FEDERAL COURT OF AUSTRALIA

Singh v Minister for Home Affairs [2018] FCA 1337

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent of and in connection with the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MIDDLETON J:

INTRODUCTION

1    The appellant, Mr Singh (the ‘Appellant’), has appealed from a judgment of the Federal Circuit Court (the ‘FCC’). The FCC ordered that his application for judicial review of a decision of the Administrative Appeals Tribunal (the ‘Tribunal’) be dismissed with costs. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the ‘Minister’) that leave to appeal be refused with costs with respect to granting the Applicant a distinguished talent residence class BX subclass 858 visa (the ‘Visa’).

Relevant background

2    The background to the matter, including the claims made by the Appellant and the decision of the Tribunal, is set out by the FCC: see Singh v The Minister for Immigration [2018] FCCA 506 at [1]-[10].

3    The Minister refused to grant the visa on the basis that the Appellant was not a person who exhibited a record of exceptional outstanding achievement as required by clause 858.212(2)(a) of the Migration Regulations 1994 (Cth) (the ‘Regulations’). The Appellant submitted that he had adequately satisfied the subclause, and in support of this submitted supporting evidence which provided recent extensive documentary confirmation of his wrestler achievements up to the time of his application.

4    The FCC dismissed the application for review in reasons given ex tempore. The Appellant filed a notice of appeal before the ex tempore reasons were published. He did not therefore have the benefit of those reasons to draft the notice of appeal. Following the publication of the reasons, the Appellant did not file or seek to file an amended notice. He filed written submissions which raised new matters and did not deal with the matters raised in the notice of appeal. I will address all the relevant grounds of appeal, including those matters raised in the written submissions.

GROUNDS OF APPEAL

5    The notice of appeal asserts that a “new argument has come to light which demonstrates the unsatisfactory evidence has not been done by me.” However, that assertion was not further explained in the notice of appeal or the submissions. It is not evidently transparent what the Appellant intended to convey here. It was also submitted by the Appellant that the FCC failed to adequately observe and consider the Appellant’s claims. However, I observe at the outset that the Appellant’s submissions, in large part, asked the Court to conduct review on the merits. The submissions reproduced clause 858.212 of schedule 2 of the Regulations and recounted the material that the Appellant relied upon to satisfy the clause. The submissions then argued that the Appellant participated in certain tournaments where he “performed very well” and “won the gold medal.” The Appellant alleges a miscarriage of justice, because he had “enough material submitted to Immigration and more submitted to the Tribunal as well.” All these submissions go to the merits of the Tribunal’s decision.

6    The Appellant also asserted the Tribunal failed to comply with procedural fairness. The Appellant further submitted the Tribunal failed to provide the opportunity to provide further evidence of his achievements or current status with respect to his wrestling career. The Appellant argued there was sufficient information from the period after the application to support his claims, which would validate the achievements and accolades he claimed. Accordingly, the Appellant submitted that the Tribunal failed to accord him procedural fairness.

7    The Appellant then submitted that the Tribunal failed to have reference to the evidence which was before the delegate and before the Tribunal on the topic required to be addressed by clause 858.212 of the Regulations.

8    In my view, these various complaints of the Appellant cannot be sustained. The FCC’s approach to the construction of clause 858.212 of the Regulations was correct. The FCC accurately identified that the proper approach inevitably fell to determining the facts. The Tribunal objectively observed, from the material facts, that the Appellant did not have the requisite internationally recognised record of exceptional achievement. The Tribunal was entitled to come to this conclusion on the evidence.

9    There is also nothing in the materials before this Court, including in the notice of appeal or submissions, that suggests some problem, impropriety or shortcoming in the way the evidence was prepared or presented. There is nothing to suggest there was a fraud on the Tribunal or any actions that disabled the Tribunal from performing its statutory function in the sense discussed in SZFDE v The Minister for Immigration [2007] 232 CLR 189. There is no basis for the Court to find there was any false or misleading evidence, or any error based upon any third-party actions.

10    There is also no basis for the assertion that the FCC or the Tribunal failed to look at the Appellant’s claims.

11    I will now return to the Appellant’s submissions regarding the absence of procedural fairness. Procedural fairness was provided by the Tribunal. For the purpose of his application, the Tribunal had before it material that was before the Minister in support of the Appellant’s claims, which included information provided to the Minister by the Appellant’s representatives, in response to requests for information from the Minister. Prior to the hearing, the Appellant’s representatives also provided submissions and further supporting materials. The Appellant attended a hearing before the Tribunal where the Tribunal asked him about the relevant issues, specifically his record and rankings in Australia, India and internationally. Evidence was also taken from the Appellant’s witness and his coach, who spoke in support of the application and the Appellant’s record.

12    There is nothing in the material to suggest that there was a part of the Tribunal’s decision that was not put to the Appellant for comment. Throughout the process before the Minister and the Tribunal, the issue was whether the Appellant’s record of wrestling met the level required by the Regulations. The Appellant had many opportunities to demonstrate that it did, including to respond specifically to requests for information from the Minister and on review to the Tribunal.

13    I will now address the Appellant’s submissions as to the material provided about events after the application. This is a complaint about the Tribunal’s approach to information provided about events after the Appellant’s Visa application, which supported the Appellant’s submissions on his achievements. The Appellant had competed in two tournaments after his application, and maybe more, winning a gold medal in at least one of them. The difficulty for the Tribunal was that the Appellant was required to show an internationally recognised record as at the date of the application. These post-application events can only be relevant insofar as they shed light on the existence of the Appellant’s record as at the date of the application: see Jayasinghe v The Minister for Immigration and Multicultural Affairs [2006] FCA 1700 at [38].

14    In considering this material, I am satisfied with the adopted approach of the Tribunal as being correct. The Tribunal did take into account post-application events as relevant to the time of application criteria. It found, however, that the Appellant did not satisfy the relevant criteria, even taking into account those matters. The FCC correctly concluded that this finding was open to the Tribunal.

15    I observe that it may well be that the subsequent events, in themselves, will assist the Appellant in further seeking a relevant visa. I cannot assess whether this is so or not. Whilst one is sympathetic to the position of the Appellant now, the Court’s function is only one of review.

16    In conclusion, I see no merit in the Appellant’s submissions in respect of any failure to have regard to the relevant evidence. As the Tribunal’s decision demonstrates, it was aware of the material that had been provided by the Appellant and did have regard to that material. The Tribunal did not accept, at the end of the day, the evidence made out the Appellant’s claim. There is no basis for any argument that some part of the material that was relevant was not taken into account.

17    Therefore, the grounds of appeal and submissions raised by the Appellant are without merit.

CONCLUSION

18    The order of the Court will be:

(1)    The appeal is dismissed.

(2)    The Appellant pay to the Minister the costs of and in connection with the appeal, fixed in the sum of $6,439.

Associate:

Dated:    3 September 2018