Ahsan v Minister for Immigration
[2013] FCCA 1653
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHSAN v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1653 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Berenguel v Minister for Immigration (2010) 264 ALR 417 Bodenstein v Minister for Immigration [2009] FCA 50 Nayeem v Minister for Immigration & Anor [2010] FMCA 618 SZQFS v Minister for Immigration [2011] FCA 1244 |
| Applicant: | S K MD MOINUL AHSAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1465 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 17 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 17 October 2013 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms A Carr DLA Piper |
INTERLOCUTORY ORDERS
The name of the first respondent is amended to “Minister for Immigration and Border Protection”.
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1465 of 2013
| S K MD MOINUL AHSAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Migration Review Tribunal (Tribunal). The decision was made on 12 June 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant (Mr Ahsan) a Skilled Provisional (Class VC) visa. The following statement of background facts relating to this matter is derived from the Minister’s written submissions filed on 10 October 2013.
Mr Ahsan is a male citizen of Bangladesh born on 1 May 1980.[1] He arrived in Australia on 10 May 2007 as the holder of a Student (Class TU) Subclass 572 visa.[2]
[1] Court Book (CB) 16-17.
[2] CB 20.
Mr Ahsan applied for a Skilled (Provisional) (Class VC) visa, with the assistance of his registered migration agent, on 6 April 2011.[3]
[3] CB 1-15.
In that application Mr Ahsan indicated that he had sat an International English Language Testing System (IELTS) test on 5 April 2011 and that his language ability was “competent”.[4]
[4] CB 11.
On 19 March 2012, the delegate wrote to Mr Ahsan’s nominated migration agent inviting Mr Ahsan to provide, among other things, evidence of his English language ability.[5]
[5] CB 57-63.
On 12 April 2012, Mr Ahsan's representative responded to this correspondence stating that Mr Ahsan had not yet achieved the specified score in an IELTS test, but that Mr Ahsan was confident that he would obtain the specified score in another test which had been booked for 30 June 2012. Consequently the correspondence requested that the delegate defer his decision until after the completion of this test.[6]
[6] CB 67.
The application was refused on 9 August 2012 on the basis that Mr Ahsan had not demonstrated that he had competent English.[7]
[7] CB 78-85.
Mr Ahsan, with the assistance of different registered migration agents, applied to the Tribunal for review of the delegate’s decision on 27 August 2012.[8]
[8] CB 87-97.
On 26 March 2013, the Tribunal wrote to Mr Ahsan’s registered migration agents inviting Mr Ahsan to attend a hearing before the Tribunal scheduled for 26 April 2013.[9] This hearing invitation also invited Mr Ahsan to provide evidence that he had competent English or that he had booked to sit an English test scheduled to take place no later than 11 May 2013.
[9] CB 105-107.
Mr Ahsan attended the hearing before the Tribunal and stated that he was booked to undertake an IELTS test scheduled for 11 May 2013.[10] Consequently, the Tribunal noted at the hearing that it would defer making its decision until after 3 June 2013 to enable Mr Ahsan to provide his results from this test.[11]
[10] CB 110-112.
[11] CB 112.
The Tribunal handed down its decisions on 12 June 2013.[12]
[12] CB 114.
The decision of the Tribunal
The issue before the Tribunal was whether Mr Ahsan had competent English as required by clause 485.215 to Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[13]
[13] See [6] at CB 116.
The Tribunal found that Mr Ahsan did not hold a passport of the type specified by the Minister and, consequently, did not satisfy regulation 1.15C(b) of the Regulations.[14]
[14] See [8] at CB 116.
The Tribunal noted that at the hearing Mr Ahsan stated that he had booked to undertake an IELTS test scheduled for 11 May 2013 and, consequently, requested that the Tribunal’s decision be adjourned until 31 May 2013 to unable him to provide his test results. The Tribunal acceded to this request.[15] However, at the time of the Tribunal’s decision (12 June 2013) Mr Ahsan had not provided any evidence to demonstrate that he had competent English and, accordingly, the Tribunal found that the applicant did not satisfy the criteria set out at regulation 1.15C(a) of the Regulations.[16]
[15] See [10] at CB 117.
[16] See [11] at CB 117.
Therefore, the Tribunal was not satisfied that the applicant met the requirements of clause 485.215.[17]
[17] See [12]-[13] at CB 117.
These proceedings began with a show cause application filed on 27 June 2013. The application contains five grounds:
1. The Tribunal denied the applicant procedural fairness in denying him a representative to assist the applicant in presenting his case.
2. The Tribunal denied the applicant procedural fairness in not allowing him the opportunity to properly consider his legal position.
3. The Tribunal denied the applicant procedural fairness in not allowing him proper time to resit and pass the IELTS test to prove that he has a competent standard of English according to the relevant law.
4. The Tribunal failed to determine the applicant’s application for review according to law by failing to properly consider whether the applicant was entitled to the subclass of visa for which he applied under provisions of the Migration Act and Regulations having denied the applicant the opportunity to resit and pass a further IELTS test.
