Singh & Anor v Minister for Immigration & Anor
[2016] FCCA 387
•26 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 387 |
| Catchwords: DELEGATED LEGISLATION – Validity – whether s.504 of the Act authorises the making of a regulation that confers on the Minister a discretion to specify by instrument in writing a score under an English language test in addition to the score and IELTS test prescribed in reg.1.15C of the Migration Regulations 1994 (Cth) (Regulations) – whether reg.1.15C of the Regulations is uncertain to the extent it prescribes a score in an IELTS test to demonstrate competence in English – whether reg.1.15C is irrational in permitting competence in English to be demonstrated by reference to the country of issue of passports that visa applicants may hold - whether instrument made purportedly pursuant to reg.1.15C of the Regulations is invalid because it purported to specify a score under a test that was incapable of being undertaken by anybody – whether invalidity of instrument made purportedly pursuant to reg.1.15C of the Regulations affects the validity of reg.1.15C of the Regulations. MIGRATION – Review of Migration Review Tribunal decision (Tribunal) – whether Tribunal acted unreasonably in refusing request for further time to undertake an IELTS test and provide results of that test – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s. 31, 31(1), 31(3), 476, 476(1), 504 Migration Amendment Regulations 2011 (No. 1) (Cth) |
| Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3 Brunswick Corporation v Stewart (1941) 65 CLR 88 Farook v Minister for Immigration and Border Protection [2014] FCA 1017 Ghori v Minister for Immigration and Citizenship [2011] FCA 759 Yu & Ors v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2004] FCA 1477; (2004) 140 FCR 126 |
| First Applicant: | AMANDEEP SINGH |
| Second Applicant: | PAWANDEEP KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3251 of 2013 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 22 October 2014 |
| Date of Last Submission: | 21 October 2014 |
| Delivered at: | Sydney |
| Delivered on: | 26 February 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones of Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application is dismissed.
The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3251 of 2013
| AMANDEEP SINGH |
First Applicant
PAWANDEEP KAUR
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants apply for judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants Skilled (Residence)(Class VB) visas (Skilled Visa).
Background
To have been entitled to a Skilled Visa, the first applicant (applicant) was required to satisfy the criterion specified in cl.885.213 of Schedule 2 to the Migration Regulations 1994 (Regulations), and he had to satisfy the criterion as at 28 June 2011 when he applied for the Skilled Visa. At that time, cl.885.213 of Schedule 2 to the Regulations required that the applicant have “competent English”.[1] “Competent English” was defined in reg.1.15C as follows:
If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person:
(a)has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(i)an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or
[1] The regulations that apply to the applicant are those contained in the Regulations as in force immediately after the coming into effect of the Migration Amendment Regulations 2011 (No. 1) & (No. 2)(Cth).
(ii) a score:
(A) specified by the Minister in an instrument in writing for this sub‑subparagraph; and
(B) in a language test specified by the Minister in the instrument; or
(b)holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.
Regulation 1.15C was subsequently amended, but this version continued to apply to the applicant because the application for the Skilled Visa was lodged before 1 July 2011. [2] For ease of expression, in the remainder of these reasons I will refer to the regulations that applied to the applicant in the present tense.
[2] Migration Amendment Regulations 2011 (No.3) and items 12 and 124 of sch.1 to the Migration Amendment Regulation 2012 (No.2). See also Singh v Minister for Immigration & Anor [2016] FCCA 19 at [6] (Judge Cameron)
An instrument in writing, being IMMI 09/073, was made on 25 June 2009 for the purposes of reg.1.15C(a)(ii)(A) of the Regulations. That instrument was revoked by instrument IMMI 11/036 which commenced on 1 July 2011. IMMI 11/036 was in turn revoked by instrument IMMI 12/018 which took effect on 1 July 2012. It specified for applications lodged before 1 July 2012 the following matters:
A. For the purposes of subparagraph 1.15C(a)(i) the following language tests:
· an International English Language Test System (IELTS test); and
· an Occupational English Test (OET).
B. For the purposes of subparagraph 1.15C(a)(iii) the following scores:
· an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or
· a score of at least “B” in each of the four components of an OET.
C.For the purposes of paragraph 1.15C(b) a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland, to a citizen of that country.
There are two errors in IMMI 12/018. First, it purports to specify language tests “for the purposes of subparagraph 1.15C(a)(i)”. That paragraph, however, does not require or refer to the specification by instrument of any score or English language test; the paragraph itself prescribes an English language test, namely the IELTS test, and the necessary score under that test. The paragraph for the purposes for which a language test and the score required to be achieved in that test could be specified by instrument is paragraph 1.15C(a)(ii). And this leads to the second error. IMMI 12/018 specifies “for the purposes of subparagraph 1.15C(a)(iii)”. There is no such paragraph.
