Springs v Minister for Immigration & Anor
[2020] FCCA 371
•28 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SPRINGS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 371 |
| Catchwords: MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision not to grant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa – whether the Tribunal failed to comply with s.359A and s.359AA of the Act in relation to two items of information – whether the Tribunal acted irrationally in concluding it was not satisfied on the material before it that the applicant has an internationally recognised record of exceptional and outstanding achievement in the arts – whether the Tribunal considered the application on the basis of criteria that did not form part of the criteria by reference to which it was required to determine the application for review before it – no jurisdictional error. |
| Legislation: Constitution, s.75(v) Migration Regulations 1994 (Cth), Schedule 2, cl.858.212 |
| Cases cited: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 |
| Applicant: | TIMOTHY O'NEAL SPRINGS |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1792 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 19 December 2019 |
| Date of Last Submission: | 19 December 2019 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr H Bevin and Ms K Hooper, by direct access |
| Counsel for the First Respondent: | Mr T Liu |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
MLG 1792 of 2016
| TIMOTHY O'NEAL SPRINGS |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa (Talent visa).
To have been entitled to a Talent visa the applicant had to satisfy, among other things, cl.858.212(2) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which provides as follows:
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 turned 18, or is at least 55 years old, at the time of application – would be of exceptional benefit to the Australian community.
The Tribunal concluded it was not satisfied the applicant, who is a singer, dancer, and actor, has an internationally recognised record of exceptional and outstanding achievement in the arts. The applicant claims the Tribunal made a number of jurisdictional errors in so concluding.
Applicant’s claims and course of application for Talent visa
In his form of application, the applicant said he is a “professional actor/singer/dancer”, and he has performed “all over the world”.[1] The applicant provided a number of documents in support of his application. These included the following:
a)A curriculum vitae listing the applicant’s achievements in the field of performing arts, including a number of productions in Australia, Europe, and regional America.[2]
b)A reference dated 6 January 2015 from Mr Simon Burke, the Federal President of Actors Equity of Australia, who also occupied the position of Vice President of the International Federation of Actors.[3] Mr Burke described himself as a “leading stage, film, television and cabaret performer for the past 40 years, both in Australia and in the UK” where he performed “leading roles in 8 West End productions”. Mr Burke said he had seen the applicant perform many times, and described the applicant’s performance of “The Star Spangled Banner” at American Australian Association Gala in Perth in April 2014 as “nothing short of breathtaking”. Mr Burke also said the applicant “has had a breadth of experience enviable in a person of his age”, noting that the applicant was trained at the “world-renowned Julliard School and Manhattan School of Music in New York City”; the applicant performed “leading roles in Russia, Greece, Latvia, Estonia, Poland, Hungary, and Italy, in addition to touring the United States with 9-time Grammy award and Pulitzer Prize winner Wynton Marsalis”; and the applicant had been recently cast in two Australian productions, “Show Boat” and “Parade”, for which he “received rave reviews”.
c)A “recommendation” from Mr Roger Hodgman, who is described as an “Acclaimed Australian Director”.[4] Mr Hodgman stated he had recently directed the applicant in the production of “Show Boat”, and said the applicant was “an extremely talented and versatile performer with a fine singing voice and a natural, connected ability as an actor”. Mr Hodgman also stated that “Show Boat” has an important African American group of characters and, when holding auditions for the show, the production company was “very apprehensive about finding suitable people”; although the applicant was surrounded by “other performers of colour”, the applicant “became the linchpin in the group”; and there are only a handful of African American stage performers in Australia, none of which Mr Hodgman has encountered could sing nearly as well as the applicant, and only one or two of which are close to him in terms of acting ability.
d)A “recommendation” from a councillor,[5] who stated the applicant is “a supremely talented young African American singer” who “already has an impressive body of work”, and that, since arriving in Australia, the applicant “has performed to critical acclaim in two Australian productions”.
[1] CB25
[2] CB33
[3] CB46-47
[4] CB50-52
[5] CB53-54
On 3 June 2015 the delegate invited the applicant to provide further information.[6] The delegate stated that applicants for Talent visas “should be very eminent in the top echelons in their field, both in respect to Australian and International standards”; they “should demonstrate extraordinary and remarkable abilities and be superior to others in their field”; and that their “achievements and accolades should be reflective of an individual who is considered to be one of the top practitioners of the field in the world”.
[6] CB59
The applicant provided a response on 7 June 2015.[7] He set out awards he had won, namely, first place in the Leontyne Price Vocal Arts Opera Competition, third place in the Harlem Opera Theatre Vocal Competition, and first place in the National Association for Teachers of Singing Competition. The applicant also submitted that, although awards are “very special and give honour to the recipient to recognize [sic] a significant achievement”, history “shows [that] just because an individual hasn’t won an award it doesn’t mean that they are not a prominent figure in their field of work”. After providing examples, the applicant submitted that awards “are not equivalent to talent”.
[7] CB61-63
Before the Tribunal
The applicant provided a submission to the Tribunal on 13 April 2016.[8] He there set out “some recent esteemed credentials”. The applicant said he sang the national anthem solo for the inaugural opening ceremony for the cricket match between Australia and West Indies on 26 December 2015; on 2 April 2016 the applicant was offered a role in the musical production called “The Book of Mormon” which was set to open in January 2017; and, while waiting for rehearsals for “The Book of Mormon”, the applicant had been appointed senior vocal educator at the “renowned Centre Stage performing arts school in East Brunswick”.
[8] CB109-110
On 28 June 2016, before the applicant gave evidence to the Tribunal, his representative provided written submissions and supporting documents to the Tribunal.[9] The submissions contained statements that included the following:
[9] CB136-213
a)The applicant had graduated from the “esteemed Manhattan School of Music in New York City”, and studied at the Julliard’s School of Performing Arts.
b)The applicant is an internationally acclaimed singer, dancer, and actor, best known for his work in musical theatre.
c)“Significant figures within the performing arts industry worldwide” had attested to the applicant’s skills, abilities, and international reputation. The submissions states it is apparent from these references that the applicant is well known and respected in ““the arts” industry at the highest level”. The submissions refer to documents 1 to 6, being references from persons the majority of which have “state, national and international reputation [sic] in the world of performing arts”. These include:
i)The references from Mr Hodgman and Mr Burke the applicant had provided in his application for the Talent visa.
ii)A reference from Mr Wynton Marsalis dated 31 May 2016. It refers to Mr Marsalis having met and worked with the applicant during Mr Marsalis’ 2013 national tour of his composition “The Abyssinian Mass”.[10] Mr Marsalis said he found the applicant to be a “joy to work with and a unique talent”; the applicant “developed great relationships with directors and his fellow artists”; and “he is well-liked and respected”.
