FEDERAL COURT OF AUSTRALIA

Parmar v Minister for Immigration and Citizenship [2011] FCA 760

FEDERAL COURT OF AUSTRALIA

Parmar v Minister for Immigration and Citizenship [2011] FCA 760

ERRATUM

1.    The eighth sentence of the first paragraph should read:

The well-known case of Egon Kisch, suspected by Attorney-General Menzies in the Lyons government of being a communist sympathiser but fluent in many European languages, provides an example of the law in action albeit one where its limits were ultimately reached.

Associate:

Dated:    7 July 2011

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    Until 1958 there remained on the statute books of Australia a law which prevented entry into the country of persons who ‘when an officer dictates to him not less than fifty words in any prescribed language, fails to write them out in that language in the presence of the officer’ (s 3(a) Immigration Restriction Act 1901 (Cth)). No languages were prescribed but another provision in the Act – s 5 – deemed any European language to be a prescribed language. Those administering that Act were equipped thereby with the discretion to ask any immigrant, regardless of origin or tongue, to take a dictation test in any European language whatsoever. The test concealed the unwholesome assumption that any potential immigrant needed to be able to speak every European language. In its practical operation, this law effectively provided for the exclusion from this country of any person whom an officer decided should be excluded for the class of person with a mastery of every European language is small, even in Australia. In practice, as Evatt J observed in The King v Davey; Ex parte Freer (1936) 56 CLR 381 at 386, the test had originally served as ‘a convenient and polite device (which had previously been used similarly in the Colony of Natal) for the purpose of enabling the Executive Government of Australia to prevent the immigration of persons deemed unsuitable because of their Asiatic or non-European race’. In time its utility expanded to include not just the administration of an overtly racist immigration policy but also to hinder the ingress of those thought politically undesirable. The well-known case of Egon Kisch, suspected by the Menzies government of being a communist sympathiser but fluent in many European languages, provides an example of the law in action albeit one where its limits were ultimately reached. Kisch was detained at Circular Quay on the steamship Strathaird following attempts by the Commonwealth to keep him on that vessel as a national security risk. In habeas corpus proceedings against the vessel’s captain Evatt J ordered Kisch’s release on the basis, in substance, that the national security risk was elusive (R v Carter; Ex parte Kisch (1934) 52 CLR 221). Upon his disembarkation from the S.S. Strathaird, Kisch, who was something of a polyglot, was taken to the Central Police Station where he was required to take the dictation test in Scottish Gaelic, a language which according to the report in the High Court was then exclusively spoken by only 6,000 people resident in the northern and western parts of Scotland as well as the western islands. The High Court concluded by majority that Scottish Gaelic was not a European language within the meaning of the Act: R v Wilson; Ex parte Kisch (1934) 52 CLR 234. Mr Kisch achieved entry.

2    Experiences such as these have led to a natural caution in the legal mind about the use of language tests in an immigration setting. On the other hand, there is no doubt that proficiency in the predominant language of any country is a legitimate concern of those charged with the administration of its immigration system. I will record at the outset, therefore, that the language tests with which this appeal is concerned are neither capricious nor a discreet tool for the implementation of concealed policies. To the contrary, the test process under challenge is rational.

The circumstances of the present appeal

3    The present appeal is brought from the Federal Magistrates Court. The appellant, Mr Parmar, is an Indian national who was born on 7 July 1977. He is from Rajpipla which is in Gujarat, a State on the north west coast of India. He holds a Bachelor of Arts degree from the CB Patel Arts College in Nadiad, India. He also holds a Master of Information Systems which was awarded to him with honours from the University of New England which is in New South Wales. That degree was conferred on 12 April 2008.

4    In March 2008, Mr Parmar applied for a Skilled Graduate (Temporary) (Class VC, subclass 485) visa. The occupation nominated by Mr Parmar in that application was that of computing professional. By cll 485.215 and 485.222 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’), in force at the time, the delegate processing Mr Parmar’s application was required to be satisfied that he had ‘competent English’ either in the two years prior to lodging his application or at the time the application was eventually determined. The expression ‘competent English’ is defined in reg 1.15C as follows:

Competent English

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

(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.

5    The key feature of this definition to be noted is the requirement that a score of at least 6 be achieved in each of the four components of the IELTS test: speaking, reading, writing and listening. The ‘IELTS test’ itself was defined in reg 1.03 to mean ‘the International English Language Testing System’.

