High Court Case: Berenguel

I previously blogged about an interesting case about the timing of the requirement to have an acceptable level of english (usually by doing an IELTS test). DIAC would have everyone believe that regulation 1.15B which says:

(5) If a person applies for a General Skilled Migration visa, the person has vocational English if the person satisfies the Minister that the person has achieved, in a test conducted not more than 2 years before the day on which the application was lodged

means that applicants have to have the test result at the time of application. However, in the Berenguel Case (High Court of Australia 5 March 2010), it was found that:

The requirement in reg 1.15B that the requisite test has been conducted "not more than 2 years before the day on which the application was lodged" is susceptible of the construction that the test was conducted no earlier than two years before the application was lodged. So construed, it does not require that the test has to be conducted before the application is lodged. That requirement can only be imposed by some direct operation of the undefined heading "Criteria to be satisfied at time of application".

As a result an applicant who obtained his IELTS after lodgment of his application won his appeal....I can feel a legislative change in the wind to plug this "gap".

Review of the points test underway

The review of the points test for Australian general skilled migration is underway - with changes to be implemented around the middle of the year.

The departmental discussion paper is available by clicking HERE, but the executive summary of the objectives to be achieved is:

"The Government has agreed on the following important principles which should underpin a new Points Test:

• it should contribute to the selection of applicants who offer the most human capital and will therefore make the optimal contribution to Australia’s demographic and economic future;

• it should not preclude very good applicants from offshore or in Australia, including former international students;

• it should be able to operate flexibly under both current arrangements and any new arrangements for skilled migrant selection;

• it should enable applicants with high value attributes across a number of areas such as English language ability, academic qualifications and work experience, to achieve the maximum number of points; and

• it should not give undue weight to any one factor, so as to avoid distortions in the program arising from applicants seeking to meet that factor."

None of that (in my view) is controversial - the real challenge will be how it will be implemented. We continue to wait and see.

Meanwhile review of the skilled occupation list is also underway by Skills Australia.

Creative commons attribution for photograph:

http://www.flickr.com/photos/maleny_steve/ / CC BY-SA 2.0

Baird Review

The Baird Review was a review of the overseas education system commissioned by the Minister for Education. The report was released earlier this week.

Among its key recommendations are that the Education Services for Overseas Students Act (ESOS) be amended to:

1. Require providers to uphold the integrity of the student visa program and maintain appropriate support, English language entry levels and professional outcomes
2. Only allow providers to maintain registration if they meet a series of thresholds
3. Introduce financial penalties and clear standards
4. Require an independent complaints body
5. Ensure students can accurately compare potential study choices
6. Introduce financial penalties for providers whose offshore agents act unethically
7. Implement a unique identifier for each student

It is interesting to note the comments of the Minister for Immigration and Citizenship in his press release about the report:

"It is most pleasing to note Mr Baird's support for the Rudd Government's changes to the skilled migration program announced on 8 February 2010.

The skilled migration program changes will encourage overseas students to focus on obtaining a quality education from a high quality provider by removing incentives for students to apply for a course simply in the hope of being granted permanent residence."

The full report in PDF format is available by clicking HERE and you can read the Minister's press release HERE.

I am indebted to the Migration Institute of Australia for providing as a service to its members the summary of the key recommendations above.

Creative commons attribution for use of the photograph above: http://www.flickr.com/photos/carbonnyc/ / CC BY 2.0