MOUSSA v Minister for Immigration

[2016] FCCA 1248

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOUSSA & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1248

Catchwords:
MIGRATION – Judicial review of decision of Migration Review Tribunal (Tribunal) affirming decision not to grant the applicants an Employer Nomination (Residence) (Subclass 856) visa (856 visa) – whether at the time Tribunal made decision the nomination that had been made for appointment of the first applicant in the business of an employer was still available to the first applicant because a sponsorship ban had been imposed on the first applicant’s nominating employer – whether the Tribunal acted unreasonably by determining the application before the period of the sponsorship ban had passed – whether the Tribunal acted unreasonably in not being satisfied that exceptional circumstances existed to justify the granting to the first applicant of an 856 visa, given the first applicant was over the age of 45 years – no jurisdictional error. 

Legislation:

Age Discrimination Act 2004 (Cth), ss.13,14, 43, 43(1)(a)

Freedom of Information Act 1982 (Cth)

Migration Act 1958 (Cth), ss.140L, 140O

Migration Regulations 1994 (Cth), reg.5.16(2), 5.19, 5.19(1C)(a), 5.19(1C)(b)
Migration Regulations 1994 (Cth), Schedule 2, cl.856.213(a), 856.213(c), 856.213(c)(ii)(A), 856.221, 856.221(a), 856.221(d)

Cases cited:
CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682
Foroghi v Minister for Immigration &Multicultural Affairs [2001] FCA 1875

First Applicant: HABIB MOUSSA

Second Applicant: LEILA ANTOUN ABDUL AHAD

Third Applicant: YOUSSEF MOUSSA

Fourth Applicant: CHARBEL MOUSSA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1798 of 2014

Judgment of: Judge Manousaridis

Hearing date: 27 May 2015

Delivered at: Sydney

Delivered on: 1 June 2016

REPRESENTATION

The first applicant appeared in person assisted by an interpreter

Counsel for the First Respondent: Mr G Johnson

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1798 of 2014

HABIB MOUSSA

First Applicant

LEILA ANTOUN ABDUL AHAD

Second Applicant

YOUSSEF MOUSSA

Third Applicant

CHARBEL MOUSSA

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants seek judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants an Employer Nomination (Residence) (Subclass 856) visa (856 visa).

Application for 856 visa

1. The first applicant (applicant) applied for the 856 visa on 1 October 2009. The second, third, and fourth applicants applied as members of the same family unit as that of the applicant.

2. To have been entitled to the grant of an 856 visa, the applicant had to satisfy a number of conditions specified in Subclass 856 to Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) as those regulations applied at the time the applicant lodged his application for an 856 visa. Three are relevant to the application that is before me. The first is that specified in cl.856.213(a), which required that the applicant had been nominated by an employer, in accordance with reg.5.19(2) of the Regulations, for an appointment in the business of that employer. The second regulation is cl.856.221 which required that the appointment mentioned in cl.856.213(a) has been approved, and had not been withdrawn, continued to satisfy the criteria for approval, and was “still available to the applicant”. The third regulation is cl.856.213(c)(ii)(A) which required the applicant to be less than 45 years of age at the time of application unless exceptional circumstances applied.

3. The applicant was 52 years of age at the time he lodged his application for an 856 visa. The delegate was not satisfied exceptional circumstances existed. The applicant’s employer did not provide any evidence showing why the employer was not able to find a suitably qualified person in Australia or overseas who was younger than the applicant to perform the work of a Solid Plasterer; and there was no evidence establishing the applicant possessed unusual or highly specialised skills, or explaining why the position of Solid Plasterer required someone with unusual or highly specialised skills to perform the work.[1] The delegate, therefore, on 2 February 2012, refused to grant the applicants an 856 visa.

