Ismail v Minister for Immigration - [2008] FMCA 1257

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ISMAIL v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1257

MIGRATION – Application for Cultural/Social (Temporary) (Class TE) visa for a claimed established standing a field of sport – Criteria to be determined at time of decision – separate unimpeachable ground for rejecting application.

Migration Act 1958 (Cth), ss.359A, 474
Migration Regulations 1994 (Cth), regs.421.21, 421.229, 421.230, 421.22, 421.222
Acts Interpretation Act 1901(Cth), s.13

SZINP v Minister for Immigration and Citizenship [2007] FCA 1747
SHUB v Minister for Immigration and Multiucltural and Indigenous Affairs (2003) 137 FCR 43
VBAP of 2002 v MIMIA [2005] FCA 965
Whittaker v Comcare (1998) 86 FCR 532
Xiang v MIMIA [2004] FCAFC 64
Loho v MIMIA [2003] FCAFC 168

Applicant:

SHEREF GAFFER MAHMOUD GAFFER ISMAIL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 191 of 2008

Judgment of:

Turner FM

Hearing date:

23 July 2008

Date of Last Submission:

6 August 2008

Delivered at:

Melbourne

Delivered on:

3 October 2008

REPRESENTATION

Counsel for the Applicant:

Mr Gibson

Solicitors for the Applicant:

Goz Chambers

Counsel for the Respondents:

Mr Knowles

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application, amended application and further amended application are dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5,903.00 within 14 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 191 of 2008

SHEREF GAFFER MAHMOUD GAFFER ISMAIL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Migration Review Tribunal (“the Tribunal”) signed on 22 January 2008 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a Cultural/Social (Temporary)(Class TE) visa.

Background

On 5 April 2008 the applicant applied to the Department of Immigration and Multicultural Affairs for a Cultural/Social (Temporary)(Class TE) visa. In this application he claimed he had an established standing as a player/coach in the field of sport of Badminton.
The application was refused by a delegate of the first respondent on

21 September 2005
(CB 88) and by the Tribunal on 22 January 2008 (CB 224).
The matter is now before this Court pursuant to an application for judicial review filed on 19 February 2008, an amended application filed on 7 May 2008 and a further amended application filed on

