Zhang v MIMA
[2007] FMCA 664
•9 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ZHANG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 664 |
| MIGRATION – Review of Migration Review Tribunal decision – visa – distinguished talent – jurisdictional error – Tribunal decision quashed. |
| Migration Act 1958, ss.360, 425, 430 Migration Regulations 1994, sch.2 cl.858.212 |
| Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 293 Mazhar v Minister for Immigration & Multicultural Affairs (2000) 183 ALR 188 Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 140 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | SHAO YANG ZHANG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1674 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 12 December 2006 |
| Date of Last Submission: | 12 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 9 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Cranitch S.C. |
| Solicitors for the Applicant: | Martin Place Lawyers |
| Counsel for the Respondents: | Ms S. McNaughton |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
A writ of certiorari be issued directed to the second respondent, quashing the decision of the second respondent dated 24 May 2006.
A writ of mandamus be issued directed to the second respondent requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 21 May 2005.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1674 of 2004
| SHAO YANG ZHANG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By a further amended application dated 17 August 2006, the applicant seeks review of the decision of the Migration Review Tribunal (“Tribunal”) handed down on 24 May 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“Minister”) dated 21 May 2005 refusing the applicant’s application for a distinguished talent (resident) (Class BX) visa dated 28 March 2005.
Background facts
In his visa application the applicant described his professional background and standing as follows:
I have written and published about twenty essays, research papers on various subjects, especially about Australian culture. Two collections of poems by Australian poets were translated and published in China. My PhD dissertation is on an Australian poet – Kevin Hart and Australian culture which involve the topics of philosophy, theology and literature.
I was trained as a teacher teaching English as a second language. I was teaching English at a high school in China for six years, and later I was working (first as a lecturer, then associate professor) at an English Department of a tertiary institution in China for nearly ten years. Now I am employed as a part-time tutor at the University of Western Sydney. (Court Book “CB” pages 15 & 18).
Apparently attached to that application were letters from Professor Sun, Hanyun; Associate Professor Peter Skrzynecki; Professor Ivor Indyk; Mr Martin Harrison; Mr Robert Gray and Professor Kevin Hart.
The letter from the Minister’s department dated 21 May 2005 advising refusal of the application records the application as having been lodged on 3 May 2005. (CB 115).
An undated curriculum vitae also accompanied the visa application form (CB 33) in which the applicant’s publications were listed (CB 34-35) as follows:
(a) Books
1. 12, 1999 Selected Poems of Kevin Hart, (editor – Yuannan), 210 Pages (100 poems translated from English into Chinese), (editor – Yuannan), Yilin Press,
2. 05, 2004 Selected Poems of Robert Gray, 200 pages (Around 100 poems translated from English into Chinese), Yilin Press,
3. …
4. …
(b) Articles:
1. 1994 “The Function of Imagination in Literary Appreciation” Journal of Jiangsu Institute of Education, I 5000 words, page 78-80
2. 1994 “Impressionism and Stephen Crane” Journal of Jiangsu Institute of Education, IV 6500 words, page 68-71
3. 1995 “An Exploration of the Methods of Crane’s Impressionism” Journal of Jiangsu Institute of Education, II 11000 words, page 88-92
4. 1995 “On the Outlook of the Time and Space of Impressionism” Journal of Jiangsu Institute of Education, IV 6500 words, page 58-61
5. 1996 “The Australian way of Living I”, Jiangsu Education News 1500 words p.4 October
6. 1997 “The Australian way of living II” Jiangsu Education News 1200 words, P.4 March
7. 1998 “A Brief Comment on the Narrative Perspective of Fiction” Journal of Jiangsu Institute of Education, IV 5000 words, page 59-61
8. 1999 “Hart and his poems” Book and People No.32, 4500 words, page 103-107
9. 1999 “Golding and his novel-----Lord of the Flies” Book and people No. 35, 4000 words, page 123-126
10. 1999 “Heller and His Anti-war Novel” Book and people No. 36, 4000 words page 129-131 (Reprinted in several magazines)
11. 1999 “An Exploration on the Methods of Teaching the Course of Translation”, Journal of China Pharmaceutical University Vol.30 3500 words page 238-239
12. 1999 “An introduction to Hart’s Poems, Selected Poems of Kevin Hart”, Yilin Press 4000 words, Page 1-4
13. 1999 “From the Center [sic] to the Edge, Selected Poems of Kevin Hart”, Yilin Press 12000 words, Page 4-18
14. 1999 “The Songs on the Edge, Selected Poems of Kevin Hart”, Yilin Press 7000 words, Page 18-27
15. 2000, Nanjing Chemical University “A Game of Reading” Journal of Nanjing Chemical University 6000 words
16. 2000, “On the Course of Deconstruction”, Journal of Jiangsu Institute Education 8000 words
17.2000, “An Australian Poetic Star” National Literary Newspaper (Shanghai) (Reprinted in several magazines including Yelin Magazine) Edition 1125, 4000 words
18. 2000, “Stephen Crane and His Novels” Book and people No. 36 4000 words
19. 2001, “Limited Point of view and Fleeting Impression” Journal of Nanjing Normal University 9000 words.
