Wolseley v Minister for Immigration
[2006] FMCA 1149
•11 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WOLSELEY v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1149 |
| MIGRATION – Migration Review Tribunal – distinguished talent visa – exceptional benefit to the Australian community – whether finding of asset to Australian community relevant to finding of exceptional benefit to Australian community – whether ‘whole’ community benefit appropriate – benefit to artistic community. |
| Migration Regulations 1994 Migration Act 1958, s.501(6) |
| Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 Scargill v Minister for Immigration and Multicultural and Indigenous Affairs (2003) ALD 53 Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW [2005] FCAFC 154 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 The Australian Gas Light Company v The Valuer-General (1940) SR (NSW) 126 |
| Applicant: | JOHN WOLSELEY |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File number: | MLG 250 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 25 July 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 11 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr G. Gilbert |
| Solicitors for the Applicant: | Erskine Rodan & Associates |
| Counsel for the First Respondent: | Mr C. Horan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 25 January 2006.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
The First Respondent pay the Applicant’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 250 of 2006
| JOHN WOLSELEY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
John Wolseley (the Applicant) is the sponsor of Ms Angela Newberry, who applied for a Distinguished Talent (migrant) (class AL) visa subclass 124 on 20 February 2004. The application for the visa by Ms Newberry was lodged with the Immigration Section of the Australian High Commission in London. The Applicant, as indicated, has performed the role of sponsor as required.
On 18 October 2004, a delegate of the First Respondent refused to grant the visa. In a decision dated 25 January 2006, the Migration Review Tribunal (the Tribunal), to whom application had been made for review of the delegate's decision, affirmed the delegate's decision and found that the visa Applicant was not entitled to the grant of the relevant visa. It is that decision which is now the subject of an application for judicial review. Although finding that the visa Applicant would be an asset to the Australian community, the Tribunal was not prepared to find that the visa Applicant had demonstrated that her settlement in Australia would be “of exceptional benefit to the Australian community”.
Ms Newberry, who is the visa Applicant, is an artist and printmaker who works on lino cuts, silk-screening prints and relief prints. There is no issue taken in this case in relation to the finding by the Tribunal that Ms Newberry has an internationally recognised record of exceptional and outstanding achievement in the arts, specifically in the field of printmaking, and that she is still prominent in the area. That finding is hardly surprising when one considers the material provided in support of the application for the visa. That material includes a significant number of references, including references from the Applicant's sponsor in relation to Ms Newberry.
At the time of the Tribunal's decision the visa Applicant was 69 years of age, which becomes relevant when considering the requirements for the granting of the relevant visa pursuant to the Migration Regulations 1994 (the Regulations).
By way of further background, it is noted from that material, and not disputed, that Ms Newberry had studied at London's Royal College of Art from 1954 to 1957. She was the winner of the Vogue talent contest in 1958 and worked for several magazines and a number of interior design projects until 1971. In 1984 she decided to return to full-time printmaking and established her own studio in London. She has studied and worked in South Africa, Australia and Britain.
According to the material, for a number of years Ms Newberry has travelled to wilderness areas in search of material for her prints. This has taken her from the rainforests of Brazil and Peru to the plains of Africa and India and to the outback and shoreline of Australia. During the course of her journeys, again according to the material before the Tribunal, Ms Newberry would take photographs and make sketches from what she had seen, from which she would then make relief prints and screen prints.
It would appear that her work is almost entirely concerned with the natural world. Some examples of the work undertaken by Ms Newberry appeared in the Court Book at pages 107-109. It is also noted that in support of the application before the Tribunal, amongst the various references appeared a reference from Ms Meg Viney, director of the Meeniyan Art Gallery, who in correspondence to the Tribunal (Court Book pages 188-189) states the following, after referring to Ms Newberry's willingness to take the work of Australian printmakers to London and other parts of the United Kingdom to exhibit and noting the importance of Australian printmakers having work exhibited outside Australia, and then further states:
“Angela has achieved prominence in her field. She has shown at a number of really prominent galleries in Australia, and is represented by Framed Gallery in Darwin and Joshua McClelland print room in Melbourne. She has been offered a show at Solander Gallery in Canberra, possibly the most prestigious gallery in Canberra. I am delighted that Angela would exhibit with us in 2006.
