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When does a person become competent in English
Old 15th April 2011, 11:24 PM   #8
Robert K Chelliah
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Join Date: Jun 2009
Location: Greenwood, WA
Posts: 336
Kandralingam Chelliah Registered Migration Agent
MARN 9254011
Default When does a person become competent in English

For the benefit of Forum visitors and Agents I think the issue of when the 2 years validity period of when IELTS commences may be useful. Perhaps Glenn with his legal background might add some comments:

I have a client who submitted an subclass 176 application. The case officer has used the date when the client sat for IELTS test as the date of commencement of the two years for IELTS validity. I am disputing this and saying the two years should start from the date when the IELTS certificate was issued.

Regulation 1.15 requires in its construction to read as :

Reg 1.15C Competent English

If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person:
(a) has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(i) an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or
(ii) a score:
(A) specified by the Minister in an instrument in writing for this sub-subparagraph; and
(B) in a language test specified by the Minister in the instrument; or
(b) holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.

The person sat for the four modules on a certain date and a few days later (I think 2 or 3 weeks later) the IELTS Authority issued a certificate which publishes the result of the test and CERTIFIES with full veracity of the person's competency in the English langauge. All along my interpretation of the above legislation has been that the date of issuance of the certificate fulfils the above legislation. I have had no difficulties in the past with this understanding.

However in Para 12 of the Department Policy, and it is only policy without the force of law, that interprets the requirement of the above legislation says :

To ensure that an applicant's English language proficiency is current, it is policy that visa applicants must provide the results of a test undertaken no more than 24 months before the date they lodge their visa application.

It now begs the question Is it the certification date, when the result is published or day of siting the exam that confirms the English Competency of a person? Can it be argued that a person lawfully demonstrates her competency only from the date of the certification by the relevant mandated authority and not from the date when the person sits for the result.

By all normal convention and universal practice it is recognised and accepted that a person’s competency in any body of knowledge commences from the date when the result is formally published and certified.

It is from that date of certificate that a person is lawfully shown to be competent in that body of knowledge. This applies to all graduates of all disciplines and accreditation. Not from the date or dates of the examination.
In this instance, it is my contention the policy is out of kilter with the intention behind the legislation and any policy that imposes a requirement more than what the legislation requires becomes unlawful. Simply said, a student is deemed to have become competent in a particular course of study on the day the result is published and not on the days when the student sat for the final exam for purposes of judicial evidence. It is the date of grant of the certificate.

In instances of this kind of discrepancy between what is constructed in migration law and the improper interpretation in policy, it is the legislation and its true interpretation that counts, and not the policy.

Any comments would be appreciated.

Robert K Chelliah
MARN 92-54011
Recruitment Agent Licence No. 2079
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Tel: +61 8 92464088
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