SINGH v Minister for Immigration

[2017] FCCA 2992

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2992

Catchwords:
MIGRATION – Application for judicial review – distinguished talent visa –no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth).

Migration Regulations 1994, cl.858.212(1)

Cases cited:

Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231

Applicant: SUKHWANT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 270 of 2016

Judgment of: Judge Riethmuller

Hearing date: 8 September 2017

Date of Last Submission: 8 September 2017

Delivered at: Melbourne

Delivered on: 6 December 2017

REPRESENTATION

Counsel for the Applicant: Mr Aleksov

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Counsel for the First Respondent: Mr Hosking

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 270 of 2016

SUKHWANT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 15 January 2016 wherein the Tribunal affirmed a decision of a delegate of the Minister for Immigration & Border Protection to refuse to grant the applicant a Distinguished Talent (Residence) (Class BX) (subclass 585) visa. 

2. The applicant is a citizen of India and came to Australia on

   
   

   21 December 2013 on a temporary work (long stay activity) (subclass 401) visa.  The applicant seeks a Distinguished Talent visa based upon his talent in wrestling, being nominated by the United Wrestling Club Inc.

3. Clause 858.212(1) of the Migration Regulations 1994 (“the Regulations”) provides for a number of conditions, relevantly in a subclause 2(a) that 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…

4. At the time of application the applicant’s record of achievement in wrestling consisted of a number of successes:

   ·A 2006 certificate from the Taran Taran District Wrestling Association in India, being placed in a first position but not specifying the event;

   ·An April 2009 participation certificate from the Wrestling Federation of India indicating that the applicant participated in the championship;

   ·An April 2010 participation certificate from the Punjab Wrestling Association indicating that the applicant came first in the freestyle 96 kilo weight class;

   ·A merit certificate in August 2010 from the Punjab Wrestling Association for first place in the 120 kilo weight class;

   ·In April 2014, first place in the senior 98 kilo division Greco Roman Wrestling at the 2014 Australian National Championships;

   ·In May 2014, second place in the 97 kilo division for freestyle wrestling and the 98 kilo division for Greco Roman Wrestling at the 2014 Australia Cup of Wrestling organised by the Victorian Wrestling Association. 

5. In substance, the applicant’s case before the Tribunal is that his national level competition successes in India and Australia resulted in him being internationally recognised, although he had not yet competed at an international level. 

6. The applicant’s nominator gave evidence that a person who won a national championship would be regarded as being at an international standard, and that in 2010 India had been in the international top 10 countries for wrestling. 

7. The Tribunal noted that the term “internationally recognised record of achievement and outstanding achievement” is not defined in the Regulations, and had regard to the guidance provided for in the Procedures Advice Manual 3 (“PAM3”), noting that it is not bound by policy, and that that the test in this case was “a question of fact to be determined in the individual case”. The PAM3 provided that “applicants should be very eminent in the top echelons of their field. They should demonstrate extraordinary and remarkable abilities and be superior to their peers in their field”.

8. The Tribunal recounted the various aspects of the PAM3 at [27] to [28] as follows:

   27. The Tribunal notes that there is presently no specific Court authority on the meaning or interpretation of the phrase “internationally recognised record of exceptional and outstanding achievement”. The Tribunal further notes that the Departmental guidelines in PAM3 provide the following guidance in respect of what constitutes such a record (PAM –Sch2 Visa 858 – Distinguished Talent):

   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 their peers 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’ are those who are internationally recognised as leaders in their particular field.

   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 but not necessarily limited to:

   ·   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 relation to any achievements in Australia

   ·   awards or higher qualifications received from internationally recognised institutions or organisations

   ·   details and supporting material on sporting achievements including national and international rankings, results in competitions or tournaments, statements from international and sporting bodies, sporting scholarships received and newspaper and magazine articles attesting to achievements.

   28. The policy guidelines in PAM3 reflect the following view in relation to the requirement of international recognition:

   International recognition required

   Achievement in a profession, a sport, the arts or academia and research that has not or would not be recognised at an international level would not be regarded as exceptional and outstanding.

   It is expected that an applicant's achievements have or would be acclaimed as exceptional and outstanding in any country where the relevant field is practised. The field would also need to have recognition and acceptance in the wider Australian community as well as international standing. In determining the international standing of the applicant, officers should consider:

   ·   the international standing of the country, where the applicant's achievements were realised, in respect of the particular field

   ·   the standing of the achievement in relation to Australian standards and

   ·   the standing of the achievement in relation to international standards.

