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".