Singh v Minister for Immigration - [2018] FCCA 506

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 506

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Distinguished Talent (residence) (class BX) (subclass 858) visa – whether the Tribunal applied the correct test.

Legislation:
Migration Regulations 1994 cl. 858.212 of Schedule 2

Cases cited:
Bretag v Immigration Review Tribunal [1991] FCA 582
Gaffar v Minister for Immigration and Multicultural Affairs (2000) 59 ALD 421; [2000] FCA 293
Hatcher v Cohn (2004) 139 FCR 425; [2004] FCA 1548

Applicant:

CHANDANBIR SINGH

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File number:

MLG 210 of 2016

Judgment of:

Judge Riley

Hearing date:

9 February 2018

Date of last submission:

9 February 2018

Delivered at:

Melbourne

Delivered on:

9 February 2018

REPRESENTATION

Advocate for the applicant:

In person

Solicitors for the applicant:

None

Counsel for the first respondent:

Andrew Yuille

Solicitors for the first respondent:

Australian Government Solicitor

Advocate for the second respondent:

No appearance

Solicitors for the second respondent:

Australian Government Solicitor

ORDERS

The application filed on 5 February 2016 and amended on 16 August 2016 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 210 of 2016

CHANDANBIR SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)[1]

[1] Reasons for judgment were given orally on 9 February 2018. The applicant filed a notice of appeal on 26 February 2018. The registry advised chambers on 26 February 2018 that the applicant had filed a notice of appeal. Chambers ordered a transcript of the reasons for judgment on 26 February 2018. Auscript provided the transcript of the reasons for judgment on 27 February 2018. The reasons for judgment were settled and sent to the applicant and the Minister by email and post on 2 March 2018.

This is an application to review a decision of the Administrative Appeals Tribunal (“the Tribunal”). The applicant applied for a Distinguished Talent (residence) (class BX) (subclass 858) visa on 18 February 2014. A delegate of the Minister for Immigration and Border Protection (“the Minister”) refused to grant that visa on 16 September 2014. The reasons for the refusal were that the delegate did not consider that the applicant had an internationally recognised record of exceptional and outstanding achievement, and the delegate was not satisfied that the applicant would have no difficulty in finding employment in the area of his talent.