6    I return below to the nature of this test. It is sufficient to observe, for present purposes, that by the time the delegate came to make his decision on 13 January 2009, Mr Parmar had not provided evidence that he had satisfied it. The delegate accordingly refused the application. Mr Parmar was entitled to a review of this decision before the Migration Review Tribunal (‘the Tribunal’) for which he duly applied. That Tribunal invited Mr Parmar to a hearing, which he attended, on 17 November 2009. Prior to that hearing Mr Parmar submitted the results for three IELTS tests he had undergone as follows:

7 February 2009     Listening 6, reading 4.5, writing 5, speaking 6 and an overall score of 5.5

9 May 2009    Listening 6, reading 6.5, writing 5.5, speaking 6 and an overall score of 6.

23 July 2009    Listening 5.5, reading 5, writing 5.5, speaking 5.5 and an overall score of 5.5.

7    At the hearing on 17 November 2009, Mr Parmar informed the Tribunal that he had submitted himself to more than 10 or 12 IELTS tests and that he had three more bookings to sit the test in December 2009, January 2010 and February 2010. The Tribunal, in fact, granted Mr Parmar more time so as to permit him to sit a further IELTS test. A short time after the hearing, Mr Parmar’s migration agent informed the Tribunal that he had indeed sat an IELTS test on 7 November 2009 but, unfortunately, had not secured a mark of 6 in each component. He did not thereafter provide any further IELTS test results to the Tribunal. On 15 June 2010, over 6 months after the hearing in the Tribunal and after the times at which Mr Parmar had said he was going to sit the further IELTS tests, the Tribunal wrote to him and informed him that it was affirming the delegate’s decision not to grant him a visa.

8    An application by Mr Parmar for constitutional relief in the Federal Magistrates Court then followed. The learned Federal Magistrate concluded that no error had been made by the Tribunal which warranted that Court’s intervention.

9    Before this Court, on appeal, no attempt was made to cavil with any of the learned Federal Magistrate’s conclusions. Instead, a different course was chartered consisting of fresh arguments not raised before the Federal Magistrates Court. Three points were made: first, on its proper construction the definition of competent English in reg 1.15C(a)(i) – an achievement by an applicant of ‘an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening’ – specified a sufficient, but not a necessary, requirement in order to demonstrate that an applicant had competent English. Put another way, an applicant might prove that he or she was competent in English by achieving a score of at least 6 for each of the 4 test components (and thereby fall within the definition in reg 1.15C) but this was only one such method and there remained the possibility that an applicant might prove possession of competent English by some other means. Secondly, Mr Parmar argued that the definition of ‘competent English’ in the regulation was invalid. The invalidity arose, so he submitted, because when one examined the IELTS test itself one could see that those who had designed it had intended that competent English would be made out by an overall score of at least 6 across the four components rather than a score of at least 6 in each individual component. It should be recalled, in that context, that Mr Parmar had achieved just such a score in his test of 9 May 2009 (and also on 7 November 2009). Thirdly, even if the definition were not invalid for that reason, it was in any event invalid because it operated by impermissibly delegating to the various organisations who administered the IELTS test the task of determining whether a particular applicant had competent English and this involved removal from judicial scrutiny of that important function. So viewed, the regulation was said to be neither ‘necessary’ nor ‘convenient’ for the purposes of the Migration Act 1958 (Cth) and this mattered because the only regulations authorised by s 504 of that Act were regulations having that quality.

10    Before turning to an assessment of those arguments it is necessary to resolve some procedural questions. Each of the three matters now raised was not raised before the Federal Magistrates Court so that Mr Parmar requires leave to pursue them in this Court. It will be appropriate to grant leave in respect of a point not taken below if it is a point ‘which clearly has merit’ and in respect of which ‘there is no real prejudice to the respondent in permitting it to be agitated’: VUAX v Minister for Immigration and Multicultural Affairs [2004] FCAFC 158 at [48]. In this case, I do not doubt that those criteria are met. Nor do I doubt that an adequate explanation for why the points were not raised below is available. At first instance Mr Parmar was unrepresented. In this Court, he had the distinct advantage of being represented by Ms Edwards of counsel following the making of a referral under Order 80 of the Federal Court Rules. That referral was made because, in a number of cases before this Court, there appeared to be something of a disjunct between the apparent ability of appellants in skilled migration visa appeals to conduct their own cases in fluent English, on the one hand, and the operation of the IELTS test which deemed them not able to speak competent English at all, on the other. The decision of Buchanan J in Mohamad v Minister for Immigration and Citizenship (2010) 191 FCR 31 is one such example; my own decision delivered at the same time as this appeal in Ghori v Minister for Immigration and Citizenship [2011] FCA 759 is another. Mr Parmar’s late raising of the issue is, therefore, to be seen as a function of the Order 80 process itself.

