Moussa v Minister for Immigration and Citizenship
[2025] FedCFamC2G 975
•27 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Moussa v Minister for Immigration and Citizenship [2025] FedCFamC2G 975
File number(s): SYG 687 of 2021 Judgment of: JUDGE LAING Date of judgment: 27 June 2025 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – refusal of a bridging visa application – whether the Tribunal failed to consider the circumstances in which the applicant was unable to meet the criteria for the visa – whether the Tribunal’s decision was affected by legal unreasonableness – whether the Tribunal’s decision was otherwise affected by relevant error – futility – application dismissed Legislation: Migration Act 1958 (Cth) ss 5, 375A
Migration Regulations 1994 (Cth) Sch 2, cl 010.211
Cases cited: Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157; (2014) 227 FCR 525
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190
Division: General Number of paragraphs: 43 Date of hearing: 13 June 2025 Place: Sydney Appearing for the Applicant: In person (by AVL) Solicitor for the First Respondent: Mr S Knuckey of HWL Ebsworth Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 687 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JAMAL MOUSSA
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
27 JUNE 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal) (as it was). By that decision, the Tribunal affirmed a decision by a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Bridging A (Class WA) (Subclass 010) visa.
BACKGROUND
The applicant, a citizen of Lebanon, was granted a Subclass 457 visa in 2013. In 2016, the applicant’s Subclass 457 visa was cancelled on the basis that he did not comply with a condition of the visa. On 27 January 2017, the cancellation decision was set aside by the Tribunal.
On 29 January 2017, the Subclass 457 visa ceased. The applicant had attempted to apply for a further Subclass 457 visa on 27 January 2017, but had been unable to do so due to technical issues experienced with his ImmiAccount. Those issues were acknowledged by the Department. The applicant was, accordingly, permitted on 30 January 2017 to make his application in a different way, by reference to IMMI 13/063.
However, the result was that the applicant’s application for another Subclass 457 visa was not made until 30 January 2017 (after the applicant’s Subclass 457 visa had expired).
On 18 January 2019, the applicant applied for the bridging visa that is the subject of this proceeding. On 27 February 2019, the Delegate refused to grant the visa. This was on the basis that the applicant did not meet cl 010.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which relevantly required the applicant to have held a substantive visa at the time that he made a valid application for a further substantive visa (that had not been finally determined or refused without judicial review having been sought). As the application for the further Subclass 457 visa was not made until 30 January 2017, after his Subclass 457 visa had expired, the Delegate found that the applicant was unable to meet cl 010.211.
On 18 March 2019, the applicant applied to the Tribunal for review of the Delegate’s decision. On 29 March 2021, the applicant attended a hearing before the Tribunal by telephone.
On 30 March 2021, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal observed that the Delegate had refused the application on the basis that the applicant did not meet cl 010.211 (at [10]). The Tribunal observed that the provision contained 6 subclauses, required to be met at the time of application, with (1) providing that the criteria were met if the applicant met the requirements of (2), (3), (4), (5) or (6). The latter subclauses were set out at [11] of the Tribunal’s decision as follows:
(2) An applicant meets the requirements of this subclause if:
(a)the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia; and
(b) that application has not been finally determined; and
(c)he or she held a substantive visa at the time that application was made; and
(d) either:
(i)he or she has applied for a bridging visa in respect of that application; or
(ii)a bridging visa can be granted in respect of that application under regulation 2.21B.
(3) An applicant meets the requirements of this subclause if:
(a) the applicant:
(i)has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia; and
(ii)held a substantive visa when he or she made the application; and
(aa) that application was refused; and
(b) either:
(i)the applicant, or the Minister, has applied, within statutory time limits, for judicial review of a decision in relation to the applicant's substantive visa application; or
(ii) the applicant:
(A)is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in subparagraph (i); and
(B)made a substantive visa application that was combined with the substantive visa application mentioned in subparagraph (i); and
(c)at the time of that application, he or she held a Bridging A (Class WA) or Bridging B (Class WB) visa; and
(d)the judicial review proceedings (including proceedings on appeal, if any) are not completed.
