Mudiyanselage v Minister for Home Affairs
[2020] FCCA 235
•11 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MUDIYANSELAGE v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 235 |
| Catchwords: MIGRATION – Application for a Distinguished Talent (Residence) (Class BX) Visa – ultra-marathon runner – clause 858.212 of Schedule 2 to Migration Regulations 1994 (Cth) – criteria requiring applicant to have an internationally recognised record of exceptional and outstanding achievement – finding by Tribunal that requisite criteria had not been satisfied – errors in translation of evidence during the course of the hearing before the Tribunal found not to be material or substantial – application dismissed. |
| Legislation: Migration Regulations 1994 (Cth), Schedule 2, Cl. 821.2, Schedule 4, PIC 4020 |
| Cases cited: White v Overland [2001] FCA 1333 |
| Applicant: | SANATH HEMANTHA KUMARA WIJEKOON BANDARA HERATH MUDIYANSELAGE |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 370 of 2018 |
| Judgment of: | Judge Egan |
| Hearing date: | 3 February 2020 |
| Date of Last Submission: | 3 February 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 11 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Clutterbuck |
| Solicitors for the Applicant: | Quinn & Scattini |
| Counsel for the Respondents: | Mr B. McGlade |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.’
The amended application for review filed on 5 December 2018 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review to be agreed or failing agreement to be assessed pursuant to Rule 21.11(2)(b) of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 370 of 2018
| SANATH HEMANTHA KUMARA WIJEKOON BANDARA HERATH MUDIYANSELAGE |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant applied for a Distinguished Talent (Residence) (Class BX) Visa on 1 November 2016. The criteria for the grant of the visa are as set out in clause 858.2 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) and are relevantly as follows:
“858.2 – Primary Criteria
Note: The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only secondary criteria.
858.21 – Criteria to be satisfied at time of application
858.211
(1) The applicant is not the holder of:
(a) a visa of one of the following classes or subclasses:
(i) Electronic Travel Authority (Class UD);
(iia) Maritime Crew (Temporary) (Class ZM);
(iii) Sponsored (Visitor) (Class UL);
(iva) Superyacht Crew (Temporary) (Class UW);
(v) Subclass 400 (Temporary Work (Short Stay Activity));
(vi) Tourist (Class TR);
(vii) Visitor (Class TV);
(viii) Subclass 600 (Visitor); or
(b) a special purpose visa; or
(c) a Subclass 456 (Business (Short Stay)) visa.
(2) If the applicant is not the holder of a substantive visa:
(a) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004; and
(b) the last substantive visa held by the applicant was not:
(i) a visa of one of the following classes or subclasses:
(A) Electronic Travel Authority (Class UD);
(BA) Maritime Crew (Temporary) (Class ZM);
(C) Sponsored (Visitor) (Class UL);
(DA) Superyacht Crew (Temporary) (Class UW);
(E) Subclass 400 (Temporary Work (Short Stay Activity));
(F) Tourist (Class TR);
(G) Visitor (Class TV);
(H) Subclass 600 (Visitor); or
(ii) a special purpose visa; or
(iii) a Subclass 456 (Business (Short Stay)) visa.
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
Note: An approved form 1000 requires the applicant’s record of achievement in an area (as mentioned in paragraph (a)) to be attested to by:
(a) an Australian citizen; or
(b) an Australian permanent resident; or
(c) an eligible New Zealand citizen; or
(d) an Australian organisation;
who has a national reputation in relation to the area.
(f) if the applicant has not turned 18, or is at least 55 years old, at the time of application—would be of exceptional benefit to the Australian community.
A delegate of the Minister refused the applicant’s visa application and the applicant then filed an application for review of that decision by the Administrative Appeals Tribunal (‘the Tribunal’). The applicant appeared before the Tribunal on 5 February 2018 at the hearing of his application for review. He was assisted during the course of the hearing before the Tribunal by a level two (2) NAATI interpreter in the Sinhala and English languages. The applicant was also assisted during the course of the Tribunal hearing by a registered migration agent. The Tribunal affirmed the decision of the delegate to the Minister to refuse to grant to the applicant the visa.
