Milanes v Minister for Immigration and Border Protection

In Milanes v Minister for Immigration and Border Protection, the Federal Court addressed the interpretation of the English language competency requirement under the Migration Regulations 1994 (Cth) for applicants seeking a Skilled (Provisional) (Class VC) subclass 485 visa. The central issue was whether the requirement of "competent English" applied at the time of the visa application or at the time of the visa decision. The applicant, Mr Milanes, argued that the requirement should allow for up-to-date information concerning his English language proficiency, even if provided after the visa application had been lodged. He contended that this interpretation was consistent with the purpose of the regulation, which was to ensure that the standard of English language competency was recently ascertained.

The court considered the relevant statutory provisions, particularly the heading "Criteria to be satisfied at time of application" and clause 485.215, which required "competent English." It examined the construction of similar provisions in Berenguel v Minister for Immigration and Citizenship, where the High Court held that the English language competency requirement could be satisfied by submitting an IELTS test report after the visa application had been lodged. However, the court noted that the specific requirement in regulation 1.15C, introduced by the 2012 amendments, did not permit the same construction as the one applied in Berenguel. The court concluded that the phrase "competent English" was not limited to the time of the application and that the Minister could consider updated information concerning the applicant's English language proficiency provided before the visa decision was made.

The court dismissed the appeal, holding that the requirement of "competent English" could be satisfied by providing updated information before the visa decision, as long as the test was conducted within the stipulated time frame. The court further ordered that the appellant pay the first respondent’s costs, in accordance with Rule 39.32 of the Federal Court Rules 2011.