Ura v Minister for Immigration, Citizenship and Multicultural Affairs

[2025] FedCFamC2G 332

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Ura v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 332

File number(s):

SYG 2294 of 2019

Judgment of:

JUDGE GIVEN

Date of judgment:

17 March 2025

Catchwords:

MIGRATION – Whether cl 186.222 of the Migration Regulations is invalid by reason of inconsistency with s 55 of the Migration Act as found in Berenguel, despite relevant amendment

Legislation:

Migration Act 1958 (Cth) ss 54, 55, 375A, 476

Migration Regulations 1994 (Cth) cl 186.222

Cases cited:

Berenguel v Minister for Immigration and Citizenship (2010) 114 ALD 1

Khan v Minister for Immigration and Border Protection [2018] FCAFC 85

Milanes v Minister for Immigration and Border Protection (2015) 234 FCR 508

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 335

Division:

General Federal Law

Number of paragraphs:

59

Date of last submission/s:

27 June 2024

Date of hearing:

6 June 2024

Place:

Sydney

Solicitor for the Applicant:

Ms E Anang, Christopher Levingston & Associates

Solicitor for the Respondents:

Ms A Wilford, Sparke Helmore

ORDERS

SYG 2294 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

AND:

SACHIE URA
Applicant

ORDER MADE BY:	JUDGE GIVEN
DATE OF ORDER:	17 MARCH 2025

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.

2.The application filed on 3 September 2019 is dismissed.

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

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

REASONS FOR JUDGMENT

JUDGE GIVEN:

1. Before the Court is an application for judicial review of a decision of the (then) Administrative Appeals Tribunal (Tribunal) made on 8 August 2019 which affirmed a decision of a delegate of the Minister (delegate) to refuse the applicant an Employer Nomination (Permanent) (Subclass 186) (Class EN) visa (visa) pursuant to s 476(1) of the Migration Act 1958 (Cth) (Act).   

   BACKGROUND

2. The background and summary of the Tribunal’s decision are primarily derived from the written submissions of the parties and, unless otherwise indicated, do not appear to be in dispute.  

3. The applicant is a citizen of Japan (CB 136 at [2]). 

4. On 21 June 2017, the applicant applied for the Employer Nomination visa (CB 11) for the nominated position of ‘Café or Restaurant Manager’ (CB 5).  By her application form, the applicant said she had completed an International English Language Test Score (IELTS) test on 25 May 2017 (first IELTS test), and that her English language had been assessed as “functional” (CB 7).  

5. On 7 May 2018, the delegate wrote to the applicant requesting that she provide more information within 28 days (CB 30 to 31) (delegate invitation).  Specifically, the delegate invitation requested the applicant demonstrate that she had “vocational” English language ability at the time of her visa application, as required by cl 186.222(a) to Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations). The delegate invitation set out the various types of evidence that could be provided in order to satisfy that requirement and informed the applicant that, otherwise, she should provide evidence that she was exempt from the English language criteria for the purposes of cl 186.222(b) to Schedule 2 of the Regulations (CB 32 to 35).

6. On 17 May 2018, the applicant responded to the delegate invitation by (an undated) letter (CB 36 to 37) in which she conceded that she was “not able to demonstrate having Vocational English language ability at the time of lodging the visa application”.  The letter made reference to a Tribunal decision in respect of a different applicant (and applying different visa criteria) in support of a submission that the instant applicant should nonetheless be taken to meet cl 188.222(a) because (errors in original) (CB 36):

   The application has provided the evidence of having Vocational English whilst the application is being processed and before a decision was made. Therefore, in accordance with clause (1) of Section 55 of the Migration ACT 1958, as you are aware the Minister must have regard to that information in making a decision.

7. On 5 June 2018, the delegate refused to grant the visa on the basis that the applicant did not satisfy cl 186.222(a) of the Regulations (CB 43 to 48).

