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

The application is dismissed.
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

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

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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FCCA 1248
Decision Date: 1 June 2016

CaseChat Overview and Summary

In *Moussa v Minister for Immigration*, Judge Manousaridis of the Federal Circuit Court considered an application for review of a decision made by the Migration Review Tribunal. The applicant sought to challenge the Tribunal's decision regarding his eligibility for a visa, alleging jurisdictional error.

The primary legal issues before the Court were whether the Tribunal had committed a jurisdictional error by referencing an incorrect expiry date for a sponsorship bar, and whether a specific regulation, Regulation 856.213(c), constituted an invalid exercise of power under the *Migration Act 1958* (Cth) due to its alleged conflict with the *Age Discrimination Act 2004* (Cth). The applicant argued that the Tribunal's finding that he did not meet Regulation 856.213(c) due to his age failed to consider the validity of the regulation itself in light of the *Age Discrimination Act*.

His Honour found that the Tribunal's reference to the sponsorship bar expiring on 14 June 2014, rather than 14 June 2017, was a typographical error and, by itself, did not constitute a jurisdictional error. The Court noted that such errors are best acknowledged rather than exploited, and that any doubt regarding the sponsorship bar's duration should be resolved against the applicant, who bore the onus of proving jurisdictional error. Furthermore, even if the bar had expired on 14 June 2014, the Tribunal made no error in deciding the application on 2 June 2014, as there was no evidence the applicant had requested a delay. Regarding the validity of Regulation 856.213(c), the Court assumed, without accepting, that the making of a regulation could contravene the *Age Discrimination Act*. However, it reasoned that the making of the regulation would fall under the administration of the Act as per section 43(1)(a) of the *Age Discrimination Act*, meaning it would not be unlawful under Part 4 of that Act.

Consequently, both grounds of the application failed. The Court also noted that even if Ground 2 had been made out, the application would still have been dismissed because the applicant's failure to satisfy Regulation 856.221 was an independent condition for visa grant. The application was therefore dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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