The applicant applied to the Tribunal for review on 1 October 2014. The Tribunal conducted a hearing on 16 April 2014 which the applicant attended with his migration agent and Mr Kuldip Singh Bassi, the president of the United Wrestling Club Incorporated. The applicant and Mr Bassi gave evidence. The relevant criterion was cl.858.212(2) of Schedule 2 of the Migration Regulations 1994 which required that the applicant have an internationally recognised record of exceptional and outstanding achievement at the time of application.
The Tribunal noted that the applicant had claimed to have won a gold medal in 2009 in a community wrestling competition in England. However, he did not supply any documentary evidence to support that claim. The Tribunal noted that the applicant had received, prior to the date of his visa application:
a)a merit certificate from the Punjab Wrestling Association demonstrating that in May 2010 he was awarded first place in the 76 kilogram weight division of the Junior Punjab Wrestling Championship in India;
b)a diploma from the Wrestling Federation of India for placing second in the 76 kilogram weight division of Greco Roman wrestling in the National Wrestling Championship in Uttarakhand, India, in May 2010;
c)a participation certificate for the Shaheed Bhagat Singh International Wrestling Tournament in Jalandhar in 2013; and
d)second place in the 74 kilogram weight division of the male junior competition at the 2013 Canberra Cup.
The Tribunal noted that following the date of his visa application, the applicant was awarded:
a)first place in the 80 kilogram weight division at the Australian National Wrestling Championship in 2014; and
b)first place in the 80 kilogram weight division at the Australia Cup in May 2014.
The Tribunal set out its understanding of the words “exceptional” and “outstanding” in paragraph 29 of its reasons for decision as follows:
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; 3. extraordinarily skilled, talented or clever.”5 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.”6
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The Tribunal also considered Gaffar v Minister for Immigration and Multicultural Affairs (2000) 59 ALD 421; [2000] FCA 293, which concerned a precursor of the current criterion for Distinguished Talent visas. The words under consideration in Gaffar were “exceptional record of achievement”. The Tribunal also noted the decision of Hatcher v Cohn (2004) 139 FCR 425 at paragraphs 49 to 50; [2004] FCA 1548 where the court considered the meaning of “exceptional”.
The Tribunal, then, turned to the guidelines in the Minister’s Procedure and Advice Manual (“PAM”). The Tribunal noted that while it may be guided by policy it was not bound to follow it. The Tribunal then set out an extensive and detailed consideration of the applicant’s record of achievement and addressed the submissions put on the applicant’s behalf.
The Tribunal considered whether it could include in its consideration events that occurred after the time of application. In this regard, the Tribunal referred to Bretag v Immigration Review Tribunal [1991] FCA 582. That case concerned a spouse visa and held that events subsequent to the date of application could shed light on the circumstances as at the date of application. However, the Tribunal concluded that the applicant’s post application achievements did not point to the existence of an internationally recognised record of exceptional and outstanding achievement in February 2014, which was the time of application.
The Tribunal also noted the submission made by Mr Bassi that the applicant could be regarded as having an international ranking by virtue of his second place in the Indian junior championship. The argument was that because India has an international ranking, the applicant’s second placing automatically gave him an internationally recognised record of exceptional and outstanding achievement. The Tribunal did not accept that submission.
The Tribunal noted that, at the time of application, the applicant had not competed in any international events sanctioned by United World Wrestling, which is the international governing body for wrestling. The Tribunal noted that the applicant’s success at the Australian National Championships may have meant that he would have been selected for international competition. However, the Tribunal noted that, at the time of application, the applicant had not been so selected. The Tribunal, ultimately, concluded that the applicant did not have an internationally recognised record of exceptional and outstanding achievement. The Tribunal proceeded to affirm the delegate’s decision.
The applicant applied to this court on 5 February 2016 for review of the Tribunal’s decision. On 16 August 2016, he filed an amended application, written submissions, and an affidavit, which he had sworn or affirmed on the same day. The applicant may have had some legal assistance in drawing his submissions and amended application. However, he appeared without the benefit of legal assistance in court today. His amended application sets out certain grounds at page 3 and then includes four pages which consist of an additional ground and eight particulars to it.
The first ground on page 3 is:
[The Tribunal] made [a] decision which is not under the policies of my visa.
The Tribunal, as mentioned, did set out in its reasons an extract from the relevant part of the Minister’s PAM. However, the Tribunal expressly noted that it may be guided by the policy, but it was not bound to follow it. That is entirely correct. The applicant did not identify any particular respect in which the Tribunal’s decision was not made under the policy. The Tribunal’s decision is in accordance with the intent of the relevant subclass of visa. This ground is without substance.