8. On 15 June 2018, the applicant made an application to the Tribunal for review of the delegate’s decision (CB 53 to 54).  On 12 June 2019, the applicant was invited to attend a hearing before the Tribunal (CB 50 to 52).

9. On 8 July 2019, the applicant provided documents and additional written submissions in which she requested that her review be determined on the papers, and indicated that she would not attend the hearing (CB 62 to 63).

10. On 9 July 2019, the Tribunal invited the applicant to comment on the validity of a non-disclosure certificate dated 25 June 2018 which was issued pursuant to s 375A of the Act (s 375A certificate) (CB 108). The Tribunal said that it had formed a preliminary view that the s 375A certificate was invalid, and provided her with a redacted copy of the certificate itself, together with the information it had purported to cover (CB 110 to 112).

11. On 9 July 2019, the applicant responded and requested additional information from the Tribunal saying that her concurrent view was also that the certificate was invalid (CB 114). The Tribunal responded to say that it would not provide the further information sought, based on its view that the s 375A certificate was considered invalid. It also informed the applicant that it had formed the preliminary view that the material which the s 375A certificate had purported to cover was not relevant to the review (CB 117).

12. On 17 July 2019, the applicant wrote to the Tribunal indicating that she now wished to attend the hearing (CB 118 to 121).  Accordingly, on 24 July 2019, the applicant appeared before the Tribunal to give evidence and present arguments with the assistance of an interpreter in the Japanese language (CB 123 to 125).  The applicant’s migration agent was also present at the hearing.  On 7 August 2019, the applicant provided post-hearing written submissions to the Tribunal (CB 130 to 132).

    The Tribunal Decision

13. On 8 August 2019, the Tribunal affirmed the delegate’s decision to not grant the applicant the visa (CB 135 to 139). 

14. The Tribunal identified the relevant issue in the review as being whether the applicant satisfied cl 186.222 of the Regulations which required that, at the time the visa application was made, she have either a prescribed level of English language proficiency, or be exempt by reason of Legislative Instrument IMMI 15/083. Relevantly for the applicant, the application having been made before 1 July 2017, meant that she was required to have “vocational English” as defined (see [28] below).

15. The Tribunal found there to be no evidence that the applicant held a passport of the types specified (CB 137 at [10]).

16. The Tribunal observed that the applicant had been invited to provide evidence in support of her application for review and that, when asked if she had undertaken an approved test in the preceding three years before the lodgement of her visa application, she claimed to have undertaken an IELTS test within that period but to have received only a functional English result.

17. The Tribunal observed that the “functional English” sytandard was lower in level than “vocational English”.  The Tribunal observed that this had the effect that the applicant did not meet the requirements for the visa to which the applicant said that having passed the IELTS test while she was applying for the visa “she thought this would be fine” (CB 137 at [13]).

18. The Tribunal found that the applicant did not fall within the classes of person specified in IMMI 15/083 as being exempt from the requirement to demonstrate vocational English at the time of the visa application (CB 137 at [15] to [16]).

19. The Tribunal considered the following submissions made on the applicant’s behalf by her migration agent:

    (a)in oral submissions made at the hearing, the representative contended that the operation of s 55 of the Act permitted the applicant to obtain a result of vocational English after the time of the visa application (CB 138 at [17]); and

    (b)on 7 August 2019, in post-hearing written submissions, the representative again contended that s 55 of the Act permitted the applicant to satisfy the requirement of the visa by submitting evidence of vocational English ability after the time of the visa application, relying on Berenguel v Minister for Immigration and Citizenship (2010) 114 ALD 1 (Berenguel) (CB 138 at [18] to [20]).

20. Having considered the aforementioned submissions and noting that the applicant had not demonstrated that she possessed vocational English at the time of the visa application, the Tribunal observed that the High Court decision in Berenguel examined an earlier version of the Regulations which had since been amended. Accordingly, the Tribunal distinguished the interpretation of s 55 of the Act in Berenguel as having the effect contended for by the applicant.  The Tribunal found that it must give the words “at the time of the application” in cl 186.222, their plain English meaning, and found that it did not have a discretion to waive the prescribed temporal limitation (CB 138 at [22]).

