FEDERAL COURT OF AUSTRALIA

Milanes v Minister for Immigration and Border Protection [2015] FCA 1105

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This appeal turns on the proper construction of reg 1.15C of the Migration Regulations 1994 (Cth) and the validity of an instrument made for the purposes of the regulation. To some extent it also turns on the effect of changes to the regulatory scheme for the grant of certain visas following the High Court’s decision in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417 (“Berenguel”).

2    The appellant, Melchor Milanes, is a Filipino national, whose application for a Skilled (Provisional) (Class VC) subclass 485 visa was refused on the ground that he did not satisfy one of the criteria for the grant of the visa. The criterion in question was that he have “competent English”, a term defined in reg 1.15C.

3    Mr Milanes unsuccessfully applied to the Migration Review Tribunal to have the decision overturned. He then sought judicial review in the Federal Circuit Court but failed there, too. Now he contends that the primary judge erred. For the following reasons, that contention should also be rejected.

THE LEGISLATIVE SCHEME

4    The Migration Act 1958 (Cth) confers power on the Minister to grant a non-citizen permission, to be known as a visa, to travel to and enter and/or remain in Australia: s 29(1).

5    The Act states that there are to be prescribed classes of visa and that the Regulations may prescribe criteria for a visa or visas of a specified class: s 31.

6    Some classes of visa are prescribed by the Act, some by the Regulations. At the relevant time, for the purposes of s 31 the prescribed classes of visas included such classes as were set out in the respective items in Sch 1 to the Regulations: see reg 2.01. The class of Skilled (Provisional) (Class VC) appears in item 1229 of Sch 1. Schedule 2 contains subclasses of visas and prescribed criteria for the grant of visas.

7    The Minister is required to grant an applicant a visa if satisfied that the application satisfies the prescribed criteria; otherwise the Minister is obliged to refuse it: Migration Act, s 65.

8    By s 504(1), the Governor-General is given the power 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”.

9    The Regulations, like the Act, have frequently been amended. When Mr Milanes lodged his application, Sch 2 of the Regulations contained primary and secondary criteria for the grant of a subclass 485 visa, then called a Skilled–Graduate visa. Among the primary criteria were “[c]riteria to be satisfied at time of application” and “[c]riteria to be satisfied at time of decision”: Sch 2 cl 485.22. Clause 485.215 of Sch 2 appeared under the heading “Criteria to be satisfied at time of application”. It read simply:

The applicant has competent English.

10    “Competent English” was not defined in cl 485.215, but reg 1.15C described two circumstances in which a person “has competent English”:

(1)    A person has competent English if:

(a)    the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

(b)    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)    The person has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this sub regulation.

11    For the purpose of subreg 1.15C(1), in IMMI 12/018 the Minister specified in writing two language tests and scores. One was the IELTS (International English Language Testing System) and a test score of at least 6 for each of the four test components. The other was the OET (Occupational English Test) in which case a test score of at least a “B” for each of the four test components was required. It is common ground, however, as the primary judge observed, that the OET was not available at the time IMMI 12/018 was made.

12    For the purposes of subreg 1.15C(2), the Minister also specified in IMMI 12/018 passports issued by the UK, USA, Canada, New Zealand and the Republic of Ireland to citizens of those countries.

13    IMMI 12/018 is a legislative instrument. It was registered on the Federal Register of Legislative Instruments and carries the identifying number F2012L01287. By s 5(3) of the Legislative Instruments Act 2003 (Cth), an instrument that is so registered is taken, by virtue of that registration, to be a legislative instrument. IMMI 12/018 commenced on 1 July 2012, immediately after the commencement of Migration Amendment Regulation 2012 (No 2) (Cth).

BERENGUEL

14    Before going any further, it is convenient to refer to Berenguel. Berenguel was concerned with satisfaction of the criteria for a Skilled (Residence) (Class VB) visa. Division 885.2 set out the primary criteria for the grant of a visa. Under the heading “885.21 Criteria to be satisfied at time of application” there relevantly appeared:

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.

15    “Vocational English” was defined in reg 1.15B, “competent English” in reg 1.15C.

16    Berenguel was concerned with the meaning of “vocational English”. At the relevant time subreg 1.15B(5) stated:

If a person applies for a General Skilled Migration visa, the person has vocational English if the person satisfies the Minister that the person has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:

(a)    an IELTS test score of at least 5 for each of the 4 test components of speaking, reading, writing and listening; …

17     At that time reg 1.15C read:

1.15C 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.

18    Mr Berenguel applied for his visa on 21 April 2008. Although he had booked an IELTS test in February, the test could not be administered before 10 May. Mr Berenguel sat the test on 10 May and secured a score of 6 in each of the prescribed components. On 7 June 2008 he provided the Minister’s department with the test results. On 12 December 2008 a delegate of the Minister refused his application on the ground that he had not provided scores for a test conducted not more than two years before the day on which his application was lodged.

19    Mr Berenguel applied to the High Court for mandamus to direct the Minister to determine the application according to law and certiorari to quash the decision of the Minister’s delegate. The principle ground upon which he sought this relief was that the delegate misconstrued subreg 1.15B(5) in concluding that he had not provided an IELTS test result within the requisite period. Crennan J referred a special case to a Full Court.

20    The Court (French CJ, Gummow and Crennan JJ) held that the delegate had indeed misconstrued subreg 1.15B(5) and that Mr Berenguel could satisfy the English language requirements of cl 885.213 of Sch 2 to the Regulations by lodging an IELTS test report with the department on a date after the date on which he lodged his visa application. The Court explained at [25]–[26]:

[25]    The requirement in reg 1.15B that the requisite test has been conducted “not more than 2 years before the day on which the application was lodged” is susceptible of the construction that the test was conducted no earlier than 2 years before the application was lodged. So construed, it does not require that the test has to be conducted before the application is lodged. That requirement can only be imposed by some direct operation of the undefined heading “Criteria to be satisfied at time of application”.

[26]    Although cl 885.213 is part of the group of clauses headed “Criteria to be satisfied at time of application”, the heading does not connect grammatically to its terms. Applying s 13 of the Acts Interpretation Act, it may be regarded as “part of the regulations”. It may therefore inform their construction. But the text of Pt 885 does not support any general conclusion that the criteria in Pt 885 speak exclusively to satisfaction at the time of application. For example, cl 885.212 reads:

The Minister is satisfied that the applicant has applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority.

[Emphasis added.]

Moreover, in this case, the construction for which the minister contends leads to such plain unfairness and absurdity that it is not to be preferred. The alternative construction for which the plaintiff contends does not compromise the purpose of the Migration Regulations. There is nothing to prevent relevant information being submitted to the minister after lodgement of the application. Indeed, s 55 of the Act expressly provides for that to be done and requires the minister to have regard to such information. 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.