11    In those circumstances, it is appropriate that leave to pursue the three fresh grounds of appeal should be granted. In relation to the argument that the regulation is invalid because of an impermissible delegation it is apparent that it is not presently comprehended in the notice of appeal. Consequently, the leave granted in respect of that argument will be subject to the condition that Mr Parmar file a further amended notice of appeal including it within fourteen days of the date of the orders made today.

12    A second procedural matter arises this way. Much of the argument in the present appeal turns on the background to, and nature of, the IELTS test. For reasons which will be self-evident there was no evidence before the learned Federal Magistrate about that matter. In this Court, Ms Edwards read the affidavit of a Mr Singh of 24 March 2011 which annexed a set of documents which Mr Parmar had downloaded from the website www.ielts.org (another affidavit of Mr Parmar did something similar but is missing a number of pages). Leaving aside the question of admissibility, the Court has undoubted power to receive the evidence under s 27 of the Federal Court of Australia Act 1976 (Cth). Assuming the material is admissible, this is a case where that power should be exercised. To this course, the Minister took this objection: the pages printed from the website contained many statements which were hearsay; in particular, it contained some statements about the nature of the IELTS test and about competent English which ought not be permitted to be used for the hearsay purpose of proving the truth of those statements. Ms Edwards’ retort to this was that the Court could receive the evidence under s 144 of the Evidence Act 1995 (Cth) as a matter of judicial notice; that is to say, the contents of the IELTS website were ‘not reasonably open to question’ either because they were common knowledge under s 144(1)(a) or because they were ‘capable of verification by reference to a document the authority of which cannot reasonably be questioned’ under s 144(1)(b). To that latter contention, Ms Mitchelmore of counsel, who appeared for the Minister, drew attention to one of my own decisions in Sportsbet Pty Ltd v New South Wales (2010) 186 FCR 226 at 235 [24]. In that case, I concluded that a website maintained by a bookmaker was not a source whose authority could not ‘reasonably be questioned’ so that s 144(1)(b) did not permit resort to it.

13    The standard erected by s 144(1)(b) is high. It is not enough, as Sportsbet shows, that the document – in this case a website – might be thought to be a reliable source of information. In many cases, it is inherently plausible that statements made on a company’s website about itself or its activities will be correct. But that need not be so; the decisions of this Court in its trade practices jurisdiction well show that the number of occasions on which statements made by companies on their own websites have been found to be misleading or deceptive are legion. I do not think, in that circumstance, that a business or organisation’s website is a document whose authority cannot reasonably be questioned within the meaning of s 144(1)(b). Accordingly, it is not open to me to rely upon it to receive the print-out of the IELTS website. Nor do I accept that the content of that website is ‘common knowledge’ within the meaning of s 144(1)(a). The precise threshold where common knowledge stops and particular or specific knowledge begins may be indistinct but knowledge of the intricacies of a language test falls well outside whatever is comprised in the nature of common knowledge.

14    The Minister did not object to the use by Mr Parmar of the website print-out for non-hearsay purposes. Consequently, the course I will take is to direct pursuant to s 136 of the Evidence Act that the website materials attached to Mr Singh’s affidavit of 24 March 2011 be limited in the use to which they may be put to non-hearsay purposes. I will make a similar direction in the case of Mr Parmar’s affidavit.

15    I turn then to the three issues to be determined.

First issue: the proper construction argument

16    Ms Edwards developed Mr Parmar’s argument as follows. First, there was no doubt that the operation of the Regulations required Mr Parmar to demonstrate, as an essential pre-condition to his being granted a Skilled Graduate (Temporary) (Class VC) visa, that he had competent English. So much flowed from cll 485.215 and 485.222 of Schedule 2 to the Regulations. Secondly, the expression ‘competent English’ was defined in the manner set out above in reg 1.15C(a)(i). Thirdly, as a definition provision it was important to keep in mind, in that context, that such provisions were to be read as part of the substantive enactments to which they were to be seen as appurtenant: ‘Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment’: Kelly v The Queen (2004) 218 CLR 216 at 253 [103] per McHugh J. Fourthly, this made it necessary to identify the end to which the substantive provision – here cll 485.15 and 485.22 of Schedule 2 to the Regulations – were directed and to interpret reg 1.15C(a)(i) in that light. Fifthly, thus illuminated it was revealed that what was sought to be achieved by the regulation was the humble requirement that competent English be spoken by those seeking the grant of such a visa. Sixthly, it would be an absurd outcome to allow to exist the possibility that a person who could plainly speak competent English might be held not to be able to do so by the mechanical operation of a test and that observation, so it was said, leant credence to the notion that the definition provision should be construed more liberally; not as an exhaustive statement of the circumstances in which competent English might be demonstrated but, rather and in contradistinction, as a merely facultative provision equipping both applicants and the Minister alike with an easily applied, but not mandatory, method for answering the question at hand.

