 – Skilled (Provisional) (Class VC) visa inserted in Sch 1 of the regulations. Item [77] stated that there would be a new Subclass 485 – Skilled – Graduate Subclass inserted in Sch 2 of the regulations, and that one of the Primary criteria – Criteria to be satisfied at time of application – would “require applicants to have either a nominated occupation in ASCO Major Group IV and have vocational English, or to have competent English . . .” and for that purpose, provided a reference to the definition of that term in reg 1.15 C.
2011 amendments
The purpose of the Migration Amendment Regulations 2011 (No 3) (Cth) (2011 regulations) was “to clarify the time frame within which an English language test must have been conducted for the purposes of a visa application”: Explanatory Statement, Migration Amendment Regulation 2011 (No 3) (2011 ES). At p. 6 of the 2011 ES it was stated:
New regulations 1.15C, 1.15D and 1.15E also clarify that the person will only have competent English, proficient English or concessional competent English, if the Minister is satisfied that the language test undertaken by the person was conducted no more than two years immediately before the day on which the application for a GSM visa was made.
These amendments ensure that an applicant for a GSM visa is assessed as holding the relevant English language test score before the application for a GSM visa is made. This supports the policy intention that only applicants who are assessed as having the specified language test score prior to making their application for the GSM visa may satisfy the relevant Schedule 2 criterion.
The prospective criterion requiring evidence of arrangements having been made to undertake a test in the future was discarded for an evidence based criteria requiring proof of historical facts: the undertaking of a test; the conduct of a test before an application was lodged, and; the applicant having achieved the requisite score. For this criteria, s 55 was then irrelevant.
2013 amendments
The purpose of the Migration Amendment Regulations 2013 (No 1) (Cth) (2013 regulations) was to improve immigration policy with recognition that s 31(3) provided that regulations may prescribe criteria for visas of a specified class: Explanatory Statement No 33, 2013 (2013 ES). Attachment C to the 2013 ES informs the intent of the several amendments that were affected. Item 5 of Attachment C provided for the repeal and substitution of Item 1229 in Sch 1 to the regulations and the restructuring and renaming of the Subclass 485 visa. The 2013 ES provided detailed explanation for the new Item 1229, Subclass 485 visa.
Nothing in Item 1229 of Sch 1 to the regulations, including as amended by the 2013 regulations contains any express reference to the period within which a Subclass 485 visa applicant must have undertaken in a language test or achieved a score upon having done so.
However, Item 9 in Attachment C to the 2013 ES addressed Div 485 of Sch 2 in detail. Amendments to the common criteria were effected so as: to align with departmental policy; to require that criteria were met, where possible, at the time of decision; to retain a requirement that, at the time of application, the applicant had competent English; to retain the definition of competent English in reg 1.15C, and; to insert a further evidentiary requirement in cl 485.212 that a visa applicant must furnish evidence that he or she had competent English.
While the 2013 ES provided extensive discussion of the amendments to Pt 485 in Sch 2, including passing reference to some limitation periods (e.g., police checks within 12 months immediately prior to the visa application), it did not expressly impose any limitation period respecting the date on which an applicant had undertaken a language test or achieved a score.
2015 amendments
Purposes of the Migration Amendment (2015 Measures No. 1) Regulations 2015 (Cth) (2015 regulations) included to change criteria for the 485 visa Subclass so as to provide an overall minimum English language score and a minimum score for each of the four components of an approved English language test to be specified by the Minister in a legislative instrument. Explanatory Statement No 34, 2015 (2015 ES) stated at p.1:
In particular, the Regulation amends the Migration Regulations to:
·allow an English test score to be accepted for points tested skilled visas if the test was conducted three years before the applicant was invited to apply for the visa, rather than three years before the application was lodged. This ensures that the test scores do not become invalid between the invitation to apply for the visa and the application being lodged; (Emphasis added)
As will appear, the amendment effected by the insertion of reg 1.03 was directly referable to the further amendments effected to regs 1.15B, 1.15C, 1.15D and 1.15E respectively; that is, the insertion of the definition of ‘score’ was not directly referrable to any amendment effected to cl 485.212, but to other cognate provisions and which adopted a quite different approach.
