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Posted by on in Skilled Migration
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Another Unusual Decision on Timing of IELTS Results - 457 Visas!

Here’s an unusual case that just showed up recently on Austlii: Guder v Minister for Immigration & Anor (2017) FCCA 2527 (7 November 2017)

I’m wondering whether you would agree with the way that the Federal Circuit Court interpreted the relevant legislative instrument, pertaining to the time frame within which an English language proficiency test must be taken by an applicant for a 457 visa. 

The legislative instrument of concern in this case was IMMI 15/028, which is no longer in force. 

Here was the story: 

The applicant is a citizen of Turkey. In December 2014, she applied for a 457 visa, with her nominated occupation being that of a chef. The legislative instrument, IMMI 15/028, provided that an overall band score of 5.0 was required on the IELTS test, and that minimum scores of 4.5 were needed on each of the components of the test. IMMI 15/028 also provided that the allowable time frame for meeting the English language proficiency requirement was “the period of three years from the date of the application”. 

The IELTS test results that were submitted in support of the application indicated that the applicant’s score on the reading component was only 3.0, below the required result of 4.5. 

The Department proceeded to refuse the visa application on the basis that the applicant did not satisfy the criterion for the grant of a 457 visa that mandated that the applicant demonstrate a sufficient level of proficiency in English. 

The hearing before the Tribunal took all of 6 minutes! 

During this time, the Tribunal member said to the applicant: 

“….it’s good that you came in today because then I got the opportunity to explain to you why the decision will be what it is.” 

Thereupon, the Tribunal proceeded to affirm the refusal of the application. 

What’s truly interesting here is that the Federal Circuit Court interpreted the wording in IMMI 15/028 to mean that the allowable time frame for satisfying the English language proficiency requirement was within 3 years after the date of the visa application, and not “within the 3 years prior to the lodgment of the application”.  Therefore, the Court (Judge Driver) found that since the application had been made in December 2014, the applicant had until December 2017 to satisfy the English language requirement. 

This interpretation led the Court to conclude that the Tribunal had committed jurisdictional error in affirming the visa refusal.  The Court held that the Tribunal had an obligation to ensure that the applicant was aware that there was an issue in the case concerning whether the applicant should be afforded more time within the 3 year period considered by the Court to be allowed under the Instrument to attempt to meet the requirement.  The Court concluded that the Tribunal’s failure to say anything about this issue had the consequence that the applicant had not been afforded a meaningful hearing. 

The Court also found that the hearing had been affected by bias, which consisted of a separate and independent ground of jurisdictional error.  The Court found that the Tribunal’s failure to say anything to the applicant about the fact that she had 2 more years in which to attempt to meet the English language requirement (as the Tribunal hearing was held 1 year after the application was made), taken together with the fact that when the Tribunal member was asked by the applicant “what else could she do” did nothing more than to refer the applicant to her migration agent, was sufficient to cause a fair-minded observed to apprehend that “the Tribunal member might not have brought an unprejudiced mind to bear upon the issue of the time within which the (applicant) should be given to attempt to comply with the English language criterion. 

What do you think about the Court’s approach to the interpretation of IMMI 15/028? 

Is it a reasonable alternative interpretation of that Instrument to read it as meaning that a successful IELTS test must be taken within the 3 year period before the making of the application, rather than within the 3 year period after the application? Wouldn’t such an interpretation advance the objective of ensuring that an applicant has adequate English skills at the time of the assessment of the application, and that the test results are recent enough to ensure that the applicant’s proficiency remains current? 

It appears that Judge Driver’s conclusion that jurisdictional error occurred in this case was predicated on His Honour’s finding that the Instrument allowed the English language criterion to be met at any time within the 3 year period after the application; perhaps the Court would not have reached the same conclusion had it adopted the alternative interpretation. 

What do you think about all of this?

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  • Guest
    Paul O Friday, 17 November 2017

    The judge is correct. From in this sentence can be interpreted as future tense since there is no other starting point to work from.
    Given the wording no other interpretatiin can be considered.

    Meaning all applications where English was provided, where the test was taken less than 3 years before the application do not meet this criteria.

  • Michael Arch
    Michael Arch Monday, 20 November 2017

    Thank you for your comment Paul. I agree with you that the judge's decision was correct, as several colleagues have confirmed that DIBP does routinely apply this interpretation to the period allowed under the LI, allowing 3 years after the date of the 457 application. The wording in the LI relating to the English proficiency exam also contrasts with wording in other instruments which state specifically that a test result demonstrating the requisite level of proficiency must be achieved within the 3 year period before the application. So this decision may open the door for challenges to the refusal of 457 visas where the Department and/or the Tribunal refused/affirmed a refusal based on an interpretation requiring the test results for 457 to be obtained before the application is lodged. Thanks to colleagues Anthony Ross, Ross Ahmadzi, Mark Walshe and Mark Northam for sharing their experience and views!!!

  • Guest
    Paul O Tuesday, 21 November 2017

    Thanks Michael. Yes I have never had to challenge that because I always ask clients for IELTS (English) up front.

    Problem with the 3 years after is that the application can sit for a long time and
    Sponsorships expire as do Nominations.

    I had a client come to me a few years back, Refused a 457 visa.
    Went to MRT and remitted back to Immi for decision
    Immi sat on it for 1.5 years
    In the mean time the Sponsorship and Nominations expired
    New Sponsorship submitted
    New Nomination submitted
    Both refused: Client denied natural justice and procedural fairness:
    Migration agent did not follow up to finalise the case.
    Immigration obviously wanted to delay to be sure they could stop the application rather than grant.

    This client has since had to go through the expensive contributory parent visa with a wait of almost 3 years offshore.

    I can also see this strategy coming with the current 457 visas and the looming deadline in March 2018. Nomination refused. How do you reapply? Sponsorship will be ok.

  • Guest
    Gary Wednesday, 22 November 2017

    The current IMMI 17/057 (which replaced 15/028) has the same wording:

    For the purpose of subparagraph 457.223(4)(eb)(v) of Schedule 2 to the Regulations, the specified period is the period of three years from the date of the visa application.

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Guest Tuesday, 20 March 2018
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