21. The Tribunal also recorded matters pertaining to the validity of the s 375A certificate, however those matters are not the subject of any grounds of review before the Court and it is therefore unnecessary to detail the Tribunal’s conclusions here in any particular detail, beyond noting that it found the certificate was invalid and placed no weight upon any of the material covered by it.

22. The Tribunal concluded that there was no evidence that, at the time the visa application was made, the applicant had undertaken a specified English language test in the three years immediately before the day on which the visa application was made, and had achieved the specified score in accordance with IMMI 15/005 (CB 139 at [24]). Further, the Tribunal found there to be no evidence that the applicant was exempt by reason of being a person in a class of persons specified in IMMI 15/083.  

23. Therefore, the Tribunal affirmed the decision not to grant the applicant the visa.  

    APPLICATION TO THIS COURT

24. The applicant commenced these proceedings by an application to show cause filed on 3 September 2019.  She has been legally represented throughout.[1]  The proceedings were immediately placed into the central migration docket. 

    [1] A Notice of Intention to Withdraw as Lawyer was filed by the applicant’s solicitor on 24 May 2024, but was not followed by a Notice of Withdrawal: see rr 9.03(1) and (2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Accordingly, the applicant remains represented.

25. On 25 September 2019, a Registrar of the Court made orders, by consent, for the preparation of the matter which included a grant of leave to the applicant to amend the originating application by 21 November 2019.  The proceedings were next to be listed for callover on a date to be administratively advised to the parties. 

26. On 5 March 2024, the proceedings were docketed to me, and I made orders on that date listing the matter for hearing on 6 June 2024.  Among the orders made in preparation of the matter for hearing was an additional grant of leave to the applicant to file any amended application by 9 May 2024.  The applicant and the first respondent were ordered to file their written submissions 14 and 7 days (respectively) before the hearing date (March orders).  However, the applicant did not comply with that order, instead filing written submissions on 30 May 2024, being 7 days before the date of the hearing and the same date the first respondent filed written submissions.

27. At hearing leave was granted to the applicant to rely on the written submissions.  The applicant and first respondent were represented by their respective solicitors.  The Court Book was tendered by the applicant and marked Exhibit “1A”.  At the conclusion of the hearing, I directed the parties to provide supplementary submissions on a limited issue which will be discussed in due course below.  Each of the parties complied with that direction.  I have been assisted by all the submissions of the parties.

    LEGISLATION

28. Clause 186.222 of the Regulations relevantly provided:

    At the time of application, the applicant:

    (a) had vocational English; or

    (b) was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

29. The term ‘Vocational English’ is defined by reg 1.15B, of the Regulations which relevantly provided:

    1.15B  Vocational English

    (1) A person has vocational 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 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.

    (2) A person also has vocational English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.

30. Legislative Instrument IMMI 15/083 (IMMI 15/083) relevantly provided:

    2SPECIFY the following class of persons for the purposes of subclause 186.234(3) and paragraphs 186.222(b), 186.232(b), 187.222(b), 187.232(b) and 187.234(a) of the Regulations:

    Class 1

    Persons who have applied under the Regulations for a visa, and whose earnings will be at least equivalent to the current Australian Tax Office’s top individual income tax rate.

    …

    4SPECIFY the following class of persons for the purpose of paragraphs 186.222(b) and 187.222(b) of the Regulations:

    Class 3

    Persons who have completed at least five years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English.

31. Legislative Instrument IMMI 15/005 (IMMI 15/005) relevantly provides:

    3. SPECIFY for applications lodged on or after 1 July 2012, and before 23 November 2014 tests, test scores and passports as follows:

    A        for paragraph 1.15B(1)(a), the following language tests:

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

    ii. an Occupational English Test (OET).

32. Sections 54 and 55 of the Act relevantly provided:

    54  Minister must have regard to all information in application

    (1) The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.