Later, at p.4 of the 2015 ES, it was explained that the amendments made by the insertion in Sch 2 of the regulations (and thus, the insertion of the definition of ‘score’), were the result of external consultations with a variety of industry skills assessing bodies and others, including the Skilled Migration Officials Group and, by Item 2, inserted reg 1.03 explaining:
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.
The fact of consultation with members of industry skills assessing bodies confirms that the testing regime would include an external assessment. This supports an inference that the examinee would not necessarily achieve a score on the date a test was undertaken.
Context in which the definition of ‘score’ was inserted as reg 1.03, is provided by other amendments, as effected by Items 3-10 of the 2015 regulations. As these Items confirm, they related to criteria different from those in cl 485.212 of Sch 2 (a clause also amended by the 2015 regulations: see Item 14 below). The criteria with which Items 3-10 of the regulations were concerned, relevantly, addressed three matters: (1) the criteria for vocational English, competent English, proficient English and superior English respectively; (2) the insertion of a new regime intended to provide greater flexibility to the Minister and to “ensure that English test scores do not become invalid between the invitation to apply for the visa and the application being lodged”; (3) the insertion of a limitation period fixed by reference to the date of an invitation to apply for a visa or the date on which an application was lodged as follows:
If an applicant for a visa undertakes a language test and is invited to apply for the visa, the test must be conducted in the three years immediately before the date of the invitation.
If an applicant for a visa undertakes a language test but is not invited to apply for the visa, the test must be conducted in the three years immediately before the date of the application.
As is apparent, the three year period inserted by Items 3-10, was referrable to the date on which the test was conducted. These requirements stand in contrast with the text of cl 485.212.
Clause 485.212(a)(ii) does not confer power on the Minister to specify the time within which a test is to be undertaken proximate to the lodgment of the visa application. The drafting technique of conferring a power to prescribe the period within which a test must be undertaken could have been used, but was not. By contrast, reg 1.15C employed exactly that approach:
1.15C Competent English
(1) A person has competent English if:
(a) the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and
(b) the person is an applicant for a visa; and
(ba) for a person who was invited (or whose spouse or de facto partner was invited) by the Minister under these Regulations, in writing, to apply for the visa—the test was conducted in the 3 years immediately before the date of the invitation; and
(bb) for a person to whom paragraph (ba) does not apply—the test was conducted in the 3 years immediately before the day on which the application was made; and
(c) the person achieved a score specified in the instrument. (Emphasis added)
The 2015 regulations which effected amendments to each of regs 1.15B, 1.15C, 1.15D and 1.15EA also effected amendments to cl 485.212, doing so by removing the use of the definition of ‘competent English’ in reg 1.15C and substituting a quite different criteria; namely, that the visa applicant must demonstrate both that he or she had, and had evidence to support their claim of having, competency in English. The requirement of ‘competent English’ had been a criterion for a Subclass 485 visa until it was removed in 2015 when cl 485.212 was amended. The 2015 ES, by Item 14 confirms that amendments to cl 485.212 were effected so as to remove from this criterion, the use of the definition ‘competent English’ and to replace it with criteria which required a specified type of language test and the achievement of a specified score.
This history supports a conclusion that a choice was made to remove the existing requirement that the test must be undertaken within three years before lodgment of the visa application.
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).
To the extent par 4 of IMMI 15/062 specified that the English test must have been undertaken within three years before the date on which the application was made, it was not submitted that the regulation was not inconsistent with cl 485.212(a) or that the imposition of such three-year limitation period for undertaking the test was permitted by that regulation or otherwise necessary or convenient having regard to the purposes of cl 485.212. The scope of a ‘necessary or convenient’ empowering clause will vary according to the content of the Act such that the more detailed the Act, the more limited the power to make regulations, the more general the Act, the more apparent it is that the legislature has deliberately left it to the Executive to spell out the details in the regulations. Upon this principle and treating the Act and regulations as spelling out their respective requirements in particular detail, this consideration militates in favour of a conclusion that the power conferred to specify the matters expressed in cl 485.212(a)(i) and (ii) should be construed more narrowly.