21 July 2008
.

The applications

In his application, the applicant sets out 1 ground and particulars as follows:
“1. The decision of the Second Respondent was made in breach of an imperative duty imposed on it, or an essential pre-condition to or an inviolable limitation or restraint upon its power, and its jurisdiction necessary for the existence of the satisfaction required by s65 to grant or refuse the application and its powers to conduct a review under s348 of the Act. The Second Respondent exceeded its jurisdiction and/or constructively failed to exercise jurisdiction:
PARTICULARS
i.It misconstrued and/or misunderstood the criterion in subclause 412.222 (4)(c)(ii) that the applicant has an established reputation in the field of sport.
ii.It misconstrued and/or misunderstood the criterion in subclause 421.222 (4)(c)(ii) by imposing an impermissible gloss on that criterion by requiring that in order to satisfy the “established reputation” criterion an applicant have the ability to compete or coach at the national level in Australia.
iii.It misconstrued and/or misunderstood the criteria in subclause 421.222 (4)(c)(ii) by imposing an impermissible gloss on the “established reputation” criterion by requiring that in order to satisfy that criterion an applicant have the ability to compete or coach at the national level in Australia which is to be demonstrated by whether he or she has competed at that level over a recent period and is competitive at that level.
iv.It misconstrued and/or misunderstood the criteria in subclause 421.222 (4)(c)(ii) by imposing an impermissible gloss on that criterion by requiring that in order to satisfy the “established reputation” criterion that an applicant have the ability to compete or coach at the national level and that pursuant to policy it should not be so satisfied unless there is an endorsement from a national sporting body stating that the applicant has the ability to compete, coach or instruct at the national level. The policy that there be an endorsement in those terms travels beyond the terms of the regulations and in requiring such an endorsement the Tribunal applied the wrong test.
v.It misconstrued and/or misunderstood the criteria in subclause 421.222 (4)(c)(ii) by imposing an impermissible gloss on that criterion by requiring that in order to satisfy the “established reputation” criterion that an applicant have the ability to compete or coach at the national level and that pursuant to policy it should not be so satisfied unless there is an endorsement from a national sporting body stating that the applicant has the ability to compete, coach or instruct at the national level. The policy that there be an endorsement in those terms travels beyond the terms of the regulations and in requiring such an endorsement the Tribunal applied the wrong test. In the present case that (wrong) assessment was erroneously made on the basis of whether it could be demonstrated that the applicant had competed at the national level over a recent period and was competitive at that level.
vi.It misconstrued and/or misunderstood the criterion in subclause 421.222 (4)(c)(ii) by failing to recognise consistent with the purposes of the visa subclass that it was sufficient if an Applicant establishes that he or she was or had been competing, coaching or instructing at the national level in his or her home country and/or represented his or her home country in their chosen field of sport at the international level and/or has competed in events at an international level.
vii. It misconstrued and/or misunderstood the criterion in subclause 421.222 (4)(c)(ii) in that while requiring in order to satisfy the “established reputation” criterion that an applicant have the ability to compete or coach at the national level in Australia, it failed to recognise that a person like the Applicant who had a Continental and World ranking, had been a National representative at the international level and had competed in international tournaments had established a reputation at a higher level status than that of the national level in Australia.
viii.It misconstrued and/or misunderstood the criterion in subclause 421.222 (4)(c)(ii) in finding that the Applicant did not have an established reputation in the field of sport when it took into account as a consideration relevant to that finding that the Applicant was unable to play for 10 months before the time of decision (yet on the accepted facts he had been prevented from doing so by a serious knee injury and surgery.)”
The applicant filed an amended application on 7 May 2008 setting out the following grounds and particulars:
“1. The decision of the Second Respondent was made in breach of an imperative duty imposed on it or an essential pre-condition to or an inviolable limitation or restraint upon its power, and its jurisdiction necessary for the existence of the satisfaction required by s65 to grant or refuse the application and its powers to conduct a review under s348 of the Act The Second Respondent exceeded its jurisdiction and/or constructively failed to exercise jurisdiction:
PARTICULARS
i.It misconstrued and/or misunderstood the criterion in subclause 412.222 (4)(c)(ii) that the applicant has an established reputation in the field of sport.
ii.It misconstrued and/or misunderstood the criterion in subclause 421.222 (4)(c)(ii) by imposing an impermissible gloss on that criterion by requiring that in order to satisfy the “established reputation” criterion an applicant have the ability to compete or coach at the national level in Australia.