On 12 April 2018, the applicant filed an originating application for review by the Court of the decision of the Tribunal handed down on 15 March 2018.
The Tribunal found, contrary to the delegate, that the applicant did satisfy PIC 4020 for the purposes of cl. 858.227 of Schedule 2 to the Regulations. The Tribunal was satisfied that the applicant had not, for the purpose of the making of his visa application, relevantly provided information that was false or misleading in a material particular. The Tribunal then considered whether the applicant met the criteria requirements of cl. 858.212.
At the hearing before this Court, the applicant relied upon the grounds for review as set out an amended application for review filed on 5 December 2018. Such grounds were as follows:
“Grounds of Application
1. The second respondent fell into jurisdictional error in reviewing and affirming the mister’s decision. The interpreter supplied by the tribunal was did not properly translate the applicant’s oral evidence during the hearing which in turn caused the Tribunal to question the applicant’s genuineness and his efforts in responding to the tribunal’s questions. Furthermore, The Tribunal raised new concerns during the hearing regarding clause 858.212 of the Migration Regulations 1994 which were not previously raised and brought to the applicant’s attention. For these reasons, the applicant was not able to present a fair representation of his achievements and benefits which would have been materially improved with proper translation and time.
2. The tribunals decision is unfair and unjust. The tribunal affirmed the minister’s decision which stipulates that the applicant did not satisfy PIC 4020 however the reason for affirming was due to new issues raised during the tribunal that were not previously raised to the applicant’s attention. The Department’s decision should not be affirmed and the applicant should not be caught under PIC 4020 and the non-grant period under the relevant criteria should not apply to the applicant.
3. The applicant seeks leave to amend this applicant and to submit that the applicant satisfies clause 858.212(2) and that the visa should be granted based on the applicant’s submissions that he has a record of exceptional and outstanding achievement as an ultra-marathon athlete.”
At the outset of the hearing before this Court, Mr Clutterbuck of Counsel for the applicant asked the Court to treat Ground 1 of the grounds for review as two separate grounds. The first ground to be relied upon by the applicant was as follows:
“Furthermore, The Tribunal raised new concerns during the hearing regarding clause 858.212 of the Migration Regulations 1994 which were not previously raised and brought to the applicant’s attention. For these reasons, the applicant was not able to present a fair representation of his achievements and benefits which would have been materially improved with proper translation and time.”
The argument advanced on behalf of the applicant in respect of that refined ground was that the focus of the delegate, and of the Tribunal before the Tribunal hearing, had been solely upon the issue as to whether or not the applicant had provided information that was false or misleading in a material particular to the Department, and that in such circumstances, the applicant was unprepared to make submissions and present arguments on the substantive question as to whether he had an internationally recognised record of exceptional and outstanding achievement in the sport of ultra-marathon running as required under cl. 858.212.
It was submitted on behalf of the applicant that the applicant had been denied procedural fairness because the Tribunal proceeded, in the hearing before it, to canvass issues relevant to the 858.212 criteria rather than to solely focus upon issues relating to whether the applicant had provided a bogus document to the Department as part of his visa application. The applicant relied upon White v Overland [2001] FCA 1333 per Allsop J at [4] and Kioa v West (1985) 159 CLR 550 per Mason J at 582 and per Brennan J at 613.
The first respondent, by Mr McGlade of Counsel, submitted that no procedural unfairness had occurred. It was firstly submitted that the applicant had the onus of adducing evidence in support of his argument that he had been taken by surprise at the Tribunal hearing when required to address issues other than that in relation to whether he had supplied a bogus document in support of his application or not. It was submitted that there was no affidavit or statutory declaration put before the Tribunal to that effect, nor was there any complaint made to the Tribunal during the course of the hearing that that was the case. Specifically, it was submitted that there was no evidence before the Tribunal that the sole focus before the delegate was a bogus document issue and no other.
