Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1060
•18 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060
File number(s): PEG 346 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 18 May 2021 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – refusal of Distinguished Talent (Residence) (Class BX) visa – Brazilian Jiu Jitsu athlete and coach – whether internationally recognised record of exceptional and outstanding achievement in a sport – whether failure to consider an integer of the claim – whether jurisdictional error – writs issued
WORDS AND PHRASES - “internationally recognised record of exceptional and outstanding achievement” – “internationally recognised” - “record” – “exceptional” – “and” – “outstanding” – “achievement”
Legislation: Migration Act 1958 (Cth) s 476
Migration Amendment Regulations 2003 (No 7) (Cth)
Migration Regulations1994 (Cth) Sch 2, cl 858.212
Native Title Act 1993 (Cth) s 82
Cases cited: ApplicantWAEE v Minister for Immigration &Multicultural & indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
BSX16 v Minister for Immigration & Anor [2018] FCCA 821
Delgamuukw v British Columbia [1997] 3 SCR 1010
Do v Minister for Immigration & Multicultural Affairs [2002] FCA 1081
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
Ejai v Commonwealth (unreported, Supreme Court of Western Australia, Owen J, No 1744/93, 18 March 1994, BC9401597)
ETA067 v The Republic of Nauru [2018] HCA 46; (2018) 92 ALJR 1003; (2018) 360 ALR 228
EZZ17 v Minister for Immigration & Anor [2018] FCCA 2996
Gaffar v Minister for Immigration & Multicultural Affairs [2000] FCA 293
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244
Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1
MDXJ v Secretary, Department of Social Services [2020] FCA 1767
Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
Perder Investments Pty Ltd v Lightowler (1990) 25 FCR 150; (1990) 101 ALR 151
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; (1985) 65 ALR 549
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Re Minister for Immigration & Multicultural Affairs; ex parte S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59
Re The Licensing Ordinance (1968) 13 FLR 143
Secretary, Department of Employment, Education, Training and Youth Affairs v Gray [1999] FCA 1150; (1999) 91 FCR 254
Singh v Minister for Home Affairs [2019] FCAFC 3
Singh v Minister for Immigration and Border Protection & Anor [2018] FCCA 506
Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728
Smith v Minister for Immigration & Anor [2007] FMCA 1063
Springs v Minister for Immigration & Anor [2020] FCCA 371
Springs v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCA 197
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
Whitfield v One Key Resources Pty Ltd [2014] FCCA 553; (2014) 241 IR 472; (2014) 285 FLR 416
Zhang v Minister for Immigration & Anor [2007] FMCA 664
Number of paragraphs: 88 Date of last submission/s: 24 March 2021 Date of hearing: 24 March 2021 Place: Perth Applicant: The Applicant appeared in person Counsel for the First Respondent: Ms G Ellis Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 346 of 2020 BETWEEN: IAN LUCAS DOS SANTOS LUDGERO
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
18 MAY 2021
THE COURT ORDERS THAT:
1.That a writ of certiorari issue quashing the decision of the second respondent made on 5 November 2020.
2.That a writ of mandamus issue requiring the second respondent to re-hear the application for a Distinguished Talent (Residence) (Class BX) Subclass 858 visa made by the applicant on 22 May 2017 and determine it according to law.
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
Brazilian Jiu Jitsu (“BJJ”) is a competitive and combative martial art in which the applicant, Ian Lucas Dos Santos Ludgero (“Mr Ludgero”) competes and coaches at a high level, but not a level high enough for him to be granted a Distinguished Talent (Residence) (Class BX) Subclass 858 visa (“Distinguished Talent Visa”). Mr Ludgero was refused a Distinguished Talent Visa by a decision of a delegate made 23 February 2018 (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), affirmed by the Administrative Appeals Tribunal (“Tribunal”) on review by a decision made 5 November 2020 (“Tribunal Decision”). The Tribunal Decision appears in the Court Book (“CB”) at CB 287-292. Mr Ludgero has now filed an application for this Court to judicially review the Tribunal Decision (“Judicial Review Application”) pursuant to s 476 of the Migration Act 1958 (Cth) (“Migration Act”).
At the outset it is convenient to shortly set out some matters related to the organisational structure of, and participation in, BJJ, as follows:
(a)the International Brazilian Jiu-Jitsu Federation (“IBJJF”) is the pre-eminent international body in the sport of BJJ, and is privately owned by some members of a family who are related to the founder of BJJ;
(b)the Abu Dhabi Combat Championships (“ADCC”) is a second international body in which BJJ forms part of its competitions as BJJ is considered an important component of military and para-military training in Abu Dhabi;
(c)the Australian Federation of Brazilian Jiu-Jitsu (“AFBJJ”) is the national body in the sport of BJJ to which the State bodies, such as the AFBJJ Western Australia (“AFBJJWA”) report;
(d)“Gi” is the clothing used in BJJ, and also refers to a type of BJJ competition where athletes wear Gi clothing;
(e)“No-Gi” is a category of BJJ competition where athletes do not wear Gi clothing; and
(f)both Gi and No-Gi influence the rankings of an athlete differently depending on the institution administering the rank.
TRIBUNAL DECISION
The Tribunal Decision contains a single heading of significance: “Does Mr Ludgero have an internationally recognised record of exceptional and outstanding achievement in sport?”: CB 288, under which the Tribunal dealt with what it considered to be relevant matters.
At CB 289 at [8] the Tribunal set out certain policy considerations, as follows:
I have taken into account the Department’s policy as set out in PAM3, conscious of the role of Departmental policy in the Tribunal. I have noted the following particular points in relation to the evidence that policy suggests will assist me form a view whether Mr Ludgero has the requisite record of achievement:
•National and international rankings
•Membership of national sporting teams;
•Results in international competitions or tournaments;
•Statements from international sporting bodies;
•Sporting scholarships received;
•Newspaper and magazine articles attesting to achievements; and
•Links to any reputable websites which refer to the applicant’s sporting achievements.
The Tribunal recorded its discussion with Mr Ludgero concerning the organisation of BJJ, as follows:
(a)Mr Ludgero’s team, the Constrictors, is his father’s team. Mr Ludgero’s father was an innovator in the sport, inventing grappling techniques as a result of his losing digits to a boa constrictor. Mr Ludgero will be a member of this team for life and will always compete under the team name at BJJ events: CB 298 at [10]; and
(b)the IBJFF and the ADCC are international bodies involved in BJJ (as described at [2] above), and see CB 289 at [13], 291 at [24], and 298 at [11]-[13].
The Tribunal considered the international focus of the Distinguished Talent Visa criterion: CB 289 at [9], and found that the appropriate way to assess whether Mr Ludgero’s achievements as an athlete were “internationally recognised” was as follows: CB 290 at [16]:
16.In my view, the appropriate way to assess Mr Ludgero’s international recognition is through events organised by the IBJJF, including his global ranking, and to a lesser extent the ADCC.
