Australian Immigration Daily News

When does an applicant for a visa that requires “competent English” have to take an IELTS test? 

The wording of Regulation 1.15C(1)(bb) says that the test must be “conducted in the 3 years immediately before the day on which the application was made”. 

Does this regulation mean what it “seems to say” – that the IELTS test must be taken “before” the application was lodged? 

Or can a visa criterion requiring “competent English” be satisfied by submitting the results of a test that was taken after the date that the visa application was lodged? 

This question was examined by the Federal Court of Australia in a case that was decided on 16 October 2015: Milanes v Minister for Immigration and Border Protection (2015) FCA 1105. 

The answer that was given in Milanes by Judge Katzmann was that the IELTS test must be taken by the applicant before the application is lodged.  Regulation 1.15C cannot be satisfied by providing the results of an IELTS test that is taken after an application is lodged. 

Based on the fact that Regulation 1.15C expressly says that the test must be “conducted in the 3 years immediately before the day on which the application was made, one might think that the holding of the Court in Milanes was “obvious”, “inevitable” and “uncontroversial”.   

However, as RMAs will recognize, the famous lyrics of the song from the Gilbert & Sullivan operetta “HMS Pinafore”: “Things Are Seldom What They Seem” certainly ring true when it comes to interpretations of the migration legislation.  An interpretation of the law that might seem “obvious” might actually not be so “obvious” after all!! 

Indeed, a decision of the High Court in the case of Berenguel v Minister for Immigration and Citizenship, (2010) HCA 8 held that a previous version of Regulation 1.15C should be interpreted to allow an IELTS test to be taken after the date on which an application is submitted.  Regulation 1.15C has been amended since the time that the Berenguel case was decided.  

But does the holding of Berenguel require that the amended version of Regulation 1.15C should be interpreted in the same way?  Does Berenguel mean that it is ok, under the version of Regulation 1.15C that is now in force, for the applicant to take the IELTS test after the application is submitted?  

The Court’s decision in Milanes tells us that the answer to this question is “No.”  

And in giving this answer, Milanes joins what is now becoming a significant body of case law that holds that Regulation 1.15C should be interpreted this way. These cases include Kaur v Minister for Immigration and Border Protection (2015) FCA 584, which I have reviewed in a previous article for this blog. 

So exactly what has happened so that the interpretation that the High Court said in Berenguel should be applied to Regulation 1.15C should no longer be applied? 

At the time that Berenguel was decided, Regulation 1.15C provided that a person has competent English if they had achieved “in a test conducted not more than 2 years before the day on which the application was lodged” a sufficient result on the IELTS test.  When Berenguel  was decided, Regulation 1.15B was worded in an identical way with regard to the circumstances when an applicant would be considered to have “vocational English”. 

In Berenguel, the High Court held that the language specifying that the test must have been conducted “not more than 2 years before the day on which the application was lodged” could be interpreted to mean that the test must have been taken “no earlier” than 2 years before the application was submitted.  The High Court thus concluded that Regulation 1.15B did not require that the test be conducted before the application was submitted.  

Consequently, the applicant in Berenguel  was able to rely on a satisfactory IELTS score from a test that he had taken after he had lodged his application with the Department. 

The Court in Milanes noted that Regulation 1.15C has been amended two times since Berenguel was decided. The first of these amendments, and the amendment that is most relevant for the purpose of understanding how Regulation 1.15C should be interpreted, was made by the Migration Amendment Regulations 2011  (No 3),  which “commenced”, or came into force, on 1 July 2011. 

It was this amendment which changed Regulation 1.15C so that it now refers to the test being conducted “immediately before the day on which the application was made”. 

The second amendment to Regulation 1.15C, which took effect on 1 July 2012, is not relevant to the question of whether the IELTS test must be taken before the application is submitted. The only change made by the second amendment was to increase the period of time before the application when the IELTS test could be taken from 2 years to 3 years. 

The Court in Milanes concluded that the amended version of Regulation 1.15C, as in force since 1 July 2011, must be read to mean that the test must be taken before the application is submitted for two separate reasons: 

1. The Court had regard to the text of clause 485.215 of Schedule 2 (pertaining to skilled visas) which imposed a criterion that an applicant "has competent English”. It held that Regulation 1.15C must be “read together” with clause 485.215. And it concluded that when clause 485.215 and Regulation 215 are so read together, they mean that the applicant must have taken the test before the application is lodged. 

2. The Court also considered the Explanatory Statement to the 2011 amendments to Regulation 1.15C which expressly said that the purpose of the amendments was to “ensure that an applicant for a GSM (General Skilled Migration) visa is assessed as holding the relevant English language test score before the application for a GSM visa is made. 

Lesson from this case:  If an applicant asks you whether they can take the IELTS test after the application has been submitted, the answer you need to give is a simple one: “No, you absolutely must take the test before your application is lodged. This has been made very clear by the rulings of the Federal courts!”

Concordia Pacific, Email: concordialaw@optusnet.com.auThis email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837