FEDERAL COURT OF AUSTRALIA

Moussa v Minister for Immigration and Border Protection [2016] FCA 1403

ORDERS

THE COURT ORDERS THAT:

1.    The First Appellant be appointed as the litigation representative of the Fourth Appellant pursuant to r 9.63 of the Federal Court Rules 2011 (Cth).

2.    The appeal is dismissed.

3.    The First, Second and Third Appellants are to pay the costs of the First Respondent fixed in the sum of $4,060, pursuant to r 40.43(3)(b) of the Federal Court Rules 2011 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    In October 2009 the present Appellants applied for an Employer (Residence) (Subclass 856) Nomination visa. The First Appellant entered Australia at about the age of 46 years. He was 52 years old when he made his application for the Employer Nomination visa. The nominating employer was identified in the visa application as T & A Moussa Cement Rendering. That visa application form also stated that the First Appellant had “over 20 years experience”. The application form addressed a question in respect to age as follows (without alteration):

Being a cement renderer for the past 20 years plus here in Australia and in Lebanon, my health is fantastic, where working continuously to I’m 60 plus is the only remedy for my good & strong health.

2    That application was refused by a delegate of the Minister in February 2012. The delegate concluded that the now-First Appellant did not satisfy cl 856.213(c) of Sch 2 to the Migration Regulations 1994 (Cth) (the “Migration Regulations”).

3    An application for review was made to the then Migration Review Tribunal (the “Tribunal”). The Tribunal in June 2014 affirmed the delegate’s decision. The Appellants were represented before the Tribunal by their registered migration agent. The Tribunal relevantly concluded that:

    by reason of a “sponsorship bar” imposed pursuant to s 140L of the Migration Act 1958 (Cth) (the “Migration Act”), cl 856.221 of Sch 2 to the Migration Regulations was not satisfied; and that

    the now-First Appellant did not satisfy cl 856.213(c)(ii)(A), which imposed an age limit of 45 years of age in the absence of “exceptional circumstances”. As at the date of his application, he was 52 years of age. There were, according to the Tribunal, no “exceptional circumstances”.

4    An application was then made to the Federal Circuit Court of Australia seeking judicial review of the Tribunal’s decision. That application was heard in May 2015. In June 2016 that Court dismissed the application: Moussa & Ors v Minister for Immigration & Anor [2016] FCCA 1248.

5    The Appellants now appeal to this Court. They appeared unrepresented. The First Appellant, who is the principal Appellant, appeared with the benefit of an interpreter. The Second Appellant is his wife. The Third Appellant is the elder son. He also made oral submissions to the Court. The Fourth Appellant is the younger son who is about 12 years of age. The First Appellant consented to an order being made that he be appointed the litigation representative of his youngest son: Federal Court Rules 2011 (Cth), rr 9.62 and 9.63. In addition to making oral submissions, during the course of the hearing the Appellants handed to the Court a written outline of the submissions they sought to make.

6    The Respondent Minister appeared by way of a solicitor.

7    The appeal is to be dismissed with costs.

The migration legislation

8    Clause 856.213 as at the relevant date provided as follows:

Each of the following is satisfied:

(a)    …

(b)    …

(c)    either:

(i)    …

(ii)    in any other case — unless exceptional circumstances apply, the applicant:

(A)    is less than 45; and

(B)    has vocational English.

In order to provide guidance as to the manner of application of this provision in respect to persons over 50 years of age the Departmental Procedures Advice Manual (the “Manual”) provided as follows:

16.2    Exceptional circumstances on age grounds

In considering whether exceptional circumstances apply to an applicant who is 45 years or older, officers should consider whether:

•    it is not possible to find a suitably qualified person to fill the position who is younger than the applicant

•    the duties of the position are unique or so specialised that few, if any, persons younger than 45 years old would have the same level of expertise or

•    the position would normally require a person with skills and experience acquired over many years (for example, senior academics or scientists).

Other considerations are whether the position is critical to the operation of the nominating employer’s business and whether the occupation for which the applicant has been nominated is on the MODL.

“MODL” is a reference to “Migration Occupations in Demand”. The Manual further provided specific guidance in the assessment of applicants within various age groupings. In the case of this application, the First Appellant falls within the 50-54 age bracket. At the relevant time the Manual stated:

Applicants 50-54

If the applicant is 50 or older but under 55 years old, the circumstances may be considered exceptional if the:

•    nominated occupation is on MODL or it is in ASCO major group 1-3

•    position is essential to the operation of the business and

•    employer demonstrates that the position is so unusual or highly specialised that it was not possible to find, in Australia or overseas, a suitably qualified person who was younger than the applicant.

Position is unusual or highly specialised

Unusual skills generally relate to occupations that are no longer commonplace in the modern Australian workforce or relate to esoteric tasks which very few people in Australia, or globally, could perform.

Highly specialised skills generally relate to occupations with high level of scientific and technical work which require skills and experience that would only be obtained after decades of work experience.

“ASCO” refers to the “Australian Standard Classification of Occupations”.

