Herath Mudiyanselage (Migration) - [2018] AATA 1027

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…

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.

Continue reading Herath Mudiyanselage (Migration)

Details

AGLC: Herath Mudiyanselage (Migration) [2018] AATA 1027
Case: [2018] AATA 1027
Decision Date: 15 March 2018

CaseChat Overview and Summary

This matter concerned an application for a Distinguished Talent (Residence) (Class BX) visa, subclass 858. The applicant, a Sri Lankan national, sought to establish an internationally recognised record of exceptional and outstanding achievement in the sport of ultra-marathoning. The core dispute revolved around whether the applicant's claimed achievements, particularly his purported "world records" in ultra-marathoning and t-shirt wearing, met the threshold for international recognition and outstanding achievement required for the visa. A secondary issue arose concerning whether the applicant had provided false or misleading information to the Department. The decision was made by Bridget Cullen, a member of the Tribunal.

The Tribunal was required to determine two primary legal issues. Firstly, whether the applicant possessed an "internationally recognised record of exceptional and outstanding achievement" as mandated by the visa criteria. Secondly, the Tribunal had to consider whether the applicant had provided any false or misleading information in relation to his application, which would engage Public Interest Criterion 4020. The Tribunal also considered the applicant's onus to provide sufficient detail to enable a decision-maker to establish the relevant facts, noting that a decision-maker is not obliged to construct the applicant's case or uncritically accept all claims.

In its reasoning, the Tribunal found that the applicant had failed to demonstrate an internationally recognised record of exceptional and outstanding achievement. While the applicant presented claims of "world records," the Tribunal noted a significant discrepancy between the claimed "Guinness World Records" and the "Assist World Records" that the applicant ultimately provided evidence for. The applicant was unable to clearly explain the nature of these "Assist World Records," the awarding bodies, the selection processes, or the competitive context of his achievements. This lack of clarity and the applicant's inability to directly answer questions about his career and the measurement of his success led the Tribunal to conclude that he was not a reliable witness and did not appreciate the need for particularity in the information provided. Consequently, the Tribunal affirmed the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) visa.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 CullenMemberATTACHMENTMigration Regulations 1994Schedule 44020(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 1958s.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. …

Ratio Decidendi

Legal Principle Established

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