Jager v Australian National Hotels Pty Ltd

Gaudron and Hayne JJ heard an appeal from a decision of the Full Federal Court concerning the interpretation of section 100 of the *Migration Act 1958* (Cth). The appellant, Mr Jager, a refugee who had been granted a protection visa, sought to challenge the lawfulness of a decision made by the respondent, Australian National Hotels Pty Ltd, to refuse him employment. Mr Jager alleged that the refusal was based on his immigration status, which he contended constituted unlawful discrimination under section 100 of the Act.

The central legal issue before the High Court was whether section 100 of the *Migration Act 1958* (Cth) prohibited an employer from refusing to employ a person on the basis that they held a temporary visa, even if that person had been granted a protection visa. Specifically, the court had to determine the scope of the prohibition against discrimination contained within section 100, and whether it extended to circumstances where an employer's policy was to not employ individuals without permanent residency status.

The High Court held that section 100 of the *Migration Act 1958* (Cth) did not prohibit Australian National Hotels Pty Ltd from refusing to employ Mr Jager. Their Honours reasoned that section 100, by its terms, only prohibited discrimination against non-citizens who were in Australia unlawfully. As Mr Jager held a protection visa, he was lawfully in Australia, and therefore the prohibition in section 100 did not apply to his situation. The court concluded that the employer's policy, while potentially unfair, did not contravene the specific provisions of the *Migration Act 1958* (Cth).

The appeal was dismissed.