Murphy J considered these errors in Farook v Minister for Immigration and Border Protection.[3] Applying what his Honour described as “[t]he “slip rule” of statutory interpretation”, his Honour held that IMMI 12/018 should be taken to refer to subparagraphs (a)(ii)(A) and (B) of reg.1.15C of the Regulations rather than to subparagraphs (a)(i) and (iii).[4]
[3] [2014] FCA 1017
[4] [2014] FCA 1017 at [24]
There is one other matter to note before I turn to what occurred before the Tribunal; and that relates to the question of which instrument applies to the visa application. It is unclear from the applicant’s written submissions which instrument the applicant submits applies to the visa application. At paragraph 26 of his written submissions, the applicant refers to IMMI 09/073, thus implying the applicant submits that it is that instrument which applies to the application. In paragraph 36 of his written submissions, however, the applicant refers to IMMI 12/018, which implies the applicant submits that it is that instrument that applies to the application. Save for one submission which the applicant makes (which concerns the errors I have identified in paragraph 5 of these reasons), it does not matter which of the instruments apply to the application.
There is no question that it is IMMI 12/018 that applies to the application. On its face, IMMI 12/018 stated it applied to applications lodged before 1 July 2012. That is what Murphy J found in Farook v Minister for Immigration and Border Protection.[5] In that case, the application for a Skilled Visa was lodged on 15 October 2009. Murphy J concluded that as the “later instrument [i.e., IMMI 12/018], and having expressly been given retrospective effect, it is clear that when the Tribunal determined the appellant’s visa application IMMI 12/018 was the applicable instrument and not IMMI 09/073”.[6]
[5] [2014] FCA 1017
[6] [2014] FCA 1017 at [22]
Before the Tribunal
The applicant provided to the Tribunal the results of the IELTS tests he undertook on 25 May 2013, 8 June 2013, 22 June 2013, 17 August 2013, and 21 September 2013. Those results showed the applicant did not achieve scores of 6 or more in each of the four test components in any of those tests.
At the hearing on 18 October 2013, the applicant explained to the Tribunal he had found it difficult to concentrate because his two-year-old daughter had passed away in August 2013. The applicant, however, also informed the Tribunal he had undertaken an IELTS test on 12 October 2013. The Tribunal requested the applicant provide by 30 October 2013 the results of the IELTS test the applicant had undertaken on 12 October 2013.
On 30 October 2013 the Tribunal received the results of the test the applicant took on 12 October 2013. The applicant achieved 5.5 in listening, 4.5 in reading and 6.5 in the writing and speaking components. In other words, the applicant did not achieve the necessary scores.
On about 29 October 2013 the Tribunal received an IELTS test receipt dated 17 October 2013 recording an IELTS test booking for 9 November 2013, and a request from the applicant for an extension until 25 November 2013. The Tribunal agreed to allow the applicant until 27 November 2013 to show he had competent English. On 28 November 2013 the Tribunal received a written request for a further extension “in order to provide the competent IELTS results as required”. The applicant provided the Tribunal with a “further booking for 7th December 2013 as applicant wish [sic] to give one more IELTS exam”.[7]
[7] CB178
The Tribunal’s decision
The Tribunal decided it should not delay its decision “until the applicant achieves the necessary result”. The Tribunal said:[8]
While it appreciates that the applicant may be having difficulties concentrating given the loss of his daughter a few months ago, he made the application for the visa in June 2011 which is over two years ago and his own evidence is that he has attempted at least 10 tests for the visa. A number of these tests were attempted prior to his daughter’s sudden death on 31 August 2013. There is no indication that the applicant will achieve the necessary score [in] an IELTS test in the near future if the Tribunal were to delay its decision, and the Tribunal has declined the request.
[8] CB187, [8]
Given the applicant did not achieve the specified score in an IELTS test, and the applicant did not hold a specified passport, the Tribunal was not satisfied cl.885.213 of Schedule 2 to the Regulations had been met, and the Tribunal, therefore, affirmed the delegate’s decision not to grant the applicants Skilled Visas.
Ground 1 – incorrect construction
In his amended application, the applicant relies on four grounds for claiming that the Tribunal made a jurisdictional error. The first is that the Tribunal incorrectly construed the definition of “competent English” in reg.1.15C as constituting an exhaustive list of acceptable evidence by which “competent English” may be established. Mr Jones, who appeared for the applicants, accepted there is authority binding on this Court which means that this ground cannot succeed in this Court.[9] Mr Jones, however, formally submitted that these authorities were decided incorrectly.[10]
[9] Parmar v Minister for Immigration and Citizenship [2011] FCA 760; Ghori v Minister for Immigration and Citizenship [2011] FCA 759; Sidhu v Minister for Immigration and Border Protection [2014] FCA 935. See also Milanes v Minister for Immigration and Border Protection at [2015] FCA 1105 at [67]-[82]
[10] Outline Submissions for the Applicant [13]-[18]
Given Mr Jones’ concession, I do not propose to consider the arguments Mr Jones advanced in support of his contention that the Tribunal misconstrued the definition of “competent English”.
