FEDERAL COURT OF AUSTRALIA

Ismail v Minister for Immigration & Citizenship [2009] FCA 1187

MIGRATION – judicial review – sport visa – application of Regulations – whether no reason to believe the appellant did not continue to have an established reputation in relevant field of sport.

Migration Act 1958 (Cth):  ss 359A, 359

Migration Regulations 1994:  cll 421.222 & 421.230 of Sch 2

SHEREF GAFFER MAHMOUD ISMAIL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL

VID 884 of 2008

GOLDBERG J

19 OCTOBER 2009

MELBOURNE

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the first respondent’s costs of and incidental to the appeal.

3.         Liberty is reserved to all parties to apply to the court for further orders and directions as to the costs of this appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

INTRODUCTION

1                          The appellant appeals against a judgment of a Federal Magistrate on 3 October 2008 dismissing an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) handed down on 22 January 2008.  The Tribunal affirmed the decision of a delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs (“the delegate”) to refuse to grant a Cultural/Social (Temporary) (Class TE) visa, subclass 421 (Sport), (“sport visa”) to the appellant.

BACKGROUND

2                          The appellant is a citizen of Egypt.  He is a badminton player and has been a member of the Egyptian national badminton team.  The appellant initially arrived in Australia on 2 June 2004 on a short stay business visa.  He was being granted a Cultural/Social (Temporary) (Class TE) visa, subclass 421 (Sport), (“sport visa”) on 1 September 2004 valid until 7 April 2005.  On 5 April 2005 the appellant applied to the Department of Immigration and Multicultural Affairs for a further sport visa on the basis of being employed as a badminton player and a coach. 

3                          The visa application was accompanied by a sponsorship application from the Mountain District Badminton Association (“the sponsor”), with whom the appellant had entered into a player agreement both to play and coach the sponsor’s state junior players on a part‑time basis for a period of 12 months.  Thereafter various other documents were provided following requests by the Department for additional information.  Relevantly, in addition to two Player Agreements dated 28 July 2005 and 13 September 2005 respectively, were two letters from Mr Stuart Borrie, National Executive Director of Badminton Australia.  The first letter dated 25 August 2004, (in fact sent to, and received by, the Department on 15 September 2005) relevantly stated that: 

“[The visa applicant] is an important part of [the proposed employer’s] Junior Development Program.  [The proposed employer] has an active Junior Development Program and having a person of [the visa applicant’s] badminton ability involved in this junior program and his assistant coaching activities at [the proposed employer] will contribute to the development of the sport in that community.”

4                          Subsequent to discussions between the delegate and Mr Borrie regarding the Department’s policy requirements, the Department received a second letter from Mr Borrie dated 20 September 2005 which relevantly stated: 

“As the National Executive Director of Badminton Australia I am not able to support the application of [the visa applicant] for a Sports Visa since Badminton Australia believes [the visa applicant] does not meet one of the three criteria.

In the opinion of Badminton Australia, [the visa applicant]:

●          Does not currently have the ability to compete or coach at the national level in Australia.  Over the last 12 months [the visa applicant] has not competed in any national/international level Australian based tournaments and the few he has competed in, the results clearly indicate he is not competitive at the national Australian level;

●          Will be able to support himself through a Player Agreement which provides remuneration for the coaching and administration work at [the proposed employer];

●          Will be of benefit to badminton in Australia at the local level at [the proposed employer] through coaching at the Junior Development Program at [the proposed employer].”

5                          On 21 September 2005 the delegate refused to grant the appellant a sport visa.  On 12 October 2005 the appellant applied to the Tribunal for a review of that decision.

6                          The appellant injured his knee in April 2007.  On 30 April 2007 the Tribunal sent a letter pursuant to ss 359A and 359 of the Migration Act 1958 (Cth) (“the Act”) inviting the appellant to comment on certain information and to provide additional information.  On 26 June 2007 the Tribunal received a response from the appellant’s representative including further documentation supporting his claim.