In that curriculum vitae, the applicant describes his employment history as an academic as follows:
2000----2002 Associate Professor, Foreign Languages Department, Jiangsu Institute of Education
1992----2000 Lecturer, Foreign Languages Department, Jiangsu Institute of Education
1996----1997Exchange Teacher at Monash University, Australia (Teaching the subject – Intermediate Chinese)
1983----1989Senior English teacher Number 3 Middle School in Huaiyin City [CB 33].
The application form indicated that the applicant was applying as a distinguished talent in the field of “research and academia” –
question 69 (CB 15).
Under cl.858.212 of Schedule 2 to the Migration Regulations 1994, in order to obtain a distinguished talent visa the applicant must satisfy, amongst other things, as at the time of the application, the following criteria:
(2) the applicant;
(a) has an internationally recognised record of exceptional and outstanding achievement in one of the following areas;
(i) the profession;
(ii) a sport;
(iii) the arts;
(iv) academia and research …
The Minister’s delegate determined that the applicant did not satisfy those criteria.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal concluded that the applicant did not have an internationally-recognised record of exceptional and outstanding achievement in research and academia, a profession or any other field and thereby did not meet the requirements of cl.858.212(2)(a).
The Tribunal’s decision sets out the provisions of cl.858.212 as well as an extract of “policy considerations”, the policy guidelines set out in the decision of the delegate at CB 102-104. Presumably, these guidelines are issued by the Minister’s department and give guidance to decision-makers when considering applications under cl.858.212.
The Tribunal’s decision was based on the following findings and reasons:
a)the applicant worked as a teacher, lecturer and associate professor in China in the field of languages and in particular English language;
b)in 1999 he translated into Chinese a book of poetry called Selected Poems of Kevin Hart. He also published other papers;
c)he travelled to Australia and worked as an international teaching fellow in 1996 to 1997;
d)the applicant’s understanding of the English language has allowed him to translate Kevin Hart’s poetry well;
e)this translation elevated the poet’s profile in China and amongst Chinese people;
f)the applicant travelled to Australia as a student in 2001 and undertook a PhD course;
g)in 2004 the applicant translated a further book of poems called Selected Poems of Robert Gray. The Chinese publisher indicated the two books of poems sold 5,000 copies each;
h)the applicant also published further essays and papers;
i)although the publisher commented favourably on the print runs, it is nevertheless the case that few copies were sold worldwide;
j)the applicant has written and published about twenty essays and research papers on various subjects, especially about Australian culture;
k)at the time of his application, the applicant was still in the process of finishing his doctoral thesis entitled Dual Realities in the Space of Kevin Hart’s Poetry;
l)the national or international profile which the applicant’s thesis may have given him in the academic world was not in existence at the time of the application;
m)at the time of application the applicant was largely relying on his translations of two bodies of poetry and some commentary and the favourable reaction the poetry and his translations have received in China and amongst Chinese speakers/academics;
n)the applicant is not a poet and in the end result is only a translator and commentator.