iii.It misconstrued and/or misunderstood the criteria in subclause 421.222 (4)(c)(ii) by imposing an impermissible gloss on the “established reputation” criterion by requiring that in order to satisfy that criterion an applicant have the ability to compete or coach at the national level in Australia which is to be demonstrated by whether he or she has competed at that level over a recent period and is competitive at that level.
iv.It misconstrued and/or misunderstood the criteria in subclause 421.222 (4)(c)(ii) by imposing an impermissible gloss on that criterion by requiring that in order to satisfy the “established reputation” criterion that an applicant have the ability to compete or coach at the national level and that pursuant to policy it should not be so satisfied unless there is an endorsement from a national sporting body stating that the applicant has the ability to compete, coach or instruct at the national level. The policy that there be an endorsement in those terms travels beyond the terms of the regulations and in requiring such an endorsement the Tribunal applied the wrong test.
v.It misconstrued and/or misunderstood the criteria in subclause 421.222 (4)(c)(ii) by imposing an impermissible gloss on that criterion by requiring that in order to satisfy the “established reputation” criterion that an applicant have the ability to compete or coach at the national level and that pursuant to policy it should not be so satisfied unless there is an endorsement from a national sporting body stating that the applicant has the ability to compete, coach or instruct at the national level. The policy that there be an endorsement in those terms travels beyond the terms of the regulations and in requiring such an endorsement the Tribunal applied the wrong test. In the present case that (wrong) assessment was erroneously made on the basis of whether it could be demonstrated that the applicant had competed at the national level over a recent period and was competitive at that level.
vi.It misconstrued and/or misunderstood the criterion in subclause 421.222 (4)(c)(ii) by failing to recognise consistent with the purposes of the visa subclass that it must first consider whether the Applicant establishes that he or she has gained a reputation by competing, coaching or instructing at the national level in his or her home country and/or represented his or her home country in their chosen field of sport at the international level and/or has competed in events at an international level.
vii. It misconstrued and/or misunderstood the criterion in subclause 421.222 (4)(c)(ii) in that while requiring in order to satisfy the “established reputation” criterion that an applicant have the ability to compete or coach at the national level in Australia it failed to recognise that a person like the Applicant who had a Continental and World ranking, had been a National representative at the international level and had competed in international tournaments could be characterised as having established a reputation at a higher level status than that of the national level in Australia.
viii.It misconstrued and/or misunderstood the criterion in subclause 421.222 (4)(c)(ii) in finding that the Applicant did not have an established reputation in the field of sport when it took into account as a consideration relevant to that finding that the Applicant was unable to play for 10 months before the time of decision (yet on the accepted facts he had been prevented from doing so by a serious knee injury and surgery).”
The applicant filed a further amended application on 21 July 2008 setting out the following ground and particulars:
1. The decision of the Second Respondent was made in breach of an imperative duty imposed on it or an essential pre-condition to or an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s65 to grant or refuse the application and its powers to conduct a review under s348 of the Act The Second Respondent exceeded its jurisdiction and/or constructively failed to exercise jurisdiction:
PARTICULARS:
i.It misconstrued and/or misunderstood the time of decision criterion in subclause 421.230 and/or asked itself the wrong question and/or identified the wrong issue in relation to the criterion that an applicant satisfies the Minister that there is no reason to believe that he does not continue to satisfy the criterion that he has an established reputation in the field of sport by ignoring or failing to take account of the fact that the applicant as the holder of a subclass 421 visa at the time of the application had already established that he had an established reputation in the field of sport.
ii.It misconstrued and/or misunderstood the criterion in subclause 412.222 (4)(c)(ii) that the applicant has an established reputation in the field of sport.
iii.It misconstrued and/or misunderstood the criterion in subclause 421.222(4)(c)(ii) by imposing an impermissible gloss on that criterion by requiring (sic) that in order to satisfy the “established reputation” criterion an applicant have the ability to compete or coach at the national level in Australia.
iv.It misconstrued and/or misunderstood the criteria in subclause 421.222 (4)(c)(ii) by imposing an impermissible gloss on the “established reputation” criterion by requiring (sic) that in order to satisfy that criterion an applicant have the ability to compete or coach at the national level in Australia which is to be demonstrated by whether he or she has competed at that level over a recent period and is competitive at that level.