BACKGROUND

21    Mr Milanes is an accountant. He arrived in Australia on 1 February 2012. He travelled here on a student visa issued on 30 June 2011. On 20 December 2012 he applied for a Skilled (Provisional) (Class VC) subclass 485 visa. In his application he indicated that for evidence of his English language ability he was relying on the results of an IELTS test. He had undertaken that test on 1 December 2012. But in that test he scored only 5.5 in the writing component, with the result that he did not obtain a test score of at least 6 for each of the four test components, as the Minister had specified for the purpose of reg 1.15C. Mr Milanes did not profess to hold a passport from one of the countries specified in IMMI 12/018.

22    Mr Milanes’s application was considered by a delegate of the Minister and a decision made on 7 June 2013. As Mr Milanes had not achieved an IELTS test score of at least 6 for each of the test components, the delegate was not satisfied he had competent English as prescribed by that regulation. There being no evidence that he had a passport of the type referred to in reg 1.15C(2), the delegate decided that he did not meet the requirements for the grant of the visa.

23    On 28 June 2013 Mr Milanes lodged an application for review of the delegate’s decision. On 29 October 2013 he was invited to appear before the Tribunal to give evidence and present arguments. The hearing was fixed for 22 November 2013.

24    In response to the invitation to appear, Mr Milanes’s lawyers made some written submissions and forwarded to the Tribunal a letter from the IELTS Centre at Macquarie University confirming that he was registered to sit the IELTS test at the university on 9 November 2013.

25    At the hearing Mr Milanes confirmed that in the test conducted on 1 December 2012 he had not achieved scores of 6 or more in all four test components. No other relevant test results were provided to the Tribunal. Unlike Mr Berenguel, Mr Milanes never provided either the Minister (or his department) or the Tribunal with test results to show that he had achieved scores sufficient to enable him to satisfy the requirements imposed by the regulations.

26    The gravamen of Mr Milanes’s argument before the Tribunal was that, based on the reasoning in Berenguel, he should have been afforded the opportunity to be assessed on the basis of IELTS tests undertaken after the date of his application.

27    The Tribunal rejected this argument, distinguishing Berenguel, and affirmed the delegate’s decision. The reasons are substantially contained in the following four paragraphs:

[13]    The plain meaning of the amended definition in r. 1.15C(1) is unambiguous and precludes the Tribunal from considering a test undertaken after the visa application was made. According to the accompanying explanatory statement, the amendment in Migration Amendment Regulations 2011 (No. 3) was to clarify that a person will have competent English “if the Minister is satisfied that the language test undertaken by the person was conducted no more than two years immediately before the day on which the application for a GSM visa was made”. It is further stated that the amendments “ensure that an applicant for a GSM visa is assessed as holding the relevant English language test score before the application for a GSM visa is made. This supports the policy intention that only applicants who are assessed as having the specified English language test score prior to making their application for the GSM visa may satisfy the relevant Schedule 2 criterion”.

[14]    As the amended definition of ‘competent English’ applies to applications for a General Skilled Migration visa made on or after 1 July 2011, the Tribunal is of the view that Berenguel does not apply to applications for skilled visas made on or after 1 July 2011. The Tribunal finds that the applicant’s visa application was made on 20 December 2012, and the definition of ‘competent English’ as set out in paragraph 6 above applies to [his]application.

[15]    Given the evidence before it, indicating that the applicant did not achieve the requisite scores in the test he undertook in the 3 years immediately before the day on which the application was made, the Tribunal finds that the applicant does not have competent English as defined in r.l.15C(1).

[16]    In his application for the visa, the applicant said he was a citizen of the Philippines and held a passport of that country. At the hearing, he confirmed that he does not hold a passport of a type specified in IMMI 12/018. On the basis of the evidence before it, the Tribunal finds that the applicant does not have competent English as defined in r.1.15C(2). It follows from this finding, and that in the previous paragraph, that the applicant does not have competent English and does not satisfy the requirements of cl.485.215 of Schedule 2 to the Regulations. As Subclass 485 is the only relevant subclass in this case, the decision under review will be affirmed.

28    Before the primary judge and in this Court the argument went further.

THE APPLICATION FOR JUDICIAL REVIEW

29    In a nutshell Mr Milanes contended that the definition of “competent English” in reg 1.15C is not exhaustive, so that a person may have “competent English” irrespective of whether he or she has undertaken a specified language test or holds a specified type of passport. This contention raises questions concerning the means by which competence in English would then be determined and by whom, questions which were not addressed by the submissions. Mr Milanes also challenged the validity of the regulations defining “competent English”.

30    In his amended application for review, Mr Milanes alleged that:

(1)    The Tribunal misapplied the law when it found that reg 1.15C requires an applicant to have a prescribed IELTS test score at the time of the application;

(2)    The Tribunal misinterpreted reg 1.15C by erroneously treating it as providing an exhaustive definition of “competent English”;

(3)    Legislative Instrument IMMI 12/018 is an invalid exercise of the power to make legislative instruments; and

(4)    Subregulation 115C(2) is an invalid exercise of the regulation-making power in s 504 of the Act.

THE REASONS OF THE PRIMARY JUDGE

31    The primary judge dismissed each of these grounds.

32    In relation to the first ground, his Honour noted that there were material differences between the version of reg 1.15C considered by the High Court in Berenguel and the version applicable in the present case. He said that, while the words “a test conducted not more than 2 years before the day on which the application was lodged” were, on the High Court’s view, “susceptible of the construction that the test was conducted no earlier than two years before the application was lodged” and did not require that the test be conducted before the application was lodged, the current version speaks of “a test … conducted in the 3 years immediately before the day on which the application was made” and is “not susceptible of a similar interpretation”.

33    Mr Milanes submitted that the “score” referred to in subreg 1.15C(1)(c) was not limited to a score achieved in a test referred to in para (a) or (b) because this would be contrary to the purpose of the regulation as explained in Berenguel. But his Honour said that the explanation of the purpose given in Berenguel was made in the context of the Court’s finding that the regulation as it then stood did not require a test to be conducted before the visa application had been lodged. His Honour considered that:

[t]he rewriting of the regulation and the terms in which it was rewritten evince a clear intention that the Minister is not to take into account results of tests undertaken after application is made for a visa even if that means being deprived of the most recent information concerning an applicant’s English language competence.

34    His Honour held that the paragraphs were “interdependent” and “score” in para (c) was a reference to a score in the language test conducted in the 3 years immediately before the day the application was made.

35    On the question of whether the definition of “competent English” is exhaustive (the second ground of Mr Milanes’s application), the primary judge referred to two authorities of this Court: Parmar v Minister for Immigration and Citizenship (2011) 195 FCR 186 (“Parmar”) at 192–193 [18] and Sidhu v Minister for Immigration and Border Protection [2014] FCA 935 (“Sidhu”) at [11]. In Parmar Perram J said of the same version of reg 1.15C considered in Berenguel that the definition was exhaustive. In Sidhu, which was concerned with a later version (effective from 1 July 2011 to 30 June 2012), inserted by the Migration Amendment Regulations 2011 (No 3) (Cth), Mansfield J followed Perram J in Parmar. The primary judge considered that the reasoning in Parmar was equally applicable here and, like Perram J had said in Parmar, held that in its present form reg 1.15C “does not textually lend itself to a non-exhaustive interpretation”. Furthermore, the primary judge did not consider it “plausible to interpret the regulation as a criterion which requires the Minister to make his own assessment of the English language proficiency of each applicant for a visa where “competent English” is a criterion for its grant”.