    (2) For the purposes of subsection (1), information is in an application if the information is:

    (a) set out in the application; or

    (b) in a document attached to the application when it is made; or

    (c) given under section 55.

    (3) Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions.

    
    
    

    55  Further information may be given

    (1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.

    (2) Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information

    Grounds of review

33. The application, filed on 3 September 2019 and upon which the hearing proceeded, raises the following single ground of review (errors in original):

    The Second Respondent fell into jurisdictional error in determining that by reason of the failure of the applicant to provide an English Language test demonstrating a complying level of English in the 3 years immediately preceding the date of lodgement of her visa application, the Applicant was unable; notwithstanding her subsequently submitting evidence to the effect of meeting the relevant standard of English language requirement post lodgement, to meet the requirements of cl.186.222 of the Migration Regulations 1994.

    Particulars

    (a)Cl. 186.222 is invalid to the extent that it requires that at the time of application for the visa, the Applicant demonstrate a complying level of English.

    (b)Such a requirement is inconsistent with Section 55 of Migration Act 1958 which permits Applicants for a visa to provide information and documents after the visa application has been lodged and before a decision has been made.

34. The applicant contends that cl 186.222 of the Regulations is inconsistent with s 55 of the Act and is, therefore, invalid to the extent that it prevents the Minister from utilising information provided to him under s 55 of the Act after a visa application is lodged.

35. The applicant says that, in accordance with s 54 of the Act, the Minister (and thereafter the Tribunal) was required to have regard to (and utilise) the second English test result issued on 14 March 2018 in deciding whether or not to grant the applicant the visa.

36. As was the case before the Tribunal, the applicant relies on Berenguel in support of the interpretation contended for. 

    CONSIDERATION

37. Regard must be had to the language of the statute in respect of the specific visa the subject of the review.  In particular, it is relatively different from the visa the subject of consideration in Berenguel in a manner which makes that decision relevantly distinguishable for the purposes of this case.

38. In Berenguel, the requirement in respect of a particular language standard was described as follows at [17] (emphasis added):

    Division 885.2 sets out primary criteria. Under the heading “885.21 Criteria to be satisfied at time of application” there appears the following:

    885.213  Either:

    (a)the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupation, and the applicant has vocational English; or

    (b)       the applicant has competent English.

    By way of relevant contrast, cll 885.214 and 885.215 require the application to be accompanied by evidence of an Australian Federal Police check and arrangements that the applicant has made to undergo a medical examination. There is no such requirement in respect of proof of compliance with the vocational English or competent English criterion.

39. In Berenguel, a temporal requirement was accepted by the High Court as attaching to the provision of certain evidence where the criteria required that the application be “accompanied by evidence”. 

40. Temporal requirements may be expressed in a variety of ways. 

41. In the instant case there is a similar temporal requirement which is prescribed by the past tense used in cl 186.22 of and sub-regulation 1.15B(1) of the Regulations. Namely, cl 186.222 relevantly provides (emphasis added):

    At the time of application, the applicant:

    (a)  had vocational English

1. Sub-reg 1.15B relevantly provides (emphasis added):

   (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 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.

2. It will be noted also that the present tense is used contrastingly in sub-reg 1.15B(b) of the Regulations in contrast to the balance of the sub-regulation, which is otherwise expressed in the past tense.

3. I accept the submissions of the first respondent that the effect of cl 186.222 is to establish clear parameters as to the timing of when an applicant for the visa must demonstrate their English language proficiency. Clearly enough, that moment is that the test evidencing that proficiency must have already been undertaken within the 3 years immediately before the day on which the visa application is made, such that the applicant can be taken to have had that level of proficiency at the time the visa application is made. 

4. By paragraphs [15] and [16] of the submissions in chief filed for the applicant,[2] she says as follows (emphasis in original):

   The Applicant concedes that at the time of the application for the visa, she did not provide evidence to demonstrate that she undertook an English language test conducted in the 3 years immediately before the day the application was made.