   For example, an applicant rated at or near the top of their field in their home country would be expected to have an international record of exceptional and outstanding achievement if the:

   ·   field is undertaken and recognised in a number of countries including Australia and

   ·   achievement would be similarly recognised in relation to international and Australian standards for that field.

9. The Tribunal accepted that the applicant’s referees hold him in high regard as a wrestler and believe that he has demonstrated excellent skills in the sport and has high potential (see [36]). 

10. The Tribunal also noted that a number of the events were local or district competitions and that there was little evidence that these events had resulted in him achieving any particular recognition (see [37]). 

11. The Tribunal noted that whilst he was said to have beaten a competitor who went on to win a gold medal in the Asian games “no evidence was provided which supported this claim” (see [37]).

12. Ultimately, the Tribunal concluded:

    37.... While the Tribunal accepts that the applicant was building his reputation and may have had some local and national recognition by virtue of his achievements in wrestling in the Punjab, and had started to develop a reputation in Australia, there is little in the objective evidence that demonstrates any of these achievements have translated to international recognition of a record of exceptional and outstanding achievement at the time of application.  In summary, the Tribunal concludes that the contentions that the applicant’s national level participation is or was recognised internationally are not borne out by the evidence.

13. The Tribunal went on to consider the absence of the applicant from the ranking to the world ranking system saying:

    39. The Tribunal notes there are many age groups, styles and weight divisions in international wrestling and that, at an international level, countries and individual competitors are ranked.  The Tribunal accepts that the applicant may have been rated at or near to the top of his field in India in his particular age/weight grade, and has come first in one competition in a particular division and style of wrestling in Australia.  It is, however, uncontroversial that he is not, and was not at the time of application, or at the time of his achievements, a world ranked competitor.  While not determinative, given the existence of an international ranking system in wrestling, the Tribunal considers it relevant that the applicant does not and has not appeared on it, either as an individual or as part of a national team.  Further there is no evidence or claim that he competed in his national team or as an individual at any international events or events such as those sponsored or recognised by the peak international body, United World Wrestling.  The Tribunal has had regard to the applicant’s success at the Australia Cup and National Australian Championships, however it notes that neither of these events appeared in the United World Wrestling 2014 calendar of events and they do not appear to have any particular international status other than, on the evidence provided, as the focus for selection of wrestlers to represent Australia internationally.

14. The ultimate conclusion by the Tribunal is set out at [45] as follows:

    45. The central question before the Tribunal is whether, at the time of application, the applicant had an internationally recognised record of exceptional and outstanding achievement in sport.  For reasons discussed above, the Tribunal does not consider that the fact of national competition in two countries, of itself, necessarily translates to an internationally recognised record of exceptional and outstanding achievement.  Applying the ordinary meaning of the words, the criterion requires demonstrated excellence in the relevant field that is internationally recognised as “prominent, striking, conspicuous” and “extraordinarily good”.  As also discussed above, the guidelines provide that an applicant should be at the very top of his field and demonstrate extraordinary and remarkable abilities.  On the evidence before the Tribunal, the applicant’s achievements in India and Australian do not appear to have been accompanied by any corresponding international recognition, profile or ranking of his record as a wrestler by the relevant ‘governing’ bodies, or others at the international level, as exceptional and outstanding.

Ground 1

1. Ground 1 of the application is framed as follows:

   1. The Tribunal:

   (a) misunderstood or misconstrued the applicant’s argument that his achievements in Australia satisfied the international recognition limb of the criterion because the amounted to national acclaim in a country which has a high international standing the sport of wrestling.

   (b) Took into account irrelevant considerations, being a misconstrued understanding of government policy.

2. The applicant argues that his case was presented to the Tribunal on the basis that his success in Australian competitions attracted national acclaim in the field of wrestling.  The argument is based upon the proposition that national acclaim in Australia, if it is a country in which the sport is practiced at high international standards, may be sufficient to satisfy the requirement for an internationally recognised record of exceptional and outstanding achievement.

3. The Tribunal noted that the two Australian events did not appear in the United World Wrestling 2014 calendar of events and, therefore, that they did not appear to have any particular international status (see [39]).

4. The Tribunal also considered the argument that the applicant’s record of achievement was international, as he had achieved in both India and Australia, but noting that the requirement of the regulation was an internationally recognised record, not simply a record in more than one country (see [41]).