7                          On 29 August 2007, the Tribunal wrote to Badminton Australia pursuant to s 359 of the Act requesting information about the appellant, particularly concerning his reputation in the field of badminton.  Included in the request was a copy of Badminton Australia’s letter dated 20 September 2005.  On the same day, Mr Damian Kelly, the Chief Executive Officer of Badminton Australia, responded stating: 

“As the Chief Executive Officer of Badminton Australia I am not able to support the application of [the visa applicant] for a Sports Visa since Badminton Australia believes [the visa applicant] does not meet one of the three criteria.

In the opinion of Badminton Australia, [the visa applicant]:

●          Does not currently have the ability to compete or coach at the national level in Australia.  Over the last 11 months [the visa applicant] has not competed in any national/international level Australian based tournaments.  The last international event he competed in was the Australian International on the 10 September 2006.  It should be noted that he was entered in the 2007 Osaka International but based on the information provided he was withdrawn in both the Men’s Singles and Men’s Doubles in fact he did not play in the event.  Of the three events he competed in 2006, the results clearly indicate he is not competitive at the national Australian level;

●          Will be able to support himself through a Player Agreement which provides remuneration for the coaching and administration work at [the proposed employer];

●          Will be of benefit to badminton in Australia at the local level at [the proposed employer] through coaching at the Junior Development Program at [the proposed employer].”

THE TRIBUNAL’S DECISION

8                          The primary issue before the Tribunal was whether the appellant met the requirements of clause 421.222 of Schedule 2 of the Migration Regulations 1994 (“the Regulations”).  As the appellant’s application for the visa was made in the migration zone, clause 421.230 applied.  Clause 421.230 states:

“If the application is made in the migration zone and the applicant was at the time of application the holder of a Subclass 421 visa, the applicant satisfies the Minister that there is no reason to believe that the applicant does not continue to satisfy the primary criteria for the grant of a Subclass 421 visa.”

9                          The primary criteria for the grant of a subclass 421 visa include subclause 421.222(1) which provides that visa applicants must satisfy one of any of subclauses (2), (3), (4), (5), (6), or (7) at the time of the decision in order to meet the visa requirements.  In the appellant’s case, subclause 421.222(4) is the pertinent clause.  Subclause 421.222(4) provides:

“(4)     An applicant meets the requirements of this subclause if:

(a)        the applicant seeks to enter Australia under an arrangement with an organisation in Australia to:

(i)         be a player, coach or instructor in relation to an Australian team or organisation; or

(ii)        participate in a training program; and

(b)        the applicant is sponsored by an Australian citizen, an Australian permanent resident, an eligible New Zealand citizen or an organisation in Australia; and

(c)        the applicant establishes:

(i)         if there is a relevant labour agreement between the Minister and an Australian sporting organisation — that the sponsorship is in accordance with the agreement; and

(ii)        that the sponsor has good financial and professional status in Australia; and

(iii)       that the applicant has an established reputation in the field of sport; and

(iv)       that the applicant and the sponsor have entered into a formal arrangement relating to the applicant’s prospective activities in Australia; and

(d)        approval of the application would not result in the number of Subclass 421 visas granted in a financial year on the basis of the satisfaction of the requirements of this subclause exceeding the maximum number of such visas specified, by Gazette Notice, for the purposes of this paragraph in respect of that financial year.”

The critical issue for the Tribunal was whether the appellant established that there was no reason to believe that the appellant did not continue to satisfy the primary criteria for the grant of the sport visa, in this case that he had an established reputation in the relevant field of sport at the time of the Tribunal’s decision.

10                        In assessing whether the appellant had an established reputation in the field of sport pursuant to subclause 421.222(4)(c)(iii), the Tribunal was guided by the Department’s Procedures Advice Manual 3 (PAM3).  This states that:

“It is policy that decision‑makers should not be satisfied that the applicant has an established reputation unless the applicant or sponsor provides a letter of endorsement from the national sporting body…”

11                        The Tribunal was not satisfied that the appellant had an established reputation in his field of sport as required by subclause 421.222(4)(c)(iii).  The Tribunal observed that Badminton Australia was of the view that the appellant did not have the ability to play or coach at the national level, which meant the appellant did not meet the policy requirement.  However the Tribunal noted that Departmental policy is not binding on the Tribunal. 