36    As to the third ground of review, the primary judge held that there was “no relevant ambiguity in the Regulations or difficulty in their application”. On the other hand, his Honour said that he received evidence disclosing that the National Languages and Literacy Institute of Australia, which administered the OET, had been deregistered seven years before IMMI 12/018 was made. This was significant because “Occupational English Test” is defined in reg 1.03 (subject to any contrary intention) to mean an Occupational English Test conducted by the Institute. His Honour held that, as a result of the deregistration of the Institute, the parts of the Instrument which refer to the OET are “meaningless and cannot be applied, used or implemented” and are invalid. Still, as Mr Milanes did not base his visa application on any of those provisions, his Honour considered that their invalidity was “of no practical significance” for present purposes, and, in effect, were severable from the Instrument.

37    The basis for the fourth ground — that subreg 1.15C(2) was beyond power — was that it was “irrational, capricious and absurd” to determine a person’s English language competence for the purposes of the Regulations by reference to the person’s passport and regardless of whether the person actually had any English language skills.

38    The primary judge was prepared to assume that some residents, citizens and passport holders of the specified countries would not have English language skills that satisfy “the IELTS test standard[s] for ‘competent English’”. Relying on s 144 of the Evidence Act 1995 (Cth), however, his Honour took judicial notice of the “fact” that English is the principal language of those countries and therefore concluded that holders of passports issued by them “could generally, even if not uniformly, be expected to have good English language skills”. For this reason, his Honour concluded that subreg 1.15C(2) was not invalid. In any event, his Honour noted that the Tribunal made no reference to subreg 1.15(2), with the result that its decision was “unaffected by any issues concerning it”.

THE APPEAL

39    There are five grounds of appeal. In effect, they allege that the primary judge erred in rejecting each of the grounds of review. The errors raised by each ground are said to be in his Honour:

(1)    finding that the “score” referred to in subreg 1.15C(1)(c) was a score obtained after an applicant had taken a language test prescribed for the purposes of subreg 1.15C(1)(a) at some point in the time period referred to in subreg 1.15C[(1)](b), rather than a score that an applicant could have obtained following a test undertaken after the visa application had been lodged;

(2)    not finding that reg 1.15C, so far as it purported to authorise IMMI 12/018, was invalid in circumstances where it was contrary to s 505 of the Migration Act;

(3)    finding that reg 1.15C contained an exhaustive definition of the term “competent English”;

(4)    finding that there was no relevant ambiguity in the Migration Regulations in respect of the IELTS test; and

(5)    not finding that specifying the holding of a particular passport as “definitive proof” that a person has “competent English” was ultra vires.

40    I will deal with the questions arising from these grounds in the order in which they were argued.

Does reg 1.15C require “competent English” at the time of application or at the time of the decision?

41    This is the question raised by the first ground of appeal.

42    On this question Mr Milanes, through his counsel, Mr Prince, made a number of submissions.

43    First, he submitted that the Act and the Regulations requires or envisages that a decision maker will have regard to up-to-date information in determining substantive requirements for the grant of a visa. He argued that the Tribunal’s interpretation would deprive the Minister of the most recent information concerning the applicant’s proficiency in English.

44    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?

45    As with cl 885.213, which was considered in Berenguel, the heading “Criteria to be satisfied at time of application” does not connect grammatically to the terms of cl 485.215 at the time Mr Milanes submitted his visa application. The criterion in question is that “the applicant has competent English”. It is identical to the criterion in cl 885.213(b). Prima facie, then, the remarks the High Court made in [26] would apply equally in the present case.

46    But there is a material difference between the legislation under consideration in Berenguel and the legislation in question here. The requirement in reg 1.15B that the requisite test be conducted “not more than 2 years before the day on which the application was lodged” was “susceptible of the construction that the test was conducted no earlier than 2 years before the day on which the application was lodged” (Berenguel at [25]). That was the same requirement for “competent English” in reg 1.15C as it stood when Berenguel was decided. Regulation 1.15C has been amended twice since then, first by the Migration Amendment Regulations 2011 (No 3), commencing 1 July 2011 and later, by the Migration Amendment Regulations 2012 (No 2) , commencing 1 July 2012. It is the version introduced by the 2012 amendments with which this case is concerned. It is not susceptible to the same construction as the construction placed on reg 1.15B in Berenguel.

47    The principles that apply to the interpretation of statutes also apply to the interpretation of delegated legislation: Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 at 398. As the High Court has frequently observed, the process of statutory interpretation begins and ends with the text, albeit that the text must be considered in its context. In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39] the Court emphasised:

“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text”. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text.

(Citations omitted.)

48    When the text of the regulations in question in the present case is considered in its context, the appellant’s argument falls away.

49    In Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]–[71] McHugh, Gummow, Kirby and Hayne JJ emphasised the need to construe the relevant provisions of a legislative instrument so they are consistent with the language of the Instrument viewed as a whole and to strive to give meaning to every word.

50    Clause 485.215 must therefore be read with reg 1.15C. When that is done, the criterion in cl 485.215 — “the applicant has competent English” — means the applicant has undertaken a specified language test in the three years immediately before the day on which the application was made and has achieved a specified score or holds a passport of a specified type. Read in this way, the heading to cl 485.215 does connect grammatically to the terms of the clause.

51    Both the text and the legislative history indicate that one of the reasons for the 2011 amendments to subreg 1.15C(1) was to ensure that only applicants who had obtained the requisite test scores in a specified English language test conducted during a specified period before the day on which the application for the visa was made would be able to satisfy the criterion in cl 485.215. The inescapable inference to be drawn from the change in the language is that the purpose of the amendment as to the time when the test is to be conducted was to overcome the effect of the judgment in Berenguel.

52    Unlike the extrinsic material to which the High Court referred in Berenguel, the extrinsic material here supports this conclusion. The Explanatory Statement to the 2011 Amendment Regulations (No 3) states (on p 1), amongst other things, that the amendments:

amend several definitions relating to English language qualifications to clarify the time frame within which an English language test must have been conducted for the purposes of a visa application.

53    This statement is expanded upon on p 6:

New regulations 1.15C, 1.15D and 1.15E also clarify that the person will only have competent English, proficient English or concessional competent English, if the Minister is satisfied that the language test undertaken by the person was conducted no more than two years immediately before the day on which the application for a GSM visa was made.

These amendments ensure that an applicant for a GSM visa is assessed as holding the relevant English language test score before the application for a GSM visa is made. This supports the policy intention that only applicants who are assessed as having the specified language test score prior to making their application for the GSM visa may satisfy the relevant Schedule 2 criterion.

(Original emphasis.)

54    The only relevant change effected by the 2012 amendments was to increase the period in which the test is conducted from two years to three; both specified a period “immediately before the day on which the application was made”.

55    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.

56    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.

57    Judicial comity requires that I follow these decisions unless I am satisfied that they are clearly wrong. Plainly, I am not.