[10] CB146
iii)A reference from Mr Boykin, who described himself as a bass-baritone singer.[11] After devoting two paragraphs to his background and experience, Mr Boykin said that he worked with the applicant in the 2008 National and European 75th Anniversary Tour of the Opera “Porgy and Bess” where the applicant played the role of “Jim”. Mr Boyden then states the applicant performed at “many prestigious International venues”, which he named, and that the applicant was an outstanding student at the Julliard School and the Manhattan School of Music where he acquired the skills and ability to be a professional performer. Mr Boyden said he believes the applicant “would be a tremendous asset to the Australian arts community”, and that in his “research”, Mr Boyden “discovered that only the top performers in the world attend these amazing schools”, and that the applicant “would be the perfect person to add to that list”.
iv)A reference from Ms Nash who is a member of the award winning UK Group Mis-Teeq.[12] Ms Nash stated she has known the applicant for several years and is a “witness to his International acclaim”. Ms Nash stated the applicant has had success performing “lead roles throughout Europe and the Americas”, and more recently she has seen the applicant perform in Australia in the musical “Grey Gardens at the Seymour Centre in Sydney receiving outstanding reviews”. Ms Nash also provided information about the applicant’s training and performances, noting that the applicant attended schools that accept “fewer than 10 students per class worldwide”, thus giving the applicant “the skills and ability to not only perform around the world, but also influence and teach performers around Australia the ropes to be an international artist”. Ms Nash also referred to the rarity of the applicant’s being a “triple threat”.[13]
v)A reference from Mr Ian White writing on behalf of “Centrestage”, which is a “prestigious arts school”, and “Ian White Management”.[14] Mr White said that students from “Centre Stage” have been in major shows; he has seen the applicant’s work in Australia, and “I can vouch that he . . . is in the upper echelon of the arts circle in Australia”; Mr White “sought out” the applicant’s “special vocal training after seeing him perform in the Musical Parade” where Mr White found him “extraordinary”, noting that the applicant is a “true triple threat” which “is very rare”; and the applicant’s training at the Manhattan School of Music and Julliard School in New York “has given him an ability to raise Australia’s profile in the arts with the international community”. Mr White also referred to the applicant’s being an African American performer, noting there is a lack of African Americans in the arts circle in Australia “with his unique skill set”.
vi)A reference from Mr Mackenzie-Forbes, the artistic director of The Production Company.[15] He stated that he worked with the applicant in The Production Company’s 2014 season of the “Show Boat”; the applicant “is a remarkably talented artist”, possessing a fine voice; and the applicant was a “terrific success”.
vii)A reference from Mr Peters, the voice department chairman at the Manhattan School of Music.[16]
d)The applicant’s nominee for the purposes of the Talent visa is Australia’s “most established and respected theatrical company”, and that the Victorian State Government’s support for that company shows the applicant has been “selected by a company with a high standing in ‘the arts’ world”.[17]
e)The applicant was the first American bestowed with the honour of singing the national anthem at the Melbourne Cricket Ground boxing day test; he sang the American national anthem at Madison Square garden in New York in 2008 for the New York Knicks NBA basketball game; and he sang in the performance of Mozart’s Coronation Mass at Carnegie Hall in 2009.[18]
f)In addition to being a singer, dancer, and actor, the applicant is qualified to teach and train.[19]
g)On 1 April 2016 the applicant was offered a role in “The Book of Mormon”, being one of the 30 performers who had been offered a role out “of the thousands of auditionees [sic]”.
[11] CB158
[12] CB145
[13] A “triple threat” is a reference to the applicant’s excellence in singing, acting, and dancing.
[14] CB151
[15] CB152
[16] CB161
[17] CB140, [4]
[18] CB140, [5]
[19] CB140, [6]
The submissions also attached “[r]eviews, articles, and pictures attesting to the Review Applicant’s achievement”.
The applicant appeared before the Tribunal to give evidence and to present arguments. Two other persons gave evidence to the Tribunal. Relevant to one of the grounds on which the applicant relies is the evidence a Ms Taylor gave.[20] Ms Taylor said she was a producer; her position was executive director with “The Production Company”; she came to meet the applicant a “few years ago” when he came to audition for the production of “Show Boat”; the applicant “was new to us, and new to Australia at that time, we weren’t familiar with him”; the applicant gave an excellent audition resulting in his being cast in the production; “Show Boat” was the only occasion in which Ms Taylor worked with the applicant; and the role the applicant played in that show was crucial to the story line. The Tribunal asked Ms Taylor whether she would say the applicant had an internationally recognised record of exceptional and outstanding achievement in the arts. Ms Taylor said she would say that, and she would also say that in Australia, there are very few African American artists of the applicant’s calibre. The Tribunal also asked Ms Taylor why she would say the applicant has an internationally recognised record of exceptional and outstanding achievement in the arts “[b]ecause when I look at his record, he hasn’t performed a lead role in any major production involving a major production company or a major venue in Australia or in the US from what I can see”. Ms Taylor answered:[21]
Well, he’s worked off-Broadway, he’s worked in Florida I know, he’s worked in some pretty big venues in America and in New York City. Not everybody who performs as a leading artist, or at that stage of their career, but I would still say that he is an exceptional talent.
[20] A transcript of the hearing before the Tribunal is exhibit SCB
[21] T37.9
Relevant to another ground on which the applicant relies is the manner in which the Tribunal alerted the applicant to information the Tribunal informed the applicant it considered might be adverse to the applicant’s claims for a Talent visa. That information consisted of two reviews of the “Show Boat”, neither of which mentioned the applicant, although they did talk about the acapella in relation to which, the Tribunal understood, the applicant sang in the harmony section. Particularly relevant is what the Tribunal said before it informed the applicant of the information and what the Tribunal said after it identified the information and informed the applicant why this information might be adverse to the applicant’s claims. The Tribunal said the following before it informed the applicant of the adverse information (emphasis added):[22]
You’ll think this is a bit odd, but I have to put it to you because it’s information that might be considered what they call adverse. So I’m going to put it to you, and if you want time to think about it before responding, that’s fine, I can give you a break if you want to think about it. But essentially this is the information.
[22] T21.9-T22.2
The Tribunal said the following after it informed the applicant of the information and why it might be adverse (emphasis added):[23]
And I’ve put it to you in that formal way because under migration law if I have other information which I’ve had a look at, which is relevant, then I need to let you know about that, and give you an opportunity to comment on that. So I don’t know if you want to think about that before you respond. But I wanted to draw it to your attention that those two reviews that I found didn’t specifically mention you, which would indicate you don’t have that level of recognition or have that outstanding record of achievement that I have to look at. Do you want to have a break to think about how you want to respond to that? It’s up to you.