I agree in the Minister’s submission that an essential purpose of par 485.212(a) was to set parameters, including a timeframe, within which an applicant must demonstrate his or her proficiency in English to a prescribed standard. However, I do not agree that an interpretation which best effects that purpose is to anchor the time by reference to the date on which the test is undertaken rather than the date as at which the score has been achieved. There is nothing absurd in this conclusion. Consistently with the intent of s 55 of the Act, for the purposes of ministerial satisfaction, regard should be had to the most up-to-date information. To adapt the Court’s analysis in Berenguel at [26], it would be antithetical to that purpose to adopt a construction which deprived the Minister of the most up-to-date information of a score. This is not to such that post-Berenguel it is now permitted to supply a valid test score that was achieved after the visa application had been lodged. This mandatory requirement still obtains.
Contrary to the Minister’s submissions, I do not agree that the construction for which the applicant contends is artificial. In my view, undue focus upon the literal meaning of the words in issue – test, undertaken, score and achieved – serves to distract from proper consideration of the purpose for which the criteria in cl 485.212(a) are prescribed. The essential purpose of those new criteria was to inject a measure of “practical reality” to the requirement that the applicant currently has an appropriate and acceptable standard of English competency: cf 2013 ES, Item 9 – Part 485 of Sch 2, Div. 485.21 – Common Criteria at p.14. As confirmed by the 2015 ES, the amendments effected in that year followed consultation with, amongst others, assessing bodies, and extended the period from two years to three years for the purposes of prescribing the requirement for evidence of an applicant having achieved a satisfactory score to accompany his or her visa application. Further, as Item 14 in Sch 2 of Attachment C to the 2015 ES confirms, it was the intent of these amendments to enable lower English language 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: Act, par 65(1)(a)(ii).
Cl 485.212(a) does not confer power to fix a period within which a score is achieved
To ascertain the proper construction of par 4 of IMMI 15/062, it is also necessary to identify the hierarchy of the several provisions of the instrument, regulations and Act. In descending order, the provisions may be traced from s 29-31 of the Act, to par 2.01(b)(ii) in Div. 2.1 of Pt 2 of the regulations (a classes of Temporary visa); Item 1229 in Sch 1 to the regulations (Skilled (Provisional) (Class VC)); the visa sub-class, Subclass 485 – Temporary Graduate in Sch 2 of the regulations, IMMI 15/062 and finally par 4 of that instrument.
Having identified that hierarchy and upon the principles considered above, the Court must seek to secure a harmonious, consistent and fair construction in ascertaining the meaning to be ascribed to the requirements in par 4 of IMMI 15/062. Once the location of par 4 of IMMI 15/062 within that hierarchy has been identified, and with an eye to maintaining the unity of the overall statutory scheme, a meaning may be more appropriately ascribed to its terms which best gives effect to the purpose of these provisions. Their essential purpose is to define the permissible forms of evidence to enable the Minister to consider whether or not he or she is satisfied that a visa “applicant currently has an acceptable standard of English competency”: Berenguel, [21]. For the avoidance of doubt, accepting that the holding in Berenguel resulted in amendments to the relevant regulation (reg 1.15B), does not diminish the stated and clear purpose of such regulations. To adapt the reasoning in that special case, a construction of par 4 of IMMI 15/062 which deprived the Minister of the most recent evidence confirming the applicant’s competency in English would be antithetical to the purposes of acting upon up-to-date information. As at least two constructions of par 4 of IMMI 15/062 are open, the Court should prefer that which it considers will avoid inconvenience and injustice: cf Cooper Brookes, 305 (Gibbs CJ). It is therefore permissible to depart from the literal meaning of par 4 of IMMI 15/062 and, reading it in the context provided by cl 485.212(a)(ii), to treat it as defining the permissible evidence of a relevant English language test as being one in which the visa applicant achieved a score within the three-year limitation period specified by that legislative instrument.