It is my belief that Angela Newberry is a rich asset to Australia and I fully support her application for Australian citizenship.”
Those brief extracts and background in relation to the visa Applicant no doubt in part persuaded the Tribunal to make significant favourable findings in relation to the visa Applicant. Those findings may briefly be summarised as follows:
·The Tribunal is satisfied on the evidence before it that the visa Applicant has an internationally recognised record of exceptional and outstanding achievement in the arts, specifically in the field of printmaking, and that she is still prominent in the area.
·It is further satisfied that she would be an asset to the Australian community and that she would have no difficulty in becoming established independently in Australia in this area.
·The Tribunal accepts that the visa Applicant's settlement in Australia would be of exceptional benefit to the particular field of printmaking.
Relevant Legislation
The Migration Act 1958 (the Migration Act) makes provision for prescribed classes of visas. For the purpose of this application it is relevant to note that the Migration Regulations 1994 (the Migration Regulations) prescribe criteria for the particular visa. That criteria is found in clause 124.21 which provides as follows:
“124.21 Criteria to be satisfied at time of application
124.211(1) The applicant meets the requirements of subclause (2) or (4)
(2)The applicant;
(a) has an internationally recognised record of exceptional and outstanding achievement in one of the following areas;
(i)a profession;
(ii)a sport;
(iii)the arts;
(iv)academia and research; and
(b) is still prominent in the area; and
(c) would be an asset to the Australian community; and
(d) would have no difficulty in obtaining employment, or in becoming established independently, in Australia in the area; and
(e) produces a nomination testifying to the applicant’s achievement and standing in the area from:
(i)an Australian citizen; or
…
having a national reputation in relation to the area; and
(f) if the applicant has not turned 18, or is at least 55 years old, at the time of application – would be of exceptional benefit to the Australian community.” (emphasis added)
Applicant's Submissions
The Applicant filed an application on 17 February 2006 and the following grounds were relied upon:
“1. The decision of the Tribunal was made in breach of an imperative duty imposed on the Tribunal or an essential pre-condition to or an inviolable limitation or resistant upon its power and its jurisdiction necessary for the existence of the satisfaction required by s65 to grant or refuse to the application and its powers to conduct a review under s348 of the Act. The Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction in that it misunderstood and/or misconstrued an essential criterion or criteria for the grant of the visa of which it was required to be satisfied.
PARTICULARS
(i) It misunderstood the meaning of the phrase ‘would be of exceptional benefit to the Australian community’ as appearing in subclause 124.211(2)(f) of Schedule 2 of the Migration Regulations 1994 in that it required the benefit to accrue to the Australian community ‘as a whole’.
(ii) Having found that the visa applicant ‘would be an asset to the Australian community’, a requirement of subclause 124.211(2)(c), it was not open to the Tribunal to apply a different and more onerous definition of ‘Australian community’ in subclause 124.211(2)(f);
(iii) Having found that the visa applicant would be of exceptional benefit to her particular field of art (the arts being one of the categories for the Distinguished Talent visa as set out in subclause 124.211(2)(a)(iii), the Tribunal foreclosed the possibility that this exceptional benefit could nevertheless satisfy the requirements of subclause 124(2)(f).”
In support of the application, and in particular grounds 1(i) and (iii) that is, misunderstanding of the term "the Australian community" the Applicant referred to the following extract from the Tribunal decision in paragraph 27 as follows:
“27. Having particular regard to the evidence of both the nominator and Mr Kelson, the Tribunal accepts that the visa applicant’s settlement in Australia would be of exceptional benefit to the particular field of printmaking. However, this is insufficient to meet the legislative requirements. The visa applicant must demonstrate that her settlement in Australia would be of exceptional benefit to the Australian community as a whole.”