58    In Kaur at [41], after noting the differences between the form of reg 1.15C and the regulation considered in Berenguel, Mortimer J held that “the text of reg 1.15C leaves no room for the approach adopted by the High Court in Berenguel”. As her Honour went on to point out:

The text now focuses on three historical facts – first, that the applicant undertook a test; second, that the test was conducted in a period “immediately before” the visa application; and third, that in a test conducted during that period the applicant achieved a qualifying score. These historical facts either exist at the time of application, or they do not.

59    I respectfully agree.

60    Mr Milanes submitted that the primary judge erred by assuming that the purpose of subreg 1.15C(1) was to overcome the effect of the decision in Berenguel and reasoning from this starting point. This was said to be contrary to the approach to construction discussed in Thiess v Collector of Customs (2014) 250 CLR 664 (“Thiess”) at [22] where the High Court observed that “[s]tatutory construction involves attribution of meaning to statutory text” and noted what had been said in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd at [39].

61    The submission must be rejected. The primary judge did not depart from the approach to construction discussed in Thiess. After referring to the submission advanced on behalf of Mr Milanes, in which Berenguel was relied upon, his Honour went immediately to the text. What is more, nowhere in his Honour’s reasons (let alone at the outset) did he say anything about overcoming the effect of the decision in Berenguel. Rather, he emphasised the difference in the language of the Regulations since Berenguel and drew from the language alone the legislative intention. There is nothing unorthodox in this approach.

62    Mr Milanes’s final submission on ground 1 was that the primary judge erred by treating “score” in para (c) of subreg 1.15C(1) as referable to the test referred to in paras (a) and (b). He argued that the correct interpretation of the subregulation is that the applicant must have sat a test in the three years immediately before lodging the visa application, but there is no requirement that he achieve the required score at the time of such a test.

63    This submission must also be rejected. It is illogical and it defies common sense. The logical and sensible way to read subreg 1.15C(1) is the way in which the primary judge read it, that is, that a person has competent English if the person undertook a specified language test, the test was conducted in the three years immediately before the day on which the application was made, and in such a test the person achieved a specified score.

64    It follows that the primary judge did not err in finding that the “score” referred to in subreg 1.15(1)(c) is a score obtained in a prescribed language test undertaken during the three year period mentioned in subreg 1.15C(1)(b), rather than a score the applicant could have obtained in a test he undertook after he lodged his visa application.

65    Even if the primary judge erred in this respect, however, it would not have assisted Mr Milanes because, unlike in Mr Berenguel’s case, at the time of the Tribunal’s decision there was no evidence that he had sat another IELTS test, let alone that he had achieved the minimum scores in all four areas.

66    Ground 1 of the notice of appeal should be dismissed.

Did the primary judge err in concluding that reg 1.15C provided an exhaustive definition of when a person has competent English?

67    This is the question raised by the third ground of appeal.

68    As I indicated earlier in these reasons, the argument that reg 1.15C did not provide an exhaustive definition was put and rejected in Parmar, which the primary judge followed. In Parmar Perram J held at [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.

69    In this Court as in the court below, Mr Milanes sought to distinguish Parmar on the basis that the terms of reg 1.15C considered in Parmar differed from its current form and, contrary to the primary judge’s conclusion, the difference is significant. He contended that the regulation considered in Parmar could stand as a definition of competent English if the Minister never made a further instrument in writing specifying a particular test, whereas in its current form the regulation requires the making of a written instrument before the definition is complete. He submitted that “if the definition in the Regulation contains no ascertainable content of its own then it could hardly be said to constitute an exhaustive definition of an ordinary English expression”. He also submitted that “there is nothing in the language of the regulation that necessarily implies an exhaustion of the ways in which a person can demonstrate competent English”. In particular, he emphasised the absence of words to the effect that a person is taken to have competent English only if one or other of the paragraphs is satisfied.

70    The form of reg 1.15C considered in Parmar is the form that obtained before the 2011 amendments. It is set out above at [17].

71    In my opinion, it is immaterial that reg 1.15C does not contain words to the effect that a person is taken to have competent English only if one or other of the paragraphs is satisfied. There were no such words in the version of reg 1.15C considered in Parmar either. Nor do I consider that either the absence of the words “the person satisfies the Minister that the person” (which did appear in the version of reg 1.15C considered in Parmar) or the fact that the test is now specified in another legislative instrument makes any difference. In its plain language reg 1.15C operates as a deeming provision.

72    There are several other difficulties with Mr Milanes’s arguments.

73    First and foremost, they ignore reg 1.03. Regulation 1.03 provides:

In these Regulations, unless the contrary intention appears:

…

competent English has the meaning given by regulation 1.15C.

74    This is not an inclusive definition.

75    Secondly, in Sidhu at [11] Mansfield J also held that reg 1.15C contained an exhaustive statement of the circumstances in which a person has competent English. His Honour was dealing with reg 1.15C as it stood after the 2011 amendments but before the 2012 amendments.

76    Thirdly, if the regulation was not intended to provide an exhaustive definition, what was its purpose? Certainly Mr Milanes had no answer.

77    Fourthly, reg 1.15C should be read with regs 1.15B, 1.15D, 1.15E and 1.15EA. They provide definitions of “vocational English”, “proficient English”, “concessional competent English”, and “superior English”. The definitions of “vocational English” and “competent English” are identical. The other provisions incorporate verbatim the definitions in subreg 1.15C(1), except that the period in which the test is to be conducted for “concessional competent English” is the two year period immediately before the day of the making of the application.

78    If reg 1.15C was not intended to provide an exhaustive definition, then neither would any of these other provisions. How then would the decision-maker distinguish between “competent” and “proficient English” or “competent” and “vocational English”? What would he or she make of the term “concessional competent English”?

79    It is inconceivable that the parliament intended to leave room for this kind of uncertainty.

80    Fifthly, the evident purpose of the Regulations was to have language skills determined by objective testing, save in the limited circumstances in which a passport from certain specified countries would be treated as a sufficient surrogate.

81    Sixthly, as the Explanatory Memorandum makes clear, the purposes of the amendments made in 2011 included removing from the Regulations “any perceived preference or bias towards IELTS testing” and giving the Minister the flexibility to specify alternative English language tests in future to assist applicants to satisfy the criteria for English language definitions. In making the amendments in 2011 and 2012 it was no part of the statutory purpose to leave the meaning of “competent English” at large.

82    Ground 3 should be dismissed.

Is IMMI 12/018 an instrument in writing within the meaning of subreg 1.15C(1)?

83    Ground 4 pleads that the primary judge erred in finding that there was no “relevant ambiguity” in the Regulations “in respect of the IELTS test”. Presumably the legal basis for the allegation of ambiguity was the principle that delegated legislation “ought to be expressed in such a manner as that its meaning may be unambiguous, and in such language as may be readily understood by those on whom it is to operate”: Grant on the Law of Corporations (1850), p 86, adopted by Dixon J in King Gee Clothing Co Pty Ltd v Commonwealth (1945) 71 CLR 184 at 194–195.