Reading cl 485.212 within Subclass 485 as a whole, its essential purpose is concerned to prescribe but one of the 14 common criteria provided by cl 485.21. The criteria in cl 485.212 are to be seen in the context of the common criteria provided by cl 485.21 which are prescribed for the purposes of Subclass 485 – Temporary Graduate visa. These requirements serve the purpose of prescribing criteria for this specified subclass of visa as contemplated by s 31. The criteria with which the clause is concerned is to identify the evidence which must accompany the application and to specify the two, alternative, types of evidence which are made essential requirements to the lodgment of a valid visa application; namely, proof of: (1) a valid English language test and score, or; (2) a specified type of passport. In each case, the text of cl 485.212(a) and (b) delimit the scope of the relevant evidence that can be supplied:
(a) par 485.212(a)(i) does so with respect to the requirement for evidence of having undertaken a language test by providing that the test must be one that is “specified by the Minister in a legislative instrument made for this paragraph”;
(b) contrastingly, par 485.212(a)(ii) is not concerned with the test itself but rather with the score achieved. It does so by providing that the score must be at or above a level or standard that is “specified by the Minister in the legislative instrument in accordance with the requirements (if any) specified by the Minister in the instrument”;
(c) par 485.212(b) does so with respect to the requirement for evidence of the applicant holding a passport of a type that is “specified by the Minister in a legislative instrument made for this paragraph.”
Read as a whole, it is clear that where a legislative instrument has been made for the purposes of par 485.212(a)(i), the draughtsman intended the same instrument would also address the requirements of par 485.212(a)(ii) which refers twice to “the instrument”.
Conformably, with the observations in Berenguel and later authorities such as Milanes, it is clear that the purpose of cl 485.212(a) is to require an applicant to undertake an English language test “to establish that the applicant currently has an appropriate standard of English competency”: Berenguel, [21]. Contrastingly, the clear purpose of cl 485.212(b) read with the requirements specified in IMMI 15/062 is to confirm that applicants from certain English-speaking countries are not required to furnish such evidence of competency.
The evidentiary requirements of subparagraphs 485.212(a)(i) and (ii) are different; the first is concerned with an event (i.e., a test), while the second is concerned with a result (i.e., a score). Each is concerned to define acceptable types of evidence that must accompany an application. Reading evidentiary requirements prescribed by cl 485.212(a)(i) and (ii) through the lens of common sense, it is self-evident that the date upon which an examinee undertakes a test and the date on which that person achieves a score may well be different. Indeed, the more serious or advanced the examination may be, the more likely it is that the examiner or examining panel may take a longer time in determining the score appropriate to be given as a test result.
The present case does not entail problems of filling gaps in the legislative instrument by reading into its provisions words that do not appear. The process of construing a provision by reference to its context and having regard to its object and purpose is a very different thing: CFMMEU v ABBC, [33], [62]-[64]. It involves recognising a clear error created in par 4 of IMMI 15/062 by importing the language of par 485.212(a)(i) rather than the words in par 485.212(a)(ii).
A literal construction of par 4 of IMMI 15/062 must yield to its purpose and objects
On the question of interpretation, the words in par 4 of IMMI 15/062 cannot be read divorced from the context provided by cl 484.212. Paragraph 4 of IMMI 15/062 refers unambiguously to par 485.212(a)(ii) – and nothing else – as source of power for the matters with which it deals. The proper construction of IMMI 15/062 is not achieved by an adoption of the literal meaning of the words it employs; the search is for the underlying principle upon which the legislative instrument was drafted. “Meaning is to be ascribed to the text of a statute, read in its context”, having regard to the general purpose and policy of the provision, as derived from its context, including extrinsic materials, and treating consistency and fairness as a surer guide than any literal understanding of the words: CFMMEU v ABCC (2020) 384 FCR 668, [4].
Adhering to a literal construction of par 4 of IMMI 15/062 by treating it as fixing a period within which a test must have been undertaken is irrational. It would be productive of unfairness. I am reinforced in that conclusion once it is accepted (as it must be) that the only express source of a power to fix any period relates to the period within which a score was achieved by the applicant upon undertaking an approved form of language test. Unfairness of this kind is entirely distinct from complaints of unfairness in relation to attempts to submit a successful test results obtained after a visa application has been lodged.
