In a decision this month involving an Indian-born graduate from the University of New England, Justice Nye Perram said the court had noticed something puzzling in a number of cases.
There was “a disjunct between the apparent ability of [former overseas students] in skilled migration visa appeals to conduct their own cases in fluent English, on the one hand, and the operation of the [International English Language Testing System] test which deemed them not able to speak competent English at all, on the other”.
Justice Perram began his judgment by recalling the 1934 attempt to deport the communist Egon Kisch by setting him a dictation test in Scottish Gaelic, a device used to apply the White Australia Policy.
“Experiences such as these have led to a natural caution in the legal mind about the use of language tests in an immigration setting,” the judge said.
However, he conceded that today’s immigration authorities had a legitimate concern about English proficiency and said IELTS was not “a discreet tool for the implementation of concealed policies”.
To make sure the legal issues were properly argued, the Indian graduate, Dushyant Manilal Parmar, was given a court-appointed barrister, Kellie Edwards.
Mr Parmar had taken more than 10 IELTS tests but could not get the score needed for a skilled migration visa.
His challenge to the visa refusal failed and Justice Perram said the court could not set itself up as an arbiter of English proficiency.
“It is all too easy to fall into the trap of thinking that because a person appears to speak English with reasonable fluency that their reading and writing skills are necessarily of the same order,” he said.
In a separate challenge rejected the same day, Justice Perram expressed sympathy for the litigant, Sardar Khan Ghori, another Indian-born graduate of UNE.
Mr Ghori had taken the IELTS test five times but had not managed to get the reading and writing scores needed for his skilled graduate visa.
Justice Perram expressed a “natural sympathy” for him, especially given “the fact that his English appears to have been sufficient to obtain a Masters of Information Systems with Honours from [UNE in 2008]”.
Mr Ghori had wanted time to sit another IELTS test.
In a third case last December, Justice Robert Buchanan had no choice in law but to reject an appeal by an Egyptian-born man, Moemen Rady Abdelnaeim Mohamad, who had Australian qualifications in commercial cookery, tourism, hospitality and business.
Mr Mohamad had taken 18 IELTS tests. For his visa he needed a score of at least five in each of the speaking, listening, reading and writing components.
He had attained that score in each component — but never in the one test.
Justice Buchanan said there was a very real possibility “that the test result process yields a false result in the case of the appellant, due to his inability to cope well with an examination environment.
“The possibility of practical injustice was revealed starkly at the hearing of this appeal.
“The appellant appeared for himself, without the aid of an interpreter. He had no difficulty expressing himself and reading from notes.
“Were it a matter for me I would have no hesitation in pronouncing him capable of speaking, reading and understanding English to an acceptable everyday level.”
In the Parmar case, Ms Edwards said the immigration rules meant that an IELTS test was just one way to prove competent English.
But Justice Perram said the rules clearly made IELTS the only proof of English.
Ms Edwards also argued that the design of the test showed that an overall score of six was enough to show competent English.
(The immigration rules required a score of at least six in each of the four elements of the test: speaking, listening, reading and writing.)
Justice Perram rejected this argument, too, saying the rules made careful use of an internationally accepted test to set up a hierarchy of proficiency in English.
And judges listening to apparently fluent litigants could not substitute their own opinion about proficiency, he said.
Ms Edwards’ final argument was that by relying on the IELTS organisation, the government had put decisions about English proficiency beyond the reach of judicial scrutiny but Justice Perram said there was no problem with this arrangement.
The Department of Immigration and Citizenship pointed out that it had won the cases and no legal error was found in the decisions under challenge.