The Tribunal then recorded its discussion with Mr Ludgero concerning his participation in IBJFF and ADCC competitions as follows:
(a)the Tribunal noted Mr Ludgero’s achievement at the IBJFF “Pan Pacific Championship” competition in 2016 where Mr Ludgero won first place in his class and third place in the no-Gi competition, and in the 2017 competition where he placed first in the no-Gi competition and third in his class: CB 290 at [17];
(b)Mr Ludgero’s claim concerning his successes in an ADCC competition in 2017. Although it is based in Abu Dhabi, the ADCC hosts competitions in Australia every 2 years, and Mr Ludgero competed in the Australian ADCC competition, but has never competed in the Abu Dhabi ADCC competition: CB 291 at [24].
(c)Mr Ludgero’s explanation that the IBJFF Pan Pacific Championships are always held in Australia and athletes from other countries, for example Brazil and the United States, come to compete, and that by competing in IBJFF competitions such as the Pan Pacific championships an athlete accumulates points which ultimately lead to an invitation to compete in the IBJFF World Championships: CB 290 at [19];
(d)that Mr Ludgero had competed with success in Brazil in the past, but had never competed in the United States, and that due to there being a limited number of competitions in Australia, his coaching commitments and for financial reasons, he has not been able to travel to compete in a sufficient number of tournaments to accumulate the points required to receive an invitation to compete at the IBJFF World Championships: CB 290 at [19]-[21];
(e)the Tribunal’s explanation to Mr Ludgero that given the nature of the sport as emerging and non-mainstream, success at the Pan Pacific Championships in Australia might be insufficient to demonstrate an internationally recognised record of exceptional and outstanding achievement: CB 290 at [22]; and
(f)the Tribunal’s reference to the importance of an invitation to attend the IBJFF World Championship, and Mr Ludgero’s response, reiterating his previous achievements and “[developing] his point about success in competition and international rankings being less important than a person’s overall development and reputation”: CB 290-291 at [22]-[23].
The Tribunal then discussed the other aspects of the evidence the policy suggested it consider: see [4] above, as follows:
(a)accepted that Mr Ludgero had attracted sponsorship for clothing, equipment, supplements and entry fees, but not for international travel for competition: CB 291 at [25];
(b)considered the IBJJF international ranking system, and noted that at the time of the Distinguished Talent Visa application Mr Ludgero was ranked 217th in the male adult black belt division, and that since then his ranking had dropped to 808th, but placed no adverse weight on the current ranking because the Tribunal had to focus on the ranking at the time of the Distinguished Talent Visa application: CB 291 at [26];
(c)found that Mr Ludgero’s IBJFF ranking was impressive, but it did not accord with the requirement that the international recognition be exceptional and outstanding: CB 291 at [26]; and
(d)in a passage dealing with Mr Ludgero’s black belt status, accepted that Mr Ludgero was the holder of the highest possible black belt for his age under the system applicable to BJJ: CB 291 at [27], and otherwise observed as follows:
27. Finally, I note the delegate’s remarks concerning Mr Ludgero’s rank as a holder of a black belt. With the assistance of Mr Ludgero’s explanation as to how the ranking system works within BJJ, I think the delegate may have misunderstood the significance of the fact that Mr Ludgero does not hold higher ranking within the black belt classification. Essentially, while the black belt itself is awarded in recognition of skill and discipline by the coach of the ‘team’ and other black belt holders within the team (Mr Ludgero mentioned that his black belt was withheld for a year because other black belt holders within the Constrictor team wished to demonstrate that he did not receive it because of his father), progression through the ranks within the black belt turns on the effluxion of time, provided one continues to train. It is explained that Mr Ludgero will not be eligible for the 9th degree black belt until he is 69 years of age. It is not possible for Mr Ludgero to hold a higher rank within the black belt classification on account of his age. I accept this evidence, and recognise that Mr Ludgero holds the highest rank it is possible for him to hold under this system.
At CB 291-292 at [29]-[33] the Tribunal concluded that:
29. In Mr Ludgero’s case, while I accept that the IBJJF Pan Pacific Championships and the Australian ADCC event is likely to have attracted some athletes from outside Australia, given the size and non-mainstream nature of the sport, I consider that participation in World championship events such as the IBJJF World Championships and the ADCC championship in Abu Dhabi is key. Mr Ludgero’s absence from the World Championship events hosted either by the IBJJF or the ADCC indicates to me that he does not hold the internationally recognised record of exceptional and outstanding achievement that is required to satisfy the visa criterion. I am reinforced in this reluctant conclusion by the ranking under the IBJJF system held by Mr Ludgero at the time of the visa application. I use the term ‘reluctantly’ because it is clear from Mr Ludgero’s profile documents and the references of his students and supported that he is very well regarded and highly respected athlete, and has every potential of attracting an internationally recognised record of exceptional and outstanding achievement in the future. My finding turns on international recognition, as it must, and should not detract from Mr Ludgero’s skill and expertise as an athlete.
30.I have also considered carefully Mr Ludgero’s claim that he should also be recognised as a coach. In this regard, Mr Ludgero is employed at the Mach 1 Fight Club in Perth. I have noted the letter of support offered by Mr Heske in that regard, including the letter provided after the hearing. It is also apparent from the references I have considered that Mr Ludgero has enthusiastic support amongst his students in Perth.
31.The visa criterion however again requires not only that Mr Ludgero is an excellent coach (which I accept he is), but that as a coach he has an internationally recognised record of exceptional and outstanding achievement. This is a high bar, which I do not consider is met in Mr Ludgero’s case. I have taken into account Mr Ludgero’s association with the training of two world champions from Western Australia, at blue belt and brown belt level. I understand that these athletes achieved their world champion status in Las Vegas and were accompanied to Las Vegas by Mr Heske. While I accept that Mr Ludgero has had significant influence and input into the training of these world champions, I am not satisfied on the evidence before me that it follows that Mr Ludgero therefore holds an internationally recognised record of exceptional and outstanding achievement as a BJJ coach.
32. After considering all the evidence before me, I have formed the view that it cannot be said that Mr Ludgero holds an internationally recognised record of exceptional and outstanding achievement as an athlete or a coach at the time of the visa application.
33. This is a difficult finding to pronounce in circumstances where it is clear that Mr Ludgero is a highly gifted, disciplined and well-respected athlete, and so I emphasis that my finding in this regard turns on the need within the Regulations for international recognition of exceptional and outstanding achievement. I have essentially decided that this cannot be satisfied in the absence of invitation to or competition in world championship events (in the context of this sport), and in light of Mr Ludgero’s global ranking under the IBJJF system at the time of the visa application.
The Tribunal found that Mr Ludgero failed to satisfy cl 858.212(2)(a) of Schedule 2 to the Migration Regulations1994 (Cth) (“Migration Regulations”), and affirmed the Delegate’s Decision to not grant Mr Ludgero a Distinguished Talent Visa: CB 292 at [34]-[35].
JUDICIAL REVIEW APPLICATION
Grounds of the Judicial Review Application
Grounds 1 and 2 of the Judicial Review Application, without alteration, are as follows:
1.I believe that I satisfy the requirements of clause 858.212 of schedule 2 to the Migration regulations 1994
2.I believe that I fulfil the requirements stated for Distinguished Talent (subclass 858) visa.
Although the grounds of review are posited as two separate grounds, they are, in substance, the same assertion slightly differently expressed.
Mr Ludgero’s Submissions
Mr Ludgero did not file written submissions as required by order 5 of orders made by a Registrar of the Court on 10 December 2020.
