FEDERAL CIRCUIT COURT OF AUSTRALIA
SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR	[2015] FCCA 1793	

Catchwords:
MIGRATION –Migration Review Tribunal – Skilled (Residence)(Class VB) visa – the timing of the IELTS test – whether reg.1.15C contains an exhaustive list of the means by which competent English may be established – whether Legislative Instrument IMMI 12/018 is valid – whether reg.1.15C(2) is valid.	

Legislation:
Migration Act 1958, s.65
Migration Regulations 1994, rr.1.03, 1.15C, clause 885.213 of Sch. 2	

Cases cited:
Akhter v Minister for Immigration and Border Protection (2015) 292 FLR 433; [2015] FCCA 35
Ashurov v Minister for Immigration and Border Protection [2015] FCCA 1521
Kumar v Minister for Immigration and Border Protection [2014] FCA 1336
Milanes v Minister for Immigration and Border Protection (2015) 293 FLR 28; [2015] FCCA 205
Mondal v Minister for Immigration and Border Protection [2015] FCCA 571	

First applicant:	PAWANDEEP SINGH	

Second applicant:	gagandeep kaur	

First respondent:	Minister for immigration & Border Protection	

Second respondent:	MIGRATION REVIEW TRIBUNAL	

File number:	MLG 998 of 2014	

Judgment of:	Judge Riley	

Hearing date:	12 June 2015	

Date of last submission:	12 June 2015	

Delivered at:	Melbourne	

Delivered on:	30 June 2015	

REPRESENTATION
Counsel for the first applicant:	Paul Cutler	

Solicitors for the first applicant:	Parish Patience Immigration Lawyers	

Counsel for the second applicant:	Paul Cutler	

Solicitors for the second applicant:	Parish Patience Immigration Lawyers	

Counsel for the first respondent:	Richard Knowles	

Solicitors for the first respondent:	Clayton Utz	

Counsel for the second respondent:	No appearance 	

Solicitors for the second respondent:	Clayton Utz	

ORDERS
(1)	The application filed on 28 May 2014 and amended on 12 June 2015 be dismissed.
(2)	The applicants pay the first respondent’s costs, fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE	
MLG 998 of 2014
PAWANDEEP SINGH	
First applicant

GAGANDEEP KAUR	
Second applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION	
First respondent