[23] T22.9-T23.2
Tribunal’s reasons
The Tribunal concluded that, “on balance”, it was not satisfied the applicant has an internationally recognised record of exceptional and outstanding achievement in the area of the arts.[24] It accepted the applicant has performed with well-known artists; but it found these performances have been “in a supporting capacity not as a central artist in the relevant production”.[25] The Tribunal accepted the applicant has performed in some famous venues; but, “again”, the Tribunal found “these were primarily in supporting roles not as the lead in the relevant production”.[26] The Tribunal accepted the applicant had some lead roles; but the Tribunal found these were relatively few, in smaller venues, and for relatively short runs.[27] The Tribunal also accepted the applicant had other significant roles; but it found these have been performances as part of a quartet, rather than as a soloist.[28] The Tribunal said that it took into account that the applicant “obtained such roles in Show Boat at an audition with others, not due to any previous reputation or knowledge by the producers or directors of the applicant”.[29]
[24] CB344, [58]
[25] CB344, [58]
[26] CB344, [58]
[27] CB344-345, [58]
[28] CB345, [58]
[29] CB345, [58]
The Tribunal accepted the applicant is highly talented in singing, but also in dancing and acting, and, for that reason, he is a “triple threat”. The Tribunal, however, did not consider that being highly talented and having references from other well-known international artists is sufficient to establish that the applicant has an internationally recognised record of exceptional and outstanding achievement in the area of the arts.[30] The Tribunal also said it had regard to comments about the applicant’s capacity in Australia to perform the role of African American characters, and the shortage of persons with the requisite skill levels to play these parts in various areas in the arts. The Tribunal, however, did not consider “that the applicant’s attributes in this regard to meet this skills shortage demonstrates that the applicant has an internationally recognised record of exceptional and outstanding achievement in the area of the arts”.[31]
[30] CB345, [59]
[31] CB345, [59]
Ground 1
The applicant relies on the three grounds of application contained in the amended application. The first ground is as follows (emphasis in original):
The second respondent (Tribunal) breached section 359A of the Migration Act 1958 (Cth) (the Act) in two respects, as follows:
Particulars
a.First, Rachel Taylor gave oral evidence to the Tribunal at its hearing that when the applicant came to audition for her company a few years prior, the applicant was new to them and to Australia, and she was not familiar with the applicant or his work prior to that.
b.This oral evidence was information that that gave rise to the Tribunal’s obligations pursuant to s 359A(1) of the Act.
c.The Tribunal did not comply with ss 359A or 359AA of the Act with respect to Rachel Taylor’s oral evidence as identified at (a) above.
d.Second, as a consequence of its own inquiries the Tribunal obtained information that the applicant was not personally identified in reviews of the production ‘Show Boat’.
e.This was information that gave rise to the Tribunal’s obligations pursuant to s 359A(1) of the Act.
f.The Tribunal did not comply with ss 359A or 359AA of the Act with respect to the information as identified at (d) above. Specifically, the Tribunal did not comply with the requirements in s 359AA(1)(b)(iii).
It would be convenient if I deal separately with the two ways in which the particulars to ground 1 claim the Tribunal failed to comply with s.359A of the Act.
Ms Taylor’s evidence - submissions
In his written submissions the applicant submits that Ms Taylor’s evidence that the applicant “was new to us, and new to Australia at that time, we weren’t familiar with him” (Ms Taylor’s evidence) was information of the sort referred to in s.359A(1) of the Act, namely, information the Tribunal considered “would be the reason, or part of the reason, for affirming the decision that is under review”, but the Tribunal did not give particulars of the information or otherwise do that which s.359A(1) of the Act required the Tribunal to do in relation to that information. The basis on which the applicant submits the Tribunal considered the information would be the reason, or part of the reason, for affirming the delegate’s decision is that the Tribunal referred to it when questioning Ms Taylor.[32] In oral submissions counsel for the applicant also relied on the Tribunal’s statement that the applicant “obtained such roles in Showboat [sic] at an audition with others, not due to any previous reputation or knowledge by the producers or directors of the applicant”.[33]
[32] Applicant’s Written Outline of Submissions, [27]
[33] T9.20
The Minister, on the other hand, submits Ms Taylor’s evidence was not “information” “in the s.359A(1) sense”. The Minister submits the Tribunal was concerned with whether it was satisfied the applicant has an internationally recognised record of exceptional and outstanding achievement in the Arts, but Ms Taylor’s evidence was not adverse to the determination of that criterion “in the relevant sense”;[34] and that is because it ““did not contain in [its] terms a rejection, denial or undermining of the [applicant’s] claims” that he has “an internationally recognised record of exceptional and outstanding achievement in the arts”.[35] The Minister further submits Ms Taylor’s evidence could only be characterised as unhelpful to the applicant only when considered in light of the Tribunal’s “analysis of it, in combination with other evidence of the applicant’s career achievements”.[36]
[34] First Respondent’s Submissions [17]
[35] First Respondent’s Submissions [19]. The quoted words in the Minister’s submissions are taken from SZBYR v Minister for Immigration and Citizenship and Another [2007] HCA 26, at [18]
[36] First Respondent’s Submissions [20]
Is Ms Taylor’s evidence “information”?
The determination of this part of ground 1 turns on the application of the principles that have been developed for construing the word “information” as it appears in s.359A(1) of the Act and in the equivalent provision contained in s.424A of the Act.[37] It has been held that “information”, as used in those subsections, “refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal . . . irrespective of whether it is reliable or has a sound factual basis”;[38] but it does “not encompass the Tribunal’s subjective appraisals, thought processes or determinations”. Nor “does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps”.[39] The meaning of “information” is “related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”.[40]
[37] I repeat in this and the following two paragraphs what I said in Khan v Minister for Immigration & Anor [2019] FCCA 2387, at [30]-[32]
[38] VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 (Finn and Stone JJ), at [24]
[39] VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 (Finn and Stone JJ), at [24] quoted with approval by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609, at 616 ([18]).
[40] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609, at 616 ([18])
A formulation that is often applied to determine whether any given information is “information” to which s.424A(1) (and, therefore, s.359A) of the Act applies, is the High Court’s formulation in SZBYR v Minister for Immigration and Citizenship.[41] In that case the High Court held that portions of a statutory declaration did not constitute “information” for the purposes of s.424A(1) of the Act because they “did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations”.[42] And in Minister for Immigration and Citizenship v SZLFX, the High Court said that for s.424A(1)(a) of the Act to be engaged “the material in question should in its terms contain a “rejection, denial or undermining” of the review applicant’s claim to be a refugee”.[43]
[41] [2007] HCA 26; (2007) 235 ALR 609
[42] [2007] HCA 26; (2007) 235 ALR 609, at page 615 ([17])
[43] [2009] HCA 31; (2009) 238 CLR 507, at page 513 ([22])
What the High Court said in SZBYR and SZLFX must be considered in light of the plurality’s judgment in Plaintiff M174/2016 v Minister for Immigration and Border Protection. That case concerned s.57(1) of the Act which includes the expression “information . . . [that] would be the reason, or part of the reason . . . for refusing to grant a visa”. The plurality accepted, or at least assumed, that the meaning that had been given in SZBYR and SZLFX to the expression “information” was correct; and the plurality expanded on that meaning in the emphasised portion of the following passage (references omitted):[44]
Section 57 is also located within subdiv AB. The section deals with “relevant information”. Section 57(1) defines that term, subject to an immaterial exclusion, to mean information that the Minister considers meets three conditions. The first condition is relevantly that the information “would be the reason, or part of the reason … for refusing to grant a visa”. Whether or not that condition is met, it has been held in this Court in respect of a materially identical provision, “is to be determined in advance – and independently – of the [Minister's] particular reasoning on the facts of the case”. For the condition to be met, it has again been held in this Court in respect of a materially identical provision, the information in question “should in its terms contain a ‘rejection, denial or undermining’ of the review applicant's claim”. That is to say, the information must in its terms be of such significance as to lead the Minister to consider in advance of reasoning on the facts of the case that the information of itself “would”, as distinct from “might”, be the reason or part of the reason for refusing to grant the visa. The Court is not asked to reconsider that approach to the operation of the first condition in the present case.
