Mudiyanselage v Minister for Home Affairs - [2020] FCCA 235

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
Kioa v West (1985) 159 CLR 550
Minister for Immigration and Citizenship v Pham [2008] FCA 320
CAK16 v Minister for Home Affairs [2018] FCCA 2670
Minister for Home Affairs v CAK16 [2019] FCA 322
SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 235
Decision Date: 11 February 2020

CaseChat Overview and Summary

Mudiyanselage applied to the Federal Circuit and Family Court of Australia for judicial review of a decision by the Administrative Appeals Tribunal (AAT) affirming the Minister for Home Affairs' refusal to grant a Distinguished Talent (Residence) (Class BX) visa. The applicant, an ultra-marathon runner, sought this visa under clause 858.212 of Schedule 2 to the *Migration Regulations 1994* (Cth), which requires an applicant to demonstrate an internationally recognised record of exceptional and outstanding achievement. The AAT had found that the applicant did not satisfy this criterion.

The primary legal issue before the court was whether the AAT had erred in law in its decision. Specifically, the applicant contended that the AAT had made a material error in its assessment of the evidence, including alleged errors in the translation of documents presented during the hearing. The court was required to determine if these alleged translation errors, or any other aspect of the AAT's reasoning, rendered its conclusion that the applicant lacked an internationally recognised record of exceptional and outstanding achievement legally unsustainable.

Judge Egan found that while there may have been some minor inaccuracies in the translation of evidence, these were not material or substantial enough to have affected the outcome of the AAT's decision. The court reasoned that the AAT had properly considered the evidence before it in relation to the applicant's achievements and had applied the correct legal test under clause 858.212. The AAT's conclusion that the applicant had not established an internationally recognised record of exceptional and outstanding achievement was therefore upheld. The application for judicial review was dismissed.

Orders