Mr Ludgero swore an affidavit on 20 November 2020 (“Ludgero Affidavit”), parts of which might be said to be submissions, as follows:
(a)at [1]-[2]: the Tribunal did not properly comprehend or understand BJJ;
(b)at [3]: the standards for international recognition of BJJ first take into account the lineage of the athlete, then the athlete’s participation in the BJJ community, then the athlete’s belt, and, as the least significant consideration, the athlete’s ranking; and
(c)at [4]: what is meant by “lineage” is not necessarily referring to a person’s lineage by descent, but rather a person’s connection to the origins of BJJ. Mr Ludgero says he is connected to the “BJJ creators” through his being a disciple of his father, whereas his father is connected to the “BJJ creators through non-family BJJ ‘masters’”. The connection between the student and the master lasts a lifetime and gives credibility to an athlete’s belt.
The Ludgero Affidavit also sets out at [2] evidence that Mr Ludgero says supports his satisfaction of each of the elements of cl 858.212(2)(a) of Schedule 2 to the Migration Regulations, as follows:
(a)he is a well-recognised coach, guiding BJJ athlete’s to World Championship success;
(b)his team, the Constrictors, have an expansive history in the martial art community;
(c)he has assisted in coaching and as a training partner to several high profile UFC athletes; and
(d)he has had success at the IBJFF Pan Pacific Championships and the ADCC Sydney Pro.
At hearing before this Court Mr Ludgero’s submissions: see Transcript at pp 2-4, were very general in nature and did not address with any specificity the grounds of the Judicial Review Application or the lineage claim referred to in the Ludgero Affidavit at [3]-[4]. Mr Ludgero did address the lineage question in a very general way, the gist of which was that focussing on competition type criteria alone was to miss part of what BJJ was, or as he put it at Transcript pp 3-4:
So if you focus just in a competition criteria, maybe you are going to miss a little bit of what you want from a martial art, which is the full construction of a human being.
Minister’s Submissions
The Minister submitted as follows:
(a)the Tribunal considered that to meet the Distinguished Talent Visa criteria Mr Ludgero’s record of exceptional and outstanding achievement had to be internationally recognised, and it found that the appropriate way to assess Mr Ludgero’s international recognition was through events organised by the IBJJF (including his global ranking) and, to a lesser extent, the ADCC organised events;
(b)the Tribunal had regard to the relevant factors in the relevant PAM 3 guidelines (“PAM 3 Guidelines”) to assist in the assessment of Mr Ludgero’s international recognition, and Mr Ludgero’s lineage was not one of the factors listed in the PAM 3 Guidelines as set out in the Tribunal Decision;
(c)the policy intention underlying the Distinguished Talent Visa is that applicants should be “very eminent in the top echelons of their field” with extraordinary and remarkable abilities which were considered “superior to their peers”: Minister’s Written Submissions at [26]; CB 144, 181 and 268, and Mr Ludgero’s lineage does not meet this test, and it was therefore appropriate for the Tribunal to not place much weight on his lineage and instead focus on the international recognition (or lack thereof) of Mr Ludgero in the sport of BJJ;
(d)it could not be said that no other rational or logical decision maker could not have drawn the same conclusion on the materials and evidence before the Tribunal;
(e)that the Tribunal had “comprehensively considered” Mr Ludgero’s claims and that “it was not required to accept the … claims uncritically”: Minister’s Written Submissions at [24] citing Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1 at 451 per Beaumont J (with whom Black CJ and Whitlam J did not disagree insofar as this point of law is concerned); Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481; CLR at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; (1985) 65 ALR 549; FCR at 169-170 per Wilcox J; and
(f)the grounds of the Judicial Review Application constitute an impermissible request for merits review.
It is appropriate to observe that the Minister’s Written Submissions appear to recognise a claim made by Mr Ludgero that his “lineage” in the sport of BJJ is a factor which contributes to his international recognition and record of achievement: see [17](b) and (c)] above. Further, the Minister’s Written Submissions at [22] acknowledge that Mr Ludgero’s:
… primary complaint appears to be that lineage was the “most important standard” for international recognition of BJJ and (presumably) that the Tribunal did not appreciate his lineage.
In relation to the issue of lineage the Minister’s Written Submissions at [26] argue that:
26. The applicant’s lineage was not one of the factors the Tribunal was guided to consider. This accords with the policy intention of the visa as recorded by the delegate which stated that the visa was established to provide permanent residence to outstanding individuals who would not qualify under other visa categories but who would make substantial contributions to the Australian community because of their international achievements. Applicants should be “very eminent in the top echelons of their field” with extraordinary and remarkable abilities which were considered “superior to their peers.” Whether or not someone comes from a certain lineage does not establish that they are “very eminent in the top echelons of their field” with extraordinary and remarkable abilities which were considered “superior to their peers.” Accordingly, it was appropriate for the Tribunal to not place much weight on the applicant’s lineage and rather focus on his international recognition (or lack thereof).
At hearing before this Court Counsel for the Minister outlined orally the gist of the Minister’s Written Submissions, and further said at Transcript pp 5-6 as follows:
MS ELLIS: …Insofar as the applicant’s affidavit complains that the tribunal didn’t take into consideration his lineage, first of all such a claim can’t be made out given that the tribunal repeatedly referred to the documents that contained the submissions about the applicant’s lineage.
HIS HONOUR: Can you just point me to where it does that in the tribunal decision?
MS ELLIS: Yes. So it refers to the submissions – sorry, your Honour. It can be inferred from its discussion of his ranking at 217. That was contained in those relevant submissions and that’s at paragraph 26. Again, an inference can be drawn from paragraph 24 where it refers to his success in the ADCC completion in 2017. That was all contained in that lengthy submission that the applicant submitted on two occasions.
HIS HONOUR: Sorry. Doesn’t that confuse two concepts? One, the success or otherwise at a national or international level with the concept of lineage, which the court apprehends it is one based on familial links and – when I say “familial links”, I should say including within the concept of – it’s almost a master/apprentice thing it seems in the sport. Because, I mean, you said initially when I asked the question that there had been repeated references to the question of lineage. And the reason I ask the question was because I was going to ask whether or not it could be put on behalf of the applicant that the tribunal, in considering the question of international recognition, didn’t actually consider the question of lineage.
MS ELLIS: Sorry, your Honour. My submission was that it certainly considered the submissions in which lineage was raised that were before it, and there is a long line of case law that says that if it’s clear that the documents within which a claim is raised were considered by the tribunal and the inferences I would seek the court to draw are that from these references to other claims that were raised in those same submissions, it can be seen that the tribunal considered the submissions that contained the issue of lineage: the claim of the importance of lineage. And the further inference I would seek the court to draw is that the tribunal just didn’t think that lineage was one of the criteria upon which it could make a finding that the applicant met this required level of international recognition.
So as per our written outline, policy gave guidance to the tribunal in what it should consider or could consider as evidence of international recognition. And it said things like national and international rankings, membership of national sporting teams – although the tribunal found that was less appropriate, given the structure of Brazilian jiu-jitsu – results in international competitions or tournaments, statements from international sporting bodies, sporting scholarships, newspaper and magazine articles and links to reputable websites. Now, nowhere does it mention lineage in that list of evidence that the tribunal may consider when considering whether the appropriate met that visa criterion.