v.It misconstrued and/or misunderstood the criteria in subclause 421.222 (4)(c)(ii) by imposing an impermissible gloss on that criterion by requiring that in order to satisfy the “established reputation” criterion that an applicant have the ability to compete or coach at the national level and that pursuant to policy it should not be so satisfied unless there is an endorsement from a national sporting body stating that the applicant has the ability to compete, coach or instruct at the national level. The policy that there be an endorsement in those terms travels beyond the terms of the regulations and in requiring such an endorsement the Tribunal applied the wrong test.
vi.It misconstrued and/or misunderstood the criteria in subclause 421.222 (4)(c)(ii) by imposing an impermissible gloss on that criterion by requiring that in order to satisfy the “established reputation” criterion that an applicant have the ability to compete or coach at the national level and that pursuant to policy it should not be so satisfied unless there is an endorsement from a national sporting body stating that the applicant has the ability to compete, coach or instruct at the national level. The policy that there be an endorsement in those terms travels beyond the terms of the regulations and in requiring such an endorsement the Tribunal applied the wrong test. In the present case that (wrong) assessment was erroneously made on the basis of whether it could be demonstrated that the applicant had competed at the national level over a recent period and was competitive at that level.
vii.It misconstrued and/or misunderstood the criterion in subclause 421.222 (4)(c)(ii) by failing to recognise consistent with the purposes of the visa subclass that it must first consider whether the an Applicant establishes that he or she has gained a reputation by competing, coaching or instructing at the national level in his or her home country and/or represented his or her home country in their chosen field of sport at the international level and/or has competed in events at an international level.
viii.It misconstrued and/or misunderstood the criterion in subclause 421.222 (4)(c)(ii) in that while requiring in order to satisfy the “established reputation” criterion that an applicant have the ability to compete or coach at the national level in Australia it failed to recognise that a person like the Applicant who had a Continental and World ranking, had been a National representative at the international level and had competed in international tournaments could be characterised as having established a reputation at a higher level status than that of the national level in Australia.
ix.It misconstrued and/or misunderstood the criterion in subclause 421.222 (4)(c)(ii) in finding that the Applicant did not have an established reputation in the field of sport when it took into account as a consideration relevant to that finding that the Applicant was unable to play for 10 months before the time of decision (yet on the accepted facts he had been prevented from doing so by a serious knee injury and surgery).”
Mr Gibson, for the applicant stated that the principal ground relied on by the applicant is particular (i) of the further amended application (Court transcript page 2 line 7 and page 23 line 10).
The case for the applicant consists of two arguments.
The first argument is that the test of established expectation in sport specified in reg.421.22(4)(c)(ii) of the Migration Regulations 1994 (Cth) (the “Regulations”) is not the correct test where an applicant already holds a visa. The test for a visa holder is said to be in reg.421.230 of the Migration Regulations 1994 (Cth) being “that there is no reason to believe that the applicant does not continue to satisfy the primary criteria for the grant of a Subclass 421 visa”.
Regulation 421.22 is headed “Criteria to be satisfied at the time of decision”. Headings in Acts are deemed to be part of the Act – s.13 Acts Interpretation Act 1901 (Cth). The general rules and presumptions of statutory interpretation apply to the interpretation of delegated legislation Whittaker v Comcare (1998) 86 FCR 532. Therefore the heading in the regulation is deemed to be part of the regulation.
The relevant provisions of the regulations are:
“421.221 If:
(a) an application is made outside Australia; or
(b) the application is made in the migration zone;
and the applicant does not hold a Subclass 421 visa.”
The applicant satisfies the criteria in cls.421.222 and 421.229.
“421.222 If:
(1)    The applicant meets the requirements of subclause (2), (3), (4), (5),(6) or (7);
(2)    …
(3)    …
(4)    An applicant meets the requirements of this subclause if:
…
(c)     the applicant establishes:
(i)     if there is a relevant labour agreement between the Minister and an Australian sporting organisation -- that the sponsorship is in accordance with the agreement; and
(ii) that the sponsor has good financial and professional status in Australia; and
(iii)   that the applicant has an established reputation in the field of sport; and
(iv)   that the applicant and the sponsor have entered into a formal arrangement relating to the applicant's prospective activities in Australia; and
(d)    …”
Regulation 421.230 provides:
“421.230 If the application is made in the migration zone and the applicant was at the time of application the holder of a Subclass 421 visa, the applicant satisfies the Minister that there is no reason to believe that the applicant does not continue to satisfy the primary criteria for the grant of a Subclass 421 visa.”
Regulation 421.230 is a sub regulation of reg.421.22 and therefore it is stated in the Regulation that the criteria in it have to be satisfied at the time of decision.