The terms ‘test’ and ‘score’ are not synonyms; they engage wholly different concepts. This conclusion does not undermine the clear power of the Minister to specify time periods for par 485.212(a)(ii), it merely corrects a mistaken understanding so as to confirm that the time period actually relates to the score and not the test.
Having regard to the general policy and purpose of the legislative instrument understood in the context of cl 485.212(a) and considerations of consistency and fairness it is clear that a literal construction of par 4 of IMMI 15/062 produces a result which is beyond the meaning intended by cl 485.212(a)(ii). An evaluation of the overall statutory scheme as informed by legislative history, including the extrinsic materials considered above, par 4 of IMMI 15/062 obtains coherence when construed as fixing a three year time limit within which an applicant must have achieved a satisfactory score having undertaken an English language test.
The constructional choice I prefer does not compromise the purpose of the regulations. To the contrary, the preferred construction avoids plain unfairness and absurdity having regard to the text, context and object of cl 485.212.16: cf Cooper Brookes, Berenguel above; see also, CFMMEU v ABBC, [120]; Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2020) 94 ALJR 818, [3], [69]; Pearce and Geddes, [2.8]; Herzfeld and Prince, [5.290].
Although some of the statements in the various Explanatory Memoranda support a conclusion that par 4 of IMMI 15/062 should be construed as requiring evidence proving whether or not the test had been undertaken within three years of the application being made, upon settled principles, those materials cannot be deployed to displace the clear meaning of cl 485.212(a).
For the avoidance of doubt, in advancing the construction for which the applicant contended, it was not said that cl 485.212(a) or par 4 of IMMI 15/062 should be construed so as to permit (contrary to the legislative amendments considered above), that evidence may be adduced of a test undertaken or score achieved after the date of lodgement of the visa application. The reasons given in this proceeding do not trench in any way upon that settled principle.
Turning to the text of IMMI 15/062, it is clear that as concerns cl 485.212, the Assistant Minister was concerned to specify requirements for six separate subject matters: acceptable types of English test; the acceptable mode of test (single sitting); acceptable minimum scores, both overall and for individual components (listening, reading, speaking and writing); fixing a three year limitation period within which an examinee must have undertaken an English test (to be ascertained by reference to the day on which the application was made); fixing 1 January 2015 as the earliest available date for having undertaken an advanced test of the type designated the Cambridge English: Advanced test, and; prescribing the five types of passport that are valid so as to remove the requirement for an English language test.
The only express reference to cl 485.212(a)(i) in IMMI 15/062 is in par 1 of that legislative instrument. There, the Assistant Minister specified that an IELTS test, amongst others, was an acceptable form of English language test.
By contrast, each of pars 2, 3, 4 and 5 of IMMI 15/062 refer to cl 485.212(a)(ii). The subject matter with which cl 485.212(a)(ii) is concerned is evidence that the applicant has achieved within the period specified by the Minister in a legislative instrument the score specified in the instrument in accordance with the requirements (if any) specified in that instrument. None of pars 2, 3, 4 or 5 of IMMI 15/062 expressly proscribes that a score achieved within the period of three years before the day on which the application was made is an invalid score.
Applying principles of statutory interpretation, the expressed intention of IMMI 15/062 was to provide a legislative instrument which specified matters for the purposes of, relevantly, par 485.212(a)(ii). The only subject matter of that subparagraph was to identify the evidence upon which ministerial satisfaction could be reached as to whether a visa applicant had achieved a score in an English language test that was or was not of an acceptable level of competency. What par 485.212(a)(ii) was not concerned to address was whether the visa applicant had or had not undertaken an acceptable type of test; a matter dealt with by par 485.212(a)(i). Yet par 4 of IMMI 15/062 spoke in the language of the types of English test which must have been undertaken and specified that it must have been undertaken within three years before lodgment of the the application. On any view, par 4 of IMMI 15/062 is neither clear nor unambiguous. As in Cooper Brookes at 311 and the cases there examined, this is a case in which it is possible “both to recognise the nature of the draughtsman’s error and to identify it as an error.”