It was further submitted on behalf of the first respondent that upon invitation, the applicant had in fact placed an extensive amount of material before the Tribunal relating to his purported achievements in ultra-marathon running. Such documentation is extensive and can be identified at Court Book 36 – 69 inclusive, at Court Book 87 – 96 inclusive, and at Court Book 131 – 164 inclusive. It was submitted that in such circumstances, the applicant was well aware of the matters which were relevant for consideration by the Tribunal when assessing his application, such that the applicant was in a position to make submissions at the hearing as to all aspects of his claimed athletic prowess, and that there was therefore no merit to any assertion to the contrary.
Reliance was placed by Mr McGlade upon the decision of Siopis J in Minister for Immigration and Citizenship v Pham [2008] FCA 320 where His Honour, in circumstances similar to the present, said at [50] – [54] as follows:
“[50] The first respondent contended that because the delegate had not refused the visa on the basis of the deficiencies in the statutory declaration of Ms de Garcia, it followed that if the Tribunal intended to rely upon the deficiencies in the statutory declaration, it should have informed the first respondent to that effect and provided her with an opportunity of remedying the defects by providing further evidence.
[51] In my view, the case of SZBEL is distinguishable from the present case. The distinction lies in the fact that the first respondent chose to make a claim for a spouse visa founded on a non‑judicially determined claim of domestic violence. It was, therefore, incumbent upon the first respondent to establish that the relationship with her former spouse had been genuine and continuing and to present evidence in a form which complied with the Regulations, that her former spouse had subjected her to domestic violence. As to the evidence of domestic violence, Div 1.5 of the Regulations described in detail the qualifying conditions for a statutory declaration which was to be used in support of the domestic violence claim. An essential issue, therefore, in the determination of the first respondent’s visa application was whether the statutory declarations relating to domestic violence met the requirements prescribed in the Regulations. It did not matter, therefore, that the delegate had in refusing the visa, not dealt with the domestic violence issue. If the first respondent was to succeed before the Tribunal, it was necessary for her to show that the statutory declarations satisfied the Regulations, notwithstanding that the delegate had dealt only with the genuineness of the relationship issue in refusing the visa. In other words, the nature of the claim and statute dictated that this would be an issue before the Tribunal, notwithstanding that the delegate had not dealt with the issue.
[52] In SZBEL the High Court at 161‑162, at [29] approved the following observations of the Full Court of the Federal Court (Northrop, Miles and French JJ) in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone):
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision‑maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision‑maker. It also extends to require the decision‑maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision‑maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision‑maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. (Emphasis added by High Court.)
[53] The portion of the Full Court’s observation which was emphasised by the High Court, recognises, in my view, the distinction between the facts of this case and the facts in the SZBEL case. In this case, it was, to adopt the words of the observation from Alphaone, “apparent” from the terms of the Regulations that an issue before the decision‑maker would be whether the statutory declarations complied with the Regulations. It is evident from their letter of 18 July 2005 ([11] above) that the first respondent’s solicitors were aware that this was the case. Further, the Regulations described in detail the requirements for a qualifying statutory declaration. There was no similar specific statutory prescription in relation to the identification of the live issues before the Tribunal in the case of the visa applicant in SZBEL. The first respondent and her solicitors were not entitled to assume, and did not assume, that because the delegate had not dealt with the domestic violence issue, the question of whether statutory declarations complied with the Regulations would not be a live issue before the Tribunal in relation to the review of the delegate’s decision.
[54] In my view, the Federal Magistrate did not err in determining that there was no requirement on the Tribunal to provide an advisory opinion to the first respondent in response to the 18 July 2005 letter, nor to advise of the deficiencies during the hearing. It is for the applicant before the Tribunal to make his or her case (Abebe v Commonwealth (1999) 197 CLR 510 at 576, at [187]).”
It was further submitted that the applicant was given every opportunity during the course of the hearing to advance any matter relevant to his visa application, and that it could not be suggested that he had realistically been taken by surprise. For all of the above reasons as advanced on behalf of the first respondent, the Court accepts such submissions. There is no merit to the first refined ground of Ground 1 of the application for review.