Grounds 2 and 3 – invalid regulation and instrument
The applicant, in his submissions, has treated the second and third grounds together. The second ground of application challenges the validity of reg.1.15C.
Regulation 1.15C is an invalid exercise of the power to make regulations under the Migration Act.
Particulars
The definition of “competent English” in reg.1.15C is unreasonable and/or may lead to manifest arbitrariness, injustice or partiality.
The third ground of application challenges the instrument, and is as follows:
The Legislative Instrument referred to in reg.1.15C is an invalid exercise of the power to make such instruments under the Migration Act.
Particulars
The tests to which the instrument refers are described in a way that is ambiguous, uncertain, misleading and/or incapable of practical administration.
This ground does not identify the particular legislative instrument the applicant challenges. Given that I have found that IMMI 12/018 applies to the application, I will assume that this ground is directed to IMMI 12/018.
The applicant has treated grounds 2 and 3 together because the instrument that is attacked and reg.1.15C itself are related; the instrument – here, IMMI 12/018 – was made pursuant to reg.1.15C of the regulations. The applicant’s submissions assume that the invalidity of the instrument necessarily renders reg.1.15C invalid. As I will show, however, that assumption, in the circumstances of this case, is not correct.
Before I consider these two grounds, it will be necessary to say something about the jurisdiction of this Court to consider the validity of reg.1.15C of the Regulations, and the instrument or instruments made pursuant to that regulation, and the principles that should be applied when delegated legislation is challenged on the grounds on which the applicants rely.
Jurisdiction to declare regulations invalid
The applicants and the Minister assume this Court has jurisdiction to determine a challenge to a regulation made under the Migration Act 1958 (Cth) (Act). If the Court has jurisdiction, what is its source?
An initial difficulty in answering this question is that the source of the jurisdiction of courts in general to review the validity of delegated legislation has been assumed whenever its validity in a proceeding has become an issue. It has been said that the power of the courts to rule on the validity of delegated legislation “is so deeply entrenched as a principle of our law that Australian judges seem not to have felt it necessary to refer to it”; rather, “they have proceeded straight to the question whether the delegated legislation is valid”.[11] It cannot, however, be assumed that a court of limited jurisdiction, such as this Court, has jurisdiction to rule on the validity of delegated legislation.
[11] D Pearce and S Argument Delegated Legislation in Australia 4th ed. LexisNexis Butterworths 2012 at [12.2]
The most obvious potential source of jurisdiction is s.476(1) of the Act, which confers on this Court the same jurisdiction in relation to “migration decisions” as the High Court has under paragraph 75(v) of the Constitution. In very broad terms, and subject to exceptions, s.476(1) of the Act confers jurisdiction on this Court to grant relief if an officer of the Commonwealth has made a “migration decision”, or will make a “migration decision”, that is affected or will be affected by jurisdictional error. It is doubtful, however, that the Governor-General’s making regulations under s.504 of the Act is a “migration decision” within the meaning of s.476 of the Act.
There is another basis on which the Court, in the circumstances of this case, may have jurisdiction to entertain the applicant’s attack on the validity of reg.1.15C of the Regulations; and that is collateral attack. The expression “collateral attack” is often used to denote the challenging of an administrative act or delegated legislation “in proceedings where the validity of the administrative act [or delegated legislation] is merely an incident in determining other issues”.[12] An example is Guo v Minister for Immigration and Citizenship where Besanko J considered whether a regulation made under s.504 of the Act was invalid.[13] His Honour noted that the Minister did not suggest that a collateral attack on the validity of the regulation was not permissible, and that the appeal was conducted on the footing that if his Honour were to decide that the regulation in question was invalid, constitutional writs directed to the Tribunal should issue.[14]
[12] Ousley v R (1997) 192 CLR 69 at page 99 (McHugh J)
[13] (2009) 176 FCR 83
[14] (2009) 176 FCR 83 at [16]. Yet another example is the decision of Kiefel J in Yu & Ors v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2004] FCA 1477; (2004) 140 FCR 126.
