Moussa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 194

FEDERAL CIRCUIT COURT OF AUSTRALIA

Moussa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 194

File number(s):

SYG 2123 of 2019

Judgment of:

JUDGE STREET

Date of judgment:

4 February 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for an Employer Nomination (Permanent) (Class EN) visa – where applicant did not meet the English language proficiency requirements – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error made out.

PRACTICE AND PROCEDURE – Oral application for an adjournment– where the grounds of the application raised no jurisdictional error – where the Court was not satisfied that an adjournment was warranted in the interests of the administration of justice – application for adjournment dismissed.    

Legislation:

Migration Act 1958 (Cth), s 476

Migration Regulations 1994 (Cth), Sch 2

Number of paragraphs:

26

Date of hearing:

4 February 2021

Place:

Sydney

Solicitor for the Applicants:

Mr C Soliman
Oxcom Legal

Solicitor for the First Respondent:

Ms P Durham
Sparke Helmore

ORDERS

SYG 2123 of 2019

BETWEEN:

LAURENCE MOUSSA

First Applicant

CARLA ISHAK

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	4 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The oral application for an adjournment is dismissed.

2.The application is dismissed.

3.The applicants pay the first respondent’s costs fixed in the amount of $5,000.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 24 July 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicants an Employer Nomination (Permanent) (Class EN) visa (“the visa”).

2. The first applicant is a citizen of Lebanon, and the second applicant is his partner who was included as a member of the family unit. 

3. On 16 April 2019, the Delegate found that the first applicant failed to meet the criteria for the grant of the visa, identifying in particular the failure to provide evidence of proficient English, within the requirements, of the three years immediately before the date of invitation. 

4. The applicants applied for review on 2 May 2019. The Tribunal, as it was required to, invited the applicants to attend a hearing on 17 June 2019 and the invitation expressly referred to the need to provide evidence in respect of English language requirements under the relevant provisions.

5. The first applicant appeared at the hearing to give evidence and present arguments. 

6. The Tribunal in its reasons identified the background to the visa application and the requirements of cl 186.222 of Sch 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) in respect of English language proficiency. 

7. The Tribunal identified the test scores that were provided in respect of the test performed by the first applicant but identified that those tests cannot be considered as satisfactory evidence that the first applicant had competent English at the time of the visa application. 

8. Based on the evidence, the Tribunal was not satisfied that the first applicant undertook a specified language test and achieved a specified score in the three years preceding when the visa application was lodged, being 30 June 2018. 

9. The Tribunal identified that the first applicant held a Lebanese passport, and, as such, did not fall within any of the exemptions in respect of the legislative instrument, IMMI 15/005. 

10. The Tribunal found that there was no evidence the first applicant had completed a relevant course of study at a secondary or higher institution where all of the tuition was in English, and in those circumstances the Tribunal was not satisfied that the first applicant met the requirements of cl 186.222(a) or (b) of the Regulations and affirmed the decision under review.

    BEFORE THE COURT

11. These proceedings were commenced on 19 August 2019. On 20 September 2019, a judge of the Court made orders giving the applicants an opportunity to file an amended application, affidavit evidence and submissions. To date no such documents have been filed. 

12. On 10 November 2020, the matter was fixed to today for a hearing by video and/or audio link.  A legal practitioner filed a notice of appearance on behalf of the applicants on 1 February 2021.

13. At the commencement of the hearing, the solicitor, on behalf of the applicants, sought an adjournment on the basis that the partner of the first applicant was overseas and also in respect of his recent instruction on 28 January 2021 and his assertion that he had not been able to obtain adequate instructions and properly review the material. The material is particularly concise and the Tribunal’s decision is far from lengthy or complex as well as being available to the solicitor through the Commonwealth Court’s portal. The instructions given on 28 January 2021 should have been a sufficient opportunity to consider the matter by reference to the relevant principles of potential jurisdictional error, consider the duty imposed upon a legal practitioner under Part 8B of the Act before filing a notice of address for service and to obtain meaningful instructions referrable to any arguable jurisdictional error. The reference to the partner, the second applicant, being overseas was patently irrelevant as she was only included as a member of the family unit and did not provide a proper basis for an adjournment. The applicant had ample opportunity to put on an amended application, affidavit evidence and submissions pursuant to the Court orders and did not do so. The applicant had ample opportunity to retain legal representation on a timely basis. Belated last minute instructions of a legal practitioner where an adequate opportunity has been afforded to obtain representation is not of itself an adequate basis to obtain an adjournment.