As to the second refined ground of Ground 1 of the application for review, such ground is as follows:
“Grounds of Application
1. The second respondent fell into jurisdictional error in reviewing and affirming the minister’s decision. The interpreter supplied by the tribunal was did not properly translate the applicant’s oral evidence during the hearing which in turn caused the Tribunal to question the applicant’s genuineness and his efforts in responding to the tribunal’s questions.”
It was submitted on behalf of the applicant that there were errors in translation which significantly impacted upon the ability of the Tribunal to fairly adjudicate upon the applicant’s claims.
Mr Clutterbuck took the Court to parts of an agreed transcript of the proceedings before the Tribunal where it was clear that what the interpreter translated was inaccurate. In an outline of submissions filed on behalf of the applicant on 18 September 2019, particulars of errors in translation of evidence before the Tribunal were set out on pages 2 – 6 of such particulars. In that regard, reliance was not placed upon the passages of the transcript as set out on pages 2 – 4, up to “00:18:24”, because those matters were no longer in issue as they related to the bogus document question. As to the balance of the particulars provided, there were four (4) matters relied upon by the applicant as follows:
a)At 00:43:41 it was submitted that the applicant’s evidence at such point was different from that translated by the interpreter. Though there may have been some mistranslation, the Court does not find it to have been material or substantial so as to constitute unfairness. The force and effect of what was there translated was, in effect, what had been said by the applicant. The extent of any such mistranslation was immaterial to the Tribunal in its deliberations.
b)At 00:46:17, it was submitted that the applicant’s evidence at such point was different from that translated by the interpreter. It was submitted that the mistranslation was such that there was a “grave difference between having membership in Sri Lanka (of an association) and representing Sri Lanka” and that “This is likely to have made a considerable difference to the outcome of the decision by the Member.” Though there was a mistranslation, the Court is not of the view that such was so material or substantial so as to give rise to procedural unfairness. At transcript page 16, [1] the applicant admitted that there was no established ranking system in place in Sri Lanka for ultra-marathon runners, and that that was why Sri Lankan officials had sent the applicant overseas to international competitions. Further, at transcript page 18, in answer to a query from the Tribunal Member as to what information the applicant had about his status with an organisation called IAU (International Association for Ultra-Marathon), [2] the applicant replied, in respect of what his ranking was, that “I haven’t reached that level yet. I mean I have participated in Ultra-Marathon meets organised by them. So far, my best performance is that in Gold Coast and I got the 5th place.” From that dialogue, it is clear that any mistranslation as claimed by the applicant had been satisfactorily resolved by the giving of answers to questions put to the applicant by the Tribunal Member. There was no unfairness caused as a result of the mistranslation.
[1] Annexure RS-1 to Affidavit of Ruwan Samarasinghe filed on 22 March 2019.
[2] Question by Tribunal Member at 00:51:34 at page 18 of transcript – Annexure RS-1.
c)At 00:53:41, it was submitted that the mistranslation was evidence of a non-responsive answer being given by the applicant. At 00:55:26, the Tribunal Member, though expressing that there was some difficulty in understanding the applicant’s argument, nevertheless appreciated that the criteria required the applicant to satisfy the Tribunal that he had an internationally recognised record of exceptional and outstanding achievement in the field of ultra-marathon running. To the extent that there was not an exact translation, the Court finds that the Tribunal appropriately dealt with the issue at [36] – [39] of its reasons where it was said:
“[36] The Tribunal asked the applicant, multiple times, to explain who had made the awards, what the selection process was, and whether it was competitive. The applicant could not explain whether each specific world record claimed had been issued by Guinness, or by “Assist World Records”. The applicant could offer no explanation for the Tribunal’s concerns about the nature of his world record claims. Whilst the Tribunal accepts that the applicant is not intending to mislead, he was not a reliable witness, as he did not appear to be a person who appreciated the need to be particular about the information he provided to the Department, or to the Tribunal. He did not answer the Tribunal’s questions directly, and was largely unable to respond to the Tribunal’s questions about his ultramarathon career. He could not explain what organisations measured his success, what athletes he competed against, and how he had calculated himself to be the top marathon athlete in his home country of Sri Lanka.