[44] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 174, at [9]
The question, then, is whether Ms Taylor’s evidence was of such significance as to have led the Tribunal to consider in advance of reasoning on the facts of the case that the evidence by itself would, as distinct from might, be the reason or part of the reason for affirming the delegate’s decision. I am not satisfied Ms Taylor’s evidence was of such a character. The applicant’s being new to Ms Taylor and to her company, and Ms Taylor’s and her company’s not being familiar with the applicant or his work, were not matters that, by themselves, in advance of any reasoning by the Tribunal, were capable of undermining the applicant’s claim that he has an internationally recognised record of exceptional and outstanding achievement in the area of the arts. Ms Taylor’s evidence became (adversely) relevant to the applicant’s claim after the Tribunal reasoned on it; and the reasoning the Tribunal performed on the evidence was to draw an inference from the applicant’s being new to Ms Taylor and to her company, and from Ms Taylor’s and her company’s not being familiar with the applicant or his work, that the applicant might only have a limited reputation as an actor, singer, or dancer. The Tribunal then relied, not on Ms Taylor’s evidence, but on the inference it drew on the basis of Ms Taylor’s evidence (the applicant might only have a limited reputation as a singer, actor, or dancer), together with other matters, to conclude it was not satisfied the applicant has an internationally recognised record of exceptional and outstanding achievement in the area of the arts.
I am not satisfied, therefore, that Ms Taylor’s evidence was “information” to which s.359A(1) of the Act applied. This part of ground 1, therefore, fails.
Before I leave this part of the applicant’s claims I should refer to a submission counsel for the Minister made in oral address. Counsel submitted that Ms Taylor’s evidence is in substance the same as information that was provided by the director of “Show Boat”,[45] and, for that reason, the information conveyed by Ms Taylor’s information is information the applicant provided to the Tribunal and, for that reason, is information to which s.359A(4)(b) of the Act applies which, in turn, is information to which s.359A(1) does not apply. Although it may be accepted that the letter conveys information substantially similar to the information Ms Taylor’s evidence conveyed, Ms Taylor’s evidence is a distinct item of information that was liable to be assessed for the purpose of determining whether s.359A(1) of the Act applied to it. The substantial similarity of the information might have been relevant to materiality if, contrary to what I have concluded, the applicant’s being new to Ms Taylor and to her company, and Ms Taylor’s and her company’s not being familiar with the applicant or his work, were “information” to which s.359A(1) of the Act applied, and s.359A of the Act is to be construed “as incorporating a threshold of materiality”.[46]
[45] CB51
[46] Hossain v Minister for Immigration and Border Protection [2018] FCA 32, at [29] (Kiefel CJ, Gageler and Keane JJ)
Claimed non-compliance with s 359AA(1)(b)(iii) - submissions
This part of ground 1 is directed to the Tribunal’s having informed the applicant that it considered potentially adverse to the applicant’s claims that two reviews of “Show Boat” did not refer to the applicant (adverse information). More particularly, it is directed to those emphasised portions of the passage I have reproduced in paragraphs 11 and 12 of these reasons.
The applicant submits that the Tribunal’s informing the applicant that, if he wanted “time to think about it before responding”, that was fine because the Tribunal could give the applicant “a break” if he wanted to think about it, and the Tribunal’s asking the applicant whether he wanted “a break to think about how” the applicant wanted to respond to the adverse information, did not constitute the Tribunal’s advising “the applicant that he . . . may seek additional time to comment on or respond to the information”, as s.359AA(1)(b)(iii) of the Act required the Authority to do. The applicant submits the Tribunal did not comply with s.359AA(1)(b)(iii) of the Act because the Tribunal’s language “undermined the seriousness of the matter being put to the applicant and implied that it was merely going through the motions the Act required”.[47] The applicant further submits the applicant “was properly entitled under the Act to seek more time than just a brief break in the duration of the hearing of after which he would return to respond orally to the information”.
[47] Applicant’s Written Outline of Submissions, [34]
The applicant relies on passages from two cases. The first is the following passage from the judgment of Flick J in SZNKO v Minister for Immigration and Citizenship (emphasis in original):[48]
The statement that the present Appellant need not “comment on those things today”, if he preferred not to, reverses the requirement imposed by s 424AA(b)(iii). If s 424AA(a) is invoked, s 424AA(b)(iii) imposes a requirement that an applicant be positively advised that he may seek additional time in which to respond. How that advice may be effectively communicated may be left to be resolved by reference to the facts and circumstances of individual cases. But compliance is not achieved by a statement which merely implicitly conveys to an applicant that he may seek and be given “additional time”. Nor can non-compliance with s 424AA(b)(iii) necessarily be excused or cured by reason of “additional time” in fact being extended. Non-compliance with s 424AA(b)(iii) may not in all cases be equated with a consideration of whether there may be discretionary reasons for refusing relief.
[48] SZNKO v Minister for Immigration and Citizenship [2010] FCA 297, at [31]
The second passage is from the judgment of the Full Federal Court in SZGTV v Minister for Immigration and Border Protection:[49]
The extracts from the transcript set out above disclose that the Tribunal asked the appellant’s representative whether she wished to “make a submission today” or “rely on your submission that’s dated 14 June” or “did you want time to put something in writing”. These questions were not put to the appellant’s representative in the immediate context of the information under s 424A. Nor were they understood by the appellant’s representative to relate to that information. Later in the hearing, the appellant’s representative sought and was granted more time in respect of a mental health issue which she wished to explore.
If s 424A(1) had applied to the information in the present case, then we would not be satisfied that the Tribunal complied with s 424AA(b)(iii). In the context in which it arose (which was not the information which the Tribunal put under s 424A) asking the appellant’s representative whether she wished to “make a submission today” or “rely on your submission that’s dated 14 June” or “did you want time to put something in writing” did not satisfy the requirement that the Tribunal advise the appellant that he may seek additional time to comment on or respond to the information. The questions asked did not involve the Tribunal in advising the appellant of anything. The fact that the appellant’s representative did not seek an adjournment of the hearing under s 424AA(b)(iv), contrary to the Minister’s submissions, does not mean that s 424AA(b)(iii) would have been satisfied on the facts of this case. The failure to advise the appellant as required by s 424AA(b)(iii), had s 424A(1) applied, would have meant that the Minister could not succeed in the argument that the Tribunal did not need to comply with s 424A(2) because it had complied with s 424AA.
[49] SZGTV v Minister for Immigration and Border Protection [2015] FCAFC 3, at [55]-[56]
The applicant also relies on the judgment of Judge Jones in Singh v Minister for Immigration and Border Protection, where his Honour said:[50]
Asking the Applicant if he wanted a “short break” or that he could make a written submission, did not amount to advising him that he could seek additional time. The concept of “additional time” is broader than the notion of an adjournment during the proceedings or the opportunity to make written submissions: SZTGV at [56].