9    No reliance was placed by the Respondent Minister upon s 140L in the written submissions as filed. That section, it may be noted, may be waived: s 140O.

The grounds of appeal

10    The Grounds of Appeal as filed in this Court provide as follows:

1.    His Honour as well as the Tribunal failed to consider exceptional circumstances to justify the granting to the first applicant of an 856 visa. His Honour took over one year to issue his judgment which is contrary to the evidence on file.

2.    I rely on the Federal Court to reconsider the matter.

11    The first Ground of Appeal has not been made out.

12    The second purported Ground of Appeal is no ground of appeal at all. It remains the responsibility of an appellant to identify Grounds of Appeal as a general proposition; it is not the function of an appellate court (or a court at first instance) to formulate an argument on behalf of one or other of the parties and then proceed to resolve that argument.

Exceptional circumstances

13    In making the initial decision, the Minister’s delegate referred to cl 856.213 and extracted the relevant guidance provided by the Manual. The delegate went on to separately address:

    the nominating employer’s “letter of support”;

    the employer’s submission that there was “a scarcity in the trade” – but also the absence of “any evidence to show that they could not find a suitably qualified person, in Australia or overseas, who was younger than the applicant”;

    an acknowledgment that the now-First Appellant may have “skills and ability” but also the observation that this did not “demonstrate that he has skills so unique or expertise so broad that few acquire them”; and

    the absence of evidence to demonstrate that “the nominated position differs to similar positions elsewhere in Australia and within the industry”.

The delegate was of the opinion that there were “no out-of-the-ordinary circumstances in this case and there is nothing about the circumstances that is unusual or specialised”. He concluded that the now-First Appellant did not meet cl 856.213(c).

14    In reviewing the delegate’s decision, the Tribunal also referred to the provisions of the Manual. The Tribunal went on to set forth each of the factors relied upon by the now-Appellants as to why it was said on their behalf that “exceptional circumstances” had been demonstrated. The Tribunal nevertheless went on to conclude that after having “considered all the claims and evidence”, it was “not satisfied that the nominated position involves or requires exceptional levels of skills or experience such as to waive the age or the requirement of vocational English in this case”.

15    When the matter came before the Federal Circuit Court, that Court:

    rejected a submission that the Tribunal’s decision was an “abuse of power” by reason of the Tribunal not deferring consideration of the application until after the “sponsorship bar” expired – the Tribunal, according to the Federal Circuit Court, had made a “typographical error” when identifying that bar as expiring in 2014 and not in 2017;

    concluded that cl 856.213(c) did not contravene the Age Discrimination Act 2004 (Cth); and

    concluded that none of a diverse number of submissions exposed jurisdictional error or should prevail.

16    The phrase “exceptional circumstances” is used elsewhere in the Migration Act (e.g., ss 366A; 473DD and 487Q) and the Migration Regulations (e.g., reg 2.60(2)). So, too, is the phrase “exceptional circumstances beyond” a person’s control (e.g., Migration Act, s 137L(1)(b)). Within Sch 2 to the Migration Regulations, it is also a phrase which is repeatedly used in circumstances where an age limit is imposed for the grant of a visa (e.g., cl 402.212(c)); or where a period of time is otherwise imposed for the duration of a visa (e.g., cl 600.215(1)). It is sometimes a phrase which is used in conjunction with another like phrase, such as “compelling personal reasons or exceptional circumstances”: cl 602.219B.

17    Although the use of the same phrase should generally attract the same interpretation in the same legislation, a particular statutory provision may potentially attract an interpretation peculiar to that provision. But no such process of statutory interpretation is presently called for. Whatever may be the precise parameters within which that expression may apply, the First Appellant could not bring himself within its reach.

18    In considering the decision of the Tribunal and, more importantly, the decision of the Federal Circuit Court, no error — let alone jurisdictional or appellable error — is discernible in either:

    the manner in which the expression “exceptional circumstances” was either interpreted or applied by either the Tribunal or the Federal Circuit Court; or

    a failure on the part of the Tribunal to consider such matters as were advanced to it for consideration.

Both the Tribunal and the Federal Circuit Court considered the claims made as to “exceptional circumstances”.

19    One matter upon which particular reliance was placed by the Appellants as a matter which was not considered by the Federal Circuit Court were the consequences to the Appellants if their visa application was unsuccessful. Reliance was placed in oral submissions before this Court upon the prospect of the First, Second and Third Appellants being forced to return to Lebanon and leave the younger son (the Fourth Appellant) alone in Australia. Before this Court, the two matters in particular which it was said were not properly considered were:

    the fact that the First Appellant was just over 45 years of age when he entered Australia; and

    the prospect of the younger son remaining alone in Australia, the Fourth Appellant being a person who had apparently acquired Australian citizenship after the decision of the Tribunal.

But that argument must fail given the following conclusions expressed by the Federal Circuit Court Judge in his reasons for decision:

[32]    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.