84    I reject the allegation that there was any “relevant ambiguity” in this case.

85    The primary judge’s finding needs to be understood in the context in which it was made. Mr Milanes submitted below that IMMI 12/018 was an invalid exercise of the regulation-making power because it was “ambiguous, uncertain and incapable of practical administration”. There were two bases for the allegation, according to the primary judge. The first was that the “Regulations did not define ‘IELTS test’ with adequate specificity”. The second related to the unavailability of the OET since the deregistration of the company offering such a test.

86    The primary judge pointed to the definition of the two tests in reg 1.03. In the case of the IELTS, reg 1.03 relevantly provides:

IELTS test means the International English Language System test.

87    I gather from his Honour’s reasons that the alleged lack of “adequate specificity” was said to arise from the fact that IMMI 12/018 IELTS is used as an acronym for the International English Language Test System.

88    In his written submissions Mr Milanes had argued that it was “by no means clear” that the test mentioned in the Instrument was the test referred to in the Regulations or the only test that might meet that description, although it was the test the Tribunal considered was referred to in the Regulations. The primary judge held that the inference to be drawn from the wording of the Regulations is that there is only one such testing system and noted that Mr Milanes had not shown there was any other test which could answer the description in the Regulations. In these circumstances, his Honour held, there was “no relevant ambiguity in the Regulations or difficulty in their application”. His Honour noted the difference between the terms used in the Regulation and the Instrument but considered it was not a matter of substance.

89    I am unable to discern any error in his Honour’s reasons in this respect. IMMI 12/018 states that IELTS is an acronym for the International English Language Test System and Mr Milanes did not suggest that any other conclusion was reasonably open. Indeed, he offered no alternative. It was common ground that there is and was at the relevant time an International English Language Test System which goes by the acronym IELTS. The regulation differed only from the Instrument in that it transposed the words “system” and “test” and failed to capitalise “test”. These are obvious drafting errors. Where a simple mistake of this kind is made in legislation, courts will read the legislation correcting for the mistake: see Lindner v Wright (1976) 14 ALR 105 at 111, Pearce DC and Geddes RS, Statutory Interpretation in Australia (8th ed, LexisNexis Butterworths, 2014) at [2.28] and the other authorities referred to there. In any event, the errors might be regarded as immaterial because reg 1.15C does not refer to the IELTS so that the definition in reg 1.03 does not apply to reg 1.15C. The English language test referred to in reg 1.15C is the one specified by IMMI 12/018. Thus, if there is an ambiguity arising from the difference between the definition in reg 1.03 and IMMI 12/018 it is, as the primary judge put it, not a relevant one.

90    Despite the way ground 4 is pleaded, Mr Milanes’s real complaint relates to the primary judge’s finding that the parts of IMMI 12/018 which refer to OETs are invalid but that the invalidity is of no practical significance because Mr Milanes did not base his visa application on those provisions. Mr Milanes submitted that these findings disclose error because his Honour failed to address what effect the invalidity of parts of the Instrument had for the definition of “competent English” in r 1.15C. The effect, according to Mr Milanes, is that IMMI 12/018 is not “an instrument in writing for [para (1)(a)]”.

91    The argument has no merit.

92    First, it would seem that the explanation for why the primary judge did not address the effect of his finding on the definition of “competent English” lies in the nature of the submission that was made to him.

93    The primary judge dealt with the issue at [33] of his reasons:

The implication in the applicant’s allegation was that the meaningless nature of the references to OETs rendered other parts of the instrument which were more relevant to the facts of his case, or perhaps the whole instrument, invalid but he did not advance any submissions on why that might be so. As there can be no more OETs as defined by the Regulations, there will be no applications made which rely on them and any applications which require “competent English” will depend on the results of IELTS tests. In those circumstances, the instrument can continue to operate even if parts of it are entirely redundant and so invalid. It would be inconvenient and unnecessary to strike down parts of the instrument which can operate unaffected by invalid provisions which will never be relied on by applicants.

94    Secondly, whether IMMI 12/018 is “an instrument in writing for [para (1)(a)]” depends on whether the Instrument can be taken to be a valid instrument regardless of the invalid parts. That is to say, it depends on whether the bad parts can be severed. The primary judge plainly recognised this.

95    Thirdly, Mr Milanes’s contention that IMMI 12/018 is not “an instrument in writing for [para (1)(a)]” ignored the legislative provisions designed to preserve enactments by notionally severing the invalid part where constitutionally possible.

96    Section 15A of the Acts Interpretation Act 1901 (Cth) states that:

Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power.

97    This section applies, not only to statutes but also to legislative instruments, absent the contrary intention: Legislative Instruments Act s 13(1)(a).

98    Similarly, s 13(2) of the Legislative Instrument Act states that:

If any legislative instrument would, but for this subsection, be construed as being in excess of the rule—maker’s power, it is to be taken to be a valid instrument to the extent to which it is not in excess of that power.

99    Speaking of the effect of provisions such as these (which he described as “severability clauses”, but which might equally be described as “reading down clauses”), Dixon J said in Bank of New South Wales v Commonwealth (1948) 76 CLR 1 (“Bank Nationalisation Case”) at 371:

The effect of such clauses is to reverse the presumption that a statute is to operate as a whole, so that the intention of the legislature is to be taken prima facie to be that the enactment should be divisible and that any parts found constitutionally unobjectionable should be carried into effect independently of those which fail. To displace the application of this new presumption to any given situation arising under the statute by reason of the invalidation of part, it must sufficiently appear that the invalid provision forms part of an inseparable context. The general provision contained in s 15A of the Acts Interpretation Act 1901–1941 produces this effect, as does s. 46(b) [of the Acts Interpretation Act], which similarly deals with severance in subordinate legislation.

(Emphasis added.)

100    In other words, the presumption is that a statute or legislative instrument is severable unless as a matter of construction the constitutionally objectionable parts and the constitutionally unobjectionable parts are necessarily interdependent (see, too, Latham CJ at 164 and Dixon J at 370). The presumption will only be displaced if the party attacking the validity of the instrument (only part of which is bad) establishes “that if the [instrument] were confined within the limits of the power the result would be, not a partial application of the law, but a different plan or provision, or of establishing that an intention is to be found in the [instrument] that unless it receives its full intended operation it shall not operate at all”: Andrews v Howell (1941) 65 CLR 255 at 281(Dixon J). Put another way, the instrument as a whole will be valid unless it is shown that the effect of ignoring or severing the invalid parts would “create a provision which the Parliament did not intend”: Sportodds Systems Pty Ltd v New South Wales (2003) 133 FCR 63 (“Sportodds”) at [19]. This formulation recognises the constitutional limitation inherent in s 15A of the Acts Interpretation Act and s 13(2) of the Legislative Instruments Act based on the separation of powers: Pidoto v Victoria (1943) 68 CLR 87 at 109 (Latham CJ), Sportodds at [18].

101    As Tracey and Flick JJ explained in Comcare v Broadhurst at (2011) 192 FCR 497 at [72], however:

One difference between reading down legislation such that it is within (for example) the constitutional competence of the Commonwealth legislature, as opposed to reading down a “legislative instrument”, is the very fact that the latter involves an exercise of confining both the draftsman of the Comcare Guide (and the Minister) to the authority conferred by the enabling legislation. It is respectfully considered that the court should strive to uphold the validity of a “legislative instrument”, and to construe such a “legislative instrument”, as within power if at all possible.