Whether or not the Court has jurisdiction to entertain a collateral attack on delegated legislation depends on whether the determination of that question is relevant to an issue in the proceeding. In the case before me, the applicant seeks constitutional writs directed to the Tribunal in relation to a decision it made to affirm the delegate’s decision. The Tribunal decided the applicant did not have competent English as defined in reg.1.15C and, for that reason, did not satisfy cl.885.213. That decision, in turn, was premised on reg.1.15C of the Regulations being valid. If, however, as the applicant contends, reg.1.15C is invalid, the Tribunal will have affirmed the delegate’s decision because the applicant did not satisfy a regulation which in law does not exist. In those circumstances, the Tribunal will have taken into account a matter it was irrelevant for it to have taken into account and, for that reason, it will have made a jurisdictional error.
The Court, therefore, has jurisdiction to entertain the applicant’s challenges to the validity of reg.1.15C of the Regulations and the instrument made under that regulation. If the applicant’s challenge succeeds, the applicant will be entitled to the relief he seeks, subject to any discretionary consideration that might deprive the applicant of any remedy, because the Tribunal would have taken into account an irrelevant consideration.
Invalidating delegated legislation
The words and expressions the applicant uses in ground 2 to describe the nature and effect of reg.1.15C of the Regulations are words and expressions that have been used to describe the circumstances in which a regulation may be held to be invalid because it is unreasonable. Here:[15]
the kind of unreasonableness which invalidates [a regulation] is not the antonym of ‘reasonableness’ in the sense of which the expression is used in the common law, but such manifest arbitrariness, injustice or partiality that a court would say: ‘Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires’; Kruse v Johnson [1898] 2 QB 91
[15] Mixnam’s Properties Ltd v Chertsey Urban District Council [1964] 1 QB 214 at 273 (Diplock LJ) quoted with approval by Lockhart J in Minister for Primary Industries and Energy v Australian Fisheries Pty Limited (1993) 40 FCR 381 at page 382
Other expressions have been used to describe features of a regulation that would lead to its being classified as unreasonable. Thus, it has been said that the regulation will be unreasonable if it is “so oppressive or capricious that no reasonable mind can justify it”;[16] or if it involves “such oppressive or gratuitous interferences with the rights of those who are subject to it as could find no justification in the minds of reasonable men”.[17]
[16] Brunswick Corporation v Stewart (1941) 65 CLR 88 at page 97 (Starke J)
[17] Brunswick Corporation v Stewart (1941) 65 CLR 88 at page 99 (Williams J)
There is another notion – that of a reasonable adaptation of the regulation in question to the purposes of the power pursuant to which the regulation has been made – which is discussed, sometimes as an aspect of unreasonableness, sometimes as a separate ground for which delegated legislation may be held to be invalid.[18] This notion was stated by Dixon J in Williams v Melbourne Corporation:[19]
To determine whether a by-law is an exercise of a power, it is not always enough to ascertain the subject matter of the power and consider whether the by-law appears on its face to relate to that subject. The true nature and purpose of the power must be determined, and it must often be necessary to examine the operation of the by-law in the local circumstances to which it is intended to apply. Notwithstanding that ex facie there seemed a sufficient connection between the subject of the power and that of the by-law, the true character of the by-law may then appear to be such that it could not reasonably have been adopted as a means of attaining the ends of the power. In such a case the by-law will be invalid, not because it is inexpedient or misguided, but because it is not a real exercise of the power.
[18] In Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3 at [47], French CJ, when referring to a party’s submission, noted that “an unreasonable exercise” of the by-law making power and “not a reasonably proportionate or proportionate exercise of the power” “invoke criteria of invalidity which have overlapping histories and applications.”
[19] (1933) 49 CLR 142 at page 155
In South Australia v Tanner, the plurality noted without any disagreement that the parties accepted “the reasonable proportionality test of validity . . . namely, whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose”.[20] The plurality also said that the same test was expressed by Dixon J in Williams as being “whether the regulation goes beyond any restraint which could be reasonably adopted for the prescribed purpose”.[21]
[20] (1989) 166 CLR 161 at page 165
[21] (1989) 166 CLR 161 at page 165
In his third ground, the applicant uses different words to describe the features of the instrument made pursuant to reg.1.15C that the applicant claims render it invalid. These words are “ambiguous, uncertain, misleading and/or incapable of practical administration”. Some of these words allude to what may loosely be described as the uncertainty ground for declaring regulations to be invalid. And here uncertainty as a ground for declaring a regulation invalid requires more than ambiguity or doubt in the meaning of the particular piece of delegated legislation. This point was made by Dixon J in Cann's Pty Ltd v The Commonwealth in relation to a prices regulation order:[22]
. . . . I do not take the view that doubts about the construction of an instrument made under reg. 23 can affect its validity. The interpretation of all written documents is liable to be attended with difficulty, and it is not my opinion that doubts and misgivings as to what the instrument intends, however heavily they may weigh upon a court of construction, authorize the conclusion that an order made under reg. 23 is ultra vires or otherwise void. . . . [T]o resolve ambiguities and uncertainties about the meaning of any writing is a function of interpretation and, unless the power under which a legislative or administrative order is made is read as requiring certainty of expression as a condition of its valid exercise, as the by-law-making powers of certain corporations have been understood to do, the meaning of the order must be ascertained according to the rules of construction and the principles of interpretation as with any other document.