It was submitted that the primary criteria in reg.421.21 have to be satisfied at the time of the application (CB 225). That is correct.
As to the first argument the Tribunal referred to reg.421.230 in paragraph 15 of its decision (CB 228) as follows:
“15. On 30 April 2007 the Tribunal sent a letter to the review applicant under section 359A of the Act inviting his comments by 28 May 2007 on information that is considered would be the reason, or part of the reason, for affirming the decision under review (T1,f.141-144). The relevant passages from this letter, which the review application was invited to comment upon are as follows:
1. In order to succeed in an application for a visa under the (Cth) (the Regulations), an applicant must satisfy all of the criteria for the granting of a visa. To meet the requirements of a subclass 421 visa, an applicant must satisfy the criteria set out in subdivision 421.22 of Schedule 2 to the Regulations at the time the Tribunal makes its decision.
2. As the visa application was made in the migration zone and you were at the time of application the holder of a Subclass 421 visa, you must meet the criteria contained in clause 421.330 at the time the Tribunal makes it decision. It provides:
‘421.230 If the application is made in the migration zone and the applicant was at the time of application the holder of a Subclass 421 visa, the applicant satisfies the Minister that there is no reason to believe that the applicant does not continue to satisfy the primary criteria for the grant of a Subclass 421 visa.’
3. The primary criteria for the grant of a Subclass 421 visa, include the subclause 421.221(1) which is a time of decision criterion. It requires that the applicant meets the requirements of subclause (2), (3), (4), (5), (6), or (7). There is no evidence currently before the Tribunal that you meet the requirements of subclauses(2), (3), (5), (6), or (7). The pertinent subclause in your case appears to be subclause (4) which provides:
‘(4) An applicant meets the requirements of this subclause if:
(a)       the applicant seeks to enter Australia under an arrangement with an organisation in Australia to:
(i)be a player, coach or instructor in relation to an Australian team or organisation; or
(ii) participate in a training program; and
(b)      the applicant is sponsored by an Australian citizen, an Australian permanent resident, an eligible New Zealand citizen or an organisation in Australia; and
(c)      the applicant establishes:
(i)if there is a relevant labour agreement between the Minister and an Australian sporting organisation -- that the sponsorship is in accordance with the agreement; and
(ii)that the sponsor has good financial and professional status in Australia; and
(iii) that the applicant has an established reputation in the field of sport; and
(iv)that the applicant and the sponsor have entered into a formal arrangement relating to the applicant's prospective activities in Australia; and
(d)      approval of the application would not result in the number of Subclass 421 visas granted in a financial year on the basis of the satisfaction of the requirements of this subclause exceeding the maximum number of such visas specified, by Gazette Notice, for the purposes of this paragraph in respect of that financial year’. ”
The Tribunal again referred specially to reg.421.230 in the its second s.359A letter to the applicant (CB 233) as follows:
In para 32 (CB 233) the Tribunal stated:
“32. On 23 October 2007 the Tribunal sent a further letter to the review application under section 359A of the Act inviting his comments by 20 November on information that it considered would be the reason , or part of the reason, for affirming the decision under review (T1, f.243-246). The relevant passages from this letter, which the review applicant was invited to comment upon, are as follows:
4. As foreshadowed at the hearing, there is information before the Tribunal that you do not have an established reputation in the field of sport, because the relevant national sporting body considers that you do not currently have the ability to compete or coach at the national level in Australia. This information is contained in a letter dated 29 August 2007 from the Chief Executive Officer of Badminton Australia, a copy of which is enclosed. The ability to compete or coach at the national level is a requirement of the policy guideline contained in the Procedures and Advice Manual concerning the subclass 421 visa (see section 16).
This information is relevant to the review, because the Tribunal may not be satisfied that you have an established reputation in the filed of sport at the time the Tribunal makes its decision. Consequently you may not satisfy subclause 421.222(4)(c)(iii) of Schedule 2 to, the Regulations. If the Tribunal finds that you do not satisfy subclause 421.222(4)(c)(iii), the Tribunal may not be satisfied that there is no reason to believe that you do not continue to satisfy the primary criteria for the grant of cause 421 visa at the time the Tribunal makes its decision and you may not satisfy clause 421.230. If the Tribunal finds that you do not satisfy clause 421.230 at the time of its decision, the Tribunal would have no alternative but to affirm the delegate’s decision to refuse to grant you a subclass 421 visa.
5. As foreshadowed at the hearing, your current contract with the Mount District Badminton Association Inc (the sponsor) expired on 30 June 2007.
a.This information is relevant to the review, because the Tribunal may not be satisfied that at the time the Tribunal makes its decision, you and the sponsor have entered into a formal arrangement relating to your prospective activities in Australia. Consequently you may not satisfy subclause 421.222(4)(c)(iv) of Schedule 2 of the Regulations. If the Tribunal finds that you do not satisfy421.222(4)(c)(iv), the Tribunal may not be satisfied that there is no reason to believe that you do not continue to satisfy the primary criteria for the grant of Subclass 421 visa at the time the Tribunal makes its decision, and you may not satisfy clause 421.230. If the Tribunal finds that you do not satisfy clause 421.230 at the time of its decision, the Tribunal would have no alternative but to affirm the delegate’s decision to refuse to grant you a subclass 421 visa.