MIGRATION REVIEW TRIBUNAL	
Second respondent

REASONS FOR JUDGMENT
Introduction
1.	This is an application for review of a decision made by the Migration Review Tribunal (“the tribunal”). In that decision, the tribunal affirmed a decision of the delegate not to grant the applicants Skilled (Residence)(Class VB) visas under s.65 of the Migration Act 1958.  
2.	The applicants applied for the visas on 29 November 2012.  The requirements of the visa were that at least one of them needed to satisfy the primary criteria and other members of the family unit only needed to satisfy the secondary criteria.  The first applicant is the husband of the second applicant.
3.	The delegate refused the application because the first applicant did not have the required English language proficiency.  The applicants sought review by the tribunal.  The tribunal affirmed the delegate’s decision for the same reason.  
4.	The first applicant acknowledged in his visa application that neither he nor the second applicant had undertaken an English language test in the previous 24 months: CB13.  The applicants were both Indian citizens with Indian passports: CB2 and 4.  There was no suggestion that they held the passports of any other country.
Legislation
5.	At the relevant time, clause 885.213 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”) required the first applicant to have competent English.  Regulation 1.03 of the Regulations, which is the definitions regulation, provided that:
	In these Regulations, unless the contrary intention appears:
	…
	“competent English” has the meaning given by regulation 1.15C.
6.	The parties did not dispute that, at the relevant time, reg. 1.15C of the Regulations provided that: 
	(1)	A person has competent English if:
	(a)  the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and
	 (b) the test was conducted in the 3 years immediately before the day on which the application was made; and
	 (c)  the person achieved a score specified in the instrument.
	 (2)	A person has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.
7.	Legislative Instrument IMMI 12/018, which prevailed at the relevant time, specified two tests for the purposes of reg.1.15C of the Regulations.  The two tests were the International English Language Test System (“IELTS”) and the Occupational English Test (“OET”).  The instrument required scores of at least six in each of the four components of the IELTS test and scores of at least B in each of the four components of the OET.
8.	Regulation 1.03 of the Regulations at the relevant time provided that:
	"”IELTS test” means the International English Language Testing System test.
	…
	“Occupational English Test” means an Occupational English Test conducted by the National Language and Literacy Institute of Australia.
9.	It was common ground that, when Legislative Instrument IMMI 12/018 was made, the National Language and Literacy Institute of Australia had been deregistered. 
Ground 1: timing of test 
10.	The first ground of review in the application filed on 28 May 2014 and amended on  12 June 2015 is:
	The Tribunal misapplied the law.
	Particulars
	The Tribunal found that Regulation 1.15C requires the applicant to have a prescribed IELTS score at the time of application for the visa rather than at the time of decision on the visa application. 
11.	The applicants, through their counsel, conceded at the hearing before this court that neither applicant had “ever obtained any sort of English test result”.  Counsel said that he was not instructed to withdraw the ground, but had nothing further to say about it.
12.	The ground appears to suggest that a relevant test result obtained after the application was lodged but before the decision was made should have been adequate.  However, as the applicants conceded that they had never obtained a relevant test result, the argument is otiose.  In any event, it is clear that the test needed to have been successfully undertaken prior to the visa application being lodged.  This ground is not made out.
Ground 2: exhaustive definition 
13.	The second ground of review in the application filed on 28 May 2014 and amended on 12 June 2015 is:
	The Tribunal misinterpreted reg 1.15C.
	Particulars
	The Tribunal interpreted reg 1.15C as if it were an exhaustive definition of the term “competent English”, which it is not.
14.	The first respondent did not dispute that the tribunal interpreted reg.1.15C of the Regulations as if it were an exhaustive definition.  Indeed, the first respondent said that that was the correct interpretation of the regulation.
15.	The applicants acknowledged that there was one Federal Court decision on appeal that considered whether the relevant version of reg.1.15C of the Regulations contained an exhaustive definition of competent English.  That decision is Kumar v Minister for Immigration and Border Protection [2014] FCA 1336.  At [52] of that decision, Beach J said:
	Finally, I have considered the point as to whether there is an argument that reg 1.15C is not exhaustive of the circumstances under which the “competent English” criterion can be satisfied. It is not expressed in the language of “if and only if”. If it was not exhaustive, such that relevant tests after the application for a visa was made could be relied upon, then in such circumstances Mr Kumar could be considered to have met the criterion. But regulation 1.15C was specifically introduced in its present form to make it clear that only test results before the making of the application could be used to satisfy the criterion. Moreover, the definition of “competent English” in reg 1.03 stipulates that it “has the meaning given by reg 1.15C”. Accordingly, in the light of reg 1.03, it seems to me that reg 1.15C is exhaustive of the possibilities. Finally, s 55 of the Act is of no assistance. Later information can be provided, but that general provision does not operate to rewrite the criterion if the criterion has a temporal limitation; any later information could only be considered in the context of determining whether the criterion (with its temporal limitation) had been satisfied.