In essence, the Tribunal found:
a)the applicant’s work achievements as an English language teacher and translator were not at such a level that they could be described as “exceptional and outstanding” in a profession or in academia and research (para.21, CB 253);
b)the “translation of a single body of poetry into Chinese elevated the poet’s profile in China and amongst Chinese speakers, but did not show that the visa applicant as the translator had gained a record of exceptional and outstanding achievement in academia and research or in a profession”; (emphasis in original) (para.21, CB 253).
c)the Tribunal was not satisfied that, to the date of the application, the applicant’s work and experiences showed:
i)that he had a record of achievement in academia and research or in a profession;
ii)that his achievements were exceptional and outstanding; or
iii)that he had an internationally recognised record of achievement; (para.24, CB 254)
d)the Tribunal was not satisfied that, as at the date of the Tribunal hearing the applicant had an internationally recognised record of exceptional and outstanding achievement in research, academia or in a profession (para.25, CB 254).
Proceedings in this Court
The grounds of the further amended application can be summarised as follows:
a)the Tribunal wrongly denied the applicant’s request for an adjournment of the Tribunal hearing;
b)the Tribunal failed to give any or any sufficient reasons for its findings that the applicant was “only a translator and commentator” and did not have an international record of achievement;
c)the Tribunal erred in finding that the applicant’s unfinished Doctorate of Philosophy was relevant at the date of the hearing.
Dealing with each of these grounds in turn:
Error in denial of adjournment application
The applicant alleges that he was wrongly denied an opportunity to gather additional information to put before the Tribunal. The applicant’s solicitors wrote to the Tribunal on 12 April 2006 (CB 168) advising that two further references were being forwarded from the United States which those solicitors hoped to receive within two weeks. That letter asked the Tribunal not to “proceed to judgment” prior to receiving these references. On 13 April 2006 the Tribunal wrote to the applicant advising that a hearing had been fixed for 2 May 2006. On 19 April 2006 the applicant’s solicitors wrote to the Tribunal requesting that the matter not proceed to hearing on 2 May 2006 and advising that senior counsel had been briefed to appear. The applicant’s solicitors requested that senior counsel’s availability be considered when setting the matter down for hearing (CB 171-172). Although it mentioned the letter of 12 April 2006, this letter did not expressly refer to the two American references but did enclose twenty, and possibly twenty four, other documents.
The Tribunal’s casenote 367731 dated 24 April 2006 reproduced at
CB 200 records that a Tribunal official rang the applicant’s solicitor to advise that the presiding member had not agreed to a postponement of the hearing. The casenote does not record that the request for a different hearing date was pursued or renewed in that conversation.
In his affidavit sworn 12 December 2006, Grant Christopher Todd, a clerk employed by the applicant’s solicitors, deposes that on 24 April [2006] he had a telephone conversation with the official at the Tribunal who made the call referred to in casenote 367731 and that he advised her that the applicant still requested an adjournment to obtain further overseas evidence and to ensure the availability of senior counsel to attend the hearing. In his oral evidence, Mr Todd stated that his affidavit had been prepared without reference to a file note and, when cross-examined, did not agree with the proposition that his memory of the telephone conversation was a confused recollection of his letter of 19 April 2006. No file note of the conversation was before the Court and Mr Todd’s evidence left open the possibility that he had not taken a note of the conversation.
Although I accept that Mr Todd was doing his best to give an accurate recollection of the conversation, in the absence of a contemporaneous file note of his and given the similarity of his recollection to the content of his letter of 19 April 2006, I am of the view that casenote 367731 more accurately records the conversation between Mr Todd and the Tribunal officer on 24 April 2006. Consequently, I find that no mention of the two further references from America was made at that time, nor was the request for a different hearing date pressed or renewed in that conversation.
Section 360(1) of the Act provides:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and to present arguments relating to the issues arising in relation to the decision under review.
The statutory obligation upon the Tribunal is to provide a “real and meaningful” invitation: Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 293 at 300 [37].