102    IMMI 12/018 refers to the OET in several places. It is convenient to refer to the most relevant, though all the references are similar in form:

SPECIFY for applications lodged on and after 1 July 2012 tests, test scores and passports as follows:

…

D. For the purposes of paragraph 1.15C (1)(a) the following language tests:

•    an IELTS test; and

•    an OET.

E. For the purposes of paragraph 1.15C(1)(c) the following scores:

•    an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or

•    a score of at least ‘B’ in each of the four components of an OET.

103    There is no difficulty here in concluding that the intention of the legislature is that the Instrument be divisible. The form in which it is couched lends itself to this approach. There is nothing in the legislation which suggests that the parts of the Instrument which were held to be invalid form part of an inseparable context. The validity of the remaining parts is not conditional on the validity of the parts found to be invalid: cf Bank Nationalisation Case at 372. If the invalid parts are put to one side, the remaining parts are unchanged in their meaning and operation. In reading the Instrument in this way the court is not itself making legislation. Regulation 1.15C only requires that one language test specified in the Instrument be undertaken. There is nothing whatsoever to suggest that the Parliament intended that an instrument in writing which specified more than one English language test should have no operation in the event that one of the tests was not available or was no longer offered.

104    Section 15A of the Acts Interpretation Act (and s 13(2) of the Legislative Instruments Act) requires the Court to construe the Instrument so as to render it valid. Thus, the invalidity of parts of the Instrument referring to the OET would not render the whole invalid. Regardless, it is still an instrument in writing which specifies a language test.

105    Ground 4 should be dismissed.

Is subreg 1.15C(2) ultra vires?

106    This is the question raised by the fifth ground of appeal. It is difficult to understand why the allegation was ever made. Mr Milanes did not propound a case in the Tribunal that this subregulation had any bearing on his application, one way or another. Even if the argument is a good one, I respectfully agree with the primary judge that it would not undermine the Tribunal’s decision. Moreover, subreg 1.15C(2) is a facultative provision. It does not prohibit or restrict anything. It provides a pathway for certain people to satisfy the English language competency criterion without having to sit a test. Mr Milanes was not apparently able to take the easier pathway. Why that justified a challenge to the validity of the subregulation is a mystery. Be that as it may, the challenge fails.

107    Lockhart J observed in Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 at 384:

Delegated legislation may be declared to be invalid on the ground of unreasonableness if it leads to manifest arbitrariness, injustice or partiality; but the underlying rationale is that legislation of this offending kind cannot be within the scope of what Parliament intended in authorising the subordinate legislative authority to enact laws.

108    This was apparently the basis of the challenge to subreg 1.15C(2). Mr Milanes submitted that the specification in subreg (2) is beyond power because (as he put it) it is “utterly irrational, capricious and absurd”. The submission rests on the following propositions.

109    First, in Berenguel (at [24]) the High Court said that the evident purpose of criterion 885.213 [“the identical criterion” to cl 485.215] is “to ensure that, when the minister or delegate decides upon the application for a visa, the applicant will have demonstrated recent competency in the English language”. Yet, it was said that the subregulation does no such thing. To the contrary, Mr Milanes asserted that it was “patently obvious” that a person may hold a passport of a particular country without having any appreciable level of competency in the, or a, national language of that country.

110    Secondly, it was said that the effect of the subregulation is that a citizen of one of the countries mentioned in the Instrument would not have competent English unless he or she held the passport, would acquire competent English on being issued with a passport, and would lose that competency when the passport expired.

111    Mr Milanes also submitted that the primary judge was wrong to resort to s 144 of the Evidence Act to establish that English is the principal language of the specified countries when:

    it is notorious that English is not the principal language of Canada but, with French, one of two equally ranked official languages — referring to the “Manitoba Language Case” (presumably Re Manitoba Language Rights [1985] 1 SCR 721);

    in the Republic of Ireland, Art 8 of the Constitution provides that the Irish language is the first language of Ireland and the English language is the second language;

    in the United Kingdom, the Gaelic Language (Scotland) Act 2005 requires that Gaelic and English be treated with equal respect and without predominance; and

    it is notorious that in the United States attempts to have an official or principal language have failed since 1750.

112    Accordingly, the appellant submitted, it was not open to the primary judge to find that English is the principal language of the countries specified in the Instrument or to conclude that the holders of passports issued by those countries can generally be expected to have good English language skills. Thus, the appellant reasoned, there is no rational basis to deem the passport holders of the countries specified in the Instrument as having “competent English” and the primary judge erred in dismissing the invalidity ground in the application.

113    Each of these submissions should be rejected.

114    Dixon J explained in Williams v Melbourne Corporation (1933) 49 CLR 142 (“Williams”) at 155 that to determine whether delegated legislation is a valid exercise of power, it is necessary to determine “[t]he true nature and purpose of the power”. Williams concerned the validity of by-laws for the regulation of traffic which prevented cattle being driven in the streets of Melbourne except in certain streets or during the hours of midnight and 8 am. His Honour said that the by-law would be invalid if, despite an apparent connection between the subject of the power and the subject of the by-law, a determination of its true nature and purpose shows that its “true character [is] such that it could not reasonably have been adopted as a means of attaining the ends of the power”. “In such a case”, he continued, “the by-law will be invalid, not because it is inexpedient or misguided, but because it is not a real exercise of the power”.

115    The statutory power in question here is the power to make regulations, “not inconsistent with [the Migration 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 …”: Migration Act, s 504(1).

116    The Migration Act envisages that the Regulations will prescribe the criteria for visas. One of the criteria for the subclass 485 visa prescribed by the Regulations was that an applicant has competent English. The Regulations state, in effect, that one way of satisfying that criterion is for the person to hold a passport of a type specified by the Minister in a written instrument. The Minister has specified the passports of certain countries in such an instrument. Is this not a real exercise of the power? Of course it is. Has Mr Milanes shown that this alternative way of meeting the competent English criterion could not reasonably have been adopted as a means of attaining the ends of the power, that is, as a necessary or convenient method for carrying out or giving effect to the Act? I think not.

117    I reject the submission that “it is notorious” that English is not the principal language of Canada. The decision in Re Manitoba Language Rights is irrelevant. It was concerned with the validity of Manitoba legislation which had not been printed and published in both French and English and with the rights of Manitobans to equal access to the law. Nonetheless, I accept that Canada has two official languages. But the primary judge was not speaking of the official language of the specified countries. The fact that there are two official languages does not disprove that there is one principal language.

118    Article 8 of the Constitution of the Republic of Ireland provides that the Irish language is the national language and the first official language, that the English language is recognised as the second official language, but that provision may be made by law for exclusive use of either language for any one or more official purposes. Despite the prominence given to Irish in the Constitution, I do not consider that the primary judge erred in concluding that English was the principal language actually used in Ireland.