   [1] CB97-98

Before the Tribunal

1. On  4 December 2013 the applicants’ representative provided to the Tribunal a copy of an “Approval of a Nominated Position as an Approved Appointment” (Approval), approved by a delegate of the Minister on 3 January 2012, for the applicant’s nomination in the occupation of Solid Plasterer.[2] After it received the Approval, the Tribunal obtained information from the electronic record system of the Department of Immigration and Border Protection (Department)[3] that showed that a sponsorship bar had been imposed on the applicant’s employer on 25 July 2012.[4] The bar was imposed under s.140L of the Migration Act 1958 (Cth) (Act) as it applied at the time the applicant applied for the 856 visa. There is a question about the period for which the ban was imposed, to which I will turn later in these reasons.

   [2] CB178-181

   [3] Then known as the Department of Immigration and Citizenship.

   [4] CB256, [10]

2. By letter dated 21 January 2014 the Tribunal invited the applicants to comment on or respond to the following information:[5]

   The Department’s electronic records system shows that a 5 year sponsorship bar was imposed on [the applicant’s nominating employer] on 25 July 2012 under s.140L of the Migration Act.

   [5] CB194-195

3. The Tribunal said this information was relevant because, if the applicant’s nominating employer was subject to a sponsorship bar, the applicant’s nomination would not satisfy reg.5.19(1C)(a) of the Regulations, which meant that reg.5.19(1C)(b) would apply, which required that the nomination of the applicant be rejected. In these circumstances, the appointment of the applicant’s nominating employer would not continue to satisfy the criteria for approval prescribed by reg.5.19 of the Regulations which, in turn, meant that the applicant would not satisfy cl.856.221 of Schedule 2 to the Regulations.

4. The applicants’ representative advised the Tribunal on 28 January 2014 that she had received instructions from the applicant’s employer to apply under s.140O of the Act to the Minister to waive the sponsorship bar, and requested time to permit the applicants to obtain information under the Freedom of Information Act 1982 (Cth).[6] An application to waive the sponsorship bar was made on 13 March 2014.[7] By letter dated 22 May 2014 a delegate of the Minister decided not to waive the bar that had been imposed on the applicant’s nominating employer.[8] The delegate concluded his letter by stating that the “effect of this decision means that the bar will remain in effect until 14/6/2014 [sic] as stated in the original sanction decision”.[9]

   [6] CB196

   [7] CB217

   [8] CB246-249

   [9] CB249, [37]

5. Before the Tribunal, the applicant and his nominating employer submitted that exceptional circumstances existed that overcame the applicant’s being over 45 years of age. They submitted:[10]

   a)The applicant was the only tradesman who mastered the operation of a machine the nominating employer uses in its business, because it was a machine the applicant had mastered when working in Lebanon.

   b)The nominating employer had difficulties over the past two decades obtaining suitable rendering tradesmen.

   c)The applicant is showing no sign of fatigue, and is the employer’s hardest worker.

   d)The applicant has basic English, he had trained more than 200 people, and he has transferred his skills to other employees in the business.

   e)The applicant’s whole family live in Australia.

   [10] CB259, [26]

Tribunal’s reasons for decision

1. The Tribunal identified two issues relevant to its determination of the applicants’ application for review.[11] The first was whether the applicant met the requirement set out in cl.856.213(c)(ii)(A) of Schedule 2 to the Regulations. The second issue was one that arose after the delegate’s decision, and concerned whether the applicant satisfied cl.856.221(a) and (d) of Schedule 2 to the Regulations.

   [11] CB130-131

2. The Tribunal found that cl.856.221 of Schedule 2 to the Regulations was not satisfied because the applicant’s nominating employer was currently the subject of a s.140L action, namely, a sponsorship bar.[12] The Tribunal was also not satisfied the applicant met cl.856.213(c)(ii)(A) of Schedule 2 to the Regulations.[13]  In particular, the Tribunal was not satisfied exceptional circumstances applied for it to be satisfied that the applicants should be granted an 856 visa given the applicant was over 45 years of age.

