Many readers will have heard of the Berenguel Case in which the High Court (and this is a simplification) held that an IELTS English test taken and provided after the date of application should be accepted by DIAC. In Berenguel the applicant could not get an IELTS booking until after he had to lodge his General Skilled Migration application. The High Court held that his IELTS test should be accepted.
This is a summary of the case from a BLOG called The Lamp Post – High Court of Australia Case Summaries and Comment http://lamppostblog.blogspot.com/2010/04/berenguel-v-mic.html
Berenguel v Minister for Immigration and Citizenship  HCA 8 (5 March 2010)
The appellant lodged an application for an Australian permanent residency visa. At the time of lodgement, the appellant had booked, but had not sat for a language test. The relevant regulations required the Minister to be satisfied of the appellant obtaining a particular grade on the language test. That requirement was under a heading entitled ‘Criteria to be satisfied at time of application’. The High Court found, notwithstanding the heading of that provision, that given the wording of that part and the operation of the Act, the regulations were not intended to prevent the Minister receiving test results subsequent to lodgement of the application. Certiorari ordered quashing the decision of the Minister
Many applicants have taken advantage of this decision and DIAC acknowledged the precedent and has to date been accepting IELTS that were dated after the date of application. Also quite a large number of cases have been won at the Migration Review Tribunal (MRT) as a result of the Berenguel ruling.
The Federal government has now legislated (effective date 1 July 2011) to reverse this ruling. This is not an unusual process. Basically someone manages to pry open a gap in the system and after consideration of the position and the ruling in question the government closes the gap via legislation. New legislation overrules Court precedent.
Essentially therefore Berenguel has been reversed to quote
David Stewart, Program Director, General Skilled Migration, DIAC
”I have been advised there are Regulation changes on 1 July, which change the definition of Competent, Proficient, etc, English. This change effectively is a reversal of the position created by the Berenguel decision, as it is will be defined in the Regulation that the English test must have been conducted in the two years immediately preceding the date of the visa application.”
So from 1 July 2011 this is the situation…
To claim points for proficient or superior English language, all applicants, including citizens of United Kingdom, Canada, New Zealand, the United States of America or the Republic of Ireland, will need to complete an English language test. The test must be completed before the visa application is lodged.
This will mean that for applications lodged from 1 July the required International English Language Testing System (IELTS) / Occupational English Test (OET) results must be provided with the application; if not, the application must be refused.