[22] (1946) 71 CLR 210 at pages 227-228
A regulation will be invalid however, if its meaning is not ascertainable; and “that is because no particular act or thing can be brought within the scope of what is expressed unintelligibly”.[23] Further, a regulation will be invalid if it is uncertain “in the result that its application produces”.[24] In the context of a prices regulation order, Dixon J said that:[25]
It is unfortunate that documents by which the conduct of men is governed, whether in business or in any other activity, should not always and in their application to all circumstances, carry upon their face an obvious and indisputable meaning; but there are not many legislative instruments that succeed in attaining such a miraculous combination of prescience and perspicuity. . . . At all events, I do not think that the validity of an attempted exercise of his powers depends upon his success in avoiding equivocation or obscurity in the expression of his intention, providing that what he intends is ascertainable and is itself definite.
[23] (1946) 71 CLR 210 at page 227
[24] (1946) 71 CLR 210 at page 228
[25] (1946) 71 CLR 210 at page 229
As has been noted by the authors of Delegated Legislation in Australia,[26] Dixon J’s statement rationalized previous views. The authors refer to the statement of Williams J in Brunswick Corporation v Stewart that a “by-law must be certain in the sense that it must contain adequate information as to the duties of those who are to obey”. [27] They also refer to the judgment of Jordan CJ in Ex parte Zietsch; Re Craig.[28] In that case, his Honour identified a number of “general considerations” that should be kept in mind when considering whether a regulation should be considered ineffective on the ground of uncertainty. Those considerations are as follows:
(1) By “certain” or “clear” is meant clear enough to serve the practical purpose which the provision is evidently intended to serve. A court should not be astute to pick holes in a regulation or order, and hold it to be bad because of possibilities of obscurity which are purely theoretical or fanciful. (2) In determining whether a provision is sufficiently certain, regard must be had not only to its language but to its immediate and general context and the nature of the subject matter with which it is concerned. (3) If the provision itself is clear, the fact that its application, generally or in particular cases, may be difficult or burdensome, is immaterial. (4) The fact that there is some element of uncertainty is not necessarily conclusive. The uncertainty may be one capable of being resolved by the application of some rule of construction. Thus, if it is clear enough that one or other of two meanings (each sufficiently clear in itself) must have been intended, but which of the two it is not quite clear, there is then no possible doubt whatever that the court should treat the more lenient of the two as being the one intended . . . . (5) It is only if the provision is prima facie uncertain, and is also not reasonably capable of being regarded as sufficiently certain for practical purposes by an application of the considerations to which I have referred, that it is proper to treat it as bad for vagueness.
[26] Delegated Legislation in Australia LexisNexis Butterworths, 4th ed [22.5]
[27] (1941) 65 CLR 88 at page 99
[28] (1944) 44 SR (NSW) 360
Invalidating instruments made under regulations
It was assumed by the applicants and by the Minister that it was within the scope of s.504 of the Act to enact regulations such as reg.1.15C of the Regulations that permit matters to be prescribed by the Minister by instrument in writing. Section 504 of the Act, however, does not expressly provide that a regulation may be made that authorises another person to specify matters by instrument in writing. Is the making of a regulation such as reg.1.15C that permits the specification of matters within the regulation-making power a sub delegation of legislative power that is not authorised by s.504 of the Act and, hence, invalid?
There are cases which have held, or which may be explained on the basis of the principle, that a regulation that permits the delegation of an administrative function does not involve sub delegation of legislative power, and hence is valid.[29] Wilson J discussed some of the authorities and principles in Dainford Ltd v Smith.[30] An issue in that case was whether a proposed by-law of a body corporate was invalid because it conferred on a body other than the body corporate the power to specify car parking spaces for the exclusive use of proprietors. The Full Court of the Supreme Court of Queensland held, by majority, that the by-law was invalid because it purported to delegate to the body a power it was not authorised to delegate.
[29] The cases are discussed in D Pearce and S Argument Delegated Legislation in Australia 4th ed. LexisNexis Butterworths 2012 at [23.12] – [23.20]
[30] (1985) 155 CLR 342
Wilson J referred to a number of New Zealand authorities. First, his Honour referred to Shepherdson J’s referring to the following passage from Geraghty v Porter:[31]
In making regulations such as these the Governor is exercising a delegated power of legislation. Such a delegated authority must be exercised strictly in accordance with the powers creating it: Halsbury's Laws of England, vol. xxvii, p. 124, s. 217; and in the absence of express power to do so the authority cannot be delegated to any other person or body. The rule on the subject is expressed in the maxim Delegatus non potest delegare, and is of general application, although the cases in which for the most part it has been applied have been those arising out of the relation of principal and agent.