The second ground on page 3 of the amended application is:
[The Tribunal] made positive decision before who has same case like me, But now they said its change in circumstances. (errors in original)
This seems to be the same issue as the applicant raised orally before the court today. He said that he knows three people who have been granted Distinguished Talent visas, but he claimed to have beaten them in competition. The reality is that the Tribunal is not bound by other cases, and each case turns on its own facts. The applicant has not provided any detail of the other cases that he talked about, so it is not possible to assess whether they are, in fact, similar or not. It is also not possible to determine whether they were correctly decided. In any event, all this court can do is determine whether the Tribunal in the present matter made a jurisdictional error. It is not strictly relevant that the Tribunal may have made a different decision in a different case. This ground is without substance.
The third ground on page 3 of the amended application is:
Exceptional circumstances, in general, which are extraordinary so I got national chapion of Australia every year so this should be exceptional Talent. International Recognition. (errors in original)
This ground seeks merits review, which this court is not permitted to provide.
The additional ground in the amended application is that:
The Tribunal exceeded its jurisdiction and has misconstrued, misapplied or misunderstood an essential criterion or criteria for the grant of the visa of which it was required to be satisfied.
There followed eight particulars in relation to that ground.
The first particular is as follows:
The meaning of the phrase at 858.212(2)(a) is not defined by regulation. The Tribunal relied on policy to make a determination and evidence presented by the applicant. The Tribunal recognizes the appalcitns (sic) achievements in the field of wrestling however misunderstands the evidence, misconstrues the regulations applicable, misapplied the regulation and imports meanings into the term “internationally recognized” beyond its powers.
There is no jurisdictional error in the Tribunal relying on policy to make a decision, provided that the policy is not applied inflexibly. There is no indication that occurred in this case. The balance of this particular was elaborated upon in the subsequent particulars, which are discussed below.
The second particular is as follows:
The Tribunal fails to understand that the record of achievement need not be one of being at the top constantly. The Tribunal failed to understand that as a young wrestler and competing in wrestling events in Australia and in India have brought me into prominence and recognition in the field of wrestling internationally. I achieved success in India and in Australia. See attached achievements in Australia. Moreover the Member failed to understand that my record has actually improved since my [competition] activities in Australia. I commenced in the Junior level and [have] progressed to the senior level. At the [senior] level I have improved my standing and from the evidence available it is unlikely that my achievement will diminish. Please refer to supporting documents provided form Indian Authorities and Australian authorities in the field of wrestling.
The Tribunal did not say, or require, that the record of achievement be one of being at the top constantly. I am not persuaded that the Tribunal misunderstood the evidence. The balance of this ground seeks merits review, which this court is not permitted to provide.
The third particular is as follows:
The Member at paragraph 52 of the decision record fails to understand that the event known as the Australia cup held in Canberra was in fact internationally recognized by the UUW (sic). The attached evidence clearly has the endorsement and therefore the support and recognition of the UWW at the international competition. The member failed to note that [in] addition to Australian competitors there were also competitors from New Zealand and Canada.
The applicant told the court that he had no evidence to support the claim that the Australia Cup was recognised by the UWW. Indeed, during the hearing, and as explained during the hearing, my associate, conducted an internet search, but was unable to find anything to support that claim. In relation to the claim that the Tribunal failed to note that, at the Australia Cup competition, there were competitors from New Zealand and Canada, merely competing with people from two overseas countries does not necessarily mean that the applicant had an internationally recognised record. There are, obviously, some competitions where people from multiple countries compete without the competition being at a significant level of international competition. The more significant point, however, is that the Australia Cup occurred after the applicant had lodged his application. Consequently, the Tribunal was not able to take that competition into account in determining the time of application criteria.
The fourth particular is as follows:
The Member erred in not applying the principle of the Bretag case. The member failed to understand that the United World Wrestling (UWW) endorsed the Australia cup. The UWW in giving its endorsement and recognition of this series of events is indicative of the standing of the Australia Cup internationally. In Paragraph 51 and 52 of the decision the Member dismisses my record of achievement as not being internationally recognized. The Member failed to note that the Australia Cup was endorsed and recognized as an international event. This failure to understand the facts which are on record led the Member into making a jurisdictional error.
