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

FEDERAL COURT OF AUSTRALIA

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

Appeal from: Milanes v Minister for Immigration & Anor [2015] FCCA 205

Parties: MELCHOR MILANES v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL

File number: NSD 155 of 2015

Judge: KATZMANN J

Date of judgment: 16 October 2015

Catchwords: MIGRATION — Skilled (Provisional) (Class VC) subclass 485 visa — criterion of "competent English" — Migration Regulations 1994 (Cth), reg 1.15C — competence defined by reference to certain English language tests and the holding of passports from certain countries specified by Minister in legislative instrument IMMI 12/018 — date by which test score must be obtained — whether Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; 264 ALR 417 applicable — whether subreg 1.15C beyond power because English language competence testing is "outsourced" — whether legislative instrument ambiguous for failure to define one language test with "adequate specificity" and where the company providing the alternate test had been deregistered — whether provision in subreg 1.15C(2) that holders of passports from specific countries satisfy English language competency criterion ultra vires — whether, if parts of the regulation were invalid, the invalid parts could be severed

Legislation: Acts Interpretation Act 1901 (Cth) s 15A Migration Act 1958 (Cth) ss 29(1) 31 Migration Amendment Regulation 2012 (No 2) (Cth) Migration Amendment Regulations 2011 (No 3) (Cth) Migration Regulations 1994 (Cth) reg 1.15C Legislative Instruments Act 2003 (Cth) ss 5(3), 13 Constitution of Ireland art 8 Gaelic Language Act 2005 (Scot) asp 7