[37] The Tribunal acknowledges that the applicant has participated in the Gold Coast 100 event, and the Midlands 100 Miler events. He has participated in several other races, including the following:
·5th LSR International Marathon, Dambulla-Sri Lanka, 2003, certificate of completion, no indication of place;
·6th LSR International Marathon, Colombo-Sri Lanka, 2004, seventeenth place men;
·12th Colombo Marathon, Sri Lanka, 2012, tenth place men;
·8th Colombo Marathon, Sri Lanka, 2007, eighth place men;
·Colombo Marathon, Sri Lanka, 2008, first place men;
·Sri Lanka Ministry of Sports & Youth Affairs National Sports Festival 2006, First Place Marathon;
·People’s Bank Sports Club Marathon 2006, fourth place men’s open marathon;
·North Face 100KM event, Thailand, 2012, completion place third;
·De Langste Nachtloop 24 hours ultra run, 2015, certificate of completion.
[38] The applicant has not competed in any Commonwealth Games, Olympic events, or any races of international significance. The races that the applicant has participated in are open events, which any person that registers can partake in, without any qualifying events. There is no evidence that the applicant is internationally recognised within the sport. Completion of any marathon, let alone several, is a noteworthy personal achievement. However, here, the applicant does not possess, on any objective view of the evidence, an internationally recognised record of exceptional and outstanding achievement in sport.
[39] For the reasons set out above, and having regard to what might reasonably be expected of someone who claims to have an 'internationally recognised record of exceptional and outstanding achievement' as an ultramarathon runner, the Tribunal is not satisfied that the applicant's record has been 'out of the ordinary', 'exceptional', or 'outstanding'. It is also not satisfied on the evidence before it that the applicant's record of achievement has been 'internationally recognised', as required by paragraph 858.212(2)(a). In reaching this conclusion the Tribunal has considered the applicant's undoubted running talent, at an emerging level.”
In such circumstances, it could not be said that the mistranslation caused the Tribunal to misconceive either the evidence before it or its role in assessing such evidence. It did not result in any unfairness to the applicant in the conduct of the hearing.
d)At 01:18:04, it was submitted that though the applicant had been asked whether he had anything further he wished to say, the interpreter’s response to that was “There is no point repeating the same thing tell if there is something new.” and that that constituted procedural unfairness. Though that might be seen as an example of the interpreter going off on a frolic of his own, it was in all of the circumstances neither substantial nor material and did not lead to an unfair hearing. The applicant had put extensive material before the Tribunal and he had had ample opportunity to present his arguments. It could not realistically be said that he had been denied procedural fairness.
This Court, in CAK16 v Minister for Home Affairs [2018] FCCA 2670 (which judgment was affirmed on appeal), [3] found that:
“Because of the magnitude of the departure from the usual practice of evidence being received in the first person, this Court is unable to have confidence that the applicant’s evidence as recorded in the transcript was a proper reflection of the evidence which the applicant actually intended to give at the hearings before the AAT. Nor is the Court confident that the Tribunal member was not influenced in his decision-making process by inaccurate evidence, the product of that flawed hearing process.”
[3] Minister for Home Affairs v CAK16 [2019] FCA 322.
In CAK16, reliance was had by the Court upon the joint judgment of Allsop CJ, Flick and Robertson JJ in SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [9] – [11] inclusive where it was said:
“[9] The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.