[50] Singh v Minister for Immigration & Anor [2016] FCCA 3232, at [53]
The Minister submits that the adverse information is not “information” within the meaning of s.359A(1) of the Act because it constitutes an absence of information; and its relevance could only have been assessed by the Tribunal when considered with all the other relevant evidence. The Minister also submits that even if the adverse information was “information” to which s.359A(1) of the Act applied, the proper characterisation of what the Tribunal said is that it did advise the applicant that he could seek additional time to comment or respond to the adverse information; and, finally, even if these two submissions were decided against the Minister, on its proper construction s.359AA(1)(b)(iii) of the Act is subject to materiality, and any failure by the Tribunal to comply with s.359AA(1)(b)(iii) was not material.
Claimed non-compliance with s.359AA(1)(b)(iii) – was the adverse information “information”?
During oral address, counsel for the applicant submitted that the absence of information may itself constitute “information” within the meaning of s.359A(1) of the Act; and that it may do so because, in appropriate circumstances, the absence of evidence may carry with it an implied positive statement. Counsel relied on the judgment of Gray J in SZMKR v Minister for Immigration & Citizenship.[51] In that case, the question was whether the absence of certain information in a report prepared by the Department of Foreign Affairs and Trade was “information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review”.[52] Gray J identified the issue that arose from that question to be whether “the absence of information in a document received by the Tribunal from a third party can amount to “information” for the purposes of s 424A(1)(a) of the” Act.[53] His Honour concluded that an “implicit assumption arising from the absence of material” constituted “information” to which s.424A of the Act applies.
[51] SZMKR v Minister for Immigration & Citizenship [2010] FCA 340
[52] SZMKR v Minister for Immigration & Citizenship [2010] FCA 340, at [27]
[53] SZMKR v Minister for Immigration & Citizenship [2010] FCA 340, at [29]
His Honour determined that issue largely by reference to whether the judgment of Allsop J (as his Honour then was) and Weinberg J in NBKS v Minister for Immigration and Multicultural and Indigenous Affairs[54] had been overruled by the judgment of the High Court in SZBYR v Minister for Immigration and Citizenship.[55] His Honour observed that the High Court in SZBYR “was not dealing with the sort of implicit positive that was the subject of NBKS and is present in this case”.[56] After referring particularly to the judgment of Buchanan J in SZKCQ v Minister for Immigration & Citizenship,[57] Gray J concluded that “NKBS remains good law”.[58]
[54] NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174
[55] SZBYR v Minister for Immigration & Citizenship [2016] FCCA 3232
[56] SZMKR v Minister for Immigration & Citizenship [2010] FCA 340, at [36]
[57] SZKCQ v Minister for Immigration & Citizenship [2008] FCAFC 119, at [89]-[93]
[58] SZMKR v Minister for Immigration & Citizenship [2010] FCA 340, at [37]
It is apparent that Gray J did not arrive at his conclusion by reference to what the High Court in fact said in SZBYR, and in particular, by considering whether an “implicit assumption arising from the absence of material” was capable of containing “a rejection, denial or undermining of” a person’s claims for protection; and it may on first impression be difficult to imagine that an absence of information could ever constitute “a rejection, denial or undermining of” a person’s claims for protection. In my opinion, however, there is no logical or other reason why the absence of information is inherently incapable of constituting “a rejection, denial or undermining of” a claim. Take, for example, a bank statement recording transactions over, say, a month, and the statement does not record that an asserted transaction occurred on a particular day in that month. The absence of such record is equivalent to a statement that the transaction did not occur.[59] Thus, for example, if an essential element of an applicant’s claims for protection is that money was paid to a particular person on a particular day, it is difficult to conclude that a bank statement in relation to an applicant’s bank account that does not record any such payment would not be information that would constitute a “a rejection, denial or undermining of” the person’s claims for protection.
[59] This is the point Wigmore made in relation to the absence of an entry in regularly kept books of account: “The absence of an entry, where an entry would naturally have been made if a transaction had occurred, should ordinarily be equivalent to an assertion that no such transaction occurred . . . .” (J.H. Wigmore, Evidence in Trials at Common Law, Volume 5, Chadbourn revision, 1974, page 463).
That the adverse information may be characterised as the absence of evidence, therefore, does not mean that it is incapable of constituting “information” for the purposes of s.359A(1) of the Act. The question, then, is whether the absence from the two reviews of “Show Boat” of any reference to the applicant, other than talking about the acapella, was of such significance as to have led the Tribunal to have considered in advance of reasoning on the facts of the case that the absence of itself would, as distinct from might, be the reason or part of the reason for affirming the delegate’s decision. I am not satisfied the absence of any reference in the reviews to the applicant is of such a character.
The absence in the reviews of any reference to the applicant was not by itself, in advance of any reasoning by the Tribunal, capable of undermining the applicant’s claim that he has an internationally recognised record of exceptional and outstanding achievement in the area of the arts. The absence of any reference to the applicant could only have become relevant as a basis for drawing some intermediate inference or chain of inferences, with the inference or last inference in the chain of inferences constituting the reason or part of the reason for the Tribunal’s affirming the delegate’s decision. The Tribunal informed the applicant at the hearing the inferences it considered would be open for it to draw, these being that the fact the reviewers did not refer to the applicant, but, so far as the applicant’s performance was concerned, only talked about the acapella, might indicate the applicant did not have a major role in the “Show Boat” and that, in turn, might indicate the applicant does not have an internationally recognised record of exceptional and outstanding achievement in the area of the arts. Thus, the matter on which the Tribunal indicated would be the reason or part of the reason for affirming the delegate’s decision was not the absence of any reference to the applicant in the reviews, but the inference the Tribunal said was available to be drawn from that absence, namely, the applicant did not have a major role in the “Show Boat”. That inference, in turn, was reasonably capable of grounding the further inference that the applicant might only have a limited reputation, as an actor, singer, or dancer which, in turn, was capable of constituting part of the reason for affirming the delegate’s decision. The Tribunal, however, did not draw any such inferences, and it does not appear the Tribunal in fact relied on the reviews not having referred to the applicant.
Thus, I am not satisfied that the adverse information was “information” to which s.359A(1) of the Act applied; and, for that reason, this part of ground 1 fails. I will, however, consider the other issues that arise on the parties’ competing submissions on the assumption that the adverse information was “information” to which s.359A(1) of the Act applied.
Claimed non-compliance with s.359AA(1)(b)(iii) – did the Tribunal advise the applicant could seek additional time?
The Tribunal did not say to the applicant: “you may seek additional time to comment or respond to the” adverse information. The Tribunal instead said the applicant could have a “break” if he wanted to “think about” the adverse information, and, after it disclosed the adverse information, and the relevance the Tribunal attached to it, it asked the applicant whether he wanted “a break to think about” how the applicant wanted to respond to the adverse information, and what the Tribunal said about it. The question is whether what the Tribunal said to the applicant is in substance different from informing the applicant that he could seek additional time.
That question must be assessed having regard to s.359AA(1)(b)(iv) of the Act which provides that if the applicant seeks additional time to comment on or respond to the information, the Tribunal “must . . . adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information”. Paragraph (iv) of s.359AA(1)(b) of the Act suggests that the purpose of s.359AA(1)(b)(iii) is for the Tribunal to induce the applicant to inform the Tribunal whether he or she requires additional time. If the applicant says he or she requires additional time, the Tribunal would come under an obligation to consider whether the applicant needs additional time to comment or respond and, if it considers the applicant requires additional time, to adjourn the review.
