Herath Mudiyanselage (Migration)

Herath Mudiyanselage (Migration) [2018] AATA 1027 (15 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sanath Hemantha Kumara Wijekoon Bandara Herath Mudiyanselage
CASE NUMBER:  1713600
DIBP REFERENCE(S):  BCC2016/3647965
MEMBER:Bridget Cullen
DATE:15 March 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) visa.
Statement made on 15 March 2018 at 1:18pm

CATCHWORDS
Migration – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – Whether the applicant has an “internationally recognised record of exceptional and outstanding achievement” – Applicant’s achievements not internationally recognised or outstanding - Whether false or misleading information provided to Department
LEGISLATION
Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cls 858.212(2)(a), 858.227, Schedule 4, PIC 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Gaffar v MIMA [2000] FCA 293
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Trivedi v MIBP [2014] FCAFC 42
Zhang v MIMA [2007] FMCA 664

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 June 2017 to refuse to grant the applicant a Distinguished Talent (Residence) (Class BX) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 1 November 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.858.227 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicant did not satisfy Public Interest Criterion 4020.
The applicant appeared before the Tribunal on 5 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of a NAATI Level 2 interpreter in the Sinhala and English languages. The applicant confirmed, at the end of the hearing, that he had understood the Tribunal’s questions, and the interpretation.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The determinative issue before the delegate was whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.858.227 for the grant of the visa. Broadly speaking, this requires that:
·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and
·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).
The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.
The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.
In his application to the Department, the applicant included what appeared to be a copy of the front cover of a 2009 Sports Illustrated magazine featuring the applicant running in the “Midlands 100 Miler” race competition. The Department was concerned that the styling and format of the document was not in keeping with other Sports Illustrated covers of the same vintage. In consequence, the delegate verified using a Sports Illustrated online vault database that the applicant had never featured on the cover.
The applicant explained to the Department, and to the Tribunal, that the cover was a souvenir that was provided to each participant in the Midlands 100 Miler. In support of this, the applicant provided a letter from the Race Director, John Hall, explaining that the magazine cover was issued to every competitor as a memento. The Tribunal accepts that the Sports Illustrated cover was produced as a souvenir document in the manner suggested by the applicant.
The applicant claims to have “no intrinsic knowledge” of Sports Illustrated. The Tribunal finds this claim surprising given Sports Illustrated in a major publication circulated worldwide and the applicant claims to be an internationally recognised athlete. In general, the applicant did not appear to be a person who appreciated the need to be particular about the information he provided to the Department, or to the Tribunal, and to ensure that all of the particulars were factually truthful. The Tribunal accepts that the applicant did not intend to give false or misleading information to the Department, and intended that the cover evidence his participation in the Midlands 100 Miler, without intending to represent the cover to be a genuine Sports Illustrated Magazine. There is no evidence of fraud or deception on the part of any other person in relation to the giving of this information.
In view of this finding, the Tribunal finds that the applicant meets PIC 4020 for the purposes of cl.858.227. The Tribunal has gone on to consider whether the applicant meets the remaining criteria for a Distinguished Talent (Residence) (Class BX) visa.
CONSIDERATION OF CLAIMS AND EVIDENCE
In order to be granted a Distinguished Talent (Residence) (Class BX), visa, the applicant would need to meet the requirements of paragraph 858.212(2)(a) and clause 858.212. This clause relevantly provides:
858.212
(1) The applicant meets the requirements of subclause (2) or (4).
(2) The applicant:
(a) has an internationally recognised record of exceptional and outstanding achievement in one of the following areas:
a profession;
a sport;
the arts;
academia and research; and
(b) is still prominent in the area; and
(c) would be an asset to the Australian community; and
(d) would have no difficulty in obtaining employment, or in becoming established independently, in Australia in the area; and
(e) produces a completed approved form 1000; and
Note An approved form 1000 requires the applicant's record of achievement in an area (as mentioned in paragraph (a)) to be attested to by:
(a) an Australian citizen; or
(b) an Australian permanent resident; or
(c) an eligible New Zealand citizen; or
(d) an Australian organisation;
who has a national reputation in relation to the area.
