Berenguel v Minister for Immigration and Citizenship

In *Berenguel v Minister for Immigration and Citizenship*, the High Court of Australia considered an appeal concerning the refusal of a General Skilled Migration visa, specifically the Skilled (Residence) (Class VB) Visa, Subclass 885. The applicant's visa application was refused because he failed to meet the English language requirements, which stipulated that a vocational English test must have been conducted "not more than 2 years before the day on which the application was lodged." The central dispute revolved around whether the applicant could satisfy this criterion by submitting an English language test report after lodging his application but before a decision was made.

The legal issues before the Court were twofold. Firstly, whether the delegate of the Minister had correctly interpreted subregulation 1.15B(5) of the *Migration Regulations 1994* (Cth) in finding that the applicant had not met the vocational English requirement at the time of application. Secondly, the Court was asked to determine whether, in the specific circumstances of the case, the applicant could satisfy the English language requirements of clause 885.213 in Schedule 2 to the Regulations by lodging an IELTS Test Report after the visa application had been lodged.

The High Court, comprising French CJ, Gummow, and Crennan JJ, reasoned that the purpose of the English language requirement was to ensure the applicant possessed a current standard of English competency at the time of the decision, not necessarily at the precise moment of application. The Court found that the wording of regulation 1.15B, particularly the phrase "not more than 2 years before the day on which the application was lodged," did not mandate that the test must have been taken *before* the application was lodged. Furthermore, the Court held that the heading "Criteria to be satisfied at time of application" did not grammatically connect to the specific clause in a way that exclusively limited the satisfaction of the criterion to the time of lodgement. The Court also noted that a construction favouring the Minister's argument would lead to unfairness and absurdity, contrary to the purpose of the *Migration Act 1958* (Cth), which allows for the consideration of up-to-date information. Consequently, the Court answered the stated questions in favour of the applicant, quashed the delegate's decision, and ordered the Minister to determine the application according to law, with the Minister to pay the applicant's costs.