6. There is no evidence before the Tribunal that, at the time of the Tribunal’s decision, the sponsor has good financial and professional status in Australia.
This information is relevant to the review, because if the Tribunal is not satisfied at the time it makes its decision that the sponsor has good financial and professional status in Australia, you may not satisfy subclause 421.222(4)(c)(ii) of Schedule 2 to the Regulations. If the Tribunal finds that you do not satisfy subclause 421.222(4)(c)(ii), the Tribunal may not be satisfied that there is no reason to believe that you do not continue to satisfy the primary criteria fro the grant of Subclass 421 visa at the time the Tribunal makes its decision, and you may not satisfy clause 421.230. If the Tribunal finds that you do not satisfy clause 421.230 at the time of its decision, the Tribunal would have no alternative but to affirm the delegate’s decision to refuse to grant you a subclass 421 visa.”
The Tribunal again referred specially to the reg.421.230 in paragraph 41 of its decision (CB 235) as follows:
“41. As the visa application was made in the migration zone and the visa applicant was at the time of application of the holder of a Subclass 421 visa, he must meet the criteria contained in clause 421.230 at the time the Tribunal makes its decision. It provides:
‘421.230 If the application is made in the migration zone and the applicant was at the time of application the holder of a Subclass 421 visa, the applicant satisfies the Minister that there is no reason to believe that the applicant does not continue to satisfy the primary criteria for the grant of a Subclass 421 visa’.”
The Tribunal set out its reasoning for applying regs.421.22 and 421.230 at paragraphs 54 and 55 of its decision (CB 239):
“54. The Tribunal has taken into account the purpose of subclass 421 visa, which provides for the temporary entry of sports person who have the ability to participate at the national competition level or higher, and is intended to improve the quality of a sport in Australia through participation in high-level competition and training with Australian residents. Having regard to the underlying rationale of the visa subclass, the Tribunal considers that it is not appropriate to depart from policy which requires that an established reputation in sport be supported by the relevant national sporting body. Even if this were an appropriate case to depart from policy, the Tribunal does not consider the visa applicant’s claims, taken individually or cumulatively, establish that he has an established reputation in the field of sport at the time of the Tribunal’s decision.
55. Having regard to Badminton Australia’s opinion, the visa applicant’s competition results since 2004, and his inability to play since April 2007, the Tribunal is not satisfied that the visa applicant has an established reputation in the field or sport at the time of the Tribunal’s decision. Consequently the Tribunal finds that the visa applicant does not satisfy subclause 421.222(4)(c)(iii) and therefore clause 421.222. It follows that the Tribunal is not satisfied that there is no reason to believe that the visa applicant does not continue to satisfy the primary criteria for the grant of a subclass 421 visa at the time of the Tribunal’s decision, so the visa applicant does not satisfy clause 421.230 of Schedule 2 to the Regulations.”
The Court finds that the Tribunal did no apply the incorrect regulation.
At paragraph 55 the Tribunal stated that it was not satisfied that the applicant has an established reputation in the field of sport at the time of decision. (That was a finding of fact that was open to the Tribunal on the material before it and is not open to review).
The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:
“Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quinn (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors.”
The issue the applicant seeks to agitate is no more than an impermissble attack on the factual finding of the Tribunal.
The challenge is no more than an invitation to review the merits.
The authorities make clear that the making of findings of fact is uniquely a matter for the decision-maker. In SHUB v Minister for Immigration and Multiucltural and Indigenous Affairs (2003) 137 FCR 43, the Full Court (at [12] quoted a passage from the decision of Selway J at first instance, where his Honour had said:
“16 I have considered all of the matters put to me. The relevant principle is clear. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal is analysising the factual material before it, the assessments of the material was a matter for the Tribunal, not for this Court. The appellant asked the Court to undertake a review on the merits of the decision of the Tribunal. The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [146]:
‘A tribunal such as the RRT does not commit an error of law merely because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999 197 CLR 611]…at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne; Australian Broadscasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Road Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Affairs v Epeabaka (1999) 160 ALR 543 (FC)…agree with the remarks of Katz J in [Zuway v Minister for Immgration and Multicultural Affairs 160 ALR] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal’.”
The Tribunal continued that “Consequently the Tribunal finds that the visa applicant does not satisfy subclause 421.222(4)(c)(iii) and therefore clause 421.222. It follows that the Tribunal is not satisfied that there is no reason to believe that the visa applicant does not continue to satisfy the primary criteria for the grant of a subclass 421 visa at the time of the Tribunal’s decision …”
Regulation 421.230 provides in part:
“the applicant satisfies the Minister that there is no reason to believe that the applicant does not continue to satisfy the primary criteria for the grant of a Subclass 421 visa.”
The Tribunal was therefore applying subreg.421.230 correctly by examining whether there was no reason to believe that the applicant does not continue to satisfy the primary criteria for the grant of a subclass 421 visa. It had to consider the requirements of subreg.421 in reaching its decision. It found as a matter of fact that is was not satisfied that there was no reason to believe that the applicant does not continue to satisfy the primary criteria for a subclass 421 visa.