119    The Gaelic Language (Scotland) Act 2005 (asp 7) is an Act of the Scottish Parliament, not of the Parliament of the United Kingdom. The submission that “[i]n the United Kingdom” the Gaelic Language (Scotland) Act requires Gaelic and English “to be treated with equal respect and without predominance” is simply wrong.

120    In any event, the submission is misconceived. It appears to have been inspired by the Act’s long title, which reads:

An Act of the Scottish Parliament to establish a body having functions exercisable with a view to securing the status of the Gaelic language as an official language of Scotland commanding equal respect to the English language, including the functions of preparing a national Gaelic language plan, of requiring certain public authorities to prepare and publish Gaelic language plans in connection with the exercise of their functions and to maintain and implement such plans, and of issuing guidance in relation to Gaelic education.

121    The Act does not treat English and Gaelic as two official languages of the United Kingdom or even of Scotland. Its purpose is to establish a body with functions which, in time, would achieve for Gaelic the status of an official language of Scotland.

122    Contrary to the assumption inherent in Mr Milanes’s submissions, “principal” and “official” are not synonyms. IMMI 12/018 says nothing about the official languages of the specified countries and neither did the primary judge. It is a matter of common knowledge that each of the specified countries is an English speaking country, albeit that other languages are also spoken there, as they are in Australia. This was the substance of the primary judge’s conclusion.

123    I accept that a person may hold a passport from any one of the specified countries yet not have “any appreciable level of competency” in English. But that is a gamble the Minister is entitled to take.

124    Minds might differ as to whether this was an effective or expedient way of ensuring that prospective visa holders had “competent English”. But, as Starke J observed in Williams at 150:

[t]he existence of a power and the expediency of its exercise are quite different matters. The question of the existence of the power can always be determined by a court of law. But, in my opinion, the expediency of the exercise of a power is not a matter for determination by a Court … It is obvious that the question whether the circumstances of the locality warrant the exercise of a power is one of expediency and not of competency.

125    In oral submissions Mr Milanes argued that the question of what passport a person holds is a matter which is not “rationally adapted or proportionate to the purpose of ascertaining whether a person has competent English for the purposes of granting a visa”. He referred in this context to Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1 (“Adelaide City Corporation”) at [61] and [64] (French CJ), [122]–[123] (Hayne J) and [201] (Crennan and Kiefel JJ).

126    These submissions take the matter no further.

127    Adelaide City Corporation was concerned with the validity of a council by-law which sought to regulate the use of roads within the council area by prohibiting preaching, canvassing, and haranguing, as well as the distribution of printed material, without the written permission of the council and to penalise such conduct by the imposition of a fine. Two individuals named Corneloup, who preached their religious and associated political beliefs in the City of Adelaide, did so without permission from the council. They claimed that the by-law was invalid because it infringed the implied constitutional freedom of political communication. The Full Court of the Supreme Court of South Australia upheld that claim on the basis that permission was necessary before a political message could be disseminated. On appeal the majority of the High Court (Heydon J not deciding) held otherwise, finding that the provisions of the by-law served a legitimate end — preventing the obstruction of roads in the council area — and that this was not incompatible with the maintenance of Australia’s prescribed system of representative and responsible government.

128    Earlier, in South Australia v Tanner (1989) 166 CLR 161 (“Tanner”), where the High Court was considering the validity of a regulation made under the Waterworks Act 1932 (SA), it was accepted that the test of validity was “whether [the regulation] [is] capable of being considered to be reasonably proportionate to the end to be achieved” (Wilson, Dawson, Toohey and Gaudron JJ at 167). But the majority emphasised (at 168) that:

It is not enough that the court itself thinks the regulation inexpedient or misguided. It must be so lacking in reasonable proportionality as not to be a real exercise of the power. Nor is it enough to point … to other provisions … which impose only qualified prohibitions as a step leading to a conclusion that a total prohibition of the kind contained in [the regulation] is unjustified. To do that is again to substitute the judgment of the court for that of the legislator.

(Emphasis added.)

129    Brennan J dissented in the result but his discussion of the relevant principles was not substantially different.

130    In Adelaide City Corporation at [121] Hayne J drew particular attention to Brennan J’s remarks in Tanner at 178 where Brennan J pointed out that “the validity of a regulation made in exercise of a power which requires that its exercise be conducive to a statutory object” depends on whether the regulation answers the statutory description. His Honour said that this was a problem of characterisation. He explained that the character of a regulation is determined by reference to its operation and legal effect in the circumstances to which it applies and that it is necessary for the court to assess for itself “the directness and substantiality of the connexion between the likely operation of the regulation and the statutory object to be served”. The regulation is invalid if the directness and substantiality of the connection is “so exiguous that the regulation could not reasonably have been adopted as a means of fulfilling the statutory object”. These are “broad tests” and involve “matters of degree”. Importantly, for present purposes, his Honour added at 179:

If upon their application the regulation is found to answer the statutory description, it is immaterial that, in some instances, the regulation will not effect or further the fulfilment of the statutory object. Those instances are material only to the court’s assessment of the connexion between the regulation and the statutory object.

131    Brennan J later observed at 179–180:

Where the directness and substantiality of the connexion between an impugned regulation and a statutory object can be properly assessed only with an appreciation of some matter of fact of which the repository of the power has special knowledge or experience, the court should not lightly substitute its own assessment for the assessment made by the repository in enacting the regulation. And, as Lord Diplock observed [in McEldowney v Forde [1971] AC 632 at 661], the court treats the making of the regulation as “cogent evidence” of the repository’s belief in its necessity and expediency.

132    In Adelaide City Corporation at [123], after discussing Brennan J’s approach in Tanner, Hayne J said that the references by Brennan J to “so exiguous” and “could not reasonably have been adopted” show that:

the question to be asked and answered is not whether the by-law is a reasonable or proportionate response to which it is directed but whether, in its legal and practical operation, the by-law is authorised by the relevant by-law making power. The question of validity is to be decided by characterising the impugned provisions and assessing the directness and substantiality of the connection between the likely operation of the by-law and the statutory object to be served. Could the by-law, so characterised and assessed, reasonably be adopted as a means of fulfilling that object? No further inquiry into the proportionality of the by-law is permitted or required.

(Original emphasis.)

133    Crennan and Kiefel JJ at [201] merely observed that Dixon J’s statement in Williams v Melbourne Corporation that “the true character of the by-law may then appear to be such that it could not reasonably have been adopted as a means of attaining the ends of the power” “bears an obvious affinity with the test of proportionality”.

134    Here, the designation in subreg (2) answers the statutory description as a criterion for the grant of certain visas. Broadly stated, the statutory object to be served is the object of the Act, namely “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”: Migration Act, s 4(1). The narrower object is to define the criteria for the grant of visas or, perhaps, to prescribe a particular level of fluency in English as a criterion for certain visas. Whether one has regard to the broader or the narrower objects, the connection between the likely operation of the subregulation and the statutory object is not exiguous. It is both direct and substantial. So characterised and assessed, it could reasonably be adopted as a means of fulfilling any of these objects.