In my opinion, by informing the applicant he could have a “break” if he wanted to “think about” the adverse information, and by asking the applicant whether he wanted “a break to think about” how he wanted to respond to the adverse information, the Tribunal brought to the applicant’s attention that he could ask for time to comment on or respond to the adverse information. In other words, the Tribunal did that which s.359AA(1)(b)(iii) of the Act required the Tribunal to do, namely, advise the applicant that he could seek additional time to comment on or respond to, the adverse information. The applicant understood the Tribunal informed him he could ask for time to respond to or comment on the adverse information. The applicant said: “I think I’m going to respond to it”; and the applicant responded.[60] In other words, the applicant indicated he did not need additional time. Had the applicant stated he needed additional time - any time - the Tribunal would have been required to consider whether the applicant would have reasonably needed further time and, if the Tribunal were to have answered that question in the affirmative, it would have been obliged to adjourn the review.
[60] T23.3
It follows I do not accept the applicant’s submission that the manner in which the Tribunal brought to the applicant’s attention that he could have time to consider his response undermined the seriousness of the matter being put to the applicant and implied that it was merely going through the motions the Act required. The Tribunal informed the applicant both before and after it disclosed the adverse information to the applicant that he could have a break to consider his response; and it did so after it explained to the applicant that, although “this is a bit odd”, the Tribunal was required to put before the applicant the adverse information. This conveyed, or ought reasonably to have conveyed, to the applicant that the Tribunal’s disclosure of the adverse information was a matter of some significance to the Tribunal’s review of the applicant’s case.
Further, although, as the applicant submits, it may be accepted he “was properly entitled under the Act to seek more time”, that does not mean he was entitled to additional time. The applicant’s entitlement was limited to requesting additional time; for the Tribunal to consider whether he reasonably required more time; and, if, acting reasonably, the Tribunal were to conclude the applicant needed more time, to adjourn the hearing. The applicant did not seek additional time to comment on or respond to the adverse information. The Tribunal, therefore, did not come under an obligation to consider whether the applicant reasonably needed additional time to comment on or respond to the adverse information.
Finally, I do not accept the applicant’s submission that the Tribunal’s offering the applicant a “break” conveyed or was reasonably capable of conveying to the applicant that the only additional time the applicant would be entitled to be given to consider his response to the adverse information, if the applicant were to request additional time, would be the time covered by “a brief break in the duration of the hearing after which he would return to respond orally to the information”. The question of what additional time the applicant would be given is one that did not arise because, as I have found, the Tribunal brought to the applicant’s attention that he was could seek additional time to comment on or respond to the adverse information, and the applicant did not seek additional time.
Thus, even if the adverse information was “information” to which s.359A(1) of the Act applied, the Tribunal complied with s.359AA(1)(b)(iii) of the Act.
Claimed non-compliance with s.359AA(1)(b)(iii) - materiality
Given my conclusions, I do not propose to consider whether, had the Tribunal not complied with s.359AA(1)(b)(iii) of the Act, s.359A and s.359AA of the Act are to be construed “as incorporating a threshold of materiality”,[61] and, if so, whether the Tribunal’s failure to comply with those provisions was material.
[61] Hossain v Minister for Immigration and Border Protection [2018] FCA 32, at [29] (Kiefel CJ, Gageler and Keane JJ)
Conclusion
For these reasons, ground 1 fails.
Ground 2
Ground 2 is as follows (emphasis in original):
The Tribunal’s ultimate state of satisfaction as to cl 852.212(2)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) was irrational and illogical.
Particulars
a.The Tribunal’s ultimate state of non-satisfaction as to the criterion in issue was contrary to evidence which was all one way and which was neither challenged nor rejected by the Tribunal.
Parties’ submissions
As is apparent from the particulars, the applicant claims that the evidence on which the applicant relied was such that the only rational conclusion a decision-maker could have made on the basis of the evidence before the Tribunal is that the applicant did have an internationally recognised record of exceptional and outstanding achievement in the area of the arts. In his written submissions the applicant submits he relied on his nomination by “The Production Company”, which was said to be Australia’s most established and respected theatrical company, as being of itself of weight, but the Tribunal “did not advert to this particular contention, at all”.[62] The applicant submits his witnesses’ evidence all stated, either in effect or expressly, that the applicant was a person who was internationally recognised in the industry, and the Tribunal’s non-satisfaction of that claim was “diametrically opposed to the evidence of the applicant and his witnesses”.[63] In short, the applicant submits the evidence “overwhelmingly ‘was all one way’”, and that the Tribunal’s ultimate state of non-satisfaction “was arrived at without any logical or probative basis and is affected by illogicality to the high degree demanded by the authorities”.[64] The Minister, on the other hand, submits that the applicant cannot discharge the burden of proving there was no logical connection between the evidence the inferences the Tribunal drew; and its reasoning, as disclosed in paragraphs 57 and 58 of its reasons, manifests acknowledgment of evidence, and the drawing of reasonable inferences in relation to the evidence it identified.
[62] Applicant’s Written Outline of Submissions, [42]
[63] Applicant’s Written Outline of Submissions, [43]
[64] Applicant’s Written Outline of Submissions, [46]
The issue between the parties is a broad one; and that is whether the evidence that was before the Tribunal compelled one, and only one, rational conclusion, namely, that the applicant has an internationally recognised record of exceptional and outstanding achievement in the area of the arts. I propose to consider that issue as follows. First, I will identify the relevant principles that identify what “illogicality” is, and the circumstances in which its presence in a decision will lead to the decision being liable to be held to have been made in excess of jurisdiction. Second, I will construe cl.858.212(2)(a) of Schedule 2 to the Regulations. That is necessary because unless I am clear about the proper construction of that clause it will not be possible to assess whether the only rational conclusion that the evidence before the Tribunal was capable of bearing is that the applicant met the requirements of that paragraph. Third, I will consider the issue that arises on the parties’ competing submissions.
Principles – the irrationality ground of review
The irrationality ground of review has been considered by the High Court in the context of applications for judicial review of decisions made by the Refugee Review Tribunal (RRT); and here two lines of analysis can be identified.
The first begins with the requirement under s.65 of the Act that before the Minister can grant a visa he or she must be “satisfied”, among other things, that the criteria prescribed for the granting of a visa have been satisfied. One of the criteria is that prescribed by s.36(2)(a) of the Act, namely, that the applicant for the visa is “a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee”. The Minister’s satisfaction under s.65 and s.36(2)(a) is a jurisdictional fact, and, like all jurisdictional facts on which the exercise of Commonwealth executive power may depend, is reviewable under s.75(v) of the Constitution:[65]
A determination that the decision-maker is not “satisfied” that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision-maker and is reviewable under s 75(v) of the Constitution.