16.	That is, the Federal Court, on appeal, decided that the definition in reg.1.15C of the Regulations is exhaustive.  Nevertheless, the applicants argued that the decision was not binding on this court because the applicant was not legally represented and the point did not appear to have been raised in the court below or on appeal before Beach J.  
17.	I consider that the decision in Kumar is binding on this court.  It is irrelevant that the applicant was not represented.  Even though Mr Kumar might not have raised the issue about whether the definition was exhaustive, the conclusion that it was exhaustive was an integral part of the reasoning that led to the decision.  If Beach J had decided that the definition was not exhaustive, then Mr Kumar could have met the definition.   
18.	In these circumstances, I consider that I am bound by Kumar.  If I am mistaken about that, then I conclude that the definition is exhaustive, for the reasons given in Kumar.  This ground is not made out.
Ground 3: validity of the legislative instrument
19.	The third ground of review in the application filed on 28 May 2014 and amended on 12 June 2015 is:
The Legislative Instrument referred to in reg 1.15C is an invalid exercise of the power to make such instruments.
	Particulars
	The instrument is ambiguous, uncertain and incapable of practical administration. It refers to a test (“the Occupational English Test”) which, as defined in reg 1.03, does not exist, and its description of the “four test components” of the IELTS test is incapable [of] proper interpretation since there are six distinct components of that test.
20.	The applicants did not provide any evidence in support of their contention that the IELTS test contains six components rather than four, other than a footnote in their written submissions to the IELTS website.  Assuming that is sufficient evidence for the purpose, that website shows that the IELTS test has four components: speaking, listening, reading and writing.  However, there are two versions of the reading and writing components, being academic and general.  That does add up to six components, but no one takes all six.  The academic versions are alternatives to the general versions.  Obviously, the academic versions are taken for academic purposes and the general versions are taken for general purposes.  I do not accept that the two versions of the reading and writing components of the IELTS test mean that there is any ambiguity in reg. 1.15C(a)(i) of the Regulations such that it is incapable of practical administration.  Clearly, success in either version of the reading and writing components would suffice.
21.	Otherwise, four previous decisions of this court have dealt with the issues the applicants sought to agitate with this ground.  All four decisions came to substantially the same conclusion, namely, that there is no merit in the arguments the applicants seek to advance.
22.	The first decision was the decision of Judge Cameron in Milanes v Minister for Immigration and Border Protection (2015) 293 FLR 28; [2015] FCCA 205. In relation to the references to the IELTS in Legislative Instrument IMMI 12/018, his Honour said at [29]:
	The inference to be drawn from the wording of the Regulations is that there is only one International English Language Testing System. The applicant did not demonstrate that there was more than one or any reason to suspect that there was more than one. He merely pointed to the possibility that there might be more than one. In those circumstances I find no relevant ambiguity in the Regulations or difficulty in their application. Further in this connection I observe that “IELTS” is defined in reg.1.03 as the International Language Testing System whereas IMMI 12/018 referred to the International Language Test System. It has not been demonstrated that this difference was a matter of substance.
23.	In relation to the references to the OET in Legislative Instrument IMMI 12/018, his Honour said:
	32.	The evidence demonstrates that the National Languages and Literacy Institute of Australia was not in existence at the time IMMI 12/018 was signed by the Minister or subsequently. Consequently, those parts of IMMI 12/018 which refer to OETs are meaningless and cannot be applied, used or implemented. Such provisions could not have been within the scope of what Parliament intended could be prescribed pursuant to s 504 of the Act: Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd [1993] FCA 45; (1993) 40 FCR 381 at 384, 399-401. Consequently those parts of the instrument are invalid. However, as the applicant did not base his visa application on any of those provisions, their invalidity is of no practical significance for this matter.
	33.	The implication in the applicant’s allegation was that the meaningless nature of the references to OETs rendered other parts of the instrument which were more relevant to the facts of his case, or perhaps the whole instrument, invalid but he did not advance any submissions on why that might be so. As there can be no more OETs as defined by the Regulations, there will be no applications made which rely on them and any applications which require “competent English” will depend on the results of IELTS tests. In those circumstances, the instrument can continue to operate even if parts of it are entirely redundant and so invalid. It would be inconvenient and unnecessary to strike down parts of the instrument which can operate unaffected by invalid provisions which will never be relied on by applicants.
	34.	In those circumstances no legal error attached to the Tribunal’s application of that part of the instrument which referred to IELTS tests.