[31] (1917) NZLR 554 at page 556
Wilson J then referred to the decision of the New Zealand Court of Appeal in Hawke's Bay Raw Milk Producers Co-operative Co. Ltd. v. New Zealand Milk Board and referred to a number of passages including the following passage:[32]
The principle enunciated in Geraghty v. Power (sic) ... does not preclude the making of regulations which confer on a subordinate body or official authority to make decisions and exercise discretionary powers within the limits prescribed by the regulations; but it is always to be borne in mind that the legislative power itself cannot be deputed. It seems to us that this distinction has been recognised, and we think correctly recognised, in the cases subsequent to Geraghty v. Power (sic).
[32] (1961) NZLR 218 at page 223
His Honour also referred to Van Gorkom v. Attorney-General & Anor[33] which upheld the validity of a regulation that permitted the Minister for Education to:
lay down from time to time the general conditions governing payment of removal expenses including household articles which may be included in the removal, the cost of the conveyance of the teacher and his family, and the extent to which accommodation and other expenses may be paid.
[33] (1977) 1 NZLR 535 at 537
His Honour quoted the following passage from the judgment of Cooke J (as his Honour then was):[34]
it is clear that the mere fact that the regulation delegates discretionary authority is not an objection to its validity. I do not read subcl (9) of reg 16 as purporting to authorise the taking away or cutting down of the rights to actual and reasonable expenses given by earlier subclauses; but its wording shows, in my view, that it does give the minister authority to settle the kinds of expenses to be treated as reasonable . . .
[34] (1977) 1 NZLR 535 at 540
Regulation 1.15C of the Regulations confers a power on the Minister to specify scores and an English language test in addition to the scores and test specified in reg.1.15C(a)(i) of the Regulations. That, however, does not render the regulation invalid. On its proper construction, reg.1.15C prescribes that “competent English” is something that must be determined by reference to some test, and the power it confers on the Minister is an administrative discretion to identify an additional (English) language test and the score that must be obtained in that test.
Finally, the parties also assumed that principles that apply to determining whether a regulation is invalid applied equally to instruments made purportedly pursuant to regulations. In my opinion, that assumption is correct. In King Gee Clothing Company Pty Ltd v The Commonwealth, the subject of challenge was the making of a pricing order pursuant to a regulation.[35] Dixon J held that, assuming the pricing order was an administrative order, not a piece of legislation, the question whether it was valid turned on whether it was within the regulation making power. His Honour said:[36]
Let it be assumed that it may be regarded as an administrative order, not as a piece of legislation. But, even so, I should think that uncertainty, as a test of validity, arose from the nature of the power. On this footing, in the end, the question comes back to ultra vires.
[35] (1945) 71 CLR 184
[36] (1945) 71 CLR 184 at page 195-196
The applicant’s submissions
The applicant’s first submission is that the reference to the IELTS test in reg.1.15C(a)(i) is ambiguous, and is incapable of practical application because “the International English Language Testing System test” is not defined. The applicant submits that, although an entity known as the “International English Language Testing System” exists, it is “by no means clear” that this is the test referred to in the regulations, or whether it is the only test that might meet the description.
As the passages I have quoted above make clear, the presence of some uncertainty in a regulation does not by itself render it invalid. In any event, I do not accept the applicant’s submission that the reference in reg.1.15C to the IELTS test is ambiguous. As the applicant accepts, there is a testing system known as the “International English Language Testing System”, and the applicant does not submit any other testing system goes by that name. Further, the applicant’s submission is belied by the conduct of the applicant, the delegate, and the Tribunal. The applicant manifested no doubt about the test he was required to satisfy; nor did the delegate or the Tribunal.
The applicant, therefore, has not demonstrated there is even a possibility that the expression “International English Language Testing System” applies or is capable of applying to anything other than an English language testing system that is denoted by that name. This part of the applicant’s claims, therefore, fails.
The applicant’s second submission relates to the specification of “an Occupational English Language test” in IMMI 09/073. The expression “Occupational English Test (OET)” was defined in reg.1.03 of the Regulations as it existed at the time of application to mean “an Occupational English Test conducted by the National Language and Literacy Institute of Australia”. The applicant submits that an organisation by the name of “National Language and Literacy Institute of Australia” ceased to exist in 2005 and, for that reason, the instrument made under reg.1.15C is invalid.[37] I find no OET has existed since 2005.
