Australia applies a tough test of written English to would-be immigrants

THE Federal Court has seized on the use of English language tests by immigration authorities as potentially unfair.

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.

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World's top asylum spot South Africa plans crackdown

South Africa has set the stage for the mass deportation of more than one million Zimbabwean immigrants later this month in a move that could alter its status as the world's largest country of refuge.

South Africa has been a beacon for asylum seekers due to its liberal immigration laws, proximity to African trouble spots and massive economy compared to the rest of the continent that has attracted millions seeking wealth they cannot find at home.

About one in five of the 845,800 asylum seekers globally in 2010 sought refuge in South Africa, according to the U.N. High Commissioner for Refugees.

That is nearly double the combined figure for the United States and France, the world's number two and three countries in terms of asylum applications.

The bulk of asylum seekers are from neighboring Zimbabwe, which has become an economic basket case under its entrenched leader Robert Mugabe, whose ZANU-PF party has been charged by global powers with using violence and vote fraud to stay in power.

The government said the crackdown on the Zimbabweans is a signal it wants to get tough on those who use asylum applications to seek work and money. "Following this project, our intention is to document nationals of other neighboring countries," said Home Affairs spokesman Ronnie Mamoepa.

South Africa allowed hundreds of thousands from Zimbabwe to enter without documents about two years ago when its neighbor was swept up in political violence and its already unsteady economy collapsed under the weight of hyperinflation.

It set an end of 2010 deadline for the Zimbabweans to apply for proper visas -- with 275,000 filling out paperwork -- and said when July ends, it will start deporting what analysts estimate could be one to two million other Zimbabweans without proper documents.

BOTTLENECKS

With few staff and a flood of applicants, it can take Home Affairs months or even years to process applications, allowing immigrants to stay long enough to earn mostly modest sums of money to help their families back home.

"As long as regional economic inequalities remain so stark, South Africa will continue to be a primary (if temporary) destination," said Loren Landau, director of the African Center for Migration and Society at the University the Witwatersrand.

The only problem is that those legitimately seeking political asylum face an uncertain future, waiting longer in South Africa for a decision than in many other countries.

A concern for South Africa is that not only are the number of asylum seekers from neighboring countries growing, but so are the numbers from further afield African states including Somalia, Ethiopia and the Democratic Republic of the Congo.

With unemployment at 25 percent, the government has faced criticism from its poor for allowing immigrants into South Africa, where they compete for scarce jobs and space in shantytowns that have mushroomed in major cities.

Tensions flared about two years ago when attacks on migrants left at least 62 dead and more than 100,000 homeless, rattling the nerves of the government and investors.

The refugees strain public services but many also take on jobs for which there are not enough skilled South Africans, or perform work that South Africans do not want to do. "I would say that the net result is that the benefit equates to or surpasses the burden," said James Chapman, a refugee attorney at the University of Cape Town Law Clinic.

The government, concerned about the influx, is planning to tighten its borders and expel those who stay illegally. "The issue here is not about too many asylum seekers, per se. Rather, it's about a migration management regime that is ill-suited to South Africa's regional position," Landau said.

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