17    Support for this last step was said to be found in the High Court’s decision in Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417. That case, too, was concerned with the application of the language test requirements associated with skilled migration visas. Speaking of the Minister’s argument that Mr Berenguel had failed the language test because he had not passed it at the time he made his application, although he had passed it after that time and before the delegate had decided his application, the Court observed that that approach ‘leads to such plain unfairness and absurdity that it is not to be preferred’ (at 423 [26] per French CJ, Gummow and Crennan JJ). Accordingly, so Ms Edwards’ argument concluded, reg 1.15C was not to be construed in an exhaustive fashion.

18    I cannot accept this argument. It is tolerably clear that the meaning of ‘competent English’ in reg 1.15C is the same as it is in the criteria set out for the visa in cll 485.215 and 485.222. As a matter of ordinary construction one would approach the interpretation of the Regulations on the basis that the expression ‘competent English’ has a uniform meaning throughout the Regulations unless the context otherwise demanded: Queensland v Forest (2008) 168 FCR 532 at 540-541 per Black CJ applying the well-known statement of Hodges J in Craig, Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452. In this case, the context does not demand that it be given different meanings in those different places. To the contrary, it is clear that cll 485.215 and 485.222 and reg 1.15C travel together as a package of provisions dealing with the position of skilled occupation visas. As such, I do not accept that it is open to read ‘competent English’ in the criteria as meaning ‘competent English or competent English as defined’. Nor is it possible to approach the matter so as to say that the definition in reg 1.15C is not exhaustive. The opening words of the definition – ‘If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person [achieves certain results]’ – does not textually lend itself to a non-exhaustive interpretation. The provision is in a familiar form in which a state of affairs is made conditional on the state of mind of a Minister. If it is read non-exhaustively then its legal operation becomes radically different. No longer is the question whether the Minister is satisfied the criteria have been met. Instead, ‘competent English’ becomes a legal standard to be determined by a Court. I do not think that such a profoundly different operation of the regulation is a plausible interpretation of it.

19    There is, therefore, lacking the grammatical foothold which permitted the High Court in Berenguel to approach the construction issue in the manner that it did. When dealing with the second issue below I conclude that the requirements of reg 1.15C are rational and proportionate. That conclusion provides an additional reason for distinguishing Berenguel in the construction of reg 1.15C which I favour does not promote, as the proposed construction in Berenguel did, the vice of absurdity. In those circumstances, I do not accept that reg 1.15C could be satisfied merely because this Court thought that Mr Parmar could speak competent English or through some other means outside those exhaustively stated in that regulation.

Second issue: whether regulation 1.15C is invalid as irrational or disproportionate

20    I turn then to the first of Mr Parmar’s attacks on the validity of reg 1.15C. Mr Parmar says reg 1.15C rests for its lawfulness upon the regulation making power which authorises it and that that power may be used only to make regulations which are not disproportionate to the attainment of the objects of the Migration Act. Regulation 1.15C implements the IELTS test but, so Mr Parmar submitted, the requirements of IELTS for competent English are only that an applicant achieve an overall score of 6 across the four components and not that he or she achieve a score of 6 in each of them. Since the regulation was expressly utilising the IELTS, the absence of some explanation as to why a different approach to the test had been embraced in reg 1.15C meant that it was not possible to discern a rational basis for the regulation. Put another way, the IELTS required only an overall score of 6 for competent English and it was irrational for reg 1.15C to implement the IELTS test whilst using a standard – 6 in each component – which was materially different to the IELTS standard itself. Without some understanding for this disparity in approach, reg 1.15C was to be seen as illogical or at least irrational.