It was submitted that the issue in relation to the satisfaction of subclause 124.211(2)(f) did not turn on the meaning of "exceptional benefit" but rather on whether the exceptional benefit was to the Australian community. In doing so, it was submitted that the Tribunal misunderstood an essential criterion necessarily for the exercise of jurisdiction. In the alternative, it was submitted the Tribunal asked itself the wrong question (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1).
The Applicant specifically referred the court to the decision of Scargill v Minister for Immigration and Multicultural and Indigenous Affairs (2003) ALD 53. It was noted that the expression "the Australian community" appears in both subclause 124.211(2)(c) and subclause 124.211(2)(f). Further, it is noted that the expression is not defined in either the Migration Act or the Regulations. Neither counsel was able to refer the court to any decided case which has dealt with the expression in the context of this particular visa, namely, a distinguished talent visa or in relation to its predecessor, which was the "skilled subclass 805 visa".
Both parties referred the court during the course of submissions to Procedure Advice Manual (PAM) 3, and in particular clause 6.1 which provides as follows:
“6.1 Policy requirements
124.211(2)(c)
This criterion is intended to reflect policy that the applicant’s settlement in Australia will benefit the Australian community, not just the applicant and/or the nominator (or prospective employer). The reference to the Australian community is to be interpreted in terms of Australia as a whole and not just local community in geographic terms or a particular social, cultural or business community in Australia.
‘Asset’ does not only refer to economic benefit. It could also refer to social and/or cultural benefit to the Australian community. It is also policy that an applicant should not have a history of achievement in an area that is, of its nature, not generally acceptable to Australia.
6.2 Assessing whether asset to Australia
The benefit that the applicant would bring to the community;
· should contribute to the betterment of the Australia community economically, socially or culturally (ie depending on the applicant’s intended field of activity) or raising Australia sporting, artistic or academic standards internationally
· must be clearly apparent and not simply conjecture on the part of the applicant or decision maker.
The fact that the applicant might introduce and/or transfer skills to Australia would not alone be sufficient to satisfy this criterion. This criterion would not be considered satisfied if the applicant was involved in an area that is:
· outside the generally accepted social or cultural norms of most people in Australia
· likely to be offensive to large segments of the Australian community or
· otherwise give rise to controversy were the applicant to enter Australia as a distinguished talent”
The Applicant submitted that there was no "legislative requirement" which was to the effect that an exceptional benefit to the visa Applicant's particular field was insufficient. It was submitted that a purposive reading of the criteria in the visa class makes clear that there will be numerous areas of expertise which are quite discrete, and hence which may be limited initially to benefit to the particular field. A number of examples were given, including the example of a ballerina or opera singer or weightlifter. During the course of submissions the court raised the example of a sports person talented in soccer.
It was submitted by the Applicant that certain sections of the community which have an interest in particular areas of human endeavour may be seen to benefit. However, persons in certain fields may find it difficult to claim an exceptional benefit to the whole of the Australian community. It was submitted that in a diverse society such as Australia, many may not have an interest in attending ballet or opera or indeed a particular sporting event. There would be many who would see no benefit in having such talented people in our midst.
It was submitted that given that subclause 124.211(2)(a) has four discrete categories of speciality which each contain numerous subcategories, then it should follow that an exceptional benefit to one group within a category is capable of having a flow-on effect to the Australian community at a broader or more societal level. By looking at the "whole" community as the starting point, it was submitted the Tribunal approached the question in the wrong manner. It set an impossible task for the visa Applicant which was not contemplated by the visa class.
It was submitted that the policy in paragraph 6.1 of PAM was out of step with the provision in question. In the alternative, it was submitted the Tribunal misapplied the policy in that it used it in isolation. Reference was made to the first dot point in paragraph 6.2 which provides further guidance as follows:
"The benefit that the Applicant would bring to the community:
· should contribute to the betterment of the Australia community economically, socially or culturally 9ie depending on the applicant’s intended field of activity) or raising Australia sporting, artistic or academic standards internationally”
It was submitted that applying this paragraph to subclause 124.211(2)(f), as the Tribunal did for paragraph 6.1, the Tribunal should have gone on to ask itself whether an exceptional benefit to printmakers in Australia could be seen as contributing to the cultural betterment of the community generally or whether the benefit could raise Australian artistic standards internationally.