   [12] CB257, [18]

   [13] CB260, [31]

3. On that question, the Tribunal was not satisfied that the nominated position involved or required exceptional skill or experience.[14] Although the Tribunal was satisfied the evidence showed the applicant is a valued and valuable employee, and there are particular skills and experience required for the nominated position, the evidence also showed that the applicant had transferred his skills. The Tribunal was prepared to accept the applicant’s skills had improved the profitability of the nominating employer’s business. The Tribunal was not satisfied, however, that the nominating position could only be filled by a person with the applicant’s experience and skills, and it did not, therefore, accept that it would not be possible for the nominating employer to find a suitably qualified person to fill the position.

   [14] CB259-260, [27]

4. The Tribunal specifically referred to the nominating employer’s submission that it had difficulty recruiting someone to the nominating position.[15] It noted that the applicants did not submit evidence of the claimed attempts to recruit. The nominating employer submitted that records of its attempts had been destroyed in a flood. The Tribunal accepted that such loss may have occurred, but it noted no documents of attempts to obtain tradesmen were submitted to the delegate when the delegate had raised this issue in an email of 25 November 2009.

   [15] CB260, [29]

Grounds of application

1. The application filed by the applicants contains two grounds of review. At the hearing, however, the applicant, who is not legally represented, relied on submissions contained in a written document (AWS). The AWS does not specifically address the grounds stated in the application. I permitted the applicant to rely on the AWS, but on condition that the Minister had the liberty to file and serve any written submissions in relation to the AWS after the hearing. The Minister has not exercised that liberty.

2. In these reasons for judgment, I will deal with each of the grounds stated in the grounds of application, and each of the identifiable grounds contained in the AWS.

Ground 1

1. Ground 1 of the application is as follows:

   The Tribunal exercised its discretion in a manner which was an abuse of power.

   Particulars

   (a)The Tribunal found the sponsorship bar would remain in effect until 14 June 2014 pursuant to Section 140L of Migration (paras 17 and 18).

   (b)The Tribunal delivered its decision on 2 June 2014.

   (c)By refusing to wait until 14 June 2014 to deliver its decision the Tribunal acted in a manner which was unreasonable and or plainly unjust.

2. This ground is premised on the assumption that the sponsorship bar imposed on the nominating employer was due to expire on 14 June 2014. It is true that, in its reasons for decision, the Tribunal referred to the sponsorship bar expiring on 14 June 2014. That, however, appears to be a typographical error. In its letter dated 21 January 2014 to the applicants’ legal representative, the Tribunal noted it had information to the effect that a five year sponsorship ban was imposed on the nominating employer on 25 July 2012. The applicants’ representative, in her letter dated 21 February 2014, confirmed that the applicant’s nominating employer had a ban imposed on it on 25 July 2012, and did not deny that the ban was for five years.[16] Further, the delegate, in his letter dated 22 May 2014 containing his decision not to waive the sponsorship bar, stated that the “bar was for a period of five years, effective 14 June 2012 to 14 June 2017”.[17]

   [16] CB204, [1]

   [17] CB246-247, [5]

3. I find that the Tribunal’s reference to the sponsorship bar expiring on 14 June 2014 to be a typographical error; the Tribunal intended to state that the bar expired on 14 June 2017. The typographical error by itself does not constitute the making of a jurisdictional error. The following observations Marshall J offered in Foroghi v Minister for Immigration & Multicultural Affairs are relevant:[18]

   Occasionally the RRT, like other decision-makers, deliver reasons for decision without 100% proofreading. Occasionally mistakes are not discovered even when the best proofreaders have examined draft reasons. The existence of a typographical error is best acknowledged rather than attempted to be exploited; see CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682.

   [18] Foroghi v Minister for Immigration &Multicultural Affairs [2001] FCA 1875 at [48]

4. In any event, to the extent there is any doubt about the period for which the sponsorship ban was imposed on the applicant’s nominating employer, that doubt is to be resolved against the applicants, because the applicants bear the onus of establishing the Tribunal made a jurisdictional error.

