EXPLANATORY STATEMENT
Migration Regulations 1994
ALTERNATIVE ENGLISH LANGUAGE PROFICIENCY TESTS TO THE INTERNATIONAL ENGLISH LANGUAGE TESTING SYSTEM (IELTS)
(REGULATION 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 specify in a Gazette Notice an English language proficiency test as an alternative to the 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 for this clause.
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 Test of English as a Foreign Language (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 .
5. The TOEFL Paper-Based test is available to be taken by an applicant only in certain foreign country or countries specified in Schedule 1, while other tests may be taken in any foreign country or countries.
6. Pursuant to section 18 of the Legislative Instruments Act 2003 consultation was not necessary. The Instrument is of a minor or machinery nature and does not substantially alter existing arrangements.
7. The Office of Best Practice Regulation has advised that a Regulatory Impact statement is not required (OBPR Reference 12527)
8. The Instrument, IMMI 11/051, commences on 1 November 2011.
Overview
The Migration Regulations 1994, as amended by the Instrument F2011L02058, were enacted to address the need for alternative English language proficiency tests to the International English Language Testing System (IELTS). This regulation, made under clause 5A102 of the Migration Regulations 1994, was introduced by the Minister for Immigration and Citizenship to provide flexibility in the types of English language tests that applicants could take to meet the English language requirements for migration purposes. The primary objective is to specify which English language proficiency tests can serve as alternatives to the IELTS test, the countries where these tests can be taken, and the minimum scores required for each test. This regulation identifies the Test of English as a Foreign Language (TOEFL) in both its paper-based and internet-based formats, the Cambridge English: Advanced (CAE) test, the Pearson Test of English Academic (PTE Academic), and the Occupational English Test as acceptable alternatives, with specific conditions for the TOEFL Paper-Based test.
Scope and Application
The Migration Regulations 1994, as amended by the Instrument F2011L02058, pertain to the specification of alternative English language proficiency tests that applicants for migration can undertake in lieu of the International English Language Testing System (IELTS). This regulation applies to individuals who are seeking to migrate to Australia and need to demonstrate their English language proficiency. 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 (PTE Academic), and the Occupational English Test. The regulation sets out the countries in which these tests can be taken, with the TOEFL Paper-Based test being restricted to certain countries listed in Schedule 1, while the other tests can be taken in any foreign country. The regulation also delineates the minimum scores required for each test to satisfy the English language requirements for migration purposes. The regulation is a minor adjustment to existing arrangements and does not necessitate consultation or a Regulatory Impact Statement. It came into effect on 1 November 2011.
Key Provisions
The primary operative sections of the legislation (F2011L02058) specify the alternative English language proficiency tests that applicants can use instead of the International English Language Testing System (IELTS). Section 2 of the Explanatory Statement clarifies that Clause 5A102 of the Migration Regulations 1994 allows the Minister to specify these alternatives through a Gazette Notice. Section 4 details the specific tests that are recognised, including 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 (PTE Academic), and the Occupational English Test. Section 5 further specifies that the TOEFL Paper-Based test can only be taken in certain foreign countries as outlined in Schedule 1, while the other tests can be taken in any foreign country.
The legislation imposes obligations on applicants seeking to use these alternative tests. Applicants must ensure they take one of the specified tests and achieve the required scores as outlined in the Gazette Notice. Section 4 lists the scores that must be attained for each test, and applicants must comply with these requirements to satisfy the English language proficiency criteria for their migration application. Additionally, Section 5 mandates that if applicants choose the TOEFL Paper-Based test, they must do so in the specified countries, which may involve additional logistical considerations.
Breaches of the requirements set out in the legislation can result in significant consequences. While the Explanatory Statement does not detail specific offences or penalties, it is reasonable to infer that failing to meet the English language proficiency requirements could lead to the rejection of a migration application. This outcome could have serious implications for the applicant, potentially affecting their eligibility for migration and any associated benefits or rights. The precise legal and administrative consequences would be determined under the broader Migration Act 1958 and related provisions.