Skilled Migrant - DIAC 1:0

[McKlaut]

I guess this case might be interesting for someone (an artical from the Australian):

 

FOREIGN students up against Kafkaesque bureaucracy in Australia have a new hero: Marcos Flavio Berenguel.

 

Mr Berenguel, a Brazilian hoping to stay on as a skilled migrant after completing his studies, was blocked by a ruling that must have puzzled, even outraged him.

 

Nothing unusual -- except that Mr Berenguel went straight to the highest court in the land.

 

And the High Court sided with him last month against the "plain unfairness and absurdity" of the Department of Immigration in denying him a visa.

 

In April 2008, Mr Berenguel applied for his visa as a skilled migrant.

 

Under the rules, proof of his good English had to come from "a test conducted not more

 

than two years before" the visa application.

 

In February 2008, he had tried to book an English exam. These are much in demand and Mr Berenguel could not get a date before May 2008, the month following his application.

 

He took the test, did well and waited for a verdict from the Department of Immigration.

 

In December 2008, an official refused his visa application.

 

Mr Berenguel's English score did not come from a "a test conducted not more than two years before" his visa application.

 

The argument put to the High Court was that the rules left officials with no choice. They could not take into account a test score achieved after a visa application had reached the in-tray.

 

But the High Court said the rules simply meant Mr Berenguel had to show "recent competency" in English.

 

Verdict for Mr Berenguel; costs for the taxpayer to pick up.

 

Mr Berenguel declined to comment.

[Guest Gollywobbler]

Hi McKlaut

 

The decision in Berenguel v MIAC is here:

 

Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 (5 March 2010)

 

In addition to the claims that you have quoted, DIAC tried to argue that the headings used in the Migration Regulations 1994 are important. The Judge said that not only were the headings unimportant but they make no sense in the context of what the relevant Regulations say anyway.

 

I think that there could be loads of visa applicants who follow Mr Berenguel and in the short term, the visa applicants might well succeed.

 

However a ruling from a Court does not mean that the visa applicant will necessarily get a visa. It means only that the Minister for Immi (or rather his delegate, the visa application decision maker) has interpreted the law wrongly. So it is something of a Pryrhic victory because the Court says that your Law is correct but that does not give you a visa.

 

I don't know whether Mr Berenguel would now be able to go back to the Migration Review Tribunal - armed with the High Court's ruling about what the Law is - or not. Also if DIAC's legal team believe that the wording of the Regulations is wrong then one of them will be working overtime to alter the wording of the Regulations, I suspect.

 

My personal feeling is that Berenguel is not a "milestone" or a "landmark" decision, though I could be completely wrong about that. My feeling is that it is a small victory for mankind but that DIAC are likely to alter the law to ensure that they continue to get their own way.

 

Cheers

 

Gill