5. Even if, contrary to what I have found, the sponsorship bar was due to expire on 14 June 2014, the Tribunal made no jurisdictional error by deciding the application before it on 2 June 2014. There is no evidence the applicants had requested the Tribunal delay its decision until after 14 June 2014. That fact, however, only reinforces what I have already found, namely, that the Tribunal’s reference to the sponsorship ban ending on 14 June 2014 was a typographical error. It is difficult to imagine that, had the ban in truth been in place until 14 June 2014, the applicants’ representative would not have applied to the Tribunal to delay deciding the application.

6. Ground 1 of the application, therefore, fails.

Ground 2

1. Ground 2 of the application is as follows:

   Regulation 856.213(c) is an invalid exercise of the power to make regulations under the Migration Act.

   Particulars

   (a)The Tribunal found the applicant because of his age did not meet Regulation 856.213(c).

   (b)In so finding the Tribunal failed to consider the validity of the Regulation having regard to the provisions of Sections 14, 31 and 43 of the Age Discrimination Act 2004.

2. Assuming, but not accepting, that the making of a regulation is capable of constituting a contravention of s.13, s.14, or s.43 of the Age Discrimination Act 2004 (Cth) (AD Act), the making of cl.856.213(c) of Schedule 2 to the Regulations would have been the doing of a thing by “a person in relation to the administration of” the Act within the meaning of s.43(1)(a) of the AD Act. The consequence of that is that, because of s.43(1)(a) of the AD Act, the making of cl.856.213(c) would not be unlawful under Part 4 of the AD Act which contains s.13, s.14, and s.43.

3. Ground 2, therefore, fails. Even if, however, ground 2 were made out, then, unless the applicant in the AWS identifies a jurisdictional error in the Tribunal’s conclusion that cl.856.221 of Schedule 2 of the Regulations was not satisfied, the application would still be dismissed because the applicant’s failure to satisfy cl.856.221 is an independent condition the applicant was required to satisfy if he were to have been entitled to the grant of an 856 visa.

The AWS

1. The AWS contains a number of distinct grounds. First, the AWS submits the nominating employer was an approved business for many years, with the last sponsorship approval having been made in March 2007. The Minister submits that March 2007 was when the applicant’s nominating employer was first, not last, approved as a qualifying sponsor. Whatever be the truth of the matter, the fact that the applicant’s nominating employer had been approved for many years was not relevant to the issues the Tribunal had to decide. One of the two issues before the Tribunal was whether, at the time of its decision, the nominating employer’s nomination of the applicant was “still available to the applicant”. The Tribunal found it was not still available to the applicant because the applicant’s nominating employer was subject to a sponsorship ban.

2. The second ground contained in the AWS is the Tribunal failed to consider the matters referred to in paragraphs 12, 13, and 14 of the delegate’s letter dated 22 May 2014. Those three paragraphs record that the nominating employer did not make any claims about whether the interests of Australia would be significantly affected if the bar were not removed, or about whether a substantial trade opportunity would be lost if the bar were not waived, or whether there would be a significant detriment to the Australian community if the bar were not waived.

3. It is true the Tribunal did not in terms consider these matters. The question whether the bar that had been imposed on the sponsoring employer should be waived, however, was not a question that was before the Tribunal. That was a matter that was within the jurisdiction of the Minister to consider. In any event, it is not apparent from the material before me that it was suggested to the Tribunal that it ought to have considered the matters referred to in paragraphs 12, 13, and 14 of the delegate’s letter dated 22 May 2014.

4. The third ground contained in the AWS is that the Tribunal’s decision is contradictory. The AWS refers to the applicant’s having been granted a “457 visa” in 2008 when he was over 45 years of age. Assuming the applicant had been granted a 457 visa in 2008, there is nothing before me to indicate that a criterion for the granting of a 457 visa included that the applicant be less than 45 years of age, or that exceptional circumstances were required before a 457 visa could be granted in relation to a person who was over the age of 45 years. In any event, even if that were a criterion, and the applicant was granted a 457 visa in 2008, that by itself does not render contradictory the Tribunal’s not being satisfied there were exceptional circumstances to justify the granting of an 856 visa to the applicant given the applicant is over 45 years of age.