24.	The second decision was the decision of Judge Driver in 
Akhter v Minister for Immigration and Border Protection (2015) 292 FLR 433; [2015] FCCA 35.  His Honour said:
	57.	It would appear from the applicants’ submissions that the applicants’ challenge to the validity of Legislative Instrument IMMI12/018 (which was made pursuant to regulation 1.15C of the Regulations) is based on an assertion that the instrument fails to give meaningful effect to the definition in regulation 1.15C(1).
	58.	In so far as the instrument refers to an IELTS test, IELTS is defined in regulation 1.03 of the Regulations to mean “International English Language Testing System test”. As the applicants state, IELTS tests are administered by the IELTS organisation. It was the result of an IELTS test that the applicant provided in support of her application and it was a further IELTS test for which she applied to sit. There is no uncertainty in what is meant by the IELTS test as set out in the legislative instrument. (footnotes omitted]
	59.	To the extent that the applicants assert that the instrument was invalidly made due to specifying the OET conducted by the National Language and Literacy Institute of Australia as a test, assuming the applicants’ claim is correct, again, it is unclear how this leads to invalidity of the instrument in its entirety, or how it is relevant to the applicants’ case, given the applicants did not seek to rely on such a test. Even if an error in the instrument could be identified by the reference to a test that is no longer current, the applicants did not rely on meeting that provision or having completed such a test. No jurisdictional error would arise in the Tribunal decision in the circumstances. Moreover there would be no error in the IELTS test being the only test validly specified in an instrument.
25.	The third decision was the decision of Judge Street in 
Mondal v Minister for Immigration and Border Protection [2015] FCCA 571.  His Honour said at [39]:
	The deregistration of the National Language and Literature Institute of Australia is of no significance and does not give rise to any invalidity of 2A of the legislative instrument. It is clear that the legislative instrument falls within the Legislative Instruments Act 2003 and s.13 requires the same provisions in the Acts Interpretation Act 1901 to be applied as if the legislative instrument was a section of an Act. This gives rise to the application of s.15AA in adopting an interpretation that best achieves the purpose of the object of a provision.
26.	His Honour then said, at [41] to [43]:
	41.	The principles to be applied in determining whether the delegated instrument exceeds the law making power were not in dispute. This was identified by the eminent Lockhart J in Zhang Fu Qiu & Zhen Hui Liu v Minister for Immigration & Ethnic Affairs (1994) 55 FCR 439; (1994) 37 ALD 443, [446] as follows in the first respondent’s submissions:
		30. In Qui v Minister for Immigration and Ethnic Affairs (1994) 55 FCR 439, Lockhart J, in dismissing a claim where the validity of an English language criterion in the Regulations was challenged, stated at 94460 that “[w]hen the validity of a regulation is challenged on the basis that it is “unreasonable” such that it goes beyond the regulation-making power, the word “unreasonable” in this context means that the regulation is so oppressive and capricious that no reasonable mind can justify it”. See also Yu v Minister for Immigration and Multicultural Affairs [2004] FCA 1477; (2004) 140 FCR 126 and Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd [1993] FCA 45; (1993) 40 FCR 381.
	42.	It cannot possibly be the case that the reference to International English Language Test Systems in paragraph 2A can be said to be unreasonable, nor is it oppressive or capricious and the absence of identification of the bodies by whom it may be conducted does not give rise to a position that any person could create such a test or conduct a test. It is clear that the test identified as a matter of construction is intended to be a genuine test and the hypothetical proposition that a fake test might be created by anyone does not give rise to the provision being unreasonable or invalid.
	43.	In these circumstances it is clear that ground 4 has no substance. …
27.	The fourth decision was the decision of Judge Nicholls in Ashurov v Minister for Immigration and Border Protection [2015] FCCA 1521.  His Honour said at [90] ad [91]:
	I agree with the Minister’s subsequent submissions that that part of IMMI 12/018, which refers to OET, and by the operation of reg.1.03 of the Regulations, to the National Language and Literacy Institute of Australia, is severable from the other part of the instrument referring to IELTS tests which can continue to operate for the purposes of reg.1.15C of the Regulations (see s.13(2) Legislative Instruments Act 2003 (Cth)).
	Before the Court, the applicant did not satisfactorily explain how the invalidity in one part of the instrument affected the validity of the whole of the instrument. On the applicant’s evidence and arguments, I accept that there cannot be, and would not be, since the making of the instrument, any OETs, as this is defined by the Regulations. That is, an OET being a test conducted by the National Language and Literacy Institute of Australia.
28.	His Honour said at [93]:
	In any event, notwithstanding the situation with the OET, the same cannot be said of the IELTS test. Applications which relied on “competent English” could continue to rely on the results, or “scores”, of any IELTS test undertaken by an applicant, in the relevant timeframe as otherwise required by reg.1.15C of the Regulations. That is, that part of the legislative instrument can operate independently from, and unaffected by, the invalid parts of the instrument. In this light, there is no legal error in the Tribunal’s analysis which referred to the necessity for evidence from the applicant of an IELTS test to have been undertaken in the three years immediately before the application for the visa. There is no evidence before the Court that the applicant ever provided such evidence to the Tribunal.