12                        The Tribunal then considered whether, apart from policy, the appellant had an established reputation at the time of its decision.  The Tribunal accepted that the appellant’s knee injury had prevented him from playing for a significant period of time.  The Tribunal did not accept the appellant’s claim that he was successful in his last two tournaments, noting he had lost or withdrawn in early rounds of his most recent tournaments.  The Tribunal gave weight to the letter of 29 August 2007 from Badminton Australia which claimed that these results indicated the appellant was not competitive at the national Australia level, and the letter of 20 September 2005 which noted he had not been competitive at that level since 2004. 

13                        The Tribunal accorded some weight to the sponsor’s claim that the appellant was responsible for the success of its junior players, but without medical evidence it could not give much weight to the appellant’s claim that he expected to resume his international career in early 2008.

14                        The Tribunal took into account the purpose of the sport visa which was to improve the quality of a sport in Australia.  Having regard to this factor, the Tribunal did not consider it should depart from policy, and even if it did, the Tribunal was not of the view that the appellant’s claims established that he had an established reputation.

15                        The Tribunal concluded that:

“Having regard to Badminton Australia’s opinion, the visa applicant’s competition results since 2004, and his inability to play since April 2007, the Tribunal is not satisfied that the visa applicant has an established reputation in the field of sport at the time of the Tribunal’s decision.  Consequently the Tribunal finds that the visa applicant does not satisfy subclause 421.222(4)(c)(iii) and therefore clause 421.222.  It follows that the Tribunal is not satisfied that there is no reason to believe that the visa applicant does not continue to satisfy the primary criteria for the grant of a subclass 421 visa at the time of the Tribunal’s decision, so the visa applicant does not satisfy clause 421.230 of Schedule 2 to the Regulations.”

THE FEDERAL MAGISTRATE’S DECISION

16                        The ground pressed before the Federal Magistrate was that the Tribunal misconstrued or misunderstood clause 421.230 by failing to take into account that the appellant, as a holder of a sport visa subclass 421 visa at the time of the application, had already established that he had an established reputation in the sport and that the Tribunal asked itself the wrong question or identified the wrong issue.

17                        His Honour rejected each of the arguments raised by the appellant in support of the grounds of appeal.  His Honour was of the view that the Tribunal correctly applied clause 421.230: 

“by examining whether there was no reason to believe that the applicant does not continue to satisfy the primary criteria for the grant of a subclass 421 visa.  It had to consider the requirements of subreg 421 in reaching its decision.  It found as a matter of fact that is was not satisfied that there was no reason to believe that the applicant does not continue to satisfy the primary criteria for a subclass 421 visa.  That finding of fact is not open to challenge.  The Tribunal was aware of the fact that the applicant held a 421 visa at the time of the application for the current visa as it used the phrase “continue to satisfy”… and referred to his subclass 421 (sport) visa.”

18                        His Honour noted that the correct criteria in relation to “established reputation” was applied both as a matter of policy, namely whether there was an endorsement from a national body, and independently from policy, which was an unimpeachable finding of fact.

19                        His Honour was of the view that the Tribunal correctly asked the question whether the appellant, having already established that he had an established reputation, had maintained it or lost it at the time of the decision.  The Tribunal considered this according to policy and then separately.  As the Tribunal decided that the appellant had not established that he had an established reputation at the time of the decision, it had therefore decided that the appellant had lost his established reputation which implied that the Tribunal accepted the appellant once had an established reputation.