   In addition, the Applicant concedes that at the time of the application for the visa and the Tribunal’s decision, she was not a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

   [2] Filed 30 May 2024

5. Those concessions are properly made.  That being so, and unlike in Berenguel, because of the temporal requirement that the applicant have already achieved a test result to demonstrate the requisite level of English language competency by a test which was undertaken within the 3 years immediately before the day on which she made her application, it is not open to the applicant to contend for an inconsistency between s 55 of the Act and the Regulations in the manner found in Berenguel. 

6. Section 55 of the Act, which is set out above at [32], permits the provision by an applicant of “additional relevant information” to which the Minister must have regard if provided. The Act does not define “relevant information”. However, where the Regulations provide a specific, temporal limitation such as in this case, any result from a test which was conducted after the lodgement of the visa application, even if it meets the level of English language competency prescribed, is not relevant and therefore not the subject of s 55.

7. This conclusion is supported by the decision in Milanes v Minister for Immigration and Border Protection (2015) 234 FCR 508 in which Katzmann J found at [44] as follows (in relation to a similar[3] clause of the Regulations) in relation to a similarly put argument relying on Berenguel (emphasis added):

   This submission picks up what the High Court said in Berenguel at [26], based on its opinion as to the purpose of the English language competency criterion at that time. It will be recalled that in those reasons the court referred to s 55 of the Act. Section 54 imposes an obligation on the Minister in deciding whether to grant or refuse to grant a visa to have regard to all the information in the application (as defined in subs (2)). Section 55 imposes an obligation on the Minister to have regard to any “additional relevant information“ the applicant provides. It does not impose an obligation on the Minister to delay making a decision because there is a possibility that the applicant might give the Minister further information. In any case, what information will be relevant for the purposes of s 55 depends on whether the provisions of the Regulations in issue in the present case are intended to exclude from the Minister’s consideration information about English language competency provided after the application but before the decision. If the question of competency is to be determined as at the time of the application, then later information will be irrelevant. In Berenguel the court considered that “the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained“. But is that the purpose of the relevant criterion in the present case?

   [3] Though not identical

8. After examining the relevant language of the provision in question, and that the language had been changed following the decision in Berenguel, her Honour said the following at [55] to [56] (emphasis added):

   It follows that to read the Regulations in the way Mr Milanes urged upon the court would defeat the legislative purpose. While it may seem logical and sensible that the Minister consider the most recent information concerning the applicant’s proficiency in English, the legislative intention is otherwise. It follows that the results of any test conducted outside the three year period specified in reg 1.15C would not be relevant further information within s 55 of the Act.

   Since the 2011 amendments came into operation, the meaning of the competent English criterion has been considered by at least six different justices of this court. Each has held that the effect of reg 1.15C is that, (unless the applicant holds a passport from a specified country) in order to satisfy the criterion that the applicant has competent English, the applicant must have achieved the specified score in a specified test conducted in the specified period before the application is lodged: see Singh v Minister for Immigration and Border Protection[2014] FCA 185 (Barker J); Ajaya v Minister for Immigration and Border Protection [2014] FCA 718 ; 143 ALD 652 (McKerracher J); Khan v Minister for Immigration and Border Protection[2015] FCA 162 (Jagot J); Pooviah v Minister for Immigration and Border Protection [2015] FCA 458 (Mansfield J); Kumar v Minister for Immigration and Border Protection [2014] FCA 1336 (Beach J) (“Kumar“) and Kaur v Minister for Immigration and Border Protection [2015] FCA 584 (Mortimer J) (“Kaur“). In Kumar at [36] Beach J said of the criterion of competent English in cl 487.215, which is identical to the criterion in cl 485.215:

   The criterion set out in cl 487.215, when read with the definition of “competent English“ in reg 1.15C was unambiguous. The period within which an applicant must undertake an IELTS … and obtain the requisite results is not in doubt. The applicant must do so “in the three years immediately before the day on which the application was made“. Sitting an English test and achieving the requisite results on a date after the making of an application for such a visa does not satisfy the criterion.