(f) if the applicant has not turned 18, or is at least 55 years old, at the time of application — would be of exceptional benefit to the Australian community.
[(3) omitted by SR 2003, 239 with effect from 1/11/2003 - LEGEND note]
(4) The applicant meets the requirements of this subclause if, in the opinion of the Minister, acting on the advice of:
(a) the Minister responsible for an intelligence or security agency within the meaning of the Australian Security Intelligence Organisation Act 1979; or
(b) the Director-General of Security;
the applicant has provided specialised assistance to the Australian Government in matters of security.
The applicant has not asserted that he has provided specialised assistance to the Australian government in matters of security at the time of application on 12 October 2016. Accordingly, the Tribunal finds that there is no evidence before it that the Minister responsible for an intelligence or security agency, or the Director-General of Security, has provided an opinion that the applicant had provided specialised assistance to the Australian government in matters of security at the time of application.
As a result, the Tribunal finds that the applicant did not meet the requirements of subclause 858.212(4) at the time of application.
The issue under review is whether the applicant meets the requirements of cl.858.212(2)(a) of the Regulations; that is, whether the applicant has an internationally recognised record of exceptional and outstanding achievement in his nominated field of sport, specifically ultramarathon running.
The Tribunal observes that the concept of 'internationally recognised record of exceptional and outstanding achievement' in paragraph 858.212(2)(a) is not defined in the Regulations.
According to the Macquarie Dictionary Online the word 'exceptional' is defined to mean:
1. forming an exception or unusual instance; unusual; extraordinary;
2. extraordinarily good, as of a performance or product; extraordinarily skilled, talented, or clever.
It also defines the word 'outstanding' to mean:
1. prominent; conspicuous; striking;
2. that continues in existence; that remains unsettled, unpaid, etc.;
3. standing out; projecting; detached;
4. that resists or opposes.
The Tribunal also notes that the concept of 'record of exceptional and outstanding achievement' has been the subject of judicial consideration.
In particular, the Courts have held that the ordinary meaning of 'record' does not require that the record be quantifiable as large, or lengthy, or as having been sustained over a period of time. As a result, a 'record' is an aggregation or a list, not necessarily a large aggregation or a long list.[1]
[1] Zhang v MIMA [2007] FMCA 664 (Cameron FM, 9 May 2007) at [36]-[37].
In addition, the Courts have held that in determining whether the applicant has a 'record of exceptional and outstanding achievement', the criterion requires demonstrated excellence in the relevant occupation which is out of the ordinary. Notably, in Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs, French J observed that the concept of an 'exceptional record of achievement' did not require an applicant to be a 'national living treasure'.[2]
[2] Gaffar v MIMA [2000] FCA 293 at [20].
As a result, the Tribunal acknowledges that the circumstances that will meet this requirement will vary across different professions and activities and, as French J observed, some will require far greater levels of knowledge and skill by an applicant to rise above the ordinary and the merely competent.
In addition, the Tribunal observes that the departmental guidelines in PAM3 provide the following guidance in respect of what constitutes a record of exceptional and outstanding achievement:
What does 'exceptional' mean
For 858.212(2)(a), applicants should be very eminent in the top echelons of their field. They should demonstrate extraordinary and remarkable abilities and be superior to others in their field.
'Internationally recognised' in this context means that a person's achievements have or would be acclaimed as exceptional and outstanding in any country where the relevant field is practiced.
'Exceptional' and 'outstanding' should be accorded ordinary dictionary meaning within context.
Policy requirements
Claims of an “excellent” level of performance in a job, particularly where the benefits of such performance may only be realised locally, would not be regarded as exceptional and outstanding achievement.
A single achievement by the applicant, particularly where it appears to be the only significant achievement, would not be regarded as 'exceptional and outstanding' achievement. It is anticipated that an applicant would have a record of sustained achievement that is unlikely to diminish in the future.
An achievement that may attract national acclaim would not be considered as 'international recognised' unless that achievement is in a field practised in other countries (including Australia) and has or would attract similar acclaim in those countries.
Given the ordinary dictionary meanings, in order to have a 'record of exceptional and outstanding achievement' an applicant would be expected to have achievements remarkable in relation to that field and in relation to their peers who are also positioned as the very best in that field. An applicant should be at the very top of their field.
Assessing this criterion
