Berenguel v Minister for Immigration and Citizenship [2010] HCA 8

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW AND CRENNAN JJ

MARCOS FLAVIO BERENGUEL PLAINTIFF

AND

MINISTER FOR IMMIGRATION AND CITIZENSHIP DEFENDANT

Berenguel v Minister for Immigration and Citizenship [2010] HCA 8

5 March 2010

M66/2009

ORDER

1. Order that the questions stated in the Amended Special Case be answered as follows:

Question 1

Did the delegate of the defendant misconstrue subregulation 1.15B(5) of the [Migration] Regulations [1994 (Cth)] in finding that the plaintiff had:

… not provided an IELTS test result [for a] test conducted not more than 2 years before the day on which the application was lodged and therefore have not meet [sic] the regulatory requirement of having vocational English at time of application?

Answer

Yes.

Question 2

In the circumstances of the present case, could the plaintiff satisfy the English language requirements of clause 885.213 in Schedule 2 to the [Migration] Regulations [1994 (Cth)] by lodging an IELTS Test Report with the defendant's Department on a date after the date on which he lodged his visa application with the defendant's Department?

Answer

Yes.

Question 3

By whom should the costs of the proceeding in this Honourable Court be borne?

Answer

The defendant.

2. Order that the decision of the defendant's delegate made on 12 December 2008 be quashed.

3. Order that the defendant determine the plaintiff's application received on 21 April 2008 according to law.

4. Order that the defendant pay the plaintiff's costs of the proceeding, including costs reserved.

Representation

A Bonnici for the plaintiff (instructed by S.V. Winter & Co)

S B Lloyd SC with R C Knowles for the defendant (instructed by Clayton Utz Lawyers)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Berenguel v Minister for Immigration and Citizenship