Australian Immigration Daily News

The gods must be crazy!!! 

Or the planets must be out of alignment!!!! 

I guess if “the Donald” can be nominated for President, anything’s possible! 

What a nutty week in the courts though! 

First we saw a case that was overturned because a member of the Tribunal scolder a lawyer who was acting for a Protection visa applicant for doing what lawyers do every day of the week, taking instructions from a client and then preparing a statutory declaration containing the information provided by the client. 

And now this: a person who admittedly did not achieve a satisfactory score on the English language test  challenging the refusal of his application to become a registered migration agent not just before the AAT but also in Federal Court. 

Yep, you heard that one right! 

Does anyone really question that it is essential to have proficient English language skills to be able to function properly as an RMA? 

Yes it is of course absolutely wonderful that so many RMAs are multilingual. 

But there is no way on earth that one could hope to understand the Act, Regulations, PAM and legislative instruments without strong English skills. 

In fact, the legislation can be bewildering at times, can’t it? For proof, just consider that it is not unheard of that decisions by the Federal Circuit Court are overturned by the Federal Court! 

What was the story in this case? 

Section 289A of the Act provides  that a person must not be registered unless they have passed a prescribed exam.  There is a legislative instrument, IMMI 12/097 that specifies the minimum score: at least an overall score of 7 on IELTYS with scores of 6.5 in each subtest (speaking, listening, reading and writing) or a minimum overall test score of 100 on the Internet Based test of English as a Foreign Language and a minimum score of 22 in each of the subtests. 

So, what possible argument was available to this applicant, who hadn’t passed the English language test? 

He argued that the English language requirement should be given “extended meaning”. He also argued that section 289A only requires “substantial compliance”. (In other words, the requirements aren;’t the requirements, and the rules should be bent for me!) 

And exactly how far these arguments get this person. 

Thankfully, nowhere! 

The AAT threw him out on his ear.

The Tribunal held that the requirement to demonstrate English language proficiency through a specified test is “binary” – either you have achieved the required result on the test, or you have not,  And if you have not, then you are simply not qualified to be registered as an RMA. 

Pure and simple. 

What was amazing about this case is that in addition to not demonstrating English language skills, this applicant also had a significant criminal record!  In 2010, he had been convicted of maliciously inflicting grievous bodily harm with intent to do so and sentenced to 5 years in prison with a non-parole period of 3 years. 

While the AAT did not reach the issue of whether this applicant was a fit and proper person - because the fact that he had not achieved the required test scores on the English exam was enough to justify OMARA’s refusal of his application – you have to wonder, don’t you.  

That kind of criminal record would, in the case of a non-citizen, likely be sufficient to result in their having their visa cancelled on character grounds, wouldn’t it? 

You would think that that type of criminal record would be enough to result in such a person being struck off the roll of legal practitioners too, wouldn’t you? (The applicant apparently conducts a law practice in Australia). 

And even crazier: The applicant sought to challenge the AAT’s decision affirming OMARA’s refusal of his application to be registered as an RMA in Federal Court. In those proceedings, he sought to have a suppression order made so that his name would not be published in connection with the Federal Court proceedings.  His concern  was that he could suffer damage to his reputation if clients and staff at his law firm saw his name on court lists. 

There’s an easy answer to that one, isn’t there? If you are concerned about being embarrassed because your name is on a court list, then don’t go to court in the first place! 

It gets even more bizarre than this, if you can imagine! The applicant had changed his name even before the AAT judgment which had resulted in his appeal against refusal of his registration application being affirmed.  So the name that he was seeking to have suppressed was not even the current name he was using, but apparently his “former” name. 

And how do you think the application for suppression of his former name went in the Federal Court? 

About as far as his application to become registered without demonstrating the required level of English language proficiency! 

The terms: “ a snowball’s chance” and, to put it in Australian, “Buckley’s” seem appropriate here! 

If you want to read the details of this whole sorry story, the AAT and Federal Court decisions can be accessed through these links:

Chen and Migration Agents Registration Authority (Migration) [2016] AATA 188 (30 March 2016);  Chen v Migration Agents Registration Authority (No 1) [2016] FCA 649 (2 June 2016)

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