And so in those circumstances it was entirely open - - -
HIS HONOUR: Is the policy exclusive of any other consideration?
MS ELLIS: It’s not exclusive, no. It just guides the decision maker to pieces of evidence that it, you know, may turn its mind though.
CONSIDERATION
Jurisdictional error required
The Tribunal Decision may be set aside on judicial review on the basis of jurisdictional error where the Tribunal identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material in a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given to the Tribunal under the Migration Act:Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 (“Yusuf”) at [82] per McHugh, Gummow and Hayne JJ.
In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”) at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ, as may unreasonableness: as to which see Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181, and the summary in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) at [41] per Wigney J.
The Court has no jurisdiction to engage in merits review, and the Tribunal’s fact-finding is not reviewable by this Court if the findings of fact were open to the Tribunal, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 (“NADR”) at [9] per Heerey, RD Nicholson and Selway JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. The weight to be given to an applicant's claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Grounds 1 and 2 of the Judicial Review Application are a simple statement of disagreement with the Tribunal Decision. Mere assertion of jurisdictional error as a cloak for mere disagreement with the Tribunal Decision cannot succeed, because mere disagreement with the Tribunal Decision does not amount to jurisdictional error: Re Minister for Immigration & Multicultural Affairs; ex parte S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59 at [114] per Kirby J; EZZ17 v Minister for Immigration & Anor [2018] FCCA 2996 at [16] per Judge Lucev, and therefore grounds 1 and 2 are no more than a request for impermissible merits review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. It follows therefore that grounds 1 and 2 of the Judicial Review Application as framed do not establish jurisdictional error.
The evidence referred to at [15] above is no more than a recitation of facts which were before the Tribunal and does not establish jurisdictional error in the Tribunal Decision.
It is evident to the Court, and seemingly to the Minister: see [17(b) and (c)] above, that Mr Ludgero sought to advance a third ground of judicial review not contained in the Judicial Review Application, but which arose primarily from what was said in the Ludgero Affidavit at [3]-[4]. That third ground can be framed thus: that the Tribunal failed to consider an integer of Mr Ludgero’s claim, that being that lineage was a necessary factor to be considered in determining whether Mr Ludgero had an “internationally recognised record of exceptional and outstanding achievement”. The quoted phrase is part of the relevant mandatory criterion. The Court will treat this as ground 3 of the Judicial Review Application. It is appropriate that the Court consider ground 3 as not to do so would prejudice a self-represented applicant for whom English is a second language in circumstances where it is apparent that the claim made by ground 3 was made, and, on the face of the Tribunal Decision, it is at least arguable that it was not considered by the Tribunal. As the Federal Court observed in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J (and see also BSX16 v Minister for Immigration & Anor [2018] FCCA 821 at [27] per Judge Lucev) in circumstances where a party is self-represented the Court must remain alert to the possibility of jurisdictional error by the Tribunal. There is no prejudice to the Minister, as the Minister recognised and set out the gist of the claim, and addressed it at hearing before this Court: see [17(b) and (c)] and [20] above.
Relevant Visa Criteria
Before examining ground 3 it is necessary to set out the relevant criteria for the Distinguished Talent Visa, and to say something about the criteria, and the consideration of that criteria by the federal courts on judicial review.
The Distinguished Talent Visa criteria is contained in cl 858.212 of Sch 2 to the Migration Regulations, and is relevantly as follows:
858.21—Criteria to be satisfied at time of application
…
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:
(i) a profession;
(ii) a sport;
(iii) the arts;
(iv) 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
(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.
Explanatory statement
The relevant Explanatory Statement - Explanatory Statement No 239 in respect of the Migration Amendment Regulations 2003 (No 7) (Cth) – is not helpful as it merely repeats the criteria, and indicates that the purpose of cl 858.212(2)(a) of Sch 2 to the Migration Regulations is to clarify that an internationally recognised record of exceptional and outstanding achievement may only be claimed in one of the four specified areas (being a profession, the arts, a sport, and academia and research).
Authorities
The authorities with respect to Distinguished Talent Visas are few in number, perhaps unsurprisingly given the nature of the Distinguished Talent Visa. It is, however, useful to review some of them.
Very recently in Springs v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCA 197 (“Springs – Appeal”) the Federal Court, on appeal from this Court: Springs v Minister for Immigration & Anor [2020] FCCA 371 (“Springs – FCCA”), dealt with an appellant who had failed to persuade the Tribunal that he had an internationally recognised record of exceptional and outstanding achievement in the arts, specifically as a professional actor, singer and dancer: Springs – Appeal at [1]-[4] per Perram J. In Springs Appeal the “heart of the debate … [was] the tension between … [the] evidence [of the producer of the show Show Boat] that Mr Springs had an internationally recognised record of exceptional and outstanding achievement and her evidence that she had not heard of him prior to the audition”: Springs – Appeal at [3] per Perram J.
In dismissing the appeal the Federal Court found that it was not unreasonable for the Tribunal to rely on implicit generalisations, including generalisations that:
(a)lead roles in a musical would be assigned to a person with an international record of exceptional and outstanding achievement, and that it was open to the Tribunal to conclude that the appellant was not such a person because he had only played a few roles as principal or lead: Springs – Appeal at [66] per Perram J;
(b)a person with an international record of exceptional and outstanding achievement in the arts would be performing in larger venues than the ones in which the appellant had performed, and it was reasonably open to the Tribunal to infer from the appellant only having had a few lead roles in smaller venues for relatively short runs, that he was not a person with an international record of exceptional and outstanding achievement: Springs – Appeal at [67] per Perram J; and
(c)a person with an international reputation would not normally be required to audition for a role, and that the producers of a show would be aware of the person’s record of achievement, and it was therefore reasonably open to the Tribunal to infer from the producers or directors of the show not having heard of the appellant at the time he auditioned for the show, that he was not a person with an international record of exceptional and outstanding achievement: Springs – Appeal at [68] per Perram J.
The appellant submitted that the view taken by the Tribunal was unreasonable because it was based on an idiosyncratic view of the arts, rather than being implicit generalisations based on common life experiences which a fact-finder might rely upon when drawing inferences from established facts: Springs – Appeal at [74] per Perram J.
In finding that the Tribunal was entitled to rely on the generalisations set out above, and therefore did not act unreasonably: Springs – Appeal at [81] per Perram J, the Federal Court observed that:
(a)it could not be said that there was no logical connection between the evidence before the Tribunal and its conclusion: Springs – Appeal at [79] per Perram J;
(b)although the generalisations could not be correct in every case, it could not be said that it was not open to a reasonable decision-maker to rely upon them in its reasoning process: Springs – Appeal at [79] per Perram J; and
(c)ultimately, it was for the Tribunal to decide if the appellant was a person with an international record of exceptional and outstanding achievement, and not a matter for the appellant’s referees: Springs – Appeal at [80] per Perram J.
The Federal Court then addressed whether the Tribunal erred by allegedly inserting additional requirements into the criteria for the Distinguished Talent Visa, including requiring that:
(a)performances evidencing the required record of achievement be as a central artist rather than in a supporting capacity;
(b)that lead roles be of a particular number, in venues of a particular size, and for particular production runs; and
(c)roles be significant roles as a soloist and not as part of a quartet: Springs – Appeal at [82] per Perram J.