5.The applicant is in fact entitled to a Skilled (Provisional) (Class VC) visa in accordance with the relevant provisions of the Migration Act and Regulations.
The application is supported by an affidavit by Mr Ahsan which I received. I also have before me as evidence the court book filed on 17 July 2013.
The Tribunal’s decision was a simple one. The issue before the Tribunal was whether Mr Ahsan had competent English as required by clause 485.215. Regulation 1.15C(a) provides that a person has competent English if the person satisfies the Minister that the person has achieved at a test conducted not more than two years before the day on which the application was lodged, either an IELTS score of at least six of each for the four test components or a score in a test specified by the Minister. Alternatively, the person has competent English if the person holds a passport of the type specified by the Minister.
Mr Ahsan did not hold a passport of the type specified by the Minister and accordingly had to demonstrate competent English by an IELTS test score. He was unable to do so and accordingly the Tribunal had no basis on which it could make a favourable decision.
I raised with Mr Ahsan during argument what problems he saw with the Tribunal decision. His response was that he had no problems with the Tribunal decision. He told me that he simply wants to obtain the class of visa he sought and so I gather wants to continue studies in Australia. He told me that he has sat the test so far approximately 25 times and, although his scores have been improving, he has not yet achieved a passing score in all elements of the test. He has set another test for 14 December 2013. Mr Ahsan made no submissions pointing to any arguable jurisdictional error by the Tribunal.
The Minister’s submissions deal with the grounds advanced in the application. I agree with those submissions.
Ground One
It is unclear how Mr Ahsan contends that the Tribunal denied him the opportunity have a representative assist him.[18] In any event, the courts have held that a lack of representation before tribunals does not amount to a denial of procedural fairness.[19]
[18] The Minister notes that Mr Ahsan’s representatives were not at the hearing (CB 110). However, the Tribunal continued to send correspondence to those representatives (CB 113).
[19] Bodenstein v Minister for Immigration [2009] FCA 50 at [17] per Perram J. See also SZQFS v Minister for Immigration [2011] FCA 1244 at [30]-[31] per Flick J.
This ground does not raise an arguable case for the relief sought.
Ground Two
This ground does not particularise how the Tribunal denied Mr Ahsan the opportunity to consider his legal position before it.
In any event, the issue before the Tribunal was whether Mr Ahsan proffered evidence which demonstrated that he had competent English. It is well established that it is for an applicant to make out his own case and, therefore, the onus was on Mr Ahsan to demonstrate that he had competent English.
As this evidence was not presented to the Tribunal before it made its decision, the Tribunal was correct to find that Mr Ahsan had not demonstrated that he had competent English and, therefore, did not satisfy clause 485.215.
This ground does not raise an arguable case for the relief sought.
Ground Three
The Tribunal was correct to enable Mr Ahsan to satisfy whether he had competent English up until the time of decision.
Pursuant to this Regulation the courts have found that an applicant can satisfy the criteria of competent English up until the time of decision.[20] However, as Mr Ahsan had not provided evidence that he had achieved the specified score at the time of decision, it was open to the Tribunal to find that Mr Ahsan did not have competent English.
[20] Berenguel v Minister for Immigration (2010) 264 ALR 417. See Nayeem v Minister for Immigration & Anor [2010] FMCA 618.
In regards to Mr Ahsan’s complaint that the Tribunal should have allowed him “proper time” to re-sit the IELTS test so that he could achieve the specified score, as noted above, the Tribunal acceded to Mr Ahsan’s request to defer its decision until after he had sat another IELTS test booked for 11 May 2013.[21] No other request for an adjournment was made by Mr Ahsan. Therefore, in these circumstances, the Tribunal did not fall into error by proceedings to make its decision on 12 June 2013.[22]
[21] The Minister notes that Mr Ahsan requested the Tribunal to adjourn its decision until 31 May 2013, however, the Tribunal stated that it would not make its decision until after 3 June 2013.
[22] Cf Minister for Immigration v Li (2013) 297 ALR 225.
This ground does not raise an arguable case for the relief sought.
Ground Four
The basis for this ground is unclear as Mr Ahsan only made one request for an adjournment in order for him to sit an IELTS test on 11 May 2013 and this request was acceded to. There is nothing in the material before this Court which indicates that that Mr Ahsan made a second request for an adjournment to sit another IELTS test.
In these circumstances, this ground does not raise an arguable case for the relief sought.
Ground Five
Ground Five is a statement of fact and seeks this Court to engage in impermissible merits review and, therefore, does not raise an arguable case for the relief sought.
Mr Ahsan appears to be a genuine person who wishes to better himself in this country. Unfortunately, for him, however, there is nothing that the Court can do to assist him in that endeavour. He has been unable to demonstrate an arguable case of jurisdictional error by the Tribunal.
Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules). I so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. Mr Ahsan did not oppose an order for costs but indicated that he would need time to pay. I will not require payment by any particular time.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.
I will further direct that the title of the first respondent be amended to the Minister for Immigration and Border Protection.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 23 October 2013
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