(4) An applicant meets the requirements of this subclause if:
(a) the applicant:
(i)holds a Bridging A (Class WA) or Bridging B (Class WB) visa that:
(A)was granted as a result of a valid application, made in Australia, for a substantive visa of a kind that could be granted if the applicant was in Australia; and
(B)is subject to conditions 8101, 8102, 8103, 8104, 8105, 8107, 8108, 8111, 8112, 8115, 8547, 8607 or 8608; and
(ii)held a substantive visa when he or she made the substantive visa application; and
(b) he or she has not applied for a protection visa; and
(c)the Minister is satisfied that the applicant has a compelling need to work.
(5) An applicant meets the requirements of this subclause if:
(a) the applicant has made a valid application for:
(iii) a Partner (Migrant) (Class BC) visa; or
(iv) an Aged Parent (Residence) (Class BP) visa; or
(v) a Contributory Aged Parent (Residence) (Class DG) visa; or
(vi) a Contributory Aged Parent (Temporary) (Class UU) visa; and
(b) the application has not been finally determined; and
(c)the applicant has applied for a bridging visa in respect of that application; and
(d)the applicant holds, or has previously held, a Bridging A (Class WA) visa granted under regulation 2.21A in respect of the visa referred to in paragraph (a).
(6) An applicant meets the requirements of this subclause if:
(a) the applicant has made a valid application for:
(iii) a Partner (Migrant) (Class BC) visa; or
(iv) an Aged Parent (Residence) (Class BP) visa; or
(v) a Contributory Aged Parent (Residence) (Class DG) visa; or
(vi) a Contributory Aged Parent (Temporary) (Class UU) visa; and
(b) that application was refused; and
(c) either:
(i)the applicant, or the Minister, has applied, within statutory time limits, for judicial review of a decision in relation to the applicant's substantive visa application as the holder of a Bridging A (Class WA) or Bridging B (Class WB) visa; or
(ii) the applicant:
(A)is a member of the family unit of a person whose substantive visa application is the subject of the judicial review proceedings mentioned in subparagraph (i); and
(B)made a substantive visa application that was combined with the substantive visa application mentioned in subparagraph (i); and
(d)the judicial review proceedings (including proceedings on appeal, if any) are not completed; and
(e)the applicant holds, or has previously held, a Bridging A (Class WA) visa granted under regulation 2.21A in respect of the visa referred to in paragraph (a).
The Tribunal observed at [12] that the term “substantive visa” was defined in s 5 of the Migration Act 1958 (Cth) (Act) as a visa other than a bridging visa, a criminal justice visa or an enforcement visa.
The Tribunal summarised the applicant’s evidence and claims at [13]-[22] of its decision. At [23], the Tribunal concluded that it was required to affirm the Delegate’s decision. The reasons for this were provided at [24]-[32] of the Tribunal’s decision, as follows:
24.The applicant’s case, as argued through his migration agent, is that it is unfair that he does not meet the requirements of cl.010.211(2) because he was unable to lodge his UC-457 visa application on 27 January 2017 prior to the expiration of his previously held UC-457 visa on 29 January 2017. Due to technical problems with the Department’s online lodgement system on 27 January 2017, he had to wait until the Department advised him on 30 January 2017 that the Legislative Instrument allowed him to lodge the UC-457 visa application in a different way, and he promptly lodged the UC-457 visa the day he was advised that he was permitted to lodge the application in a way permitted by the Legislative Instrument. It is true that the applicant attempted to resolve his migration issue promptly.
25.However, as pointed out by the Tribunal to the migration agent, this does not change the fact that the applicant lodged his UC-457 visa application after the expiration of his previously held UC-457 visa. While it may arguably be unfair that the applicant is unable to meet cl.010.211(2) because of circumstances beyond his control, the Legislative Instrument does not deem the UC-457 visa application to be lodged earlier than 30 January 2017, nor does it or any other regulation allow the Tribunal to ignore the requirements of cl.010.211(2)(c). Put simply, the applicant was required, so far as cl.010.211(2) is concerned, to hold a substantive visa at the time he applied for the subsequent UC-457 visa. When he lodged the subsequent UC-457 visa on 30 January 2017, he did not hold a substantive visa, as his previous substantive visa expired the day prior, namely 29 January 2017.