Whether the Australia cup was secondarily used by the Australian Wrestling selectors for Australian purposes or their own purposes is irrelevant. The relevant factor in this matter is the International recognition by the UWW of the Australia Cup.
I achieved a gold medal at the Australia Cup held in Canberra in 2015.
The Tribunal did, in fact, consider the impact of the Bretag case and concluded that it did not assist the applicant. I consider that conclusion to have been well open to the Tribunal. The applicant won the gold medal at the Australia Cup after the date of the visa application. It was of no assistance to the applicant in attempting to satisfy the time of application criteria.
The fifth particular is as follows:
The Member erred at Paragraph 42 and has displayed illogical reasoning. Whilst the Member recognizes that my field of wrestling is recognized the Member fails to understand that competing against international opponents [in] Australia is an achievement. The Tribunal imports a concept of “International standards”. This reasoning is beyond the power granted to the Tribunal as the regulations at 858.212(2)(a) make reference to the applicant having an “internationally recognized record of exceptional and outstanding achievement in one of the following areas: ..(ii) sport”. By qualifying the regulation question the Member has erred in law. (errors in original)
The only Australian competition that the applicant competed in prior to the time of application was the Canberra Cup, which was a junior competition in which the applicant came second. This particular fails to recognise the distinction between a competition where people from overseas are present as competitors and an internationally recognised record of exceptional and outstanding achievement. The Tribunal’s use of the term “international standards” was not ideal. The Tribunal should instead have said “internationally”. However, as the Tribunal used the correct test repeatedly elsewhere in its reasons, I do not consider that this less than perfect terminology at one point is indicative of jurisdictional error.
Particular six is as follows:
At Paragraph 44 of the Decision Record the Member imports another quantitative qualifier to determine Internationally recognized record of exceptional and outstanding achievement in one of the following areas: .. (ii) sport”. The use of the word excel to qualify the regulation is an error in law.
The Minister submitted that “excel” is synonymous with having a record of exceptional and outstanding achievement. That may or may not be correct. However, the more important point is that the Tribunal used the term “excel” in response to a submission by Mr Bassi that the applicant “could excel in anything”. The Tribunal said in response to this submission that it was implicit in Mr Bassi’s submission that the applicant was “yet to excel in the sport”. That statement is uncontroversial. The Tribunal elsewhere showed that it correctly understood the question it was required to consider and the test it was required to apply.
Particular seven is as follows:
At paragraph 55 the Member fails to understand the internationally recognized achievement in wrestling while a competitor in the Australia Cup held in July of 2015. This [competition] was endorsed and recognized by the UWW. Reference his been made to this above.
However, as previously discussed, the applicant participated in the Australia Cup after the visa application was lodged.
Particular eight is as follows:
The regulations make no reference to “ranking” to determine whether an applicant has achieved a record of [international] achievement. In relying on the term ranking to assess the applicant’s standing internationally the Member has erred in law.
The Tribunal said, in paragraph 16 of its reasons, that it asked the applicant if he had an international ranking in wrestling. The Tribunal noted that the applicant said that only Olympians have an international ranking, and that his record was internationally recognised because India was in the top 10 world rankings, and he was ranked second in India, so, therefore, he had international recognition. In paragraph 16 of its reasons for decision, the Tribunal simply summarised the evidence given at the hearing.
In its consideration of the matter, the Tribunal returned to the question of ranking at paragraph 48 of its reasons. At that point, the Tribunal noted that Mr Bassi had claimed that the applicant was internationally ranked by virtue of his second placing in the Indian national championships. The Tribunal, at that point, was simply responding to a submission made on behalf of the applicant.
In the balance of its reasons, the Tribunal returned to a consideration of the essential question which was whether the applicant had an internationally recognised record of exceptional and outstanding achievement. There was no error in the Tribunal referring to ranking as it did. It was a legitimate question to assist in determining the key issue of whether the applicant had an internationally recognised record of exceptional and outstanding achievement. It cannot be said that the Tribunal imposed a requirement that the applicant have any particular international ranking to be able to succeed in his visa application.

It seems to me that none of the applicant’s grounds is made out. I have read the Tribunal’s reasons in detail. It seems to me that the Tribunal carefully and thoroughly considered the material before it and came to a conclusion that was reasonably open to it. The Tribunal gave the applicant procedural fairness and correctly applied the law. The Tribunal took into account all of the applicant’s claims. I am unable to discern any jurisdictional error in the Tribunal’s reasons or decision-making process. Consequently, the application will be dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 2 March 2018