The Federal Court observed that the Distinguished Talent Visa was one in which the criteria required the decision-maker “to embark upon a process of subjective assessment” as to whether a person had an international record of exceptional and outstanding achievement, and which required an assessment of the person’s record and qualities, “being a record which was both exceptional and outstanding and, further, being in that regard internationally recognised”: Springs – Appeal at [85] per Perram J, and that these were “open-textured requirements calling for the application of judgment” and which “repose the formation of that judgment in the decision maker”: Springs – Appeal at [86] per Perram J. It was also observed that in making the assessment it was “inevitable the Tribunal will give an explanation for its conclusions which is couched in terms which lie outside the criteria themselves” because in forming a conclusion as to whether a person had an international record of exceptional and outstanding achievement, that “inevitably must involve intermediate steps of reasoning which differ from that criterion”: Springs – Appeal at [88] per Perram J, but that those steps “cannot be permitted to supplant the criterion itself”: Springs – Appeal at [89] per Perram J.
The Federal Court found that there was no error in the Tribunal’s reasons, and that it had made factual findings and applied the mandated criterion to them: Springs – Appeal at [93] per Perram J.
In relation to the words “exceptional record of achievement” in an occupation, profession or activity the Federal Court observed in Gaffar v Minister for Immigration & Multicultural Affairs [2000] FCA 293 (“Gaffar”) “that mere competence and industry in an occupation” was not sufficient, and that “[s]uch a record plainly requires something out of the ordinary”: Gaffar at [19] per French J, and “a demonstrated excellence in the relevant occupation which is out of the ordinary”: Gaffar at [20] per French J. Gaffar is of some, albeit limited, assistance. That is because the criterion for the Distinguished Talent Visa is different to the visa criterion under consideration in Gaffar, which required “a national reputation … as to the applicant’s standing” and an “exceptional record of achievement” in an occupation, profession or activity: Gaffar at [10] per French J. By contrast, Mr Ludgero was required to demonstrate an “internationally recognised record of … achievement” with the achievement having to be both “exceptional and outstanding” in his chosen sport of BJJ. The current Distinguished Talent Visa therefore requires something more than was seen as being required in Gaffar (a point also recognised in Smith v Minister for Immigration & Anor [2007] FMCA 1063 (“Smith”) at [18]-[19] per Baumann FM), but might nevertheless still be seen as requiring “something out of the ordinary”: Gaffar at [20] per French J.
In relation to the relevant criterion under cl 858.212(2)(a) of Sch 2 to the Migration Regulations in Springs –FCCA at [59] per Judge Manousaridis this Court observed there must be a “record” and the “record” must be of “achievement”, that the “achievement” must be in a specified category (in that case “the arts”, in this case “sports”), and that the “record” of “achievement” in the specified category must be “internationally recognised” to be “exceptional and outstanding”.
In Springs – FCCA at [60]-[62] per Judge Manousaridis this Court went on to deal with the meaning of “record” and “achievement” as follows (footnotes omitted):
60.First, there is the word “record”. Cameron FM (as his Honour then was) considered the meaning of that word in Zhang v Minister for Immigration, where his Honour said (emphasis in original):
The New Shorter Oxford English Dictionary defines “record”, relevantly, as:
the most important facts in the life or career of a (public) person; the sum of a person’s acts or achievements.
The revised third edition of the Macquarie Dictionary relevantly describes it as:
a report, list, or aggregate of actions or achievements, as in the case of a person, an organisation, a horse, a ship etc.: to have a good record.
That is to say, a record is an aggregation or a list, not a large aggregation or a long list.
61.Although it may be accepted that “record” includes “an aggregation or a list”, its meaning is not restricted to an aggregation or a list. That it is not so restricted is supported by the Relevant Criterion’s requiring a record of “achievement” rather than a record of “achievements”. “[A]chievement”, as it appears in the Relevant Criterion, is capable of denoting a single achievement and also of operating as a mass noun to denote two or more achievements. To restrict “record” to an aggregation or list would render ineligible for a Talent visa persons who have accomplished a single achievement that is internationally recognised as exceptional and outstanding. That would be outside the apparent purpose of a Talent visa. In my opinion, therefore, “record”, as it is used in the Relevant Criterion, simply means “evidence”; and what the Relevant Criterion therefore requires is that there be evidence of “achievement in . . . the arts”.
62.The second element of the Relevant Criterion is “achievement”. That simply denotes the completion of some activity.
In Springs – FCCA at [63] per Judge Manousaridis this Court then went on to deal with the meaning of the final element in the relevant criterion under cl 858.212(2)(a) of Sch 2 to the Migration Regulations, namely, whether the record of achievement is “internationally recognised” to be “exceptional and outstanding”, and in that regard observed as follows (footnotes omitted):
63. I then come to the last element of the Relevant Criterion; and that is the achievement must be “internationally recognised” to be “exceptional and outstanding”. This last element does not require the decision maker to determine whether the record of achievement in question is exceptional and outstanding; it requires the decision maker to determine whether the record of achievement is “internationally recognised” to be “exceptional and outstanding”. This implies a least five things.
a) First, as French J (as his Honour then was) noted in Gaffar v Minister for Immigration & Multicultural Affairs, where his Honour considered an earlier version of the Relevant Criterion, a “record of exceptional and outstanding achievement” requires “something out of the ordinary”, although it must be kept in mind that the “requirement of an exceptional standard of achievement in an occupation, profession or activity is to be applied across a variety of occupations, professions and activities”, some of which “will require far greater levels of knowledge and skill than others in order to rise above the ordinary and the merely competent”.
b) Second, what amounts to “exceptional and outstanding achievement” is, at least to a large extent, a matter of opinion and degree.
c) Third, the question whether an applicant has a record of exceptional and outstanding achievement is to be determined by reference to the opinions or knowledge of persons or of a class or classes of persons (reference audience).
d) Fourth, the reference audience must be distributed among two or more countries.
e) Fifth, there must be some means by which the existence of a reference audience can be established to the decision-maker’s satisfaction; and that the reference audience so identified recognises both a record of achievement by the applicant for a Talent visa, and also that such record of achievement is exceptional and outstanding.
In Zhang v Minister for Immigration & Anor [2007] FMCA 664 (“Zhang”) at [35]-[36] per Cameron FM the Federal Magistrates Court dealt with the question of what constituted a “record” as follows:
35.The way the Tribunal approached the understanding of the word “record” indicates that it required the applicant’s “record” to be something which was quantifiable as large or lengthy. This reflects the policy requirement quoted at CB 250 that
A significant 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. (emphasis in original).
36.In essence, the Tribunal found that the applicant’s work did not amount to a “record” because there was not enough of it. This was the wrong approach as the regulation does not qualify the word “record” in the way impliedly understood by the Tribunal, and the policy requirement cannot affect the proper construction of the regulation. Neither the terms of the regulation nor the ordinary meaning of the word “record” indicates that it should be understood as requiring a record which is quantifiable as large or lengthy or as having been sustained over a period of time.
Thereafter in Zhang at [37] per Cameron FM the Federal Magistrates Court dealt with the meaning of “record” in the terms set out in the quote from Springs – FCCA at [40] above.