[37] Exhibit A, Current & Historical Company Extract for The National Languages and Literacy Institute of Australia Pty Ltd
It may be accepted that it would be beyond s.504 of the Act to make a regulation, or an instrument pursuant to a regulation made under s.504, that prescribes or specifies a criterion for the granting of a visa that cannot conceivably be met. It may also be accepted that the specification by instrument under reg.1.15C(a)(ii) of the Regulations of a score and English test that do not exist renders the instrument invalid. Does the fact that the Minister specified a score and English test that did not exist render reg.1.15C invalid? The answer to that question turns on whether, on the proper construction of reg.1.15C of the Regulations, the validity of reg.1.15C depends on the Minister in fact specifying by instrument in writing an additional language test and score under that test. In my opinion, it does not.
There is nothing in the language of reg.1.15C which suggests that its operation or validity is conditional on the Minister validly exercising the power to specify by instrument in writing an additional score and additional language test. On the proper construction of reg.1.15C of the Regulations, it confers a discretion on the Minister to specify such additional score and language test as he or she may consider appropriate and at such time as he or she considers appropriate. Reg.1.15C permits, but does not oblige the Minister to specify an additional score and an additional language test.
If that is the correct construction of reg.1.15C, the non-existence of the OET when IMMI 12/018 was made could not have affected the validity of reg.1.15C. Whether or not an additional score and language test should be specified under reg.1.15C is a matter within the discretion of the Minister. That the Minister made an instrument that specified an additional score and language test that did not exist is equivalent to the Minister not having exercised the discretion to specify such test. The instrument was invalid and, for that reason, it lacked any legal foundation, and was properly to be regarded as no instrument at all.[38] The IELTS score prescribed by reg.1.15C(a)(i) remained available as the means by which “competent English” may have been demonstrated. In those circumstances, an applicant, like the applicant in the case before me, had to satisfy but one score under one English language test, being the score and test prescribed by reg.1.15C(a)(i) of the Regulations.
[38] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [51] (Gaudron and Gummow JJ)
This part of the applicant’s claims, therefore, fails.
The applicant’s third submission relates to reg.1.15C to the extent it provides that the requirement “competent English” may be demonstrated by the country of issue of the passport an applicant holds. The applicant submits this is irrational, capricious and absurd, having regard to the evident purpose of cl.885.213. That purpose, as stated by the High Court in Berenguel v Minister for Immigration and Citizenship, is “to ensure that, when the Minister or delegate decides upon the application for a visa, the applicant will have demonstrated recent competency in the English language”;[39] and, the applicant submits, it “is patently obvious that a person may hold a passport of a particular country without having any appreciable level of competency in the national language of that country, or one of them”.[40]The applicant submits that this absurdity is particularly manifest in the instrument permitting passports issued by Canada to qualify its holders to have competent English, given that Canada is a bilingual country.
[39] Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 at [24]
[40] Outline of Submissions for the Applicant, [29]
The applicant’s submission would have some force if the premise on which it is based is correct, namely, that the permissible object for which reg.1.15C could have been made was to ensure that applicants for Skilled Visas demonstrate recent competency in the English language. That premise, however, is incorrect. Whether or not reg.1.15C is valid depends on whether it is within the scope of the regulation power conferred by s.504 of the Act. Two of the purposes for which regulations may be made under s.504 include the prescription of different classes of visa, as provided for by s.31(1) of the Act, and the prescription of criteria for different classes of visa, as provided by s.31(3) of the Act. It is within the permitted purposes of s.31 of the Act to prescribe a class of visas that have as a criterion the demonstration of “competent English”, and to provide for the means by which such competence may be demonstrated.
Given that a criterion for the granting of specified classes of visa is the demonstration of competent English, it is not inherently unreasonable or irrational to make regulations that permit competent English to be demonstrated by reference to the country of issue of the passport a visa applicant holds. That is not, however, because the type of passport necessarily means that the holder is competent in English; as the applicant submits, that a visa applicant holds a passport issued by an English speaking country does not necessarily mean the visa applicant has competent English. It is reasonable because it may reasonably be considered that a person’s holding a passport issued by an English speaking country affords a reasonable basis for being satisfied in most, or at the very least in a substantial proportion of cases, that the holder of such passport will have competence in English. But there are other factors that affect the assessment of the reasonableness of permitting visa applicants to demonstrate competence in English by showing they hold a passport issued by an English speaking country. If this method were not permitted, there would be the potential of requiring persons who unquestionably have competence in English to sit for tests or to demonstrate in some other way they have competence in English. It could readily be imagined that this would impose unreasonable and unnecessary burdens, not only on individual visa applicants who have competent English, but also on the administration of Australia’s visa system.
This part of the applicant’s claims, therefore, also fails.