In support of these submissions, counsel for the Applicant referred the court to an extract of the transcript which appears in the supplementary Court Book at page 12 line 45 to page 13 line 20 as follows:
“MS SPIELER: Well, I mean, in a sense, are you saying that because she is in the international printmaking establishment that that would mean that she’s an asset to the Australian community? Is that effectively what you’re saying?
MR KELSON: Indeed, I would.
MS SPIELER: Okay, all right.
MR KELSON: That puts her in a very strong position to assist and support the field of printmaking in Australia because she does bring particular skills – I can’t enumerate them all now off the top of my head - - -
MS SPIELER: Yes.
MR KELSON: - - - but she does bring particular techniques and skills that are necessarily well practised by people in Australia or necessarily well known and this is a means of enhancing the Australian scene. If she were – and I have reason to believe that she does – prepared to run art classes and things of that nature, that would certainly be a means of assisting the whole printmaking scene in Australia.”
It was noted that further in the transcript the issue was again considered at supplementary Court Book page 15 when Mr Wolseley states the following at line 36 to line 50:
“MR WOLSELEY: - - - in terms of whether someone is exceptional value. I think it’s true to say that any arts committee in any country benefits hugely by having (indistinct) hugely by having foreigners, foreign artists with different experiences, coming in. France would be an example – having Picasso coming from Spain and Chagall from Russia – so that this is a particular discipline where when people in (indistinct) very specific skills, it’s particularly important. It fits into that category I think of exceptional benefit rather than, say, someone in the field of business management, let’s say. This is where I’m out of my depth here.”
It was submitted the Tribunal did not address these issues but rather stopped incorrectly at a threshold finding that an exceptional benefit to one's field was not sufficient. In relation to ground 1(ii), that is, acceptance of asset to "the Australian community", it was submitted that that expression should be interpreted consistently within the one subclause. Reliance was placed upon the decision of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW [2005] FCAFC 154. In particular, the court was taken to the decision of Weinberg J in that case where at paragraph 16 His Honour relevantly states:
“16 Whether the legislature intended that, for the purposes of s 429, a "private" hearing must take the form contemplated by the Federal Magistrate, can be tested by reference to how it might operate in the circumstances of this case. It is to be recalled that the adviser acting for the respondent and the other three applicants, requested that their applications for review be dealt with by the one Tribunal member. There is nothing in the Act which would suggest this cannot be done. Indeed, s 420 obliges the Tribunal to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. That obligation would be satisfied in a case such as the present if the Tribunal met a request that one member deal with all related applications for review. Similarly, it would be consistent with that obligation to hear the evidence, in this case, of all four applicants over the one period.”
It was submitted that in the present case the Australian community must be the same community in subclause 124.211(2)(f) as in subclause 124.211(2)(c). It was submitted that it was not open to the Tribunal to apply a different definition. Having found that the visa Applicant was an asset to the Australian community, it was submitted the only question which needed to be determined under subclause 124.211(2)(f) was whether the Applicant would be of exceptional benefit to that same community.
It was submitted that having made a finding of fact in relation to the Australian community in subclause 124.211(2)(c), it was not then open to the Tribunal to revisit the question of the Australian community. By doing so, it effectively ignored its earlier finding on the same question. It was submitted that that conduct by the Tribunal is analogous to entering an inconsistent verdict.
Although there were no specific authorities dealing with this issue which either counsel was able to refer to during the course of submissions, the Applicant referred to a decision of Heerey J in Bae v Minister for Immigration and Multicultural Affairs [2001] FCA 578 (Bae). In that case the issue was whether an Applicant for a skilled subclass 805 visa had an exceptional record of achievement in an occupation, profession or activity and would be an asset to the Australian community. It was noted in that case that the Applicant was a welder and a Korean national.