26. Therefore, the applicant does not meet the requirements of cl.010.211(2).
27.The Tribunal then turns its consideration to whether the applicant meets any of the other subclauses of cl.010.211, namely subclause (3), (4), (5) or (6).
28.The applicant does not meet the requirements of cl.010.211(3) because he had not made, at the time he applied for the subsequent UC-457 visa on 30 January 2017, an application for a substantive visa while he held a substantive visa application as required by cl.010.211(3)(a)(ii).
29.The applicant does not meet the requirement of cl.010.211(4) because he did not hold a substantive visa when he made the application for the subsequent UC-457 visa on 30 January 2017, as required by cl.010.211(4)(ii).
30.The applicant does not meet the requirements of cl.010.211(5) because the applicant has not made a valid application for any visa provided as a requirement of cl.010.211(5)(a).
31.The applicant does not meet the requirements of cl.010.211(6) because the applicant has not made a valid application for any visa provided as a requirement of cl.010.211(6)(a).
32.Therefore, the applicant does not meet the requirements of cl.010.211 and cannot be granted the Bridging A visa.
On the basis of the above, the Tribunal affirmed the Delegate’s decision (at [33]).
APPLICATION FOR REVIEW
The applicant sought judicial review of the Tribunal’s decision through an application filed on 21 April 2021. The matter remained in the central migration docket for some years before being allocated to my docket more recently and listed for hearing. The applicant relied upon the following grounds of review:
1.That the Tribunal did not consider relevant considerations in relation to the applicant's claims
Details:
That the that the Tribunal did not take into account appropriately that the applicant did not hold a substantive visa at the time he lodged his UC-457 visa was due to reasons beyond his control and particularly due to an administration fault of the Department of Immigration;
2.That the decision of the Tribunal was unreasonable, in that it did not appropriately consider circumstances beyond the applicant, that were directly relevant to the type of bridging visa to be granted to the applicant;
3.That the Tribunal as an administrative body owed to the applicant to be fair in its exercise of power and take into consideration factors relevant to proper administration of justice.
Ground 1
Ground 1 contended that the Tribunal did not “take into account appropriately” the fact that the applicant did not hold a substantive visa at the time that he lodged his Subclass 457 visa application due to reasons beyond his control, on account of “an administration fault” on the part of the Department.
However, the Tribunal considered at [16]-[18] and [21]-[22] of its decision the applicant’s submissions and evidence regarding the reasons that he did not hold a substantive visa at the relevant time. At [24], the Tribunal recounted the applicant’s case in this regard and acknowledged that the applicant had “attempted to resolve his migration issue promptly”. At [25], the Tribunal acknowledged that it “may arguably be unfair that the applicant is unable to meet cl 010.211(2) because of circumstances beyond his control”. However, the Tribunal concluded that this could not change the outcome, in circumstances where no provision in the Regulations allowed the Tribunal to disregard the requirements of cl. 010.211.
Unfortunately for the applicant, the Tribunal’s reasoning appears to have been legally correct. As was submitted for the Minister, it was an objective requirement for the grant of the visa that a valid application for a substantive visa was made at a time when the applicant held a substantive visa. This was in circumstances where the applicant had not applied for a type of visa required to meet cl 010.211(5) or (6). When the relevant bridging visa application was made, in 2019, the applicant had no valid application for a substantive visa, made at a time when the applicant held a substantive visa, that had not been finally determined. He did not hold a Bridging A (Class WA) or Bridging B (Class WB) visa, granted on the basis of a relevant substantive visa application made when he held a Subclass 457 visa (or any other type of substantive visa).
