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

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

Regulation 1.15C, read with cl 485.215, required the appellant to have undertaken a specified English language test and achieved the specified score in the three years immediately before the visa application was made, unless he held a specified passport. The appellant had not achieved the required IELTS score before application and did not hold a specified passport. Regulation 1.15C exhaustively defined competent English, IMMI 12/018 validly specified the IELTS test notwithstanding severable invalid OET references, subreg 1.15C(2) was within power, and s 505 did not invalidate the regulation. The Tribunal therefore had no option but to affirm refusal of the visa, and the primary judge did...

Jurisdiction
Australia
Judgment Date
16 October 2015
Procedural Posture
Migration Appeal Concerning Refusal of a Skilled (provisional) (class Vc) Subclass 485 Visa / Appeal to the Federal Court of Australia From the Federal Circuit Court of Australia
Outcome
Appeal dismissed with costs.
Legal Topics
['subclass 485 Visa' 'competent English Criterion' 'migration Regulations 1994 (cth) Reg 1.15 C' 'validity of Legislative Instrument IMMI 12/018' 'delegated Legislation' 'severability' 'ultra Vires']
['migration Law' 'administrative Law' 'statutory Interpretation'] ['subclass 485 Visa' 'competent English Criterion' 'migration Regulations 1994 (cth) Reg 1.15 C' 'validity of Legislative Instrument IMMI 12/018' 'delegated Legislation' 'severability' 'ultra Vires']

Case Brief

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Procedural Posture

Migration Appeal Concerning Refusal of a Skilled (provisional) (class Vc) Subclass 485 Visa / Appeal to the Federal Court of Australia From the Federal Circuit Court of Australia

Legal Issues

  1. 1 ['Whether reg 1.15C required the appellant to have achieved the specified English language test score in a test conducted in the three years immediately before the visa application was made.' 'Whether reg 1.15C provided an exhaustive definition of competent English.' 'Whether IMMI 12/018 was invalid or relevantly ambiguous in relation to the IELTS test or because parts referring to the OET were invalid.' 'Whether subreg 1.15C(2), allowing holders of specified passports to satisfy the competent English criterion, was ultra vires.' 'Whether reg 1.15C was invalid because it was outside the regulation-making power and contrary to s 505 of the Migration Act 1958 (Cth).']

Ratio Decidendi

Regulation 1.15C, read with cl 485.215, required the appellant to have undertaken a specified English language test and achieved the specified score in the three years immediately before the visa application was made, unless he held a specified passport. The appellant had not achieved the required IELTS score before application and did not hold a specified passport. Regulation 1.15C exhaustively defined competent English, IMMI 12/018 validly specified the IELTS test notwithstanding severable invalid OET references, subreg 1.15C(2) was within power, and s 505 did not invalidate the regulation. The Tribunal therefore had no option but to affirm refusal of the visa, and the primary judge did...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs."]