In assessing the applicant's record of achievement, officers may take into account information such as, such as, indicated in the following eight examples:
·Information provided by the nominator, who should provide a full account of why they believe the applicant has an exceptional and outstanding record of achievement
·Supporting statement and material provided by the applicant detailing relevant aspects of their background including their qualifications, achievements and positions held. This should include information relating to any achievements in Australia.
·Supporting statements from internationally recognised individuals or organisations in the field who can pass comment on the applicant's achievements and the applicant's reputation within the field.
·Awards or higher qualifications received from internationally recognised institutions or organisations.
…
·Details and supporting material on achievements in the arts including:
o   books published and
o   national and internationals sales achieved and
o   awards and commissions received and
o   galleries in which works are displayed and
o   scale and audience of displays held and
o   recognition by peers and
o   honours and accolades (for example, an Academy Award, or a Nobel Prize in Literature) and
o   academic qualifications associated with the applicant's area of the arts and
o   statements from international artistic bodies and
o   newspaper and magazine articles attesting to achievements.
…
·Details and supporting material on professional achievements including:
o   industry awards and accolades and
o   references from current and past employers and
o   statements from prominent industry peers and
o   academic degrees or professional designations associated with the applicant's field of work and
o   personal/professional titles (such as CEO, Lord, Knight, Right Honourable) indicating an earned rank or position within a formal power structure.
The wording of paragraph 858.212(2)(a) requires the applicant currently before the Tribunal to have an 'internationally recognised' record of exceptional and outstanding achievement. The Tribunal notes that there is presently limited Court authority in relation to what is required to meet this aspect of the criterion.
Therefore, giving the words 'international' and 'recognise' their ordinary meaning, it would be reasonable to say that a record is 'internationally recognised' if it has received some form of recognition in more than one country. The policy guidelines in PAM3 appear to reflect this when they state:
International recognition required
Achievement in a profession, a sport, the arts or academia and research that has not or would not be recognised at an international level would not be regarded as exceptional and outstanding.
It is expected that an applicant's achievements have or would be acclaimed as exceptional and outstanding in any country where the relevant field is practised. The field would also need to have recognition and acceptance in Australia as well as international standing. In determining the international standing of the applicant, officers should consider:
·the international standing of the country, where the applicant's achievements were realised, in respect of the particular field
·the standing of the achievement in relation to Australian standards and
·the standing of the achievement in relation to international standards.
For example, an applicant rated at or near the top of their field in their home country would be expected to have an international record of exceptional and outstanding achievement if the:
·field is undertaken and recognised in a number of countries including Australia and
·achievement would be similarly recognised in relation to international and Australian standards for that field.
The Tribunal observes that, whilst it may be guided by policy, it is not bound to follow it. Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations.
Whether or not an applicant's record of achievement is exceptional and outstanding, as well as internationally recognised, will be a question of fact to be determined in the individual case and, where appropriate, to the extent that policy is inconsistent with the Regulations, the Tribunal may depart from the departmental policy guidelines.
The Tribunal is aware that in assessing whether the applicant meets the requirements of paragraph 858.212(2)(a), the concept of onus of proof is not appropriate to administrative inquiries and decision-making. On the other hand, the Courts have held that an applicant will have to supply the relevant facts of the individual case, in as much detail as is necessary to enable a decision maker to establish the relevant facts. A decision maker is also not required to make the applicant's case for it, nor is the Tribunal required to accept uncritically any and all the claims an applicant puts forward.[3]
[3] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
THE APPLICANT'S BACKGROUND AS AN ULTRA-MARATHON RUNNER
The applicant is Sri Lankan. Since his arrival in Australia on a GA Subclass 400 Temporary Work visa in June of 2016, he has been involved with Gold Coast Ultras, the Australian organisation that has completed the Form 1000 Distinguished Talent nomination that corresponds with his application. The sport of “ultra marathoning” is described by the applicant as “distances beyond a standard marathon”.