The Tribunal in Bae found that the Applicant satisfied the criteria that he would be an asset to the Australian community and would have no difficulty in obtaining employment but did not find that he had an exceptional record of achievement in an occupation, profession or activity. Heerey J in Bae referred to the Tribunal's reasons for its decision relevantly in the following paragraphs:
“13 After noting that the applicant had been employed continuously in Australia since 1995 the Tribunal found he would have no difficulty in obtaining employment. The Tribunal then turned to the "asset to the Australian community" condition. It said:
‘26. Subclause 805.212(7)(a)(ii) requires the primary visa applicant to demonstrate that he would be an asset to the Australia [sic] community. The Tribunal notes the guidance in PAM 3 that describes benefit to the Australian community as the betterment of the community economically, socially or culturally, for example by introducing and transferring new skills or significantly raising local standards. The Tribunal notes the opinion of the National Examiner for the WTIA that the primary visa applicant is exceptionally competent in silver soldering and can make a significant contribution to the further development of fabrication and welding in Australia. The Tribunal notes the primary visa applicant's development of a product for the food industry that has been approved by the relevant water authority, is claimed by the primary visa applicant to have cost and environmental advantages over the traditional medium of construction, and is considered by the National Examiner for the WTIA as suitable for marketing throughout the industry. Having regard also to the primary visa applicant's evidence regarding transfer of his skills to the Australian community, the Tribunal finds that he would be an asset to the Australian community, so he satisfies subclause 805.212(7)(a)(ii).’
14 The Tribunal then discussed the condition requiring an "exceptional record of achievement" as follows:
‘27. The difficulty for the primary visa applicant is that he needs to demonstrate that, at the time of application in May 1997, he had an exceptional record of achievement in his field as a welder. The Tribunal notes the guidance in PAM 3 that consideration should be given, but not limited to, supporting statements from the applicant outlining their qualifications and achievements, any relevant qualifications or awards received from internationally recognised institutions and statements from government, professional, scientific or other relevant bodies in Australia. For the primary visa applicant to demonstrate that his skills are exceptional, he must show that his record of achievement distinguishes him as exceptional above other practitioners in the field. In Gaffar v Minister for Immigration and Multicultural Affairs (2000) FCA 293 (15 March 2000), French J. stated:-
`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 will require far greater levels of knowledge and skill than others in order to rise above the ordinary and merely competent. And while the applicant for such a visa is required to be an `asset to the Australian community' it is not required that he or she be a `national living treasure'. The [IRT] has taken an unduly restrictive approach to the criterion of `exceptional record of achievement'. The criterion requires a demonstrated excellence in the relevant occupation which is out of the ordinary.'
28. It follows from this and by comparison with the much higher standard required under regulation 805.212(6)(b)(ii), that the test of what is `exceptional' cannot be raised to an unreasonably high level. It also follows from the tenor of the regulations themselves and the rationale underpinning the skilled migration system that the threshold should not be set too low. Otherwise it would bring the system envisaged by the regulations under consideration into conflict with the working of the regulations dealing with the other arms of the skilled migration scheme and detract from the operation of the scheme itself. It follows that in these cases there is a range of excellence in which the visa scheme can work, but that undesirable consequences can follow if it is applied outside this range.
29. The primary visa applicant submitted that he was a skilled welder. He provided evidence that as at May 1997, he was qualified as a welder in Korea and had 15 years' combined experience as a welder in Korea and Australia. In addition, he claimed to have invented a mixing tank in Korea for pharmacy use. The Tribunal notes that all of the primary visa applicant's qualifications in Australia were obtained subsequent to the lodging of the visa application, at which time his skills as a silver brazer had only recently been discovered. The Tribunal further notes that his employer regards him as an above average welder, a fact that is reflected in his level of remuneration. Having regard to the evidence, and applying the test in Gaffar, there is nothing to indicate that, at the time that the matter must be assessed, the primary visa applicant had attained an exceptional record of achievement as a welder. He therefore does not satisfy subclause 805.212(7)(a)(i) and so does not satisfy the requirements of subclause 805.212(7)."
