DISPOSITION OF THE APPEAL
12 The appeal has been conducted on the basis that one of two constructions of the relevant language of Item 5A404 is correct. The Minister contends that the relevant phrase means:
· an IELTS test that was taken within the period of two years before the date of the application.
The primary judge in the Federal Magistrates Court accepted Mr Kamal's contention that the relevant language means:
· an IELTS test that was taken no earlier than two years before the date of the application.
13 The Minister contends that the relevant language of Item 5A404(a)(ii) is a composite phrase the natural meaning of which is to set a time period with both a start date, being the date two years before the date of the application, and an end date, being the date of the application. The Minister says that the natural meaning of the word "before" is "prior in time to" and that the relevant phrase cannot embrace less than two years before the date of the application as well after the date of the application.
14 The Minister points to what he characterises as good reasons of administrative efficiency for requiring an applicant to have achieved the relevant test result prior to making an application for a visa. He contends that satisfying the language proficiency criteria is, in the context of a student visa application, part of a two step process. The first part is the identification of the level of proficiency that an applicant has. The second part is the provision of evidence that tuition will be put in place to remedy a relevant lack of English language proficiency by undertaking an ELICOS (see Rana v Minister for Immigration and Citizenship [2009] FMCA 553 at [36]). The Minister says that ensuring that an applicant has undertaken an IELTS test before submitting a visa application aids the efficiency of the decision making process by enabling the second step, whether to undertake an ELICOS, to be taken once the IELTS result is known.
15 To the extent that there is any ambiguity in the relevant language, the Minister points to the Explanatory Statement published in connection with Migration Amendment Regulations 2001 (No. 5) 2001 No 162 (Cth), pursuant to which the language in question was inserted in Schedule 5A. The Explanatory Statement stated, inter alia, that the changes effected by the amending regulation codify, in Schedule 5A, evidentiary requirements that must be met by an applicant seeking to satisfy primary criteria for the relevant student visa subclasses, including criteria dealing with English proficiency. The Explanatory Statement said that the IELTS test is designed to assess the language ability of candidates who need to study or work where English is used as the language of communication. It stated that the IELTS test is readily available at centres around the world, including Australia, that arrange test administration according to local demand. Most significantly, the Explanatory Statement then said:
Under the new student regime, potential students sit the test to gauge their English proficiency before applying for a student visa. [emphasis added]
The Minister contends that, to the extent that there is ambiguity in the meaning of Item 5A404(a)(ii), the Explanatory Memorandum may be called in aid to resolve that ambiguity in favour of the construction contended for by the Minister.
16 The Minister says that, if an applicant has not undertaken an IELTS test before lodging a visa application, the decision making process could be unduly delayed or frustrated. Item 5A404 provides no requirement that an applicant is required to undertake the test by any particular date. Accordingly, the Minister says, there would be a possibility that an applicant could delay taking the test and thus delay the making of a decision on the visa application. On the other hand, the Minister says, if an applicant has sat for the IELTS test before lodging the application, it is only a matter of obtaining the result and giving evidence of the result to the decision maker. However, there is nothing to suggest that such a rationale was in fact in the mind of the drafter of the relevant provisions in Schedule 5A.
17 There is no indication in Item 5A404 that the possibility that an applicant might request a deferment of the decision while the applicant takes the relevant test should be the basis for the arbitrary exclusion of a test that happens to be the most recent and therefore the most current indication of the applicant's proficiency. The Minister accepts that the evidence of a result does not have to be given before the application is made, so long as it has been given prior to the decision. An applicant could equally request some deferment of a decision while the evidence of a test result is obtained.
18 Clearly, the question that is raised by this proceeding could have been avoided by the use of different language one way or another. The Regulations contain various formulations of time periods that might have been employed in the drafting of Item 5A404 to avoid any possible ambiguity as to the meaning of the words in question. For example, the Regulations contain the following formulations in various provisions:
The applicant has been employed in a skilled occupation for a period of… at least six months in the period of 12 months immediately before the day on which the application was made.
The applicant has, in the six months immediately before the day on which the application was made, completed a degree, diploma or trade qualification… for award by an Australian educational institution.
The applicant has been employed in a skilled occupation… for a period of, or for periods totalling, at least 24 months in the period of 36 months immediately before the day on which the application was made.
However, the complexity of the Regulations and the various occasions upon which they have been amended suggests that comparison of the language of Item 5A404 with the language of other provisions in the Regulations is likely to be of little assistance.
19 The language of Item 5A404(a)(ii) is directed to the recency or currency of a test result. The intent is to ensure that the test is sufficiently recent and current for the decision maker to be satisfied that it is a reliable indication of the proficiency of the applicant. As a matter of logic and syntax, the words in question are clearly capable of being interpreted as meaning that the test must have been taken no earlier than two years before the date of the application. The question of construction does not so much turn on the word "before" as on the phrase "less than two years before", which means a test taken less than two years before. While the question of construction is not without doubt, the construction contended for by Mr Kamal is to be preferred.
20 That is the conclusion reached by the primary judge in the Federal Magistrates Court. It follows that his Honour made no error in concluding as he did. In the circumstances, the appeal should be dismissed with costs.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Finn, Emmett & Edmonds.