Although the applicant referred to a Bridging A visa that he felt should have been reinstated after his visa cancellation was overturned by the Tribunal, the circumstances of this situation were not made entirely clear by either party. The Bridging A visa appears to have been associated with a visitor visa application made in 2016 (CB 39). Even if a bridging visa ought to have been reinstated in 2017, it not apparent how it would have been in effect (or unexpired) by the time of the bridging visa application in 2019. It is not apparent from the materials, for example, that the 2016 visitor visa application was extant in 2019. The information provided by the applicant in his bridging visa application was to the contrary (CB 4).
In any event, I accept the Minister’s submission that the only application for a bridging visa that was relevantly before the Tribunal for determination was the application made by the applicant in 2019. By that time, the applicant did not hold a Bridging A (Class WA) or Bridging B (Class WB) visa. He was unable to meet any of the other subclauses in cl 010.211. It was not apparent to the Tribunal how the applicant was able to meet cl 010.211. It is similarly not apparent to the Court how the applicant was able to meet this provision at the relevant time.
It is understandable that the applicant feels aggrieved. It has not been disputed that his ability to qualify for a Bridging A visa was impacted by circumstances beyond his control, namely, technical issues with the electronic lodgement system. As the applicant submitted, if the Department had more swiftly permitted his application to occur by alternative means, then it is possible that he may have been able to meet the criterion in question.
However, the Tribunal had no power to waive what was an objective criterion for the visa. As the applicant did not meet this criterion, the Tribunal had no option other than to affirm the Delegate’s decision.
For the above reasons, I am not persuaded that ground 1 is able to succeed.
Ground 2
Ground 2 contended that the Tribunal’s decision was unreasonable. This was said to have been because the Tribunal did not “appropriately consider circumstances beyond the applicant” relevant to the "type of bridging visa to be granted”.
As the Minister observed, legal unreasonableness may be found where a decision is illogical, irrational, lacking in “an evident and intelligible justification”, or is plainly unjust, arbitrary, capricious or lacking in common-sense: see for example Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [10] per Kiefel CJ and [82] per Nettle and Gordon JJ; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [76] per Hayne J, Kiefel J (as her Honour then was) and Bell J; and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [11] per Allsop CJ. Mere disagreement, even where understandably or emphatically felt, is not sufficient to demonstrate legal unreasonableness.
The applicant did not specify in the pleaded ground the circumstances that were relied upon under it. However, I understood the applicant to take issue with the Tribunal’s consideration of the reasons that he did not hold a substantive visa at the relevant time. As was found under ground 1, those circumstances were considered by the Tribunal.
The Tribunal’s reasoning that it was nonetheless unable to waive cl 010.211, with the result that the applicant could not meet it, was logically and legally coherent. It is unclear how such reasoning could be found to have been legally unreasonable.
For the above reasons, ground 2 is unable to succeed.
Ground 3
Ground 3 expressed that the Tribunal owed duties of fairness in its exercise of power. The ground suggested that it ought to have taken into consideration “factors relevant to proper administration of justice”.
To the extent that the applicant sought to contend under this ground that the Tribunal erred in failing to consider the circumstances in which he was unable to meet the criterion in issue, for the reasons given under grounds 1 and 2, that contention is unable to succeed.
The ground did not specify exactly how the Tribunal could be said to have relevantly breached its duties in relation to “fairness”. As was observed by the Minister, the Tribunal's procedural fairness obligations were limited under Division 5 of Part 5 of the Act: s 357A of the Act.
The applicant was invited to a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review. Although that hearing was conducted by telephone, this was permitted by s 366 of the Act: see for example Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157; (2014) 227 FCR 525 at [28] (Allsop CJ, Murphy and Pagone JJ). The applicant attended the hearing before the Tribunal with the assistance of his representative.
At the hearing before the Court, the applicant submitted that there was a factual error at [8] of the Tribunal’s decision. In that paragraph, the Tribunal explained that the “hearing was conducted as a telephone hearing given that the applicant resided in Victoria and the Member was located in New South Wales”. The applicant submitted that although his representative resided in Victoria, he resided in New South Wales. This is supported by the Tribunal application form in evidence, which gave an address in New South Wales for the applicant and an address in Victoria for his representative.