As was observed in Smith at [22] per Baumann FM a record of exceptional and outstanding achievement at an internationally recognised level has to be higher than “achievement which significantly surpasses that of the general run of those engaged in the relevant professional occupational pursuit”, that being the test for a lower level subclass 805 general residence visa: Do v Minister for Immigration & Multicultural Affairs [2002] FCA 1081 at [20] per Ryan J (incorrectly cited in Smith at [22] per Baumann FM as “[2002] FCA 108”).
The Tribunal Decision revisited
In Singh v Minister for Home Affairs [2018] FCA 1337 (“Singh – Appeal”) the Federal Court dismissed an appeal from a judgment of this Court: see Singh v Minister for Immigration and Border Protection & Anor [2018] FCCA 506, wherein this Court had dismissed an application for judicial review of a decision of the Tribunal refusing a Distinguished Talent Visa to an Indian wrestler. Pertinently, in Singh – Appeal at [8] per Middleton J the Federal Court observed that:
The FCC accurately identified that the proper approach [in the Tribunal] inevitably fell to determining the facts. The Tribunal objectively observed, from the material facts, that the Appellant did not have the requisite internationally recognised record of exceptional achievement.
It is fair to observe that the Tribunal in this case, to the extent that it did consider claims made by Mr Ludgero, adopted the approach adverted to in Singh – Appeal, and there can be no criticism of the findings that it did make in considering those claims. The issue is, however, whether the Tribunal failed to consider an essential integer of Mr Ludgero’s claims, and whether, if it had considered that integer, it might have made a difference to the disposition of the review.
Considering an applicant’s claim
It is well established that failure to consider an integer of an applicant’s claim may constitute jurisdictional error where that claim relates to a mandatorily relevant criterion under the Migration Act: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [24]-[25] per Gummow and Callinan JJ; Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop J. In Htun at [42] per Allsop J it was said that “[t]o make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on”.
The Full Court of the Federal Court in Singh v Minister for Home Affairs [2019] FCAFC 3 (“Singh – Full Court”) at [34] per Reeves, O’Callaghan and Thawley JJ observed as follows:
…a Tribunal charged with “review” may commit jurisdictional error in failing to exercise the jurisdiction it was contemplated it would exercise, if – for example – it does not engage in an active intellectual process or give proper, genuine and realistic consideration to:
•a “substantial, clearly articulated argument relying upon established facts” – see: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed;
•a claim “raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review” – see: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ; or
•a matter “that is an essential integer to an applicant’s claim or that would be dispositive of the review” – see: ETA067 v The Republic of Nauru (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ.
The Tribunal is required to engage in an “active and intellectual process directed at the claim or criteria”: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 (“Lafu”) at [45]-[46] per Lindgren, Rares and Foster JJ. While the Court can infer a failure to consider a claim if the Tribunal did not expressly mention a claim in the Tribunal Decision, it must read the reasons in the Tribunal Decision as a whole, but such an inference ought not too readily be drawn where the reasoning in the Tribunal Decision is otherwise comprehensive and the issue has at least been identified at some point: ApplicantWAEE v Minister for Immigration &Multicultural & indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“WAEE”) at [47] per French, Sackville and Hely JJ. Further, it may be unnecessary to make a finding on a particular matter where it is subsumed in findings of greater generality: WAEE at [47] per French, Sackville and Hely JJ.
In considering the law as set out above the Court must consider whether:
(a)the claim was actually made and clearly articulated, or at least clearly discernible;
(b)the claim was identified and considered by the Tribunal;
(c)the Tribunal engaged in an active and intellectual process directed at the claim; and
(d)the claim, if made out, might have been dispositive of the review.
Was the claim made by Mr Ludgero?
The Minister recognised that Mr Ludgero’s primary complaint in this Court was that the Tribunal failed to recognise that lineage is the most important standard for international recognition in BJJ: Minister Submissions at [22] (set out at [18] above). The Court notes that Mr Ludgero submitted to the Tribunal that “the individual’s rank is an important factor, however it is only one factor amongst others”: CB 273, and that there were many elements to Mr Ludgero’s claim to have satisfied cl 858.212(2)(a) of the Migration Regulations: for example, success in competitions, coaching, social media and online presence and lineage and belt: CB 237-256. Nevertheless, lineage was clearly fundamental to the claim made before the Tribunal as to an international record of exceptional and outstanding achievement: CB 239-242, 254 and 276-277.
Mr Ludgero’s submissions to the Tribunal included a lineage chart, (which has been reproduced in substance in the Ludgero Affidavit) which traces master-student relationships from “Helio Gracie”, to “Armano Wreidt” to “Ataide Ludgero Junior” (Mr Ludgero’s father) and finally to “Ian Ludgero” (Mr Ludgero): CB 240. The paragraphs in those submissions at CB 241-242 which follow the chart are the essence of Mr Ludgero’s lineage claim, and are as follows (emphasis in original):
It is a well-known fact in the BJJ Community that Carlos Gracie and Helio Grace were the founding fathers of the martial art, who adapted Jiu Jitsu from primarily practised in Japan to Brazilian Jiu Jitsu.
There are only a handful of athletes, who belong to a lineage of martial art, which is so closely linked to one of the pioneers - Helio Gracie. The Applicant Ian Ludgero, has the unique opportunity to learn BJJ under the guidance of his father (Ataide Ludegro Junior) who was a disciple of Armando Wreidt (one of the few individuals who have received the red belt, 9th Degree and direct disciple of Helio Gracie).
Further, he has also received training from Armando Wreidt himself, on several occasions.
“In BJJ, the concept of ‘lineage’ focuses on who you trained with and how directly connected they are to the Gracie family. Being able to show a connection to the Gracie family ensures that your belt is, in a way, credible. Whoever gives you your black belt will always be connected to you. As a result, there is a degree of personal accountability that comes with knowing that any students you grade as a black belt will carry your name.”
should be emphasized that when Ian Ludgero received the Black Belt in 2011 in a way Ataide Ludgero and Grand Master Armando Wreidt became accountable and referees of his talent, skill and stature.
It is pertinent to note two points in relation to the claims made in the above submissions. First, there is an unavoidable interdependency between “lineage” and “belt”. That is, lineage is proven, or established, by the belt, and the belt is given credibility by its lineage. Second, lineage is not a matter of familial descent, but rather a product of the master-student relationships formed within the confines of BJJ.
The Tribunal also had before it a document from Mr Ludgero referred in the Court Book as the “Applicant’s Statement on Brazilian Jiu Jitsu”: CB 155-176, which:
(a)traced the history of BJJ;
(b)discussed key figures in Mr Ludgero’s lineage (Helio Gracie, Armano Wreidt and Ataide Ludgero Junior);
(c)discussed the Constrictors Team and Mr Ludgero’s role in it;
(d)discussed the main events in which the Constrictor Team competes;
(e)discussed the main athletes in the Constrictor Team; and
(f)set out Mr Ludgero’s successes at competitions and education.
Mr Ludgero’s lineage and how it connected him to the Gracies was also mentioned as being an important aspect of his capacity as a coach: CB 254.
It follows from the foregoing that the lineage claim was made by Mr Ludgero before the Tribunal.
Was the claim identified and considered by the Tribunal?
The Tribunal said that it “accept[ed] all the evidence given by Mr Ludgero as to his achievements and as to the nature and organisation of the sport.” CB 288 at [5].
