Ahsan v Minister for Immigration

In *Ahsan v Minister for Immigration and Border Protection*, the Federal Circuit Court of Australia considered an application by Mr S K MD MOINUL AHSAN to review a decision of the Migration Review Tribunal. The Tribunal had affirmed a delegate's decision to refuse Mr Ahsan a Skilled Provisional (Class VC) visa, finding that he had not demonstrated competent English as required by the Migration Regulations 1994 (Cth). Mr Ahsan arrived in Australia in 2007 and applied for the visa in 2011, indicating he had competent English. Despite requests for deferral to provide further English language test results, the delegate refused the application, and the Tribunal subsequently affirmed this refusal.

The legal issues before the Federal Circuit Court were whether the Migration Review Tribunal had committed jurisdictional error in its decision. Specifically, the court examined grounds alleging denial of procedural fairness by the Tribunal, including not allowing a representative, not permitting sufficient time to consider legal positions, and not allowing adequate time to resit the IELTS test. The court also considered whether the Tribunal failed to determine the application according to law by not properly considering Mr Ahsan's entitlement to the visa, and whether Mr Ahsan was in fact entitled to the visa.

The court reasoned that the primary issue before the Tribunal was whether Mr Ahsan possessed competent English, as defined by Regulation 1.15C of the Migration Regulations. This required either holding a specified passport or achieving a certain score on an English language test. Mr Ahsan did not hold a qualifying passport and had not provided evidence of achieving the required IELTS score at the time of the Tribunal's decision, despite being granted an adjournment to do so. The court found that the Tribunal had correctly applied the law, noting that it is for the applicant to prove their case and that the Tribunal had acceded to Mr Ahsan's request for an adjournment. The court also held that the absence of a representative does not constitute a denial of procedural fairness.

Ultimately, the court found that Mr Ahsan had not demonstrated an arguable case of jurisdictional error by the Tribunal. Consequently, the application was dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). Mr Ahsan was ordered to pay the first respondent's costs in the sum of $3,326. The court also directed that the title of the first respondent be amended to "Minister for Immigration and Border Protection".