However, as I explained at the hearing, factual errors do not, without more, provide a basis for setting aside the Tribunal’s decision. Although a factual error that is demonstrated to have been of particular significance might provide such a basis, I am not persuaded that this error on the part of the Tribunal was material in the present case. This is in circumstances where (a) the agent was located in Victoria; (b) the materials do not demonstrate that the representative conveyed to the Tribunal any objection on the part of the applicant to attending a telephone hearing; (c) it is not apparent that the location of the hearing materially affected the ability of the applicant to present his case; and (d) the Tribunal’s decision turned upon an objective criterion, namely, the ability of the applicant to meet cl 010.211.
Having regard to the above, ground 3 is unable to succeed.
Additional matters raised at hearing
During the hearing before the Court, the applicant complained that his earlier Bridging A visa ought to have been reinstated. He also objected to the treatment by the Department of visa applications he had made, other than the application considered by the Tribunal. In response, I observed that the application for review before the Court concerned the Tribunal’s decision made on 30 March 2021. The applicant submitted that the history of his issues with the Department was relevant to his situation before the Tribunal. Whilst this may be so, in a factual sense, I do not see how it is capable of demonstrating relevant error on the part of the Tribunal.
As explained above, the decision under review by the Tribunal was a decision to refuse the applicant’s bridging visa application made in 2019. The Tribunal was obliged to apply cl 010.211, notwithstanding issues that the applicant had encountered with the Department. As the applicant was unable to meet cl 010.211, the Tribunal was obliged to affirm the Delegate’s decision.
The applicant emphasised during the hearing that he had been given permission to apply for a Subclass 457 visa in a different way through IMMI 13/063. However, as was found by the Tribunal, although this instrument allowed a visa application to be made using a different method, it did not deem that application, if made, to have been made on an earlier date. Nor was there anything in the Act or the Regulations that did so. The ability to make the application, on 30 January 2017, therefore did not solve the applicant’s problem of his substantive (Subclass 457) visa having expired before that time. Although the applicant referred to holding a bridging visa on 30 January 2017 (and appears to have held a Bridging E visa), as was explained at hearing, a bridging visa is not a “substantive visa” as defined under the Act. Such a visa was therefore incapable of meeting the criterion in issue.
The applicant drew attention to what he said were various factual errors in the Tribunal’s decision. The applicant submitted that his date of arrival in Australia was wrongly stated at [2] of the Tribunal’s decision. However, it is not apparent how this could have affected the Tribunal’s assessment of the criterion in issue, namely the ability of the applicant to meet cl 010.211.
The applicant submitted that the date of his bridging visa application was wrongly stated in [3]. The Tribunal stated that the bridging visa application was made on 18 January 2019. That date has support in the materials. Although the handwritten date for the applicant’s signature was recorded as 14 January 2019, the application was stamped “received” by the Department on 18 January 2019. In any event, whether the application was lodged a week earlier or later would not have determined the outcome before the Tribunal. The difficulty for the applicant arose at an earlier stage, in 2017, on account of his not holding a substantive visa at the time he made the Subclass 457 application upon which he relied.
In any event, even if the Tribunal’s decision were relevantly affected by error, for the reasons given below, relief would have been refused on the basis of futility.
Futility
I accept the Minister’s submission that, even if there were some identifiable jurisdictional error in the Tribunal’s approach or decision (which is not apparent), relief ought nonetheless to be refused on the basis that remittal to the Tribunal would be futile.
Unfortunately for the applicant, he is unable to meet an objective criterion for the visa. This is because, at the date of application, he did not have an outstanding application for a substantive visa that had been made at a time when he held a substantive visa. The substantive visa application relied upon by the applicant, for a Subclass 457 visa, was not made at a time when the applicant held a substantive visa (and has in any event been withdrawn).
If the matter were remitted to the Administrative Review Tribunal (ART) (the Tribunal’s successor), then the ART would have no option other than to affirm the Delegate’s decision. Relief would not be granted in these circumstances: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 at [27]-[29] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
CONCLUSION
For the above reasons, I am obliged to dismiss the application before the Court for review of the Tribunal’s decision.
I will hear from the parties in relation to costs.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 27 June 2025
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