29.	His Honour said at [95] and [96]:
	Fourth, the applicant asserted that there is uncertainty about what is meant by the term “IELTS test” as set out in the instrument. He submitted that there were a number of tests that could fit that description. Further, that the instrument refers to the test as having four components instead of the six which he asserted it contains.
	It is the case that the instrument refers to an IELTS test. “IELTS” is defined in reg.1.03 of the Regulations to mean “International Language Testing System test”. In the circumstances, and notwithstanding the various elements of the test to which the applicant referred, there is no uncertainty as to what is meant by an IELTS test, as set out in the legislative instrument, and with reference to the regulation (see Parmar at [21] – [22]).
30.	There are some differences amongst the members of this court about whether the provisions regarding the OET are invalid and severable or merely otiose.  However, the end result for this case is the same, namely, that the provisions regarding the IELTS are valid.  
31.	For reasons of judicial comity, I ought to follow the four decisions mentioned above unless I am satisfied that they are plainly wrong.  I do not consider them to be plainly wrong.   Therefore, I follow them.  There is no value in this case in expressing a view on the issue of severance, so I refrain from doing so.  For the reasons stated above, this ground is not made out.
Ground 4: validity of reg.1.15C(2)
32.	The fourth ground of review in the application filed on 28 May 2014 and amended on 12 June 2015 is:
	Paragraph 1.15C(2) is an invalid exercise of the power to make regulations in s 504 of the Migration Act 1958.
33.	It will be recalled that reg.1.15C(2) of the Regulations provided that:
	 (2)  A person has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.
34.	The passports specified for the purposes of that subregulation were passports of:
a)	the United Kingdom;
b)	Canada;
c)	New Zealand;
d)	the United States of America; and
e)	the Republic of Ireland.
35.	At the hearing before this court, the applicants were content to rely on their written submissions on this ground.  The argument seemed to be that, because reg.1.15C(2) of the Regulations was irrational and therefore invalid, the whole of reg.1.15C was invalid.  However, if reg.1.15C(2) were invalid, it would be an obvious case for severance.  That would leave reg.1.15C(1) intact. 
36.	In any event, there are decisions of this court which have decided that reg.1.15C(2) of the Regulations is not invalid.
37.	In Milanes, Judge Cameron said that: 
	37.	The applicant alleged that reg.1.15C(2) was inconsistent with the regulation making power found in s.504 and submitted that this was so because it was irrational, capricious and absurd to determine a person’s English language competence for the purposes of the Regulations by reference to the person’s passport and regardless of whether they actually had any English language skills. He submitted that the operation of that provision could subvert the purpose of the regulation by deeming a person to have competent English when they did not have that facility to an appropriate degree or at all. He also pointed out that the passport holder need not be a citizen of the countries in question.
	38.	It can be assumed that some residents, citizens and passport holders of the United Kingdom, the United States of America, Canada, New Zealand and the Republic of Ireland have English language skills which would not satisfy the IELTS test standard for “competent English”. However, it is a notorious fact, and a matter of which notice may be taken pursuant to s.144 of the Evidence Act 1995, that English is the principal language of those countries. That being so, the holders of those countries’ passports could generally, even if not uniformly, be expected to have good English language skills.
	39.	Before delegated legislation will be declared invalid on the basis that it is irrational, capricious and absurd it has be so unreasonable that no reasonable mind could justify it and so it could not have been within the scope of what Parliament intended when authorising the subordinate legislative authority to enact laws: Yu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1477; (2004) 140 FCR 126 at 134 [42]; Minister v Austral Fisheries at 384, 399-401. It has to be an extreme case: Minister v Austral Fisheries at 384; Constantino v Minister for Immigration & Border Protection [2013] FCA 1301 at [44].
	40.	Because holders of passports issued by the United Kingdom, the United States of America, Canada, New Zealand and the Republic of Ireland can generally be expected to have good English language skills, the exemption does not demonstrate the sort of irrationality, capriciousness and absurdity which justifies a finding that reg.1.15C(2) is invalid. But in any event, the Tribunal made no reference to that sub-regulation and so its decision was unaffected by any issues concerning it.
38.	In Ashurov, Judge Nicholls said at [121] to [126]:
	121.	In short, the applicant’s argument was that it was irrational, capricious and absurd and, therefore, an invalid exercise of the power, to determine an applicant’s English language competence, for the purposes of the regulations, by referring to a person’s passport, and not to whether they actually had any English language skills. The argument was that, when regard was had to the nature of the countries specified (the UK, USA, Canada, New Zealand and Republic of Ireland), the Regulations and the statutory instrument were irrational, and not adapted to the relevant purpose. That is whether a person actually had competent English. This was said to be not proportionate to the scheme of the legislation.