His Honour then proceeded to state in his conclusion, by reference to those extracts from the Tribunal decision, the following:
“15 The findings in par 26 (in the context, the use of the expression "The Tribunal notes ..." indicates acceptance by the Tribunal) must be taken to be referring to the applicant's exceptional competence in silver soldering and the development of his steel grease interceptor device as at the date of the visa application, since that is the date at which this condition must be satisfied.
16 But in considering the "exceptional record of achievement" condition the Tribunal appears to have disregarded those same facts. This indicates an error of law, being an incorrect application of the law to the facts as found: s 476(1)(e).”
It was submitted in the present application that the same logic applied by Heerey J in Bae should apply to the present case given that the expression under consideration is the same. Accordingly, it was submitted by counsel for the Applicant that the Tribunal decision should be set aside.
The Respondent's Submissions
The First Respondent submitted that the Tribunal decision was free of jurisdictional error. It was submitted that clause 124.211(2)(f) requires certain classes of visa Applicants to satisfy an additional requirement that they would be of "exceptional benefit to the Australian community". It was submitted that the "exceptional benefit" requirement should be interpreted in a context where every Applicant for a subclass 124 "distinguished talent" visa must demonstrate that he or she has an internationally recognised record of exceptional and outstanding achievement in a specified area, is still prominent in the area and would be an asset to the Australian community.
It was submitted, and I accept, that an Applicant who is at least 55 years old must be of "exceptional benefit" over and above the benefit required to be demonstrated by other Applicants for a distinguished talent visa. The First Respondent submitted that the phrase "exceptional benefit to the Australian community" is used in its ordinary and non‑technical meaning. The ordinary meaning of the words "exceptional benefit" is a question of fact for the Tribunal and accordingly, where it is reasonably open to hold the facts of the case to fall within those words, then the question of whether or not an Applicant is of exceptional benefit to the Australian community is a question of fact (see Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 395).
The First Respondent submitted that the phrase "Australian community" is used in a number of other contexts, both in the Migration Act and the regulations. A number of examples were given where those words appear. It was submitted that the reference to "the Australian community" in the various provisions is used in a general sense and, it was submitted, is a "reference to the Australian community as a whole".
It was submitted that where the legislative intention appears to encompass particular groups or segments within the Australian community, then specific mention is made to that effect. For example, the "character test" defined in s.501(6) of the Migration Act specifically refers to the Australian community or "a segment of that community". Similarly, it was submitted that condition 8303 in schedule 8 of the Migration Regulations refers to "activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community".
Accordingly, the First Respondent submitted, the reference to the "Australian community" in clause 124.211(2)(c) and (f) should be construed as meaning the Australian community "as a whole". It was not intended to refer to benefits which accrue only to particular groups. It was argued that this does not necessarily mean that in order to satisfy clause 124.211(2)(f), an Applicant must demonstrate a benefit to "every member of the Australian community". However, it was submitted, the benefit must be broader than a benefit to a specific or limited subgroup associated with a particular field in which the Applicant has a reputation.
Hence, it was argued that even if it be accepted than an exceptional benefit to a particular category of speciality is capable of having a flow-on effect to the Australian community "at a broader or more societal level", as submitted by the Applicant, the question of whether or not this is the case is a question of fact to be determined by the Tribunal. In this instance it was argued by the First Respondent that there is nothing in the Tribunal's reasons to indicate that it ignored that possibility or treated the "whole" community as the starting point or otherwise set what could be described as an impossible task for the visa Applicant.
