EXPLANATORY STATEMENT
Migration Regulations 1994
ALTERNATIVE ENGLISH LANGUAGE PROFICIENCY TESTS TO THE INTERNATIONAL ENGLISH LANGUAGE TESTING SYSTEM (IELTS)
(Clause 5A102)
- This Instrument is made under clause 5A102 of the Migration Regulations 1994 (‘the Regulations’).
2. Clause 5A102 of the Regulations provides that the Minister may, by legislative instrument, specify an English language proficiency test as an alternative to the International English Language Testing System (IELTS) test, the foreign country or countries in which that test may be taken by an applicant, and the test score that must be achieved by the applicant.
3. The purpose of the Instrument is to specify which English language proficiency tests may be used as an alternative to the IELTS test, in which countries, and the scores that must be achieved by an applicant.
4. The English language proficiency tests that may be used as an alternative to the IELTS test are:
- the Test of English as a Foreign Language (TOEFL) Paper-Based test;
- the (TOEFL) Internet-Based test (also known as TOEFL iBT),
- the Cambridge English: Advanced (CAE) test (also known as Certificate in Advanced English),
- the Pearson Test of English Academic test; and
- the Occupational English Test .
5. The TOEFL Paper-Based test is available to be taken by an applicant only in a certain foreign country or countries specified in Schedule 1, while other tests may be taken in any foreign country or countries.
6. The Instrument operates to specify the minimum English language proficiency test scores for student visa applicants who undertake an alternative test to IELTS. The Instrument is updated to remove provisions for applicants subject to assessment level 4 or 5, which have become redundant. Assessment levels 4 and 5 have been removed from the Regulations as part of the simplification of the Student visa Assessment level Framework (recommendation 3 of the Review of the Student Visa Assessment Level Framework 2013).
7. Consultation was conducted with relevant external stakeholders from the international education sector and other Commonwealth government agencies as part of the broader consultation during the Review of the Student Visa Assessment Level Framework 2013. These include education peak bodies, State/Territory and Commonwealth Departments of Education, Austrade and an External Reference Group comprising members with expertise in international education and immigration risk.
8. The Office of Best Practice Regulation has been consulted and a Regulatory Impact statement is not required (OBPR Reference 16151).
9. Under subsection 44 of the Legislative Instruments Act 2003 the Instrument is exempt from disallowance and therefore a Human Rights Statement of Compatibility is not required.
10. The Instrument, IMMI 14/002, commences on 22 March 2014, immediately after the commencement of Migration Amendment (Redundant and Other Provisions) Regulation 2014.
Overview
The Migration Regulations 1994 were enacted to provide a comprehensive framework for the administration of Australia's migration laws, addressing the need for a structured and legal approach to managing immigration. This piece of legislation allows the Minister for Immigration and Border Protection to specify alternative English language proficiency tests to the International English Language Testing System (IELTS) for visa applicants, ensuring that the requirements are clear and consistent. The specific problem it aimed to address was the need to simplify and update the assessment levels for student visa applicants, removing outdated assessment levels 4 and 5, which were part of the broader simplification of the Student Visa Assessment Level Framework as recommended by the Review of the Student Visa Assessment Level Framework in 2013. This was achieved through consultation with relevant stakeholders, including education peak bodies, Departments of Education, Austrade, and an External Reference Group. The policy objective was to streamline the process and maintain high standards for English language proficiency among visa applicants.
Scope and Application
The Migration Regulations 1994, as amended by the legislative instrument IMMI 14/002, provide for the specification of alternative English language proficiency tests to the International English Language Testing System (IELTS). This instrument applies to prospective student visa applicants who are required to demonstrate their English language proficiency as part of their visa application process. Specifically, it allows the Minister to designate certain English language proficiency tests as alternatives to IELTS, such as the Test of English as a Foreign Language (TOEFL) Paper-Based and Internet-Based tests, the Cambridge English: Advanced (CAE) test, the Pearson Test of English Academic test, and the Occupational English Test. These tests can be taken in specified countries or any country, depending on the test. The instrument sets out the minimum scores required for each test to be considered equivalent to an IELTS score for the purposes of student visa applications. The regulations do not apply to other types of visas or to applicants who are not subject to English language proficiency requirements. The instrument is a national regulation with a Commonwealth jurisdictional reach and applies across Australia. It supersedes previous provisions for assessment levels 4 and 5, which have been removed from the Student Visa Assessment Level Framework.
Key Provisions
The key operative sections of this Instrument (F2014L00318) specify alternative English language proficiency tests to the IELTS, the countries where these tests can be taken, and the required scores for applicants (Clause 5A102). Specifically, the tests that can be used as alternatives to IELTS include the TOEFL Paper-Based test, the TOEFL Internet-Based test (TOEFL iBT), the Cambridge English: Advanced (CAE) test, the Pearson Test of English Academic test, and the Occupational English Test (Clause 4). The TOEFL Paper-Based test can only be taken in specified countries detailed in Schedule 1, whereas the other tests can be taken in any country (Clause 5).
This Instrument imposes specific obligations and requirements on student visa applicants seeking to use an alternative to the IELTS test. Applicants must achieve a minimum score in the alternative English language proficiency test specified in the Instrument (Clause 6). Additionally, the TOEFL Paper-Based test can only be taken in the countries listed in Schedule 1, while the other tests are not restricted to specific countries (Clause 5). The Instrument also mandates that it no longer includes provisions for applicants subject to assessment levels 4 or 5, as these levels have been removed from the Regulations (Clause 7).
Failure to meet the requirements of this Instrument may result in various consequences, though the specific legal penalties are not detailed in the provided text. Generally, not complying with the specified English language proficiency test requirements could affect the processing or approval of a student visa application. The Instrument itself does not explicitly state civil or criminal penalties but implies that adhering to these requirements is crucial for compliance with visa regulations. The Instrument's commencement on 22 March 2014 underscores its immediate applicability to student visa applications from that date.