In Mazhar v Minister for Immigration & Multicultural Affairs (2000) 183 ALR 188, Goldberg J discussed s.425(1) of the Act, the provision relating to proceedings in the Refugee Review Tribunal which is equivalent to s.360. His Honour discussed earlier authorities and came to the conclusion at 195 [31] that they suggested:
… that where the applicant appears, but is not able through the conduct of the Tribunal to give evidence or present arguments, albeit that the applicant has been invited by the Tribunal to appear, then there will be a contravention of s 425(1). I agree with the observations of Wilcox J in Xiao … that events subsequent to the invitation, which must remain open, are not necessarily immaterial. The invitation must not be a hollow shell or an empty gesture.
Refusal of an adjournment can amount to a denial of procedural fairness although whether or not to grant an adjournment is a matter ordinarily within the discretion of the Tribunal: Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 140 per Hely J at [36].
I note that neither the letter of 12 April 2006 nor the letter of 19 April 2006 give any indication of why the two further references being forwarded from the United States could be relevant to the proceedings before the Tribunal or why they would be of sufficient importance that the Tribunal should have delayed the hearing in order that they should be received.
No evidence has been adduced in these proceedings as to what would have been, or was, contained in the two further references from the United States referred to in the letter of 12 April 2006. There is no factual foundation for the Court to conclude that the decision by the Tribunal to proceed to a hearing on 2 May 2006 had the effect of denying the applicant a real and meaningful hearing on the basis that he was prevented from relying on the additional references from America. Although senior counsel for the applicant submitted that there was further evidence from overseas on the quality of the applicant’s achievements, none was adduced at the hearing in this Court.
Further, I have found that when, in the telephone conversation on 24 April 2006, the Tribunal’s officer advised the applicant’s solicitors that no postponement of the hearing was to be granted, no renewal of the request for a postponement was made. Nor is there any evidence of a request for postponement being made after that conversation.
In the circumstances, the applicant has not demonstrated that he was not afforded a real and meaningful hearing by reason that his request for an adjournment was refused or that the Tribunal erred by proceeding to a hearing when it did.
The Tribunal erred by failing to give sufficient reasons
The applicant says that the Tribunal erred by not giving any or any sufficient reasons for two of its conclusions. The first conclusion was that the applicant was “only a translator and commentator” and the second was that the applicant did not have an international record of achievement.
Only a translator and commentator
As to the Tribunal’s comment that the applicant was “only a translator and commentator”, while expressed in a way which has the effect of diminishing the significance of the applicant’s achievements, the facts found by the Tribunal and set out in its decision were sufficient bases for the finding that the applicant was a translator and commentator. However the statement that he was “only” a translator and commentator directs attention to the Tribunal’s consideration of the test in cl.858.212(2)(a) which is raised in the second part of this ground of review.
Did not have an international record of achievement
As to that second finding, that the applicant did not have an international record of achievement, a consideration of the reasons given by the Tribunal reveals that the Tribunal has failed properly to address in those reasons the test which it had to apply. There were four elements which the applicant had to satisfy as at the date of the visa application in order to meet the test for the issuing of the visa. These were:
(a)an internationally recognised
(b)record
(c)of exceptional and outstanding achievement
(d)in academia and research.
Record
The Tribunal was mistaken in its approach to the fundamental question of what the applicant’s “record” was.
When it first considered the issue of the applicant’s record the Tribunal referred briefly to the applicant’s published works and concluded he did not have a “record” of achievement saying that
The translation of a single body of poetry into Chinese elevated the poet’s profile in China and amongst Chinese speakers, but did not show that the visa applicant as the translator had gained a record of exceptional and outstanding achievement in academia and research or in a profession”; (emphasis in original) (para.21, CB 253).
Later in its decision, the Tribunal returned to the issue of the applicant’s record, saying:
At the time of application the visa applicant was largely relying on his translations of just two bodies of poetry and some commentary, and the favourable reaction the poetry (and hence his translations) had received in China and amongst Chinese speakers/academics … the visa applicant was not the poet and in the end result was only the translator and commentator. He only translated two bodies of poetry, albeit very well. After carefully considering all of the evidence cumulatively, the Tribunal is not satisfied that the visa applicant’s work and experiences to the date of the application showed that he had a record of achievement in academia and research or in a profession … (emphasis in original) (para.24, CB 254).