THE PRESENT APPEAL

20                        The notice of appeal in this Court raises several grounds of appeal which reflect the submissions made before the Federal Magistrate.  In summary, they are that his Honour erred in not finding that the Tribunal:

·          failed to apply the correct time of decision criterion and applied the wrong test by applying subclause 421.222(4)(c)(iii) and asking whether it was satisfied at the time of the decision that the appellant had an established reputation in the field of sport;

·          failed to apply clause 421.230 correctly by not finding that the appellant only had to satisfy the Tribunal that there was no reason to believe he did not continue to satisfy the primary criteria set out in clauses 421.221 to 421.229;

·          erred in applying subclause 421.222(4)(c)(iii) as “an anterior step” to finding it was not satisfied there was no reason to believe the appellant did not continue to satisfy the primary criteria; and

·          failed to ask itself the correct question, which his Honour accepted was whether the appellant continued to have an established reputation; and

·          went beyond the Regulations in applying the policy that there be an endorsement from a national body.

21                        The appellant developed these grounds by submitting that in relation to the time of decision criteria within clause 421.222, there are two distinct types of visa requiring the satisfaction of separate primary criteria and that the Tribunal and the Federal Magistrate had fundamentally misunderstood this distinction.  One type of sports visa applied to a person who was not the holder of a sports visa at the time of the application; the other type of sports visa applied to a person who was the holder of a sports visa at the time of the application for a further sports visa.  Clause 421.221 requires the satisfaction of clauses 421.222 to 421.229 in relation to a person who is not the holder of a subclass 421 visa at the time of the application.  Clause 421.230 relates to a person who is the holder of a subclass 421 visa at the time of the application.  The appellant submitted that despite referring to clause 421.230 at various points in its decision, the Tribunal had erroneously asked itself an anterior question in its inquiry, whether the appellant had an established reputation in the field of sport.  (I interpolate for later reference that what the Tribunal said (in par [55]) was “The Tribunal is not satisfied that the visa applicant has an established reputation in the field of sport at the time of the Tribunal’s decision”).  This anterior question was only to be asked where the applicant does not already hold a sport visa. 

22                        The appellant further submitted that the Tribunal erroneously applied departmental policy.  Contrary to the finding of the Federal Magistrate, the appellant submitted that the Tribunal’s determination was not made independently of policy, whilst ostensibly considering the question separately.  The appellant submitted that the policy travelled beyond the requirements of the Schedule 2 criteria in circumstances where the visa applicant is the holder of a subclass 421 visa and has already satisfied the test of established reputation.  Requiring a mandatory endorsement testifying that the visa applicant was able to compete at the national level was said to be a more stringent requirement than the terms set out in subclause 421.222(4)(c)(iii) and imposed a more restrictive test.

23                        The respondent submitted that the proper construction of clause 421.230 required the decision‑maker, at the time of making the decision to have regard to the primary criteria for the grant of a visa in order to consider whether or not there is or is not any reason to believe that the applicant does not continue to satisfy them.  An inquiry resulting in the primary criteria remaining unsatisfied, implicitly and necessarily means that the visa applicant does not satisfy clause 421.230.

24                        The respondent further submitted that for this particular appellant to satisfy the relevant primary criteria, being subclause 421.222(4), and therefore to satisfy clause 421.230, the decision‑maker at the time of the decision, had to be satisfied that there is no reason to believe that the appellant does not continue to establish that he has an established reputation in the field of sport.  To this extent, the respondent submitted that the Tribunal’s application of clause 421.230 did not disclose any error in misconstruing or misapplying the provision,  particularly as it was entitled to consider whether the appellant satisfied the primary criteria for the grant of a subclass 421 visa at the time the decision was made.  What the inquiry required was a consideration of whether or not the appellant could continue to establish that he had an established reputation at the time of the Tribunal’s decision, which he clearly could not achieve.