[65] Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, at [131] (Gummow J)
The circumstances in which the Minister’s satisfaction of the existence of the matters referred to in s.36(2)(a) of the Act is reviewable have been stated by Gummow J, either alone or jointly, in a number of cases. In Eshetu, his Honour said that he “would permit review in cases where the satisfaction of the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds”.[66] In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002,[67] McHugh and Gummow JJ accepted as an appropriate ground for reviewing a decision of the RRT that it was “irrational, illogical and not based upon findings or inferences of fact supported by logical grounds”. In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB,[68] Gummow and Hayne JJ said:
The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds.
[66] [1999] HCA 21; (1999) 197 CLR 611, at [145]
[67] [2003] HCA 30; (2003) 198 ALR 59, at [34]
[68] [2004] HCA 32; (2004) 207 ALR 12, at [38]
And in Minister for Immigration and Citizenship v SZMDS,[69] Gummow ACJ (as his Honour then was) and Kiefel J quoted this passage with approval, but noted the following (emphasis in original):
However, it should be remarked that what is characterized [sic] as the “critical question” should not receive an affirmative answer that is lightly given. It may be noted that the outcome in SGLB and in Applicant S20/2002 was to deny the presence of jurisdictional error.
[69] [2010] HCA 16; (2010) 240 CLR 611, at [40]
The second line of analysis of the irrationality ground of review is to be found in the joint judgment of Crennan and Bell JJ in SZMDS. Their Honours noted that irrationality as a ground of review is related to three other principles, one of which is the implied standard of reasonableness which has come to be known as “Wednesbury unreasonableness”.[70] Their Honours further noted that there are a number of difficulties in accepting “irrationality” as a separate ground of review, one of which is that irrationality is “only one facet of unreasonableness”,[71] and that, therefore, there is an “undeniable semantic overlap between “irrationality”, “illogicality” and “unreasonableness””.[72] Their Honours, nevertheless, formulated the irrationality ground as follows:[73]
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.
[70] [2010] HCA 16; (2010) 240 CLR 611, at [124]
[71] [2010] HCA 16; (2010) 240 CLR 611, at [126]. The quote is from the reasons of Sir Thomas Bingham MR in R v Secretary of State for Home Department; Ex parte Onibiyo [1996] QB 768, at 785
[72] [2010] HCA 16; (2010) 240 CLR 611, at [128]
[73] [2010] HCA 16; (2010) 240 CLR 611, at [130]
Their Honours further said:[74]
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.
[74] [2010] HCA 16; (2010) 240 CLR 611, at [130]
Later in their reasons for judgment, Crennan and Bell JJ said:[75]
[T]he test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
[75] [2010] HCA 16; (2010) 240 CLR 611, at [131]
Thus, for Gummow ACJ (as his Honour then was) and Kiefel J the irrationality ground of review applies to a jurisdictional finding of fact that is “irrational” or “illogical”; and for Crennan and Bell JJ it applies to a jurisdictional finding of fact that no rational or logical decision-maker could make on the material that was before the decision-maker.
The irrationality ground was also considered by the Full Federal Court in ARG15 v Minister for Immigration and Border Protection:[76]
[F]or a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” . . . Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error . . . .
[76] [2016] FCAFC 174, at [47] (Griffiths, Perry, and Bromwich JJ) (references omitted)
Finally, it would be useful to refer to the following passage from the judgment of the Full Federal Court in Fattah v Minister for Home Affairs:[77]
To discern illogicality (or irrationality) one must demonstrate that there is only one conclusion open on the evidence or that there is no logical connection between the evidence and the inferences drawn . . . .
[77] Fattah v Minister for Home Affairs [2019] FCAFC 31, at [45]
Construction of cl.858.212(2)(a)
Paragraph (a) of cl.858.212(2) (Relevant Criterion) contains (so far as is relevant to the case before me) the following four elements:
a)there must be a “record”;
b)the “record” must be of “achievement”;
c)the “achievement” must be in “the arts”; and
d)the “record of “achievement in . . . . the arts” must be “internationally recognised” to be “exceptional and outstanding”.
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):[78]
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.
[78] Zhang v Minister for Immigration & Anor [2007] FMCA 664, at [37]
That is to say, a record is an aggregation or a list, not a large aggregation or a long list.
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”;[79] and what the Relevant Criterion therefore requires is that there be evidence of “achievement in . . . the arts”.
[79] 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, <>
The second element of the Relevant Criterion is “achievement”. That simply denotes the completion of some activity. The third element is that the achievement must be “in . . . the arts”. The “arts” is a broad notion, and covers many activities, most of which fall into well recognised categories as such as painting, singing, dancing, acting, performing, and composing. Thus, when considered together, the first three elements of the Relevant Criterion require evidence of the completion of some activities that can properly be characterised to fall within any one or more of the categories of activities that are regarded as the “arts”.
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”,[80] 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”.[81]
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.
[80] Gaffar v Minister for Immigration & Multicultural Affairs [2000] FCA 293, at [19]
[81] Gaffar v Minister for Immigration & Multicultural Affairs [2000] FCA 293, at [20]
The fifth of these implications relates to matters of proof: what sort of material is it open to a rational decision-maker to consider relevant to determining whether there exists a reference audience that is aware of the record of achievement of the applicant in question, and also recognises the applicant’s record of achievement to be exceptional and outstanding? Without attempting to be exhaustive, there are at least five classes of evidence that may be relevant.
a)One class is evidence that the activities that comprise the record of achievement belongs to a class of activities that is regularly assessed by a body of persons for their excellence, and exceptional and outstanding achievement is recognised by the granting of some award or honours that is communicated beyond one country. Evidence that an applicant has received such award or honour would be relevant, and, at least in many cases, would be highly relevant, to whether an applicant has an internationally recognised record of exceptional and outstanding achievement.
b)A second class of evidence is that which shows that the activity that comprises the record of achievement belongs to a class of activities in which persons who participate in them are assigned roles and functions that reflect their recognised record of achievement, with particular roles and functions being assigned to persons who are recognised as having a record of exceptional and outstanding achievement. Thus, evidence that an applicant for a Talent visa has performed such roles is relevant, and, at least in some cases, highly relevant to whether an applicant has an internationally recognised record of exceptional and outstanding achievement.
c)A third class of evidence is that which shows that the activity that comprises the record of achievement belongs to a class of activities which is the subject of assessment by persons who have or are recognised as having expertise in assessing such class of activities for their excellence, and that such persons have expressed opinions to the effect that the record, or any part of achievement, is exceptional and outstanding.
d)A fourth class of evidence is opinions by persons about the attributes of the person who claims to have an internationally recognised record of exceptional and outstanding achievement. Such evidence is likely to operate cumulatively. One opinion about an applicant’s record of achievement is unlikely to carry much weight, but many opinions may be capable of grounding the inference that the applicant has a recognised record of achievement.
e)A fifth class of evidence is reputation evidence; that is, opinions from persons who have knowledge of the field of activities of which the record of achievement forms part that the applicant for a Talent visa has an international record of exceptional and outstanding achievement in that field of activities.
Evidence all one way?