[10] How the decision-maker approached the matter may be critical. If an error of interpretation or translation can be seen to lead to a material and adverse finding relevant to a decision against the person, the unfairness of the hearing is self-evident. It may not be possible, however, to show how one or more inaccuracies affected the decision, since it will often be impossible to show what the decision-maker would have done with different information. This is especially so if the decision is based in part, or in whole, on credit. It is at this point that the focus upon the process becomes important. The enquiry is not to investigate, and the applicant’s burden is not to establish, a precise causal link between any irregularity and an adverse result, but to assess whether the decision-making process (including the hearing and the making of the decision) was fair. Even if one cannot show an operative causal influence of any irregularity upon the decision, it may still be that the irregularity might reasonably have had such an effect through its materiality or repetition or context. Any such conclusion may affect the legitimacy of the process in that it may not be able to be concluded that it was fair. Such may be expressed as requiring the appearance of a fair hearing: cf Assistant Commissioner Condon v Pompano 295 ALR at 693 [209]; NIB Health 115 FCR 561 at 583 [84]; R v Tran [1994] 2 SCR 951 at 988, Lamer CJ, writing for the Canadian Supreme Court otherwise comprised of La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ, in a passage cited by Kenny J in her Honour’s influential decision in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; 92 FCR 6 at 19-20 [30]. It can, in this context of adequacy of communication through interpretation, be perhaps better expressed as requiring that the hearing be fair. How, it might be asked rhetorically, can a hearing be described as fair, when it can be shown that real and potentially material errors of substance occurred in interpreting or translating a person’s version of events to a decision-maker, being errors that may well have affected the decision in a real way, though such causal effect cannot be demonstrated one way or another?
[11] That rhetorical question should not be taken as intended to encapsulate any complete evaluative principle. Fairness of the process will fall to be judged by reference to the particular circumstances. In some circumstances, the interpretation may be so inadequate as to deny the fact of any hearing. In such circumstances, it may not even be necessary to show that the errors may well have affected the decision in a real way, because there has been no hearing, to which the person was entitled.”
The Court accepts the submissions made on behalf of the first respondent. It does not accept that the mistranslation was so inadequate as to give rise to unfairness in the conduct of the hearing. The Tribunal at no time knew that there had been any mistranslation, and was otherwise faultless in the painstaking way in which it considered all of the substantial evidence before it, all of the submissions made to it, and all of the evidence presented during the conduct of the hearing. The Tribunal was careful to evaluate the oral evidence and submissions given at the hearing and was not adversely influenced by identified mistranslations which the Court finds were of no real consequence.
The Tribunal carefully considered what was required of the applicant to satisfy the cl. 858.212 criteria. At [18] – [25] of its reasons, the Tribunal properly identified the matters which ought to be taken into account as follows:
“[18] The issue under review is whether the applicant meets the requirements of cl.858.212(2)(a) of the Regulations; that is, whether the applicant has an internationally recognised record of exceptional and outstanding achievement in his nominated field of sport, specifically ultramarathon running.
[19] The Tribunal observes that the concept of 'internationally recognised record of exceptional and outstanding achievement' in paragraph 858.212(2)(a) is not defined in the Regulations.
[20] According to the Macquarie Dictionary Online the word 'exceptional' is defined to mean:
1. forming an exception or unusual instance; unusual; extraordinary;
2. extraordinarily good, as of a performance or product; extraordinarily skilled, talented, or clever.
It also defines the word 'outstanding' to mean:
1. prominent; conspicuous; striking;
2. that continues in existence; that remains unsettled, unpaid, etc.;
3. standing out; projecting; detached;
4. that resists or opposes.
[21] The Tribunal also notes that the concept of 'record of exceptional and outstanding achievement' has been the subject of judicial consideration.
[22] In particular, the Courts have held that the ordinary meaning of 'record' does not require that the record be quantifiable as large, or lengthy, or as having been sustained over a period of time. As a result, a 'record' is an aggregation or a list, not necessarily a large aggregation or a long list.
[23] In addition, the Courts have held that in determining whether the applicant has a 'record of exceptional and outstanding achievement', the criterion requires demonstrated excellence in the relevant occupation which is out of the ordinary. Notably, in Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs, French J observed that the concept of an 'exceptional record of achievement' did not require an applicant to be a 'national living treasure'.