The way the Tribunal approached the understanding of the word “record” indicates that it required the applicant’s “record” to be something which was quantifiable as large or lengthy. This reflects the policy requirement quoted at CB 250 that
A significant achievement by the applicant, particularly where it appears to be the only significant achievement, would not be regarded as ‘exceptional and outstanding’ achievement. It is anticipated that an applicant would have a record of sustained achievement that is unlikely to diminish in the future. (emphasis in original).
In essence, the Tribunal found that the applicant’s work did not amount to a “record” because there was not enough of it. This was the wrong approach as the regulation does not qualify the word “record” in the way impliedly understood by the Tribunal, and the policy requirement cannot affect the proper construction of the regulation. Neither the terms of the regulation nor the ordinary meaning of the word “record” indicates that it should be understood as requiring a record which is quantifiable as large or lengthy or as having been sustained over a period of time.
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.
That is to say, a record is an aggregation or a list, not a large aggregation or a long list.
The applicant clearly had a record of achievement of some sort. The question was, once that record of achievement was identified, did it amount to one which was internationally recognised and of exceptional and outstanding quality. The Tribunal did not approach the question in this way but dismissed the applicant’s published work as not being a record before determining whether it was exceptional and outstanding, as a reading of the passages quoted above, taking into account the emphases employed by the Tribunal, reveals. Because the Tribunal did not correctly understand the meaning of the word “record”, and thus did not ask the correct question in relation to this fundamental aspect of the test prescribed by the regulation, its decision is affected by jurisdictional error and must be set aside.
However, that was not the only error affecting this aspect of the Tribunal’s decision.
International recognition
Having dismissed the applicant’s published work as not being something amounting to a “record” the Tribunal concluded that it was
… not satisfied that the visa applicant’s work and experiences to the date of the application, largely as teacher/lecturer and translator with some commentary, showed an internationally recognised record of achievement (emphasis in original)
(CB 254).When considering whether the applicant was internationally recognised, it is apparent that the Tribunal did not deal adequately with the evidence which was before it. The Tribunal focused on the impact which the applicant’s translation of Australian poetry into Chinese had in China but appears not to have considered the evidence concerning the reputation which the applicant clearly had in Australia and America amongst academics and two notable poets at the time the application was lodged on 3 May 2005: see the letters of Robert Gray - 29 January 2005 (CB 183), Kevin Hart - 17 February 2005 (CB 184); and Professor Ivan Indyk - 15 March 2005 (CB 185-186). The way that the Tribunal acknowledged the favourable reception to the application’s translations as being only “in China and amongst Chinese speakers/academics” (CB 254) indicates that it did not take into account the favourable reception of the applicant’s work elsewhere. For instance, it should be noted that Kevin Hart wrote his reference for the applicant in his capacity as the Notre Dame Professor of English at Notre Dame University, Indiana in the United States saying:
I can testify to the zest with which he has thrown himself into a very complex body of work – poetry, criticism, philosophy and theology – and to the remarkable results of his engagement with that work. (CB 32)
Although the Tribunal was not obliged to refer, in its reasons, to evidence upon which it did not rely when arriving at its decision, the fact that it omitted to mention recognition the applicant enjoyed outside China, if only to discount its significance, indicates that the Tribunal failed to consider relevant material. As McHugh J said in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 422-423 [65]:
… the obligation to set out "the reasons for the decision" (s 430(1)(b)) will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons.
Exceptional and outstanding achievement
The Tribunal did not apply this element of the test correctly in that it did not apply the test to the record which the applicant was asking be considered.
The question to be answered was whether, in the applicant’s identified area of academia and research, based on his linguistic skills and understanding of Chinese and Australian cultures, the applicant’s achievements were internationally recognised and exceptional and outstanding. To describe the applicant as a “language teacher and translator”, as the Tribunal did, minimises the applicant’s academic achievements in what appears to be a rare and difficult area of endeavour and demonstrates the problems caused by the Tribunal’s misunderstanding of the application being made. Rather than properly considering what the applicant had achieved in his field of expertise, the Tribunal commented on what he had not attempted in a field in which he was not claiming expertise. By saying, as the Tribunal did, that the applicant was not the poet but was “only the translator and commentator” of the poetry in question, as part of its reasoning process used to arrive at the conclusion that the applicant did not have a record of achievement in academia and research or in a profession or that his achievements were not exceptional and outstanding (para.24, CB 254), demonstrates that the Tribunal did not properly identify the basis of the application and thus the task it had to perform.
