Chris Bowen retreats in the face of Marcos Berenguel ruling

MMIGRATION Minister Chris Bowen has abandoned his attempt to limit the fallout from a High Court decision that helps foreign students win skilled migration visas.

In the case of Brazilian graduate Marcos Berenguel last March, the High Court overturned the refusal of a permanent residency visa.

The Department of Immigration and Citizenship had failed to take into account Mr Berenguel’s up-to-date English test results because of an absurd and unfair reading of the rules, the court said.

Lawyers said the case could help thousands of overseas students already in the queue for skilled migration, a visa category the government has tried to reform following a student-driven blow-out.

Federal magistrates went on to apply the Berenguel ruling to other visa categories, prompting the minister to launch Federal Court appeals to try to limit the fall-out.

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Last week, Mr Bowen discontinued an appeal in the case of Ratan Kumar Banala. The week before, an appeal in the case of the Habib family was discontinued. A full bench of the Federal Court had been due to hear the Habib appeal last Wednesday.

A departmental spokesman cited legal advice as the reason and confirmed the minister no longer had any Berenguel appeals on foot.

Sydney immigration lawyer Peter Bollard said: “It shows that the ripples of Berenguel are still spreading out and it will be good news for a lot of people who were sweating on the outcome [of the appeals]“.

In the Berenguel case, the department refused to accept an English test result that came in after his application for permanent residency as a skilled migrant. Under the rules, Mr Berenguel had to show results from “a test conducted not more than two years before” the visa application.

But there was hot demand for an International English Language Testing System test and Mr Berenguel could not book an exam until a month after his visa application.

The High Court said the rules simply meant he had to show “recent competency” in English.

The case has created a boom in retesting because there are delays between visa application, a decision by the department and any review by the Migration Review Tribunal. Under the Berenguel ruling, former students can take tests right up to a tribunal hearing.