The Tribunal said that it applied the PAM 3 Guidelines: CB 289 at [8], and it is clear that the Tribunal did so. The Minister submitted that the Tribunal did not consider the lineage claim because of guidance from Government policy as set out in the PAM 3 Guidelines: Transcript p 5; Minister Written Submissions at [25]-[26].
The role of government policy in administrative decision-making was summarised by the Federal Court in MDXJ v Secretary, Department of Social Services [2020] FCA 1767 at [17] per Besanko J:
The part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case (Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20; (2010) 182 FCR 115 at [43]). Further, it is well-established that the Tribunal must make the correct or preferable decision in each case on the material before it and that the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642–643 per Brennan J). The important matter is compliance with the terms of the relevant statute itself (Minister for Home Affairs v G [2019] FCAFC 79; (2019) 266 FCR 569).
The application, or non-application, of government policy by an administrative decision-maker, such as the Tribunal, does not automatically relieve the administrative decision-maker from considering a claim made by an applicant for judicial review where the claim has a basis in the relevant criteria, and “a Minister’s policy must leave … [the Minister] free to consider the unique circumstances of each case”: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634 at 641 per Brennan J; see also Perder Investments Pty Ltd v Lightowler (1990) 25 FCR 150; (1990) 101 ALR 151, FCR at 157 per Spender J; Zhang at [36] per Cameron FM. Government policy cannot form a pre-determined frame outwith the Tribunal ought not, where it is appropriate to do so, venture.
The closest the Tribunal came to addressing the lineage claim directly was at CB 290-291 at [23]:
In response to this concern, Mr Ludgero explained again why he had not participated in the World Championships, drew attention to his success in Brazil in 2012 at a competition that attracted international athletes and developed his point about success in competition and international rankings being less important than a person’s overall development and reputation on account of BJJ being a martial art.
It might be said that the lineage claim was reflected in, or subsumed by, the phrase “overall development and reputation”: WAEE at [47] per French, Sackville and Hely JJ. The lineage claim, as it was outlined in Mr Ludgero’s submissions to the Tribunal, is however such a discrete and essential aspect of Mr Ludgero’s claim that the Tribunal ought to have properly recognised and considered it: ETA067 v The Republic of Nauru [2018] HCA 46; (2018) 92 ALJR 1003; (2018) 360 ALR 228 (“ETA067”) at [14] per Bell, Keane and Gordon JJ; WAEE at [48] per French, Sackville and Hely JJ.
The Tribunal did not comment, either directly or indirectly, upon Mr Ludgero’s lineage claim on the basis of his belt. Rather, at CB 291 at [27] quoted at [8(d)] above the Tribunal focused on an aspect of the belt distinct from lineage – that is, the inference of achievement from an observation of belts on a simple hierarchical basis, rather than on the basis of Mr Ludgero’s claims with respect to lineage.
It cannot be said that this is a matter where the Court can infer that the Tribunal did not consider the lineage claim because the Tribunal considered the claim irrelevant or immaterial to its decision: Yusuf at [5] per Gleeson CJ and [37] Gaudron J. This is so because this is not a mere failure to deal with evidence, but rather a failure to consider a subset or essential integer of a claim, and as such is indicative of omission not consideration: EAT067 at [14] per Bell, Keane and Gordon JJ; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 at [50], [52] and [64] per Kenny, Griffiths and Mortimer JJ; Htun at [42] per Allsop J.
The present matter is one where a failure by the Tribunal to deal with an essential integer of Mr Ludgero’s claim which, if resolved in one way, would or could be dispositive of the review, can also constitute a denial of procedural fairness or a failure to conduct the review required by the Migration Act and thereby constitute jurisdictional error: NABE (No 2) at [63] per Black CJ, French and Selway JJ.
In the Court’s view the lineage claim was neither identified nor considered in the Tribunal Decision. Rather, it appears that the Tribunal was so focussed on applying the government policy set out in the PAM3 Guidelines that it failed to consider Mr Ludgero’s lineage claim, and whether that lineage claim was capable of meeting the Distinguished Talent Visa criteria.
Did the Tribunal engage in an active and intellectual process directed at the claim?
Because the Tribunal was so focussed on applying the government policy set out in the PAM3 Guidelines that it failed to consider Mr Ludgero’s lineage claim, and whether that lineage claim was capable of meeting the Distinguished Talent Visa criteria, it is evident that the Tribunal did not engage in an active and intellectual process directed at the lineage claim: Lafu at [45]-[46] per Lindgren, Rares and Foster JJ; Singh – Full Court at [34] per Reeves, O’Callaghan and Thawley JJ.
Could the claim have been dispositive of the Tribunal review?
In order for the Tribunal’s failure to identify and consider and engage in an active and intellectual process in relation to Mr Ludgero’s claim to be characterised as jurisdictional error it must be capable of being dispositive of the review: NABE (No 2) at [63] per Black CJ, French and Selway JJ; ETA067 at [14] per Bell, Keane and Gordon JJ. In this regard, the lineage claim identified above must be material to the assessment of the Distinguished Talent Visa criteria.
Accepting the claim as it was outlined in Mr Ludgero’s submissions to the Tribunal: above at [51]-[55]], there is no issue with characterising Mr Ludgero’s lineage claim as one which asserts “international recognition” of, or by reason of, that lineage. Whether it is established to be so is ultimately a question for the Tribunal, after consideration of the claim. For present purposes the Court need only find that the lineage claim is not irrelevant to the assessment to be made by the Tribunal under the criteria in cl 858.212(2)(a) of Sch 2 to the Migration Regulations.
Achievement
It is convenient to begin this aspect of the matter by considering what is meant by “achievement”, namely:
1.The action of achieving. 2. Anything achieved; a feat, a victory …
The Shorter Oxford English Dictionary on Historical Principles (Third Edition) (Oxford: Clarendon Press, 1992) (“SOED”) p 16
The Tribunal recognised certain achievements by Mr Ludgero, but restricted its consideration of them to his competitive, or in competition, achievements: see CB 292 at [33] quoted at [9] above.
In his submissions to the Tribunal, Mr Ludgero outlined his progression to his current level of black belt: CB 240. This included receiving his current level of black belt from a skilled master after years of training, the receipt of which he also claimed recognised his lineage as part of its grant from a skilled master, and was therefore a part of his lineage claim: CB 239-242, 254 and 276-277. Mr Ludgero’s belt, received in those circumstances is undoubtedly an “achievement” within the meaning of that word as set out at [70] above, and which ought therefore to have been considered by the Tribunal together with the lineage claim made by Mr Ludgero, but was not so considered.
International recognition
The “international recognition” required by the criteria in cl 858.212(2)(a) of Sch 2 to the Migration Regulations must be:
(a)recognition which is international;
(b)identified with reference to a source, whether that be, for example, recognition by a body, group or person, engagement in an activity, an achievement, reputation, expert opinions or a combination of these or other matters; and
(c)related to the record of exceptional and outstanding achievement in the area of talent in the Distinguished Talent Visa: Springs – FCCA at [63] per Judge Manousaridis.