In academia and research
The visa application indicates that the applicant was applying on the basis of his academic standing as a student of literature, with published works to his credit, and as a highly skilled translator in an esoteric area. The test which the Tribunal wrongly set itself was to determine whether the applicant’s achievements “as an English language teacher and translator” were at the requisite level (para.21, CB 253). For the Tribunal to have characterised the applicant as a “language teacher and translator” misconceives the nature of the application which the applicant was making. Having done so, the Tribunal failed to give proper consideration to the applicant’s academic standing, as at the time of the visa application, and this is revealed through its reasons.
One indication of the fact that the Tribunal was misdirecting itself as to the test is the way it combined two of the criteria contained in the test. On more than one occasion in its decision, it speaks of the application in terms of distinguished talent in “a profession or in academia and research” but the sole ground on which the visa application was lodged is to be found in the answer to question 69 at CB 15. There, the applicant indicates that he is applying as a distinguished talent in “research and academia”, not in “a profession”, “the arts” or “sport”. Misstatement of the nature of the application being made, by including in the Tribunal’s considerations an irrelevant consideration, namely “the professions” and, thus, introducing the applicant’s previous occupation as a teacher, has muddied the water and confused the Tribunal in its approach to the application.
Generally
The reasons articulated by the Tribunal were not sufficient to support its decision. They reveal that by not having asked the right questions the Tribunal failed to discharge its statutory obligations and its decision is affected with jurisdictional error.
The Tribunal erred in finding that the applicant’s unfinished Doctorate of Philosophy was relevant at the date of the hearing.
The particulars relied on in support of this ground were pleaded as follows:
(i)The tribunal did not cite the evidence on which it relied accurately.
(ii)The tribunal failed to give reasons why it did not accept the evidence of the nominator on the question of the applicant’s status as a distinguished talent or at all.
(iii)The tribunal failed to give any reasons at all why the evidence of Kevin Hart or other evidence set forth in paragraph 18 of the decision was rejected or qualified on the central issue of the applicant’s status as a distinguished talent.
(iv)The tribunal misused the evidence concerning the applicant’s PhD thesis by placing undue emphasis upon its importance to the applicant’s status as a distinguished talent.
I do not read the Tribunal’s reasons as making a finding that the applicant’s unfinished doctoral studies were relevant to be considered. Indeed, the Tribunal implicitly stated that they were not relevant. After discussing evidence which touched on the applicant’s thesis, the Tribunal said this:
Regardless, the thesis was released after the time of application. The national or international profile which the thesis may have given the visa applicant in the academic world is a circumstance which was not in existence at the time of the application.
(CB 253-254).The particulars of this ground do not alter this fact. Certainly, the Tribunal’s decision appears to suggest that the applicant’s academic standing was enhanced by his doctoral studies and his thesis but this would appear to be used as a counterpoint to his standing prior to those studies. That suggests that the doctoral studies were used by the Tribunal to provide emphasis to its conclusion that the applicant’s standing prior to that time did not satisfy the test in the regulation.
As to the treatment of the evidence supplied by the nominator and the applicant’s referees, as already observed in these reasons, the Tribunal is not required to deal in its reasons with every item of evidence before it. Moreover, it is not correct to characterise the Tribunal’s treatment of that evidence as not accepting it, or rejecting it or qualifying it.
A proper reading of the Tribunal’s decision reveals that the evidence was taken into account and evaluated in the way the Tribunal believed was correct. The fact that the Tribunal misdirected itself as to the proper approach to be taken to the requirements of cl.858.212(2)(a) does not mean that the evidence of the nominator and the referees was not accepted, or was rejected or qualified. It was simply not properly considered in the context of a proper application of the relevant test.
Consequently, this ground is not made out.
Conclusion
As the decision of the Tribunal is affected with jurisdictional error, it will be set aside and the matter will be remitted to the Tribunal to be determined according to law.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 9 May 2007
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