That finding of fact is not open to challenge The Tribunal was aware of the fact that the applicant held a 421 visa at the time of the application for the current visa as it used the phrase “continue to satisfy” above, and referred to his subclass 421 (sport) visa at (CB 225 paragraph 7).
The second argument is that when the Tribunal dealt with the criteria of “established reputation” it applied policy that went beyond the terms of the regulation, because it applied a requirement that there be an endorsement by a national body (Court transcript page 25 line 40).

The correct criteria was considered both as a matter of policy and independently. The policy is set out in para 4 of the decision (CB 236) which includes the need for a letter of endorsement from the national sporting body. The Tribunal then considered whether the applicant has an established reputation in the field of sport, separately from policy para 51 (CB 238) and decided that “Even if this were an appropriate case to depart from policy, the Tribunal does not consider the visa applicant’s claims, taken individually or cumulatively, establish that he has an established reputation in the field of sport at the time of the Tribunal’s decision”. That is a finding of fact that was properly open to the Tribunal on the material before it. It was made independently of policy, and is not open to review. The argument is rejected.
The Tribunal applied the policy, but also held for independent and unimpeachable reasons that the applicant did not meet the criteria.

In his decision in VBAP of 2002 v MIMIA [2005] FCA 965 Justice North stated at [33]:
“As referred to early in these reasons, there were four independent bases for the decision of the Tribunal in this application. There was no challenge to the second basis of the Tribunal’s decision and I have rejected the challenges to two of the other bases. SAAP does not stand for the proposition that if there be a breach of s424A in relation to one ground upon which a decision is made, and there exists one or more other grounds upon which the decision is not or cannot be impeached, the decision nonetheless falls. SAAP was itself a case in which the only ground relied upon was a ground which jurisdictional error was established. There was therefore no other basis upon which the decision in that case could be upheld. In the present case there are three other bases upon the decision may be supported.”
The Tribunal referred to evidence it relied on in deciding that the visa applicant did not have an established reputation in the field of sport (decision to paragraphs 9, 13, 19, 25 and 27) and reached its decision separately from policy. Even if the policy had been applied, the decision is valid by reason of their being a valid independent unimpeachable basis for it. For instance, the Tribunal found that there was no evidence before the Tribunal at the time of the Tribunal’s decision that the sponsor has good financial and professional status in Australia (CB 233.8). That is the requirement in reg.421.222(4)(c)(ii).
Mr Gibson argued for the applicant that his case “stands or falls on whether it was a time of decision of criteria that the visa applicant had on established reputation in sport” (Court transcript page 45 line 33).
The reason for this argument is that the applicant must meet the criteria for a subclass 421 visa. To do that he must satisfy reg.421.22.

He must therefore meet the criteria in reg.421.230. He must therefore satisfy the Minister that there is no reason to believe that he does not continue to satisfy the primary criteria for a 421 visa. The primary criteria for a 421 visa are in reg.421.222 (1), that is that the applicant meets subcls.(2), (3), (4), (5), (6) or (7).
The Tribunal held that the applicant does not meet the criteria in subcl.4(c)(iii) that he has an established reputation in the field of sport. The Tribunal had information that the applicant did not have on established reputation in a field of sport as the national body had advised in writing that he did not have the ability to coach or compete at the national level (CB 229.2, 233.4), which is a requirement of the policy guidelines in the Departments manual for the grant of a 421 visa. (The reasons for the national body’s view are set out at