At least two constructional choices are presented by par 4 of IMMI 15/062. The first would be to treat it as having erroneously referred to par 485.212(a)(ii) when it should instead have referred to 485.212(a)(i). This choice is not to be preferred since par 485.212(a)(i) does not confer power to fix a period for the conduct of a test. An alternative constructional choice, and which I prefer, is to construe par 4 of IMMI 15/062 as having intentionally referred to par 485.212(a)(ii) but having erroneously referred to the requirement for having undertaken a test, a subject matter not dealt with by par 485.212(a)(ii) but by par 485.212(a)(i).
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.
Resolution
Insofar as the applicant had initially sought a review of the delegate’s decision, it is clear that this Court has no jurisdiction to do so: Act, par 476(2)(b). This was addressed in Shine & Anor v Minister for Immigration and Border Protection (No 2) [2020] FCCA 2808 at [41].
The Tribunal identified the dispositive issue on the review as whether or not the applicant satisfied the requirements of cl 485.212 by supplying evidence of the requisite kind when making her visa application. It is trite that the reasoning of an administrative decision-maker is to be read fairly, and not with an eye that is keenly attuned to error. At one point the Tribunal correctly described the requirement as being whether the applicant had supplied evidence that she had “undertaken a language test specified in an instrument; and has achieved, within the period specified in the instrument, the score specified, in accordance with any specified requirements (cl.485.212(a))”: Reasons, [6]. However, the process of reasoning adopted, both by the delegate and Tribunal was to focus, in effect, solely upon whether the applicant had undertaken her English language test within the three year period before lodging her visa application. Neither administrative decision-maker paid any regard to the fact that the applicant’s score for her IELTS test had in fact been achieved on 27 August 2014; that is, within the three year period specified by IMMI 15/062. As a matter of common sense, until the assessor had determined the applicant’s score, within the meaning and for the purposes of par 485.212(a)(ii), she had achieved nothing. Having achieved nothing before that date it was impossible for her to provide evidence of that score to accompany her application.
It was common ground the Tribunal had no discretion to depart from the imperative terms prescribed by, reg 485.212(a) and IMMI 15/062. While some statutes contain provisions conferring power to extend a limitation period, as concerns the three year period delimiting any relevant score, no power exists to extend the time so fixed. To recognise that the requirements of these provisions are mandatory, not discretionary, directs attention to the proper construction of each of those provisions and whether, as was submitted in this case, par 4 of IMMI 15/062 was made in excess of the power conferred by cl 485.212(a)(ii). Further, to accept that the criteria in these provisions are mandatory, is to identify the point at which an enquiry begins as to the proper construction of, and power conferred by, those provisions. Upon the reasoning adopted by the Tribunal, the dispositive consideration was whether or not the visa application was accompanied by evidence demonstrating that the English language test (which she had sat at a single sitting), had been undertaken within three years before the date on which her application had been lodged. In my respectful view, this reasoning entailed the misconstruction of cl 485.212(a) and par 4 of IMMI 15/062.
The applicant did undertake a language test. The type of test which she undertook was of the type specified by the Minister in IMMI 05/062. Conformably with the requirements of that instrument, the test which the applicant undertook was an IELTS test, which was completed in a single sitting and for which her overall test score exceeded that which was specified: IMMI, 05/062, cll 1a, 2a and 3.
Accompanying her visa application was evidence that the applicant had successfully achieved a score within the period specified by par 4 of IMMI 15/062, properly construed. Having regard to the matters considered above, the Tribunal could have found that the evidence presented by the first applicant satisfied cl 485.212(a). It did not make such a finding because it misconstrued the requirements of par 4 IMMI 15/062 read with cl 485.212(a)(ii).
The Tribunal’s error was material, with significant adverse consequences for the advancement of the first applicant’s visa application. Had the Tribunal not proceeded upon a misconstruction of cl 485.212 and IMMI 15/062, there is a realistic possibility this could have affected consideration of the merits of her visa application. The error was therefore jurisdictional.
CONCLUSION
The decision of the Tribunal was affected by jurisdictional error and ought to be set aside. The application for merits review should be remitted for redetermination according to law.
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.
I certify that the preceding one hundred and seventy-five (175) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A Kelly. Associate:
Dated: 2 March 2022
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