The fourth submission the applicant makes is premised on reg.1.15C of the Regulations being an exhaustive statement of the means by which competent English may be demonstrated, the Court having accepted there is no OET test, and that it is irrational for reg.1.15C to permit demonstration of competent English by reference to the country of issue of the passport a visa applicant holds. The applicant submits that, in these circumstances, “there cannot be any justification for holding the IELTS test to be the only way of establishing English language competency when the drafters of the legislation clearly intended otherwise, even if they failed to implement that intention”.[41] The submission appears to be that reg.1.15C, having contemplated three means of demonstrating competence in English, cannot stand given that there is in truth only one means of demonstrating such competence.
[41] Outline of Submissions for the Applicant, [39]
I do not accept that submission. It assumes reg.1.15C contemplates there would necessarily be three means by which competence in English would be demonstrated. That is not so. Regulation 1.15C provides one means by which competency may be demonstrated, namely, by the applicant achieving the scores specified in reg.1.15C of the Regulations by undertaking an IELTS test. As I have already concluded, on its proper construction, reg.1.15C confers a discretion on the Minister to specify an additional score under an additional language test which, if met, would demonstrate competence in English. Further, reg.1.15C(b) confers on the Minister a further discretionary power, namely, to specify types of passports by which the requirement of competence in English may be satisfied. The Minister is permitted, but not obliged, to specify types of passports. As I have already concluded, that the Minister may not have validly specified an additional test for demonstrating competence in English does not affect the validity of reg.1.15C to the extent it provided for the demonstration of such competence by a visa applicant achieving the scores specified in that regulation in an IELTS test. And it is equally open to the Minister not to specify any passport as demonstrating competent English.
The fifth submission the applicant makes relies on s.10(1) of the Racial Discrimination Act 1975 (Cth) (RD Act) which provides:
If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.
The applicant accepts this submission cannot succeed in light of the decision of the Full Federal Court in Macabenta v Minister for Immigration and Multicultural Affairs, [42] but he formally submits that Macabenta was incorrectly decided. Based on the decision and reasoning of Macabenta, s.10(1) of the RD Act does not apply to reg.1.15C of the Regulation or to IMMI 12/018 because the regulation and the instrument refer to the country of issue of passports, which is different from “race, colour or national or ethnic origin”.
[42] (1998) 90 FCR 202
The sixth submission the applicant makes is that the specifications made by IMMI 12/018 do not match the language or structure of reg.1.15C as it applied to the visa application. I understand this submission to relate to the errors I have discussed at paragraph 5 of these reasons. For the reasons I have there given, those errors were the result of a slip. The mismatch, therefore, does not by itself affect the validity of IMMI 12/018.
Ground 4 - unreasonableness
The fourth ground of review is as follows:
The Tribunal’s refusal to allow the First Applicant more time to undertake a further IELTS test was arbitrary and unreasonable.
Particulars
On 29 November 2013 the Tribunal received a request from the Applicant to postpone its decision until he received the results of a test he was scheduled to undertake on 7 December. The Tribunal’s refusal was based solely on the asserted sufficiency of the opportunities that the Applicant had already had, and an unsupported claim that there was no indication he would achieve the necessary score in a later test.
In his written outline of submissions, the applicant submitted that the Tribunal’s refusal was unreasonable in light of the applicant’s “recent bereavement” due to the loss of his infant daughter.
The exercise or purported exercise of a statutory power will be held to have been exercised unreasonably if:[43]
a)the decision is one that would not fall within the range of decisions that a reasonable decision-maker would make, given the subject matter, scope and purpose of the statutory power, and knowledge of the facts and circumstances that were known, or which ought reasonably to have been known by the actual decision-maker in question; or
b)the decision is one that is arbitrary or which lacks an evident and intelligible justification.
[43] This is the succinct formulation I arrived at in my discussion of the reasonableness ground of review in Nayak v Minister for Immigration & Anor [2015] FCCA 688 at [69]
The Tribunal did not say much about the applicant’s request for further time. That, however, is not surprising. The applicant did not provide to the Tribunal any material on the basis of which the Tribunal could have made any rational assessment of whether the applicant had any reasonable prospect of obtaining the necessary IELTS score on 7 December 2013. The only material the Tribunal had before it was the applicant’s previous failures to obtain the necessary score and his not having been able to concentrate because of the sad loss of his daughter in August 2013. That is the material the Tribunal considered. It was reasonably open to it to conclude there was nothing before it that would indicate the applicant would achieve the necessary score in the test that he had scheduled to take on 7 December 2013.
This ground, therefore fails.
Conclusion and disposition
The applicants have not succeeded on any of their grounds of review. I propose, therefore, to order that the application be dismissed. I will also order that the Administrative Appeals Tribunal be substituted for the Migration Review Tribunal as the second respondent.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 26 February 2016
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