25                        As to the Tribunal’s use of policy, the respondent submitted that the Tribunal applied the relevant policy PAM 3 in considering whether the appellant had the ability to compete or coach at the Australian national level.  Independently, the Tribunal also considered – despite the policy guidelines – whether the appellant had an established reputation in the field of sport at the time of its decision.  The respondent submitted that the Tribunal’s conclusion that:

“Even if this were an appropriate case to depart from policy, the Tribunal does not consider the visa applicant’s claims, taken individually or cumulatively, establish that he has an established reputation in the field of sport at the time of the Tribunal’s decision”

meant that the Tribunal had – irrespective of any findings based on policy – rested its conclusion on an independent and alternative basis which was not affected by any error and, in dismissing the application for judicial review, the Federal Magistrate had not erred.

26                        The Federal Magistrate found that the Tribunal did not apply the incorrect regulation and, in my opinion, the Federal Magistrate did not err in so finding.  The Federal Magistrate considered that it was clear from the Tribunal’s decision that it had applied the test required to be satisfied in clause 421.230 in reaching its conclusion that:

“the Tribunal is not satisfied that there is no reason to believe that the visa applicant does not continue to satisfy the primary criteria for the grant of subclass 421 visa at the time of the Tribunal’s decision, so the applicant does not satisfy clause 421.230 of Schedule 2 to the Regulations.”

27                        The Federal Magistrate did not err when he found that:

“By deciding that it was not satisfied that the applicant had an established reputation in the field of sport the Tribunal was giving its reason for not being satisfied that there is no reason to believe that the visa applicant does not continue to satisfy the primary criteria for the grant of subclass 421 visa at the time of the Tribunal’s decision.”

28                        I am satisfied that the Tribunal, in reaching its decision, had in the forefront of its mind and reasoning that the appellant had to meet the criterion contained in clause 421.230.  This was made clear in the letters the Tribunal sent to the appellant on 30 April 2007 and 23 October 2007.  Further, in the section of its decision headed “FINDINGS AND REASONS” the Tribunal made it clear at par [41] that the appellant was required to meet the criterion contained in clause 421.230 at the time the Tribunal made its decision.  Although the Tribunal couched some of its analysis, findings and reasons in the terms of asking whether the appellant had an established reputation in the field of sport, that language occurred for the purpose of the Tribunal asking and answering the question whether at the time of its decision there was no reason to believe that the appellant did not continue to have, or to establish that he had, an “established reputation in the field of sport”.  That is to say, there was no reason to believe that the appellant did not continue to satisfy “the primary criteria for the grant of a subclass 421 visa” as required by clause 421.230.  It was not possible for the Tribunal to ask and answer the question to be posed by clause 421.230 without determining what was the relevant primary criteria which the appellant continued to satisfy.  In this case that criterion was that he had “an established reputation in the field of sport”.

29                        The Tribunal was not satisfied that there was no reason to believe that the appellant did not continue to satisfy that primary criterion because of matters which had arisen after the first sport visa was granted to him on 1 September 2004, that is to say, Badminton Australia’s opinion (found in its letter dated 29 August 2007), the appellant’s competition results since 2004 and his inability to play since April 2007. 

30                        For those reasons I am satisfied that neither the Federal Magistrate nor the Tribunal made any error in applying the relevant regulations and law and in reaching the conclusion they did.  For these reasons the appeal should be dismissed. 

31                        So far as the appeal is based upon the ground that the Tribunal went beyond the Regulations in applying the policy that there be an endorsement from a national body is concerned, the respondent did not make any submissions about the validity of the policy on the basis that even if it was not valid, the Tribunal’s decision would still stand independently of any issue relating to the policy.  That is the basis upon which I have decided that the appeal should be dismissed.  It should also be noted that the Tribunal said at par [54]:

“Even if this were an appropriate case to depart from policy, the Tribunal does not consider the visa applicant’s claims, taken individually or cumulatively, establish that he has an established reputation in the field of sport at the time of the Tribunal’s decision.”

As I have noted earlier, in reaching that conclusion the Tribunal was doing no more than determining what was “the primary criteria” for the purpose of applying clause 421.230.

32                        The order of the Court will be that the appeal be dismissed with costs.

Associate:

Dated:         19 October 2009