5. In substance, the argument developed appears to be that the Tribunal was required to consider whether or not the applicant had become internationally recognised on the basis of his achievement being a gold medal winner in Australia, because he fit the description of a gold medal winner in Australia, rather than a personal recognition by name.  This is a distinction analogous to that used in Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 to reflect the difference between a person of a particular identity and a person of a particular category. That is, an argument that the winner of the Australian Open tennis championship would be internationally recognised, even if one did not know the person or identity of the person concerned.

6. In this regard, the Tribunal said at [38]:

   38. In considering whether an applicant has an internationally recognised record of exceptional and outstanding achievement, Departmental guidelines, as noted above and from which the Tribunal sees no reason to depart, indicate that applicants should be very eminent and in the top echelons of their field and should demonstrate extraordinary and remarkable abilities and be superior to others.  They also emphasise the requirement for international recognition and provide that an achievement that may attract national acclaim would not be considered as ‘internationally recognised’ unless that achievement is in a field practised in other countries, including Australia, and would be similarly recognised in relation to Australian and international standards for that field (Tribunal emphasis).

7. Ultimately, the Tribunal found, on this issue, that the applicant had “insufficient evidence of a competition record of an international standard … to support the claim that the applicant’s achievements were internationally recognised as exceptional and outstanding” (see [40]).  Read as a whole, it appears to me that the Tribunal had taken into account the argument that success within Australia alone could be sufficient to meet the requirement for recognition at an international standard, but in the context of this particular case – having regard to the events that the applicant had participated in, the United World Wrestling calendar, and the rankings documents – that the events within Australia were not sufficient in this case to demonstrate an internationally recognised record of exceptional and outstanding achievement.

8. To the extent that it was argued that the Tribunal failed to consider the totality of his achievements in India and Australia, it appears to me that this was subsumed in the finding of greater generality in [40].

9. In these circumstances, I am not persuaded that the applicant has made out this ground.

Ground 2

1. Ground 2 is framed as follows:

   2. The Tribunal applied the wrong test, or it took into account an irrelevant consideration being a policy that was inconsistent with the criterion, because it required the applicant to show that he was “very eminent and in the top echelons” of wrestling.

2. The criteria required “exceptional and outstanding achievement”, whereas PAM3 stated that an applicant should be “very eminent in the top echelons of their field”.  PAM3 reverts back to the language of exceptional and outstanding and uses these phrases to describe what “exceptional” means. 

3. Whilst the Tribunal notes this description of exception and outstanding in the policy guidelines at [38], slightly different descriptions were used at [41] to the extent that at the end of [41] the Tribunal uses the word “excellent” rather than “exceptional”. It appears to me that this must be seen as a typographical error as it is apparent that the Tribunal has used the phrase “exceptional and outstanding” on a number of occasions earlier in the paragraph. 

4. In the latter part of the paragraph, the Tribunal appears to have been prepared to assess the applicant on two separate bases, firstly, whether he was regarded “at the top of his field” or secondly whether he had been assessed at the international level as exceptional and outstanding. This appears to be a broader test than that provided for in the Regulations, which require that he have an internationally recognised record of exceptional and outstanding achievement. The second test is, in substance, the same as that contained in the Regulations (substituting “assessed” for “recognised” record).

5. The first of these matters demonstrates the Tribunal’s consideration of the case on the terms put by the applicant, namely, that he be regarded as (equivalent to) a person “at the top of his field” as a result of his performance in Australia, and that this could be a substitute for “an internationally recognised record”.

6. The Tribunal were not satisfied on either of these tests.  If anything, it appears that the Tribunal approached the matter not only on the basis of the words of the Regulation, but also on a broader basis.  However, the applicant did not fall within the terms of the test, even on the broader basis.  The Tribunal’s reasoning, to the extent that it strays from the words of the clause, provided greater latitude to the applicant, rather than unduly constricting the words of the Regulation.

7. As a result, I am not persuaded that the Tribunal has erred in a way that arguably prejudices the applicant. 

8. As the applicant has not satisfied either limb of the test ultimately applied by the Tribunal, it is not necessary for me to determine whether or not the Tribunal has impermissibly broadened the test beyond the terms set out in cl. 858.212 (making it easier to satisfy).

1. I therefore dismiss the application with costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 6 December 2017