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). It revokes Instrument IMMI 14/002 (F2014L00318) signed on 16 March 2014.
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 (PTE Academic); and
- the Occupational English Test (OET).
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 specify the new test score format for Cambridge English: Advanced (CAE) tests undertaken from 1 January 2015.
7. Consultation was conducted with the following: Department of Education, Austrade, Australian Council of Private Education and Training, Australian Government Schools International, Council of International Students Australia, Council of Private Higher Education Inc., English Australia, International Education Association of Australia, Independent Schools Council of Australia, Universities Australia, Australian Capital Territory Government, Department of Education and Training, New South Wales Government, NSW Trade and Investment, Industry, Innovation, Hospitality & the Arts, and StudyNSW, Northern Territory Government, International Education, Queensland Government, TAFE International, Department of Education, Training and Employment, South Australian Government, Department of State Development, Tasmanian Government, Government Education and Training International, and the Victorian Government, International Education, as part of the broader consultation relating to the expansion of alternative English language tests across other visa programmes.
8. The Office of Best Practice Regulation has been consulted and a Regulatory Impact statement is not required (OBPR Reference 17457).
9. Under subsection 44 of the Legislative Instruments Act 2003 the Instrument is exempt from disallowance and therefore a Statement of Compatibility with Human Rights is not required.
10. This Instrument IMMI 14/080 commences on 1 January 2015.
Overview
The Migration Regulations 1994, amended by F2014L01673, was enacted to address the need for flexibility in English language proficiency testing for visa applicants. This regulation allows for alternative tests to the International English Language Testing System (IELTS) to be recognised, thereby broadening the options available to applicants. The problem it sought to resolve was the limited accessibility and flexibility in English language testing for potential migrants, particularly students, by recognising additional tests and countries where these tests can be administered. The enacting body was the Minister under clause 5A102 of the Migration Regulations 1994. The policy objective of this regulation was to provide a more accessible pathway for visa applicants to demonstrate their English language proficiency through recognised alternative tests, facilitating smoother transitions for international students and other visa applicants.
Scope and Application
The Instrument is an amendment to the Migration Regulations 1994, specifying alternative English language proficiency tests to the International English Language Testing System (IELTS) for student visa applicants. The specified tests include the Test of English as a Foreign Language (TOEFL) Paper-Based test, the TOEFL internet-Based test (TOEFL iBT), the Cambridge English: Advanced (CAE) test, the Pearson Test of English Academic test (PTE Academic), and the Occupational English Test (OET). The Instrument also outlines the countries in which these tests may be taken and the required scores for each test. The Instrument applies to student visa applicants who are seeking to use an alternative English language test to the IELTS. It is a legislative instrument made under clause 5A102 of the Migration Regulations 1994 and specifies the minimum scores required for each test. The Instrument is applicable nationally and is updated to specify the new test score format for Cambridge English: Advanced (CAE) tests undertaken from 1 January 2015.
Key Provisions
The main operative sections of the Instrument, as referenced in Clause 5A102 of the Migration Regulations 1994, specify alternative English language proficiency tests to the IELTS and outline the countries in which these tests can be taken by applicants, along with the requisite scores. Specifically, section 4 identifies the approved tests, which include the TOEFL Paper-Based test, TOEFL iBT, Cambridge English: Advanced (CAE), Pearson Test of English Academic (PTE Academic), and the Occupational English Test (OET). Section 5 clarifies that the TOEFL Paper-Based test is restricted to certain countries specified in Schedule 1, whereas the other tests can be taken in any country. Section 6 details the minimum scores required for student visa applicants who choose to take one of the alternative tests.
The Instrument imposes several obligations on the parties it governs. For student visa applicants, the primary requirement is to achieve the specified minimum scores in the approved English language proficiency tests. The applicants must ensure that they take the tests in the appropriate countries if they are subject to restrictions, such as the TOEFL Paper-Based test. Additionally, for the Cambridge English: Advanced (CAE) test, applicants must be aware of the updated test score format applicable from 1 January 2015. The Instrument also ensures that the Department of Immigration and Border Protection and other relevant authorities are updated with the specified alternative tests and scores, facilitating the evaluation of applicants' English language proficiency.
Breaches of the requirements set out in the Instrument can lead to various consequences. While the specific legal consequences are not detailed within the explanatory statement, it is understood that failure to meet the specified minimum test scores or taking the tests in unauthorised countries could result in visa application rejection or other immigration-related penalties. The Instrument, being a legislative instrument, operates under the authority granted by the Migration Act 1958, and non-compliance may result in civil or criminal penalties as prescribed by the Act. The exact penalties for non-compliance are not stated in the explanatory statement but would typically include fines or other sanctions as determined by the relevant immigration authorities.