(CB 231.10)).
The Tribunal stated that if the applicant did not satisfy (4)(c)(iii) at the time of decision it must affirm the decision of the delegate to refuse a visa.
Mr Gibson is therefore correct to submit that “his case stands or falls on whether it was time of decision that the applicant had an established reputation in a field of sport”.
Regulation 421.230 indicates that the criteria must be satisfied at the time of decision as it provides that “the applicant was at the date of application the holder of a subclass 421 visa… satisfies the Minister that there is no reason to believe that the applicant does not continue to satisfy the primary criteria”. Further reg.421.22 of which 421.230 is a sub regulation is headed “Criteria to be satisfied at the time of decision”. Mr Gibson argued that the criteria did not have to be met at the time of decision (Court transcript page 43 lines 16 and 26, page 45 line 38). For the reasons given above, that the argument is rejected. To apply subreg.421.230 correctly the Tribunal had to consider whether the visa applicant met the criteria at the time of decision. The Tribunal did that (CB 239.8).
It is submitted for the applicant at (Court transcript 4 line 10) that the Tribunal should have considered whether the applicant met the time of decision criterion in reg.421.230 that there is no reason to believe that the applicant does not continue to satisfy the primary criteria of established reputation.
It is clear from the Tribunal’s decision that it applied that test in reaching its conclusion that “the Tribunal is not satisfied that there is no reason to believe that the visa applicant does not continue to satisfy the primary criteria for the grant of subclass 421 visa at the time of the Tribunal’s decision, so the applicant does not satisfy cl.421.230 of Schedule 2 of the Regulations” (CB 239.9).
By deciding that it was not satisfied that the applicant had an established reputation in the field of sport (CB 239.8) the Tribunal was giving its reason for not being satisfied that there is no reason to believe that the visa applicant does not continue to satisfy the primary criteria for the grant of subclass 421 visa at the time of the Tribunal’s decision.

As stated above the Tribunal referred to 421.230 throughout its decision.
This argument is rejected.
Mr Gibson then argued that “the critical question is having already established a status as someone who has an established reputation in the field of sport”, it really became a question of whether they had maintained it, whether they had lost it, and the circumstances in which that occurred.
The Tribunal considered that question according to policy (Decision para 40 (CB 236)); and then separately from policy, and determined that the applicant had not established that he has an established reputation in the field of sport at the time of decision. The Tribunal therefore decided that the applicant had lost his established reputation which implies that the Tribunal accepted that he once had an established reputation. As submitted by Mr Gibson…and it is clear of course, your Honour, that this applicant had – by grant of a visa, he had satisfied the Minister that he had an established reputation (Court transcript page 8 line 40). The decision in Xiang v MIMIA [2004] FCAFC 64 does not assist the applicant as in the present case the applicant lost his established reputation. Mr Gibson seeks to challenge that finding (Court transcript page 14 line 6) but that is a finding of fact that is not open to challenge. This argument is rejected.
Mr Gibson seeks to rely on the decision in Lobo v MIMIA [2003] FCAFC 168 to argue that if the Minister asks the wrong questions by applying policy and travelling beyond the regulation, the Minister’s decision is a nullity (Court transcript page 14 line 16). Be that as it may, the Tribunal here did not ask the wrong question and reached the conclusion separately from policy. The decision in Lobo does not assist the applicant.
All primary contentions of the applicant’s case are therefore rejected. An error of law has not been established.
The main argument for the applicant is that the Tribunal asked the wrong question; instead of asking itself “whether the applicant had an established reputation in the field of support” it was required to ask itself “whether the applicant continued to have an established reputation in the field of sport”. The Tribunal asked itself the latter correct question as set out (CB 239.9). The authorities for the proposition that there is an error of law if the Tribunal asks itself the wrong question are therefore of no assistance to the applicant.
Some meaning must be give to the word “continue” in the phrase “continue to satisfy” (CB 239.9). The use of the word indicates that the Tribunal was aware that the applicant had previously satisfied the primary criteria for a grant of a subclass 421 visa, here being that he once had an established reputation in the field of support. As stated by Mr Knowles for the first respondent (Court transcript page 27 line 3), the Tribunal was aware that the applicant had been the holder of a sport visa since 1 September 2004, and (at page 27 line 38) “and obviously in that visa having been granted, there was satisfaction of the primary criteria for the grant of the visa”. The Court accepts that submission.
The Court accepts the submission by Mr Knowles that “established reputation” does not necessarily mean “once obtained it will be held permanently” (Court transcript page 41 line 38). This is supported by the terms of reg.421.230. As recognised by Mr Gibson the question for the Tribunal was whether the established reputation “had been lost”, and that it can be kept until such time as it is lost (Court transcript page 44 line 12). Whether it is lost is a find of fact and is not open to review.
Accordingly, the application, amended application and further amended application are dismissed.

Conclusion

The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate: Kirra Vickerman

Date: 3 October 2008