21     To understand this submission it is necessary to say something of the IELTS tests. From the tests which Mr Parmar sat the following facts about IELTS may be gleaned:

(a)    IELTS is an acronym for International English Language Testing System;

(b)    the testing system is operated by the British Council, an entity known as IDP IELTS Australia and the University of Cambridge;

(c)    the tests administered to examinees under the IELTS are performed by a variety of centres and institutions;

(d)    the IELTS system provides for two kinds of tests: the general training test and the academic test;

(e)    the general training system test (with which this appeal is concerned) assesses an examinee across four bands: listening, reading, writing and speaking;

(f)    that the general training test awards a score for each component and also an overall score.

22    I am unable to determine what the maximum score in each band, or the overall band score, are. It is not disclosed in the test result forms themselves. It is true that the print-out from the IELTS website suggests the existence of a 9-band scale ranging from Band O (test not attempted) through to Band 9 (expert user). The result of the Minister’s hearsay objection and my earlier s 136 direction is, however, that this material is not to be used for a hearsay purpose. I cannot find, therefore, what the bands are but I can find that IELTS has said that Band 6 is that of ‘a competent user’ who has ‘generally effective command of the language despite some occasional inaccuracies, inappropriateness, and misunderstandings. Can use and understand fairly complex language, particularly in familiar situations’. IELTS has also said on the same webpage that these band scores correspond not only to each of the four components of listening, reading, writing and speaking but also to the overall band score. Thus the IELTS site does say that an overall band score of 6 signifies the level of a competent user. This evidence has a non-hearsay relevance: the rationality, proportionality or logicality of the regulation in question may be susceptible to a comparison between what reg 1.15C says about competent English and the IELTS test, on the one hand, and what IELTS itself says about it, on the other. On this view, reg 1.15C fixes as the threshold for competent English an achievement of a score of 6 in each section whereas what IELTS itself appears to advocate is an overall score of 6.

23    It is not necessary to investigate with any precision the intricacies of the doctrines of irrationality attending the making of regulations or those dealing with the proportionate achievement of a statute’s objects (cf Minister for Primary Industry and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 at 384 per Lockhart J; Yu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 140 FCR 126 at 134 [43] per Kiefel J; Qiu v Minister for Immigration and Ethnic Affairs (1994) 55 FCR 439 at 446 per Lockhart J). This is because I do not think the suggested difficulty arises. This, in turn, is for the simple reason that the same website also shows that IELTS does not regard its own standards as definitive. One section says ‘There is no pass or fail in IELTS. Scores are graded on the 9-band system. Each educational institution or organisation sets its own levels of IELTS scores to meet its individual requirements’.

24    It follows that no difficulty arises from reg 1.15C’s requirement that band scores of 6 in each of the four components be attained to constitute competent English whilst the IELTS apparently regards such English to be demonstrated more generously by achievement of an overall mark of 6. That same conclusion is supported by an examination of the Explanatory Statement which accompanied the introduction of the present form of the Regulations. It explained in some detail the reasons for the present selection of the band scores. The statement notes that the Regulations draw a distinction between four classes of English:

(a)    Vocational English;

(b)    Competent English;

(c)    Proficient English; and

(d)    Concessional competent English.

25    Generally speaking, the Explanatory Statement indicates that vocational English is the acceptable level of English for persons seeking a general skilled migration visa who have nominated a trade as their occupation. An IELTS score of at least 5 in each of the four components is required. Competent English is required for those persons seeking a skilled migration visa who wish to pursue a professional occupation. An IELTS score of at least 6 is required for each of the four components. Proficient English is not required of any applicant for any visa but consists nevertheless of an IELTS score of at least 7 in each of the four components. Applicants who have ‘proficient English’ are entitled to additional points under the general assessment system. Concessional competent English is a form of competent English where the applicant has made arrangements to attend English language training in Australia. An average score of 5.5 across the four components is required. The Explanatory Statement also shows that these standards were formulated following an evaluation of the general skilled migration categories by three academics in March 2006.

26    Two points flow from this:

(a)    The regulations exhibit a carefully structured set of distinct English speaking standards;

(b)    The means adopted to do so is an internationally accepted independent testing mechanism.

