Mahgoub Hassan Ahmed v Saudi Arabian Cultural Mission/Saudi Embassy & Embassy of the Kingdom of Saudi Arabia, Cultural Mission

[2025] FWC 666

[2025] FWC 666

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mahgoub Hassan Ahmed
v

Saudi Arabian Cultural Mission/Saudi Embassy & Embassy of the Kingdom of Saudi Arabia, Cultural Mission

(U2021/11507)

DEPUTY PRESIDENT DEAN CANBERRA, 7 MARCH 2025

Application for an unfair dismissal remedy – jurisdictional objections - Foreign States Immunities Act 1985 (Cth).

1. Mr Mahgoub Ahmed (the Applicant) has made an application for an unfair dismissal remedy in respect of his employment with the Saudi Arabian Cultural Mission/Saudi Embassy & Embassy of the Kingdom of Saudi Arabia, Cultural Mission (the Respondent).

1. The Respondent raised two jurisdictional objections to the application.

1. A hearing was conducted on 6 March 2025 to deal with the jurisdictional objections. The Respondent appeared conditionally for the purpose of objecting to the jurisdiction of the Commission on the basis that it had not been validly served with the application, and that it is immune from the jurisdiction of the Commission pursuant to section 9 of the Foreign States Immunities Act 1985 (Cth) (FSI Act).

1. It is relevant to note at the outset that the Applicant was one of a number of persons who was dismissed by the Respondent in 2021 and 2022, many of whom made applications to the Commission for an unfair dismissal remedy. These applications have resulted in numerous proceedings both in the Commission and the Federal Court of Australia over the past few years.

1. Of particular relevance to this application is the decision of a Full Bench of the Commission in Saudi Arabian Cultural Mission v Saleh and Ors[1] (Saleh), and a decision of the Federal Court of Australia in Saudi Arabian Cultural Mission v Alramadi[2] (Alramadi).

1. I agree with the Respondent’s contention that the circumstances of the Applicant in this case are relevantly identical to Ms Maksoud whose application was dealt with in Saleh.

1. In determining the jurisdictional objections in relation to this application, I have adopted and applied the reasoning in Saleh and Alramadi. It is unnecessary to repeat in any detail here the comprehensive consideration of the issues and findings made in those decisions.

Is the Respondent immune from the Commission’s jurisdiction?

1. Consistent with the reasoning in Saleh, I am satisfied that the Respondent is immune from the jurisdiction of the Commission pursuant to s.9 of the FSI Act in respect of this application, because the Applicant was not a permanent resident of Australia at the time he entered into his work contract.

1. Section 9 of the FSI Act provides:

“9  General immunity from jurisdiction

Except as provided by or under this Act, a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding.”

1. Section 12 of the FSI Act contains exceptions to the general immunity as follows:

“12  Contracts of employment

(1)A foreign State, as employer, is not immune in a proceeding in so far as the proceeding concerns the employment of a person under a contract of employment that was made in Australia or was to be performed wholly or partly in Australia.

(2)A reference in subsection (1) to a proceeding includes a reference to a proceeding concerning:

(a) a right or obligation conferred or imposed by a law of Australia on a person as employer or employee; or

(b) a payment the entitlement to which arises under a contract of employment.

(3)Where, at the time when the contract of employment was made, the person employed was:

(a) a national of the foreign State but not a permanent resident of Australia; or

(b) an habitual resident of the foreign State;

subsection (1) does not apply.

(4)Subsection (1) does not apply where:

(a) an inconsistent provision is included in the contract of employment; and

(b) a law of Australia does not avoid the operation of, or prohibit or render unlawful the inclusion of, the provision.

(5)Subsection (1) does not apply in relation to the employment of:

(a) a member of the diplomatic staff of a mission as defined by the Vienna Convention on Diplomatic Relations, being the Convention the English text of which is set out in the Schedule to the Diplomatic Privileges and Immunities Act 1967; or

(b) a consular officer as defined by the Vienna Convention on Consular Relations, being the Convention the English text of which is set out in the Schedule to the Consular Privileges and Immunities Act 1972.

(6)Subsection (1) does not apply in relation to the employment of:

(a)   a member of the administrative and technical staff of a mission as defined by the Convention referred to in paragraph (5)(a); or

(b)   a consular employee as defined by the Convention referred to in paragraph (5)(b);

unless the member or employee was, at the time when the contract of employment was made, a permanent resident of Australia.

(7)In this section, permanent resident of Australia means:

(a)   an Australian citizen; or

(b)   a person resident in Australia whose continued presence in Australia is not subject to a limitation as to time imposed by or under a law of Australia.”

1. Section 12(1) is an exception to the general immunity provided by s.9. However, section 12(6) is essentially an exception to the exception, which in effect means that the Applicant, as a member of the administrative and technical staff of the Respondent, must have been a permanent resident of Australia at the time his work contract was entered into for the exception to the immunity given by s.9 to apply.

1. The evidence of the Applicant makes clear that he was not a permanent resident as at the date he entered into his work contract, that being 30 November 2010. Rather, he was a citizen of the Republic of the Sudan and held an Australian subclass 309 Spouse (Provisional) visa granted in August 2010.

1. Again, consistent with the reasoning in Saleh, this visa type means the Applicant was not a permanent resident at the relevant time.

1. As a result, and given the findings in Saleh, the application cannot proceed and must be dismissed.

Was the application validly served on the Respondent?

1. I am not satisfied, based on the evidence, that the application was validly served on the Respondent, consistent with the reasoning in Alramadi. Briefly, the evidence of the Respondent demonstrates that the application was not served on the Ministry of Foreign Affairs of the Kingdom of Saudi Arabia in Riyadh, which was found to be required in Alramadi.  It was instead served on the Embassy in Canberra.

1. However, given the finding above has the effect of requiring the application to be dismissed, it is unnecessary to deal further with this objection.

Conclusion

1. Given the finding in relation to immunity above, the application is dismissed.

DEPUTY PRESIDENT

Appearances:

M H Ahmed and M Nassir for the Applicant.
T Mills of Norton Rose Fulbright for the Respondent.

Hearing details:

2025.
By video:
March 6.

[1] [2024] FWCFB 372.

[2] [2024] FCA 1060.

Printed by authority of the Commonwealth Government Printer

<PR784996>