The reference to “AWS” is a reference to the then-Applicants’ written submissions. The matters now relied upon by the Appellants were all matters taken into account by the Federal Circuit Court Judge. They were, in any event, matters going essentially to the factual merits of the claim as properly resolved by the Tribunal.

20    To the extent that the first Ground of Appeal also relies upon delay, the starting point must identify the decision in the decision-making process which is the subject of challenge.

21    In the present case, no challenge is made upon the basis of any delay in the decision-making process of the Tribunal; indeed, the Appellants last appeared before the Tribunal in February 2014 and the Tribunal published its reasons for decision in June 2014. Delay on the part of the Tribunal at that stage of the decision-making process, it may readily be accepted, may constitute jurisdictional error: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77, (2005) 228 CLR 470. Unfairness, Callinan and Heydon JJ there acknowledged, “can spring not only from a denial of an opportunity to present a case, but from denial of an opportunity to consider it”: [2005] HCA 77 at [172], (2005) 228 CLR at 526. But no delay on the part of the Tribunal was alleged.

22    The challenge that is made in the present case is to the alleged delay on the part of the Federal Circuit Court Judge in publishing his reasons for decision. The passage of time between the date of hearing and the date of judgment was a period of about one year.

23    But no question arises in the present case of any assessment on the part of the Federal Circuit Court of any witnesses or questions as to credibility of witnesses: Gaskell v Denkas Building Services Pty Ltd [2008] NSWCA 35 at [54] per Bryson AJA (Hodgson and Basten JJA agreeing). The questions to be resolved by that Court were directed to the reasons for decision of the Tribunal and to ascertaining whether the Tribunal had committed jurisdictional error. The resolution of such questions was, accordingly, far removed from the task of a primary judge who may be called upon to resolve competing factual contentions and questions as to the credibility and demeanour of witnesses. There has certainly been no denial of procedural fairness occasioned by that passage of time: cf. Vines v Australian Securities and Investments Commission [2007] NSWCA 75 at [26] to [31], (2007) 62 ACSR 1 at 11 to 12 per Spigelman CJ. “There are many reasons for caution in finding that a judge has denied fairness to the losing party in a case by reason of delay”: Haros v Linfox Australia Pty Ltd [2012] FCAFC 42 at [30], (2012) 287 ALR 507 at 514 per Gray, Marshall and Bromberg JJ; Manildra Flour Mills (Manufacturing) Pty Ltd v National Union of Workers [2012] FCA 1010 at [39] per Cowdroy J.

24    Although all decisions of all courts should be published as soon as is consistent with a proper consideration of the materials in need of resolution in an individual case and the potentially competing need to deliver reserved judgments in other cases, the mere passage of time in the present case cannot constitute any reason to question the findings and conclusions of the court appealed from. The ultimate fate of administrative decisions of the present kind, being decisions which so intimately involve the freedom of an individual to come to Australia or to remain in Australia, should nevertheless be published promptly.

25    The first Ground of Appeal is without merit. It necessarily fails.

A re-consideration of the matter

26    The second Ground of Appeal is uncertain in content.

27    It should not be construed as an invitation for the Court itself to canvass the Tribunal’s reasons for decision to discern any jurisdictional error; or as an invitation to canvass at large the Federal Circuit Court Judge’s decision to discern appellable error.

28    If the Ground is to be construed as inviting a re-consideration of the factual merits of the application for the visa, it is to be dismissed. The Appellants, perhaps understandably, sought to rely on the circumstances of the Fourth Appellant as a reason why this Court should itself “re-visit” the decision of both the Tribunal and the Federal Circuit Court. That, however, is not the task of this Court when conducting an appeal. As a general proposition, it is impermissible upon an application for judicial review for either the Federal Circuit Court or this Court on appeal to consider the factual merits of an application resolved by the Tribunal; the role of the courts is confined to discerning jurisdictional — and not factual — error. A court undertaking a task of judicial review, it has long been recognised, “must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

29    However it be construed, the second Ground of Appeal is rejected.

CONCLUSIONS

30    Neither Ground of Appeal has been made out. The appeal should thus be dismissed.

31    There is no reason why costs should not follow the event such that the Appellants pay the costs of the Respondent Minister. The Respondent Minister sought an order pursuant to r 40.43(3)(b) of the Federal Court Rules 2011 (Cth) that costs be fixed in the sum of $4,060. An affidavit has been filed quantifying the costs that may be recoverable. It is appropriate for such an order to be made, confined to the liability of the First, Second and Third Appellants to pay that amount. In the event that the appeal was to be dismissed, the Appellants did not oppose such an order being made.

THE ORDERS OF THE COURT ARE:

1.    The First Appellant be appointed as the litigation representative of the Fourth Appellant pursuant to r 9.63 of the Federal Court Rules 2011 (Cth).

2.    The appeal is dismissed.

3.    The First, Second and Third Appellants are to pay the costs of the First Respondent fixed in the sum of $4,060, pursuant to r 40.43(3)(b) of the Federal Court Rules 2011 (Cth).

Associate:

Dated:    24 November 2016