135    There is an additional reason for rejecting Mr Milanes’s contention. We do not know why the Minister settled upon the particular countries he did, to the exclusion of other English-speaking countries, such as Jamaica, or other former British colonies in the Caribbean, Africa (including South Africa), and the South Pacific, where English is also an official language. It appears likely, then, that “the directness and substantiality of the connexion between [the] impugned regulation and [the] statutory object can be properly assessed only with an appreciation of some matter of fact of which [the Minister as] the repository of power has special knowledge or experience”.

136    As French CJ put it in Adelaide City Corporation at [60], it is not for a reviewing court to substitute its own view of what would be a reasonable law. At [65] the Chief Justice noted that the availability of an alternative mode of regulation might be relevant to the question of reasonable proportionality if raised in relation to delegated legislation but, given the high threshold of unreasonableness required for invalidity to be established, he stressed the need for caution lest the court “second-guess” the merits.

137    Furthermore, Mr Milanes did not suggest an alternative to subreg(2). The subtext of his submissions was that whether a visa applicant has competent English can and should be determined by the Minister (or the Tribunal standing in his or her shoes) (how, as I have already observed, he did not say) and that definitions in the Regulations can and should be avoided.

138    I am not persuaded that to specify the holding of a passport from the countries in question as sufficient to satisfy the “competent English” criterion is irrational, capricious or absurd, or “so lacking in reasonable proportionality as not to be a real exercise of the power” (Tanner at 168 per Wilson, Dawson, Toohey and Gaudron JJ). The choice to regard the holding of a passport from certain English-speaking countries as sufficient to demonstrate “competent English” for the purpose of determining eligibility for certain visas was a policy choice which the Parliament intended should be left to the Minister. It is not open to the Court to second-guess that choice.

139    In any event, for the reasons given above at [95]–[103], even if subreg(2) were invalid, the rest of the regulation would be valid.

Is reg 1.15C invalid as outside the regulation-making power in s 505?

140    This is the question raised by the second ground of appeal. This point was not raised below and, at the hearing in this Court, the Minister “formally” objected to it being raised on appeal. But this was not a matter about which evidence could have been given which could have prevented the point from proceeding. It involves a pure question of statutory construction. No conceivable prejudice could be occasioned to the Minister. In these circumstances, it is expedient and in the interests of justice to entertain the point: see, for example, O’Brien v Komesaroff (1982) 150 CLR 310 at 319 (Mason J). As will be seen, however, the point is entirely without merit.

141    Mr Milanes contended that the change effected to the structure of reg 1.15C by the 2011 amendments “had the effect of taking it outside the scope of section 505 of the Act”. He argued that s 505 does not contemplate or permit “the outsourcing of assessment to persons other than the Minister except by way of Regulation under the Act”. He claimed that the effect of the amendments is to remove specification of an important function under the Act from Parliamentary scrutiny or oversight through disallowance. Consequently, he submitted there was “a stultification of the protections inherent in s 505”, which is inconsistent with the enabling legislation and therefore invalid. In sum, as he put it in oral argument, his position was that s 505 gives the power to make regulations specifying an organisation that can make an assessment, reg 1.15C does not do that, and therefore reg 1.5C is invalid. Section 505, he submitted, evinces an intention that, “where something is going to be outsourced, it should be done so in the regulations [and not in another instrument]”.

142    This argument is misconceived. It is based on a misunderstanding of the scope and purpose of s 505. As the Minister submitted, the source of the power to make reg 1.15C is s 504, not s 505. Indeed, it was s 504, not s 505, which was identified as the source in the Explanatory Statement for both the 2011 and 2012 amendments. Compare Pillay v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 368 at [30], which concerned a time limit criterion in relation to applications for certain types of visas contained in Sch 3 cl 3002 of the Regulations.

143    Section 505 states:

To avoid doubt, regulations for the purpose of prescribing a criterion for visas of a class may provide that the Minister, when required to decide whether an applicant for a visa of the class satisfies the criterion:

(a)    is to get a specified person or organisation, or a person or organisation in a specified class, to:

(i)    give an opinion on a specified matter; or

(ii)    make an assessment of a specified matter; or

(iii)    make a finding about a specified matter; or

(iv)    make a decision about a specified matter; and

(b)    is:

(i)    to have regard to that opinion, assessment, finding or decision in; or

(ii)    to take that opinion, assessment, finding or decision to be correct for the purposes of;

deciding whether the applicant satisfies the criterion.

144    Regulation 1.15C does not provide that the Minister get a specified person or organisation to give an opinion or make an assessment, finding or decision on a specified matter. As the Minister pointed out, reg 2.25A (discussed by the Full Court in Minister for Immigration and Multicultural Affairs v Seligman (1999) 85 FCR 115 at [37]) is an example of the kind of regulation to which s 505 is directed.

145    In oral argument Mr Milanes submitted that s 505 was a specific power dealing with the prescribing of visa criteria and the general power in s 504(1) must (in effect) surrender to the specific. An argument to this effect was put and rejected in Dai v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 165 FCR 445 (and not revived on appeal: (2007) 165 FCR 458) where at [25] Bennett J said:

The words of s 505 mean what they say. To avoid doubt, there is specific provision for the Minister to delegate the matters set out in s 505. Those are matters of fact to which the Minister is to have regard or to take to be correct in deciding whether an applicant for a visa satisfies the criterion. This does not derogate from the power that exists by reason of s 504 …

146    I respectfully agree. There is no reason to read down the broad powers conferred by s 504(1). Contrary to Mr Milanes’s submission, no support for the contrary position can be derived from what was said in Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 at [42]–[43].

147    It is true that s 14(2) of the Legislative Instruments Act provides that:

Unless the contrary intention appears, the legislative instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.

148    Here, however, the contrary intention is manifest. Section 504(2) of the Migration Act provides that s 14 of the Legislative Instruments Act does not prevent, and has not prevented, regulations whose operation depends on a country or other matter being specified or certified by the Minister in an instrument in writing made under the Regulations after the taking effect of the Regulations. Regulation 1.15C is such a regulation. Section 504(2) makes it clear that a regulation of this kind may be made.

149    Regulation 1.15C is not inconsistent with the Act and is within the power conferred by the Act that the Regulations may prescribe criteria for the grant of visas.

150    Ground 5 of the appeal must be dismissed.

CONCLUSION

151    It follows that none of the grounds of appeal is made out. The primary judge did not err as alleged. Nor did the Tribunal.

152    In the absence of evidence that Mr Milanes was at any time a person who had competent English (as defined), as a matter of law the Tribunal could not be satisfied that he had competent English. In those circumstances it had no option but to refuse to grant him a visa. If he did sit the IELTS test on 9 November 2013, he did not provide his scores to the Tribunal. There was no evidence that they were unavailable at the time of the hearing. Assuming, however, that they were not, and contrary to a submission advanced on Mr Milanes’s behalf, there was no evidence that he ever applied for an adjournment of the Tribunal hearing so that he could provide them. There was no ground of appeal that it was unreasonable to refuse to adjourn the proceedings in those circumstances (cf Minister for Immigration and Citizenship v Li (2013) 249 CLR 332).

153    The appeal must be dismissed with costs.

Associate:

Dated:    16 October 2015