Mr Ludgero’s lineage claim is not irrelevant to the Tribunal’s assessment of “international recognition” in circumstances where:
(a)it was claimed that the metric for international recognition in BJJ is lineage;
(b)it was claimed that only a “handful” of BJJ athletes have lineage connecting them to the founding family of BJJ, the Gracies;
(c)it was claimed that connection to the Gracies through master-student relationships is a source of credibility, through the credibility afforded to a person’s belt, in BJJ;
(d)by implication, connection to the Gracies by way of lineage could reasonably be seen as giving rise to an international recognition in the sport of BJJ;
(e)by implication, Mr Ludgero’s pedigree in BJJ, as evidenced by the credibility of his belt arising from his lineage, might give rise to international recognition as a coach and referee, as claimed in his submissions to the Tribunal and other materials: CB 154 and 254;
(f)Mr Ludgero’s lineage is arguably “international” in nature, in that the master-student relationship with his Brazilian father and other senior figures in BJJ is not limited to Australia, and the possibility of recognition which might flow by way of lineage through his father’s connection to the Gracies is not limited to Australia; and
(g)the Tribunal accepted Mr Ludgero’s evidence both as to his achievements and the nature and organisation of BJJ: CB 288 at [5], set out at [57] above.
The lineage claim might therefore give Mr Ludgero, as a BJJ athlete, “international recognition” because his lineage is said to connect him to the founders of BJJ. Whether that aspect of the claim could be established would, as a factual matter, ultimately be for the Tribunal to determine on a consideration of the lineage claim, but in this case the Tribunal did not consider these important integers of Mr Ludgero’s claim as they related to international recognition in this manner.
International recognition alone is not, however, sufficient to be dispositive of Mr Ludgero’s claim. There must still be a “record of exceptional and outstanding achievement”.
Record
In Springs – FCCA at [61] per Judge Manousaridis, cited at [40] above, this Court adopted a broad interpretation of “record” in cl 858.212(2)(a) of Sch 2 to the Migration Regulations, as simply meaning “evidence”, which could be of a single achievement, and which certainly need not be a large or long list: Zhang at [36] per Cameron FM. There is no reason to depart from the broad meaning of “record” as explained in Zhang and Springs – FCCA.
In relation to “record” meaning “evidence” it is pertinent to observe that in Springs – FCCA at fn 79 per Judge Manousaridis the Court also noted that:
That is consistent with one of the definitions of “record” given in the Oxford English Dictionary: “The fact or condition of being preserved as knowledge or information, esp. by being set down in writing; knowledge or information preserved or handed down in this way. In early use frequently in of record. Now esp. in on (also upon) record: recorded.” - Oxford English Dictionary, accessed on 21 February 2020, <>
A “record” may thus exist by reason of its preservation as knowledge, and its handing down as knowledge, usually, but not always, in written form. A “record” may therefore be constituted by an oral tradition or knowledge handed down from master to student, as is claimed by Mr Ludgero to occur in BJJ. The recognition of an oral tradition or transmission of knowledge is not unknown: in native title law it is afforded statutory recognition, such that evidence of oral or customary tradition passed down over generations is good evidence: s 82, Native Title Act 1993 (Cth); Ejai v Commonwealth (unreported, Supreme Court of Western Australia, Owen J, No 1744/93, 18 March 1994, BC9401597); Smirke on behalf of the Jurruru People v State of Western Australia (No 2) [2020] FCA 1728 at [1169] per Mortimer J; Delgamuukw v British Columbia [1997] 3 SCR 1010 at [87] per Larney CJ.
Exceptional and outstanding
The relevant record of achievement has to be “internationally recognised” to be “exceptional and outstanding”: Springs – FCCA at [63] per Judge Manousaridis. The use of “and” in the phrase “exceptional and outstanding” is plainly intended to render those requirements cumulative, and the record must therefore be both exceptional and outstanding: Secretary, Department of Employment, Education, Training and Youth Affairs v Gray [1999] FCA 1150; (1999) 91 FCR 254 at [23] per Hill J; Re The Licensing Ordinance (1968) 13 FLR 143 at 146-147 per Blackburn J; Whitfield v One Key Resources Pty Ltd [2014] FCCA 553; (2014) 241 IR 472; (2014) 285 FLR 416 at [13] per Judge Lucev.
To have an “exceptional record of achievement” in a sport “plainly requires something out of the ordinary”: Gaffar at [19] per French J, and “a demonstrated excellence in the relevant … [sport] which is out of the ordinary”: Gaffar at [20] per French J.
The SOED relevantly defines:
(a)“exceptional” to mean “[of] the nature of or forming an exception; unusual”: at p 696; and
(b)“outstanding” to mean “[s]tanding out from the rest; conspicuous, eminent; striking”: at p 1477.
Mr Ludgero’s black belt, based on his lineage claim, might arguably be said to be an “exception” or to be “unusual”, and to be one that stands out. Given the limited number of people with this lineage, even at the highest levels of BJJ, and the very young age at which he received the belt, Mr Ludgero’s black belt might arguably be “out of the ordinary”: Gaffar at [20] per French J. It may therefore arguably be “exceptional and outstanding”.
Dispositive?
It is not the role of this Court to engage in a merits review of the Tribunal Decision: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; NADR at [9] per Heerey, RD Nicholson and Selway JJ. The Court has in this case endeavoured not to cross the merits review line. Rather, in relation to the lineage claim, a specific integer of the claim not considered by the Tribunal, the Court has sought to highlight how, if the claim were to be considered by reference to the relevant criteria for the Distinguished Talent Visa, there are matters for consideration which might, but not must, make the claim dispositive of the merits review. As was observed in Springs-Appeal at [86] per Perram J the criteria for the Distinguished Talent Visa are open-textured and call for the application of judgment, but judgment the formation of which is reposed in the Tribunal. There are matters of knowledge, opinion and degree involved in making a judgment in relation to the Distinguished Talent Visa criteria: Springs – FCCA at [63] per Judge Manousaridis. And those matters might be more marked in a sport such as BJJ which appears, or is claimed, to have some unique attributes and different markers of achievement. Nevertheless, a determination as to whether Mr Ludgero has an “internationally recognised record of exceptional and outstanding achievement” is still ultimately a fact-finding task to be undertaken by the Tribunal, but having regard to all claims made.
Having regard to the matters set out at [70]-[84] above there is nothing on the proper construction of cl 858.212(2)(a) of Sch 2 to the Migration Regulations which necessarily prevents Mr Ludgero’s lineage claim being dispositive of the review.
Conclusion – ground 3
In circumstances where:
(a)the Tribunal has:
(i)neither identified nor considered the lineage claim; and
(ii)not engaged in an active and intellectual process directed at the Distinguished Talent Visa criteria as it relates to the lineage claim; and
(b)the lineage claim may be dispositive of the review if considered,
ground 3 is made out, and establishes jurisdictional error in the Tribunal Decision.
CONCLUSION, WRITS AND COSTS
The Court has concluded that the Tribunal Decision is affected by jurisdictional error. The following writs will therefore issue:
(a)a writ of certiorari issue quashing the Tribunal Decision made on 5 November 2020; and
(b)a writ of mandamus issue requiring the Tribunal to re-hear the application for a Distinguished Talent Visa made by Mr Ludgero on 22 May 2017 and determine it according to law.
The Court will hear the parties as to costs.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 18 May 2021
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