	122.	The submission was that this would be an attempt to reintroduce the “White Australia Policy”. This appeared to derive from, or be inspired by, what Perram J said in Parmar (at [1]) concerning the English language test available to Australian immigration officers to administer up until 1958.
	123.	However, I also note what Perram J said at [2] (of Parmar):
“Experiences such as these have led to a natural caution in the legal mind about the use of language tests in an immigration setting. On the other hand, there is no doubt that proficiency in the predominant language of any country is a legitimate concern of those charged with the administration of its immigration system. I will record at the outset, therefore, that the language tests with which this appeal is concerned are neither capricious nor a discreet tool for the implementation of concealed policies. To the contrary, the test process under challenge is rational.”
	124.	It may be that some passport holders of these countries would not satisfy the IELTS standard for “competent English” (with reference to reg.1.15C(2) of the Regulations). However, I take judicial note that English is principally spoken in all those countries. Therefore, those holding passports from those countries may be expected generally, but plainly not universally (for example French speakers from Quebec), to have competent English skills.
	125.	However, what the Court “thinks” of the regulation is not sufficient to establish the proposition for which the applicant now contends. For example, as was said in South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161 (at [12]) “...[i]t must be so lacking in reasonable proportionality as not to be a real exercise of the power...” (per Wilson, Dawson, Toohey and Gaudron JJ).
	126.	Ultimately, what the applicant is required to show in the current proceedings, such that the regulations and statutory instrument would be found to be invalid, is that the regulation was not within the scope of the legislative intention (Re Austral Fisheries Pty Ltd v the Minister of Primary Industries and Energy [1992] FCA 351; (1992) 37 FCR 463). The applicant has been unable to show that the specification of the passports of certain countries was not within the relevant legislative intention, and therefore is not authorised by the Act.
39.	In connection with this point, Judge Driver said in Akhter at [66]:
	I prefer the submissions of the Minister on the issue of the validity of the regulation. The complaint of ambiguity has no substance in relation to the regulation. That regulation relevantly establishes the power of the Minister to specify an English language test and particular types of passports.
40.	The Minister’s relevant submissions were set out earlier in the judgment, at [54] and [55], which are as follows:
	The applicants also assert that regulation 1.15C is irrational, capricious and absurd as regulation 1.15C(2) specifies English language competency by reference to the fact that a person holds a passport of certain countries. As noted above, statutory instrument IMMI12/018 specifies that the passports which are valid for the purpose of the Regulations are those “issued by the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland, to a citizen of that country.”
	The applicants appear to base this claim on the fact that a citizen of the countries concerned may not necessarily possess competent English. There is nothing absurd or irrational in the specification of passports for the purposes of the English language requirements – as the instrument makes clear – the passports specified are English speaking countries. The applicants have not demonstrated that the regulation is so unreasonable, in the sense of capricious or oppressive such that it could be invalid. It is not for the Court to determine the merits of the policy manifested in a regulation so long as the regulation is within the scope of the empowering provision[32].
41.	His Honour concluded, at [68] and [69] as follows:
	The challenge to the passports specification has more substance because of the impact of s.10 of the [Racial Discrimination Act]. It is arguable that the specification of passports in the Instrument has more to do with race than English language proficiency, given that it is a matter of public record that there are numerous countries, in addition to the ones specified, where English is not only an official language but is also the language of instruction in higher education. Those additional countries include Belize, Botswana, Cameroon, Fiji, Gambia, Ghana, Guyana, Jamaica, Kenya, Lesotho, Liberia, Malawi, Mauritius, Namibia, Nigeria, Papua New Guinea, Seychelles, Sierra Leone, Singapore, Solomon Islands, South Africa, Swaziland, Tonga, Trinidad & Tobago, Uganda, Vanuatu, Zambia and Zimbabwe.
	Interesting though that assertion is, however, and as is conceded by the applicants, a conclusion of invalidity is not available to me in the face of the authority of the Full Federal Court decision in Macabenta, in particular in relation to the distinction between “national origin” and “nationality”. As in Macabenta, the material discrimen in the Instrument is nationality or citizenship rather than national or ethnic origin.
42.	For reasons of judicial comity, I ought to follow those decisions unless I am satisfied that they are plainly wrong.  I am not satisfied that they are plainly wrong so I do follow them.  That is, I conclude that reg.1.15C(2) is not invalid.  This ground is not made out.
Conclusion
43.	As none of the applicants’ grounds had been made out, the application must be dismissed with costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:  

Date:  30 June 2015