[24] As a result, the Tribunal acknowledges that the circumstances that will meet this requirement will vary across different professions and activities and, as French J observed, some will require far greater levels of knowledge and skill by an applicant to rise above the ordinary and the merely competent.
[25] In addition, the Tribunal observes that the departmental guidelines in PAM3 provide the following guidance in respect of what constitutes a record of exceptional and outstanding achievement:
What does 'exceptional' mean
For 858.212(2)(a), applicants should be very eminent in the top echelons of their field. They should demonstrate extraordinary and remarkable abilities and be superior to others in their field.
'Internationally recognised' in this context means that a person's achievements have or would be acclaimed as exceptional and outstanding in any country where the relevant field is practiced.
'Exceptional' and 'outstanding' should be accorded ordinary dictionary meaning within context.
Policy requirements
Claims of an “excellent” level of performance in a job, particularly where the benefits of such performance may only be realised locally, would not be regarded as exceptional and outstanding achievement.
A single achievement by the applicant, particularly where it appears to be the only significant achievement, would not be regarded as 'exceptional and outstanding' achievement. It is anticipated that an applicant would have a record of sustained achievement that is unlikely to diminish in the future.
An achievement that may attract national acclaim would not be considered as 'international recognised' unless that achievement is in a field practised in other countries (including Australia) and has or would attract similar acclaim in those countries.
Given the ordinary dictionary meanings, in order to have a 'record of exceptional and outstanding achievement' an applicant would be expected to have achievements remarkable in relation to that field and in relation to their peers who are also positioned as the very best in that field. An applicant should be at the very top of their field.
Assessing this criterion
In assessing the applicant's record of achievement, officers may take into account information such as, such as, indicated in the following eight examples:
· Information provided by the nominator, who should provide a full account of why they believe the applicant has an exceptional and outstanding record of achievement
· Supporting statement and material provided by the applicant detailing relevant aspects of their background including their qualifications, achievements and positions held. This should include information relating to any achievements in Australia.
· Supporting statements from internationally recognised individuals or organisations in the field who can pass comment on the applicant's achievements and the applicant's reputation within the field.
· Awards or higher qualifications received from internationally recognised institutions or organisations.
…
· Details and supporting material on achievements in the arts including:
o books published and
o national and internationals sales achieved and
o awards and commissions received and
o galleries in which works are displayed and
o scale and audience of displays held and
o recognition by peers and
o honours and accolades (for example, an Academy Award, or a Nobel
o Prize in Literature) and
o academic qualifications associated with the applicant's area of the arts and
o statements from international artistic bodies and
o newspaper and magazine articles attesting to achievements.
…
· Details and supporting material on professional achievements including:
o industry awards and accolades and
o references from current and past employers and
o statements from prominent industry peers and
o academic degrees or professional designations associated with the applicant's field of work and
o personal/professional titles (such as CEO, Lord, Knight, Right Honourable) indicating an earned rank or position within a formal power structure.”
The Tribunal did not accept that the applicant had satisfied the cl. 858.212 criteria. All relevant evidence was evaluated. The evidence before the Tribunal as to the applicant’s achievements in the sport of ultra-marathon running was considered at length by the Tribunal. Having found that the relevant criteria for the grant of the visa had not been met, it was open for the Tribunal to refuse the application for the visa and affirm the decision of the delegate.
It cannot be said that no other rational or logical decision maker could not have made the same decision. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
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[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
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[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
There is no merit to the second refined Ground 1 of the amended application for review.
As to Ground 2 of the grounds of review, this ground was subsumed into the argument advanced in relation to the first refined ground of Ground 1 of the amended application for review. Insofar as it referred to PIC 4020, that aspect of the applicant’s claim was otiose. The Court is not required to further address this ground.
As to Ground 3 of the amended application for review, leave to amend was granted at the commencement of the hearing. Otherwise, the ground related to the second refined ground of Ground 1 of the amended application for review. The Court therefore was not required to deal with Ground 3.
The applicant has not demonstrated jurisdictional error on the part of the Tribunal. The amended application for review is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 11 February 2020
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