5. The fourth ground contained in the AWS is that the Tribunal acted unreasonably. The AWS submits the Tribunal reasoned inconsistently by accepting, on the one hand, the applicant was a valued employee of his nominating employer, and, on the other, denying there were exceptional circumstances. That does not manifest any inconsistency in reasoning. It was reasonably open to the Tribunal not to consider as an exceptional circumstance the applicant’s nominating employer’s valuing the applicant as an employee.

6. The fifth matter raised in the AWS is that the Tribunal failed to consider what would happen to the business of his nominating employer if a visa were not granted to the applicant. I disagree. As I set out in paragraph 9 of these reasons, the applicant and his nominating employer made a number of submissions to the Tribunal. The first two submissions I there identify relate to the potential impact on the nominating employer’s business if an 856 visa were not granted to the applicant. I am satisfied the Tribunal considered those matters.

1. The sixth matter raised in the AWS is the applicant’s having submitted a Form 785 Employer Nomination Scheme, which, the AWS claims, has been lost by the Department, and also having submitted the documents referred to in the receipt issued by the Department at the time the applicants lodged their application for the 856 visa.[19] The AWS simply states that those documents, and, specifically, the Form 80, have been omitted from the Court Book. It is not clear, however, what the AWS submits is the relevance of those documents to the application that is before me. That certain documents that had been provided to the Department are not presently before the Court does not raise any case that the Tribunal made any jurisdictional error.

   [19] CB76

2. The seventh matter on which the AWS relies is that the applicant has no family in Lebanon, the applicant’s son, the fourth applicant, was born in Australia, and the applicant has trained over two hundred workers. For those reasons, the Tribunal’s decision was so unreasonable that no reasonable person could have made it. I disagree. The Tribunal’s conclusions, based on the matters it considered, was within the range of decisions a reasonable decision-maker would have made on the basis of the material that was before the Tribunal. In any event, even if this part of the Tribunal’s decision was unreasonable, there still remains the fact that the Tribunal was not satisfied that cl.856.221 of Schedule 2 to the Regulations had been met.

3. The eighth matter the AWS states is that the Tribunal did not base its decision on up-to-date information. The AWS does not identify the information it is claimed the Tribunal did not consider. For that reason, this part of the AWS does not disclose any jurisdictional error.

4. The ninth matter the AWS raises is that the applicant is a taxpayer, that he has contributed to Australian society, and that the Court should ignore the fact that his nominating employer had been subjected to a sponsorship bar. It is not open to the Court to decide that cl.856.221 of Schedule 2 to the Regulations did not apply to the circumstances of the applicants’ application for an 856 visa, or that it was open to the Tribunal to ignore that clause.

5. The final matter on which the AWS relies is that it would be unfair if the applicant’s contributions were ignored and he and his children, and, in particular, his ten year old son, were compelled to return to Lebanon to live in fear in a village. Although these are matters which may inspire sympathy, they are not relevant to the question I must consider, and that is whether the Tribunal made a jurisdictional error in affirming the delegate’s decision not to grant the applicants an 856 visa.

Oral submissions

1. In addition to the AWS, the applicant made oral submissions to the Court. The applicant referred to the fact that he entered Australia when he was 46 years of age, his son, the fourth applicant, was born in Australia and does not know Lebanon and does not speak a word of Arabic, the applicant’s family are in Australia, any errors made by his nominating employer are errors for which the applicant is not responsible, the applicant has had no problems with the police, the nominating employer’s business requires many workers, and there are documents he has not received.

2. These submissions in substance repeat matters stated in the AWS. They do not disclose any case that the Tribunal made a jurisdictional error in affirming the delegate’s decision not to grant the applicants an 856 visa.

Disposition

1. I propose, therefore, to order that the application be dismissed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  1 June 2016