The Tribunal's assessment as a matter of fact was that to the extent that the visa Applicant would bring an exceptional benefit, that exceptional benefit would be confined to the specific field of printmaking and would not apply to the Australian community more generally. It was open to the Tribunal in this case, according to the First Respondent's submissions, to find that there was no exceptional benefit to the Australian community, notwithstanding its acceptance that the Applicant would be of exceptional benefit to the particular field of printmaking. The benefit of printmaking, it was argued, did not necessarily require a finding that there was an exceptional benefit to the Australian community in the broader sense. Again, this was a question of fact for the Tribunal.
It was further submitted that it was open to the Tribunal to find that there was no exceptional benefit to the Australian community, notwithstanding its acceptance that the Applicant would be an asset to the Australian community in the broader sense. The fact that the Applicant was an asset to the Australian community is, it was argued, patently not of itself sufficient to satisfy the additional requirement that the Applicant must be of exceptional benefit to the Australian community. It was submitted the Tribunal did not ignore its earlier findings or otherwise "revisit" the question of the Australian community.
Accordingly, it was submitted that the Tribunal applied a consistent interpretation of "Australian community" in relation to both subclause 124.211(2)(c) and subclause 124.211(2)(f). This is apparent from paragraph 25 of the Tribunal's reasons, set out earlier in this judgment, in which the Tribunal applies the policy guidelines in relation to subclause 124.211(2)(c) and gives the term "Australian community" a "similar broad meaning" in relation to subclause 124.211(2)(f).
Accordingly, it was submitted, the Tribunal did not misconstrue subclause 124.211(2)(f). It was open to the Tribunal on the evidence before it to find that the Applicant was not of exceptional benefit to the Australian community for the purpose of subclause 124.211(2)(f).
Reasoning
In my view, the Applicant's submissions in relation to this issue are correct. The Respondent's contentions appear, in my view, to be without merit in the sense that I am satisfied that the Tribunal, in an endeavour to interpret the relevant provisions, has in fact misdirected itself and/or misinterpreted the relevant provisions.
Having found that the Applicant in this instance was a person of exceptional benefit in the field of printmaking, and having further found that the Applicant would be an asset to the Australian community, it is difficult to comprehend how the Tribunal could then fail to further make the finding that in this instance the Applicant is a person who could properly be found to be one who could provide an exceptional benefit to the Australian community.
In my view, on a proper analysis of the relevant clauses, it is clear that persons who fall within the demographic group, that is, those under the age of 18 or over the age of 55 years, certainly face a further requirement when seeking to obtain a distinguished talent visa. The further requirement which the person in that demographic group need to achieve is clearly evidenced in the relevant clause; namely, that the person must establish that they would be of “exceptional benefit to the Australian community.”
Whilst it is accepted that that is an additional requirement facing those, like the visa Applicant, who fall within the specific demographic group, it is difficult to see how once a finding is made by the Tribunal that the person is an asset to the Australian community and would be of exceptional benefit to the particular field of printmaking would not then logically be of exceptional benefit to the Australian community, of which the Tribunal has already found the visa Applicant would be an asset.
In its reasoning, the Tribunal appears to rely upon the policy guidelines. Whilst it is acknowledged that those guidelines refer to a benefit which goes beyond a benefit of a local community in geographic terms or a particular social, cultural or business community in Australia, that does not mean, in my view, that the provisions may have imported the words "as a whole". If the legislature had intended to import the phrase "as a whole" after the words "Australian community", then that phrase could easily have been inserted.
In my view, there is little assistance to be gained from the references made by the First Respondent to other provisions in either the Migration Act or the Migration Regulations where reference is made to the phrase "Australian community". Those references, along with the other references to what are described as a "segment of a community" or a "group within the Australian community", are references which specifically relate to other visas or other circumstances.
This particular visa is a visa which recognises that persons may have a distinguished talent which clearly the criteria under 124.211(2)(a) acknowledges must be a person who meets the requirement of having an internationally recognised "record of exceptional and outstanding achievement" in a particular area. The areas referred to are a ‘profession’, a ‘sport’, the ‘arts’, ‘academia and research’. Further, the person is required to be still prominent in the area and would be an asset to the Australian community. In this case there is no suggestion that the visa Applicant would have any difficulty obtaining employment or being established independently in Australia in the particular area.