   Additional submissions

9. As noted above, the parties were directed to file supplementary submissions after hearing to aid in the resolution of the ground of review.  The submissions went to the question of the difference (if any) between having something at the time a visa application is lodged and providing something at the time a visa application is lodged and granted the Minister leave to address the issue through the filing of supplementary submissions.

10. The first respondent submitted that satisfaction of cl 186.222 of the Regulations is not contingent on a visa applicant, at the time in which their visa application is lodged, providing evidence that they had vocational English. Rather, to meet cl 186.222, a visa applicant must demonstrate they held vocational English at the time the visa application as lodged, regardless of whether evidence of that vocational English is provided at the time of lodgement or after the application has been lodged, but before a decision to grant or refuse to grant the visa is made.

11. The applicant again contended that the terms of cl 186.222 and reg 1.15B(1) are similar to the terms of cl 885.213 and reg 1.15B in Berenguel. The applicant submitted that the first respondent’s assertion that the use of the terms ‘had’ in cl 186.222 in these proceedings and ‘has’ in cl 885.213 in Berenguel form the basis for the Courts conclusion in Berenguel. The applicant submitted that such a view of the decision in Berenguel “dismisses the spirit of the judgment” in Berenguel where at [26] the Court said:

    The Act specifically provides that the Minister may have regard to up-to-date information and, where the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained, a construction which would deprive him of the most recent information seems to be antithetical to that purpose.

12. In respect of the applicant’s submission regarding the “spirit” of Berenguel, the Court must apply proper principles of statutory interpretation in reaching its conclusion, cognisant of the specific language of the statute.  Berenguel does not constitute a panacea to exempt applicants who achieve language proficiency results between their application being lodged and a decision being made.  As Tracey J said in Khan v Minister for Immigration and Border Protection [2018] FCAFC 85[4] at [15] to [16]:

    The clause establishes an objective temporal test. Whether or not there is some flexibility in the test, nothing decided in Anand permits the temporal requirement to import notions of fairness so as to avoid what might otherwise be an apparently harsh outcome for the visa applicant. The test does not turn upon concepts of blameworthiness or deservedness. A visa application is either accompanied by the necessary evidence or it is not.

    The test is objective. Clause 485.223 is one of a number of “time of application” criteria conditioning the grant of a skills visa. An obvious mischief addressed by the provision is to provide clarity to the visa applicant as to the person’s readiness to apply for the visa and the matters he or she needs to have done before he or she commences the visa application process.

    [4] In respect of different criteria but pertinent to the question of the merit of applicants being a relevant factor in assessing the effect of temporal requirements

13. I accept the first respondent’s submissions, and supplementary submissions on this question. 

    CONCLUSION

14. As the majority of the High Court found in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 335 at [69] to [71] the relevant provisions of a legislative instrument must be construed in a way which is consistent with the language of the instrument as a whole.

15. In the instant case, cl 186.222 must be construed with reg 1.15B(1). In doing so, I am satisfied that the requirement that the applicant had vocational English plainly means that she was required to have taken a specified language test in the 3 years immediately before the day on which she made her visa application and, as result of that test, have achieved the requisite score for that level of English language competency.

16. For the reasons set out above, the use of the past tense in the word ‘had’ in cl 186.222, and the various use of past tense in reg 1.15B(1) demonstrates a clear intent on the part of the legislature that the state of having vocational English must have already been achieved at the time of the visa application. It follows that any subsequent test, even if successful, is excluded as being relevant information for the purposes of the Minister (or his delegate) making a decision in respect of the applicant’s visa pursuant to s 65 of the Act. As such, the fact that s 55 of the Act afforded the applicant an opportunity to provide relevant information to the Minister before a decision was made in respect of her visa, is not inconsistent with cl 186.222.

17. The applicant has not succeeded in establishing the ground of review.  The application must be dismissed.  I will so order. 

18. I will hear the parties as to costs.

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

Associate:

Dated:       17 March 2025