The applicant relies on claims to have a number of “World Records,” including the following:
·“Guinness world record for most warn (sic) T-shirts”;
·And “x 3 assist world record”.
The “3 assist world records” are for the following:
·Most T-Shirt Worn at Once in a public park (the same as the Guinness Record).
·Greatest Distance Run on a Treadmill in 24-Hours; and
·Greatest Distance Run in 24-Hours.
The applicant concedes that his claimed world record for t-shirt wearing has no particular relevance to his application for a Distinguished Talent visa on the basis of achievement in sport.
The applicant provided, to the Tribunal and to the Department, news clippings indicating that he was aiming to break a “Guinness World Record” of running 258 kilometres on a treadmill within a period of 24 hours,” and “a “Guinness Record” attempt in a 100-mile race. The Applicant then supplied evidence in support of his achievements from “Assist World Records,” rather than from “Guinness World Records”. The applicant, during the hearing, handed a book to the Tribunal that contained evidence of his claimed world records. That book indicates that “Assist World Records” has been in operation for 5 years, from 2011-2016, and that the book has been published as “a grand book of records”. It is clear that “Assist World Records” and “Guinness Records” are not one and the same, despite the applicant freely using the term “Guinness” to describe himself in his written materials and during the course of the hearing.
The Tribunal asked the applicant, multiple times, to explain who had made the awards, what the selection process was, and whether it was competitive. The applicant could not explain whether each specific world record claimed had been issued by Guinness, or by “Assist World Records”. The applicant could offer no explanation for the Tribunal’s concerns about the nature of his world record claims. Whilst the Tribunal accepts that the applicant is not intending to mislead, he was not a reliable witness, as he did not appear to be a person who appreciated the need to be particular about the information he provided to the Department, or to the Tribunal. He did not answer the Tribunal’s questions directly, and was largely unable to respond to the Tribunal’s questions about his ultramarathon career. He could not explain what organisations measured his success, what athletes he competed against, and how he had calculated himself to be the top marathon athlete in his home country of Sri Lanka.
FINDINGS AND REASONS
The Tribunal acknowledges that the applicant has participated in the Gold Coast 100 event, and the Midlands 100 Miler events. He has participated in several other races, including the following:
·5^th LSR International Marathon, Dambulla-Sri Lanka, 2003, certificate of completion, no indication of place;
·6^th LSR International Marathon, Colombo-Sri Lanka, 2004, seventeenth place men;
·12^th Colombo Marathon, Sri Lanka, 2012, tenth place men;
·8^th Colombo Marathon, Sri Lanka, 2007, eighth place men;
·Colombo Marathon, Sri Lanka, 2008, first place men;
·Sri Lanka Ministry of Sports & Youth Affairs National Sports Festival 2006, First Place Marathon;
·People’s Bank Sports Club Marathon 2006, fourth place men’s open marathon;
·North Face 100KM event, Thailand, 2012, completion place third;
·De Langste Nachtloop 24 hours ultra run, 2015, certificate of completion.
The applicant has not competed in any Commonwealth Games, Olympic events, or any races of international significance. The races that the applicant has participated in are open events, which any person that registers can partake in, without any qualifying events. There is no evidence that the applicant is internationally recognised within the sport. Completion of any marathon, let alone several, is a noteworthy personal achievement. However, here, the applicant does not possess, on any objective view of the evidence, an internationally recognised record of exceptional and outstanding achievement in sport.
For the reasons set out above, and having regard to what might reasonably be expected of someone who claims to have an 'internationally recognised record of exceptional and outstanding achievement' as an ultramarathon runner, the Tribunal is not satisfied that the applicant's record has been 'out of the ordinary', 'exceptional', or 'outstanding'. It is also not satisfied on the evidence before it that the applicant's record of achievement has been 'internationally recognised', as required by paragraph 858.212(2)(a). In reaching this conclusion the Tribunal has considered the applicant's undoubted running talent, at an emerging level.
While potential is not irrelevant, the statutory test clearly calls for an internationally recognised record. It is not a visa designed to give those without such a record an opportunity to establish one for the first time. The evidence before the Tribunal is in relation to the applicant’s participation is largely within Australia, and Sri Lanka. Although he has travelled to race, the Tribunal does not consider those competitions to have any international significance to the sport.
In determining whether the applicant meets regulation 858.212(2), all of the stated subclauses must be met. As the Tribunal considers that the applicant's achievements at the time of application do not meet the requirements of cl.858.212(2)(a) of Schedule 2 to the Regulations, he does not meet the requirements of cl.858.212(2) as a whole.
Since the applicant does not meet cl.858.212(2), and no evidence has been provided indicating that the applicant meets cl.858.212(4), the Tribunal finds that the applicant does not meet cl.858.212. The Tribunal must therefore affirm the decision under review.
DECISION
The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) visa.
Bridget Cullen
Member
ATTACHMENT
Migration Regulations 1994
Schedule 4
4020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a)the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
(2)The Minister is satisfied that during the period:
(a)starting 3 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A)The applicant satisfies the Minister as to the applicant’s identity.
(2B)The Minister is satisfied that during the period:
(a)starting 10 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5)In this clause:
information that is false or misleading in a material particular means information that is:
(a)false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
…
Migration Act 1958
s.5 Interpretation
(1) In this Act, unless contrary intention appears:
…
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
…

[2018] AATA 1027

15 March 2018

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

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