14. At the commencement of the hearing, the Court asked the solicitor whether or not he wished to contend that any of the three grounds advanced identified an arguable case. Although the solicitor contended that the grounds did raise an arguable case, the solicitor did not develop any argument to support any of the three grounds. That was a proper position to take in the circumstances where it is apparent that none of the three grounds identify an arguable case of relevant error. A relevant consideration to the adjournment application are the apparent merits of the case.

    THE GROUNDS

15. The grounds in the application are as follows:

    (1)The Member of the Tribunal refused my application based on competent English even though I provided the test report results which was undertaken on 15 February 2014 in which I scored Listening 5, reading 3.5, Writing 5, Speaking 7.

    (2)The tribunal had substantial evidence concerning my business and the high wage I was taxed on yet failed to grant me the visa even though my Accountant at the hearing provided strong evidence supporting the business and the employees.

    (3)The Tribunal Member failed to refer my request to the Honourable Minister even though I have demonstrated my contribution to Australian employees and Australian economy. The Member of the tribunal denied me natural justice and fairness by ignoring the tremendous contribution shown.

    GROUND 1

16. In relation to the first ground, it is apparent that the Tribunal correctly identified that the applicant had not undertaken the requisite language tests and achieved the requisite scores in the three years prior to the making of the application. The test on 15 February 2014 was not within the three year period and established no error by the Tribunal.

17. No jurisdictional error arises by reason of ground 1.

    GROUND 2

18. In relation to ground 2, the applicant’s complaint in relation to his business and his concern that he had strong evidence concerning his business activities do not overcome the essential and mandatory requirement that he had proficient English. In the circumstances of the present case the applicant had not achieved the requisite English proficiency scores prior to the making of the application, and accordingly did not meet the mandatory criteria and did not meet any other alternate criteria. 

19. No jurisdictional error is disclosed by ground 2.

    GROUND 3

20. In relation to ground 3, ministerial referral is a discretionary consideration and there is nothing in the assertion of the failure to refer the matter to the Minister that gives rise to any jurisdictional error.

21. There is no basis, on the face of the material before the Court, to suggest that the Tribunal did other than comply with its statutory requirements in the conduct of the review, and on the evidence before the Court, the Tribunal complied with the requirements of procedural fairness in the conduct of the review. The Tribunal had no power to determine the matter on compassionate or discretionary grounds. The applicant’s alleged contribution cannot overcome the want of the mandatory criteria and establishes no error.

22. No jurisdictional error is made out by ground 3.

    ADJOURNMENT REQUEST

23. The solicitor for the applicant sought an adjournment based on the matters that the Court has referred to. These proceedings having been commenced on 19 August 2019, the applicant had ample opportunity to obtain legal representation and to put on relevant material as a result of the orders made on 20 September 2019. A last minute or twelfth hour endeavour to obtain legal representation and seek an adjournment without very compelling reasons is not one that will lightly be granted. In particular, the Court will generally want to know that there is some arguable issue that has been identified by the lawyer.

24. The instructions were given on 28 January 2021 and the notice of address for service was filed on 1 February 2021. There has been ample time for the solicitor to identify any arguable case, if there was one, to advance. Notwithstanding the suggestion that there is an arguable ground in the three grounds identified, it is apparent that there was no case of jurisdictional error raised by those three grounds. The weakness of the application is also a relevant consideration in relation to the adjournment application. The Court is not satisfied that an adjournment would be of any utility. In all the circumstances, the Court is not satisfied that an adjournment is warranted in the interests of the administration of justice. The Court notes the first respondent opposed the adjournment.

25. It is for these reasons the Court made the order dismissing the oral application for an adjournment.

26. For the reasons given above, it is apparent the application raises no jurisdictional error and accordingly the application is dismissed. 

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 4 February 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated: 1 March 2021