27    Quite apart from the fact that the IELTS website says that it permits institutions and organisations to adopt their own standards I do not think, in those circumstances, that it would be open to this Court to conclude that this regulation was irrational or disproportionate. In that context, a few matters need to be kept in mind. To begin with, the IELTS tests not just spoken English and listening skills but also, just as importantly, reading and writing skills. It is all too easy to fall into the trap of thinking that because a person appears to speak English with reasonable fluency that their reading and writing skills are necessarily of the same order. The regulations in question, and the IELTS in particular, test all four of these matters and do so in a uniform and independently administered fashion. It is not to be thought that the Court’s perception of the English language skills of a litigant is a superior mechanism for determining that issue. The viva voce encounter between a judge and a self-represented appellant in a skilled migration visa appeal does not provide an effective forum in which reading and writing skills may be examined. It gives an increased, and undue, emphasis on oral skills but it is, of course, not just with such skills that the migration system is concerned. Furthermore, once it is appreciated that the Regulations draw distinctions between vocational, competent and proficient English by means of band scores it would be altogether too much to think that a Court could make the kinds of subtle judgment necessary to observe these distinctions merely by the manner in which an appellant happened to speak in Court.

28     There are additional, broader, issues too. The visas in question are high volume visas for which the number of applications is very large. There needs to be not only a way of testing the language skills of applicants which is suitable to be applied to the large number of applications made but, just as importantly, that system needs to be reliably uniform in its application. The imposition of precise score requirements rationally serves this end. In such a system there will always be those who fall close to the line but that is to be seen as the price to be paid for certainty, efficiency and the species of fairness constituted by consistency. In those circumstances, the challenge to reg 1.15C based on the IELTS website fails, however harsh or frustrating this appears in Mr Parmar’s case.

Third issue: whether regulation 1.15C is invalid as involving a delegation

29    I turn then to the last challenge which was pursued only orally. Ms Edwards submitted that the effect of reg 1.15C was to give to an external body – the institution administering the test – the function of determining whether a particular applicant spoke competent English; that such a decision was unreviewable by the Court; and that the regulation was not therefore authorised by the Migration Act because it was neither ‘necessary’ nor ‘convenient’ which was what was required of any regulation made under that Act.

30    I think this argument must be rejected. It is true that s 504 of the Migration Act confers a general regulation making power on the Governor-General to make regulations which, inter alia, ‘are necessary or convenient to be prescribed for carrying out or giving effect to this Act’. And, indeed, it was upon the text of s 504 that Ms Edwards put her argument. However, the situation is more complex.

31    Ms Mitchelmore, in her careful and concise submission, pointed to the decision of Hely J in Rahman v Minister for Immigration and Multicultural Affairs [2001] FCA 1236 at [11] where his Honour said with characteristic clarity:

Section 4 of the Migration Act 1958 (Cth) (“the Act”) provides that the object of the Act is to regulate in the national interest, the coming into, and presence in, Australia of non-citizens. To advance its object, the Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that the Act be the only source of the right of non-citizens to so enter or remain. Section 31(1) provides that there are to be prescribed classes of visas. Section 31(3) provides that the Regulations may prescribe criteria for a visa or visas of a specified class. Section 504 is the regulation making power. Relevantly it is in the familiar form in which the Governor-General is authorised to make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

[emphasis added]

32    Consequently the question is not, as Ms Edwards submitted, whether the regulation is necessary or convenient. Instead, it is whether reg 1.15C sets out a criteria for a prescribed class of visa. The visa in question is of a class which is prescribed; the only question then is whether reg 1.15C is a criterion. In my opinion, plainly it is. Consequently, the regulation is valid.

33    Even if that were not so, however, I would not have accepted the premise upon which the argument rested, viz, the perceived delegation to the IELTS invigilator. Although it is superficially attractive to describe what occurs under reg 1.15C as a delegation that is not, on closer inspection, what occurs. Regulation 1.15C requires the Minister, and the Minister alone, to form an opinion. That opinion is as to whether an applicant has achieved the requisite test results. There are no particular difficulties with making the formation of an opinion of the Minister contingent on some third party action. Administrative decision makers, for example, frequently act on third party certification such as that constituted by university degrees, medical certificates and drivers licences.

34    In saying that, of course, care should be taken to distinguish the different situation obtaining where a decision maker, entrusted with a particular function by statute, seeks to have that function performed by a third party. The issues arising in such a situation may be quite complex. But where, as here, the decision resides with the decision maker, no particular difficulties arise.

Conclusion

35    It follows that the three grounds must fail. Since no other grounds were pursued the appeal must be dismissed with costs. I should record the considerable assistance I received in the hearing of the appeal both from Ms Mitchelmore and from Ms Edwards. In Ms Edwards’ case it is to be noted that she appeared as a result of an Order 80 referral and on a pro bono basis. The Court is aware of the burden placed upon Order 80 counsel and it is important that their role be noted and gratitude expressed for its useful and effective performance.

36    The appeal should be dismissed with costs.

Associate:

Dated:    7 July 2011