I initially propose to assess the applicant’s submissions by identifying the matters on which the Tribunal relied for not being satisfied that the applicant has an internationally recognised record of exceptional and outstanding achievement in the arts, and consider whether it was open to the Tribunal, acting rationally and reasonably, to consider that those matters did not support the applicant’s claims that he has an international record of exceptional and outstanding achievement in the arts. I will assume in this part of my reasons that the Tribunal did not proceed on the asserted misconception on which ground 3 of the application claims the Tribunal proceeded.
The Tribunal relied on three principal matters. One is that the applicant has primarily performed in supporting roles, and has had few roles as a principal or lead in a musical, opera, or play.[82] The relevance the Tribunal attached to these matters is based on an implicit generalisation that lead roles in a musical, opera, or play, would be assigned to persons who have an international record of exceptional and outstanding achievement, if such persons were available to play the role, and, if not, to such persons whom the producers considered to be the best suited. It was reasonably open to the Tribunal to rely on a generalisation to this effect.[83] That means it was also reasonably open to the Tribunal to infer from the applicant’s only having played a few roles as a principal or lead that he does not have an internationally recognised record of exceptional and outstanding achievement.
[82] CB344, [58]
[83] As to the role of generalisations in drawing inferences, see Tran v Minister for Immigration & Anor [2019] FCCA 2859, at [23]-[28]
The second principal matter on which the Tribunal relied is that the lead roles in which the applicant featured were relatively few, and in smaller venues, and for relatively short runs. The relevance the Tribunal attached to these matters is based on an implicit generalisation that persons who have an internationally recognised record of exceptional achievement in music, theatre, or dancing would be performing in larger venues than the ones in which the applicant performed, and would be in productions that had longer runs than the ones in which the applicant performed. It was reasonably open to the Tribunal to rely on a generalisation to this effect. That means it was also reasonably open to the Tribunal to infer from the applicant’s only having performed relatively few lead roles in smaller venues, and for relatively short runs, that he does not have an internationally recognised record of exceptional and outstanding achievement.
The third principal matter on which the Tribunal relied is that the applicant obtained his roles in the “Show Boat” in an audition with others, rather than as a result of any knowledge by the producers or directors of that show of the applicant or of any reputation attached to the applicant. The Tribunal relied on a generalisation that a person who has an internationally recognised record of exceptional and outstanding achievement as a singer, actor, or dancer, either would not have to audition for a role or, if he or she were to have auditioned, the producers of the musical would at least have been aware of the person’s record of achievement as a singer, actor, or dancer. It was reasonably open to the Tribunal to rely on such a generalisation, which means it was reasonably open to the Tribunal to infer from the producer’s or director’s not having heard of the applicant at the time he auditioned for “Show Boat” that the applicant does not have an internationally recognised record of exceptional and outstanding achievement as a singer, actor, or dancer.
If, as I have found, the Tribunal was reasonably entitled to rely on the three matters I have identified as matters that went against its being satisfied the applicant has an internationally recognised record of exceptional and outstanding achievement in the arts, it was necessary for the Tribunal to weigh those matters against the matters on which the applicant relied. The Tribunal undertook that task and concluded that the three matters on which it relied prevented it from being satisfied on the basis all of the evidence that was before it that the applicant has an internationally recognised record of exceptional and outstanding achievement.
I am not satisfied the Tribunal acted irrationally or unreasonably. Ground 2, therefore, also fails.
Ground 3
Ground 3 is as follows:
The Tribunal misapplied cl 858.212(a) of the Regulations.
Particulars
a.At [58] of its reasons, the Tribunal erred in law by importing requirements into the criterion in cl 858.212(a) that:
i.the applicant’s performances be as a central artist and not in a supporting capacity;
ii.the applicant’s lead roles be of a particular number, in venues of a particular size, and for particular production runs; and
iii.the applicant’s significant roles be as a soloist and not as part of a quartet.
b.Properly construed, none of the above requirements imposed by the Tribunal form part of the criteria for the grant of the visa.
In his written submissions the applicant sets out paragraph 58 of the Tribunal’s reasons, the effect of which I have described in paragraph 13 of these reasons, and repeated the substance of the matters stated in ground 3.[84] The applicant then submitted the Tribunal erred in law by “setting an impermissibly high threshold that it required the applicant to attain, in order that he satisfy the criterion in issue”.[85] Counsel for the applicant repeated the substance of this ground in oral address.
[84] Applicant’s Written Outline of Submissions, [48]-[51]
[85] Applicant’s Written Outline of Submissions, [51]
The Minister, on the other hand, submits ground 3 is based on an unfair reading of the Tribunal’s reasons. The Minister submits there is nothing in paragraph 58 of its reasons that could reasonably suggest the Tribunal applied or purported to apply criteria outside those provided for by the Relevant Criterion. All the Tribunal did, the Minister submits, was assess the evidence against the Relevant Criterion. The Minister further relies on the Tribunal’s having (correctly) set out at the beginning of its reasons[86] the effect of Gaffar v Minister for Immigration & Multicultural Affairs.[87]
[86] CB337-338, [12]
[87] Gaffar v Minister for Immigration & Multicultural Affairs [2000] FCA 293, at [19] and [20]
In ground 2 the applicant in effect claims that none of the matters on which the Tribunal relied for not being satisfied the applicant has an internationally recognised record of exceptional and outstanding achievement, which includes the matters set out in paragraph 58 of its reasons, was logically probative of the Tribunal’s not being so satisfied. I have concluded that it was reasonably open to the Tribunal to rely on those matters for not being satisfied the applicant has an internationally recognised record of exceptional and outstanding achievement. Given my conclusion, the question is whether the Tribunal relied on the matters in paragraph 58 because it considered they were evidentiary matters that were relevant to determining whether the Relevant Criterion was satisfied, or because the Tribunal was of the view that the Relevant Criterion required that those matters be present.
In my opinion, the Tribunal considered the matters it identified in paragraph 58 as evidentiary matters relevant to whether the applicant satisfied the Relevant Criterion; the Tribunal did not consider any of those elements as matters an applicant had to satisfy to satisfy the Relevant Criteria. Had the Tribunal considered the maters it identified in paragraph 58 as requirements of the Relevant Criteria it would have limited its consideration of the applicant’s claims to whether the applicant satisfied those matters. The Tribunal, however, did not limit its consideration to those matters. It identified the matters on which the applicant relied, and balanced against those matters the matters on which the Tribunal relied in paragraph 58 as indicating the applicant does not have an internationally recognised record of exceptional and outstanding achievement. In paragraph 59 of its reasons the Tribunal addressed particular matters on which the applicant relied, by setting out its reasons why those matters did not satisfy the Tribunal the applicant has an internationally recognised record of exceptional and outstanding achievement in the arts. Further, the Tribunal relied on matters other than those identified in ground 3 for not being satisfied the applicant has such international recognition. The Tribunal relied on the applicant having obtained his role in “Show Boat” in an audition with others, rather than as a result of any previous reputation or knowledge by the producers or directors of that show.
For these reasons, therefore, ground 3 also fails.
Conclusion and disposition
The applicant has not succeeded on any of the grounds on which he relies. I propose, therefore, to order that the application be dismissed.
Counsel for the parties agreed that costs should follow the event, but that I should not assess costs. I will order that the applicant pay the Minister’s costs as agreed or assessed.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 28 February 2020
8
21
4