It seems clear to me that the criteria to be satisfied at the time of application is a criteria which is specific to this type of visa application and of itself necessarily narrows the application of the person concerned to the particular field of endeavour. It is hardly surprising therefore that in undertaking the task of further determining for this particular demographic group that the person is a person who would be of "exceptional benefit to the Australian community", the Tribunal would be required to consider whether it was satisfied in any event that the person would be of "exceptional benefit" to the particular field.
It would be difficult to conceive that an Applicant for a visa of this kind would be accepted if he or she would not be regarded, if the person was of the particular demographic group, to be a person of exceptional benefit to the particular area concerned. In this instance the Tribunal appeared to have little difficulty in making the favourable finding favourable to the visa Applicant namely that she is a person who clearly is able to be of exceptional benefit to the particular field of printmaking.
Having made that finding, in my view the submissions of the Applicant are correct in the sense that it would be inconsistent with that finding to then proceed to make a finding in a general sense that the visa Applicant would not be of exceptional benefit to the Australian community. By introducing the concept of the Australian "community as a whole", I am satisfied the Tribunal erred by introducing an additional criteria which was unnecessary.
Having found that the visa Applicant would be of exceptional benefit to the particular field of printmaking, in my view it would follow that that would entitle the Tribunal to then proceed to make the appropriate finding consistent with the criteria; namely, that the visa Applicant would therefore be a person who would be of exceptional benefit to the Australian community.
I accept the submissions made for and on behalf of the Applicant that in this instance, as indeed with other applications for visas of this kind, of necessity the Applicant will be confined to establishing a reputation, and indeed benefit, to a particular area, whether it be a profession, a sport, the arts, academia or research.
It is difficult to conceive in any of those areas, for example, the area of sport, and in particular a soccer player, how an Applicant for a visa in that area could necessarily satisfy a Tribunal that his or her skills, if perhaps the person had not yet turned 18, would be of exceptional benefit to the Australian community "as a whole". Clearly the benefit accrues to those with an interest in the particular sport and those who either particular or watch that sport.
Likewise, in relation to those who participate in the arts, such as the visa Applicant, it is difficult to conceive that the visa Applicant could do any more than establish, as she clearly has on the voluminous material available to the Tribunal, that not only does she enjoy an international reputation of a kind which satisfies all of the criteria set out in clause 124.21 but in doing so, having persuaded the Tribunal that she would be of exceptional benefit to the field of printmaking, has in my view then logically provided sufficient material which would lead the Tribunal, if it properly interpreted the provision, to be satisfied that the visa Applicant would also be of exceptional benefit to the Australian community.
The benefit to a particular field of endeavour by its nature would clearly be a benefit to the Australian community. The Tribunal, in my view, has misdirected itself by imposing the further requirement that that benefit be to the Australian community "as a whole". In my view this cannot be regarded as a simple error of fact but rather an error of law. I am satisfied that in this application the Tribunal appears to have disregarded those facts which led it find that the visa Applicant would be an asset to the Australian community when reaching its decision that the visa Applicant would not be of exceptional benefit to the Australian community by introducing the concept of the Australian community “as a whole”. Whilst its finding of fact may have come within that description, it is my view that that description is in fact a misdescription of what is required by the Regulations and that the Tribunal has therefore misdirected itself in relation to the construction of the Regulations which itself could constitute an error of law (see The Australian Gas Light Company v The Valuer-General (1940) SR (NSW) 126 per Jordan CJ at 137-138 and Davidson J at 144).
In a manner similar to the findings of the Court in Bae I am satisfied that this indicates an error of law being an incorrect application of the law to the facts as found. It has otherwise misinterpreted the provisions in the manner submitted for and on behalf of the Applicant, and accordingly its decision should be set aside and the First Respondent be ordered to pay the Applicant's costs of the application.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 11 August 2006