Federal Court of Australia
Mudiyanselage v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1391
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the costs of the first respondent, to be taxed if not otherwise agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
COLLIER J:
1 Before the Court is a notice of appeal from the decision of the Federal Circuit Court of Australia in Mudiyanselage v Minister for Home Affairs & Anor [2020] FCCA 235 (primary judgment), filed on 4 March 2020. In the primary judgment, the primary Judge refused an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), affirming a decision of a delegate (delegate) of the first respondent (Minister) to refuse the appellant’s application for a Distinguished Talent (Residence) (Class BX) (Subclass 858) visa. The appellant appeals from the whole of the primary judgment and the orders made therein.
2 The Minister seeks an order that the appeal be dismissed with costs.
Background
3 The appellant was born on 27 May 1982 and is a citizen of Sri Lanka.
4 On 1 November 2016, the appellant applied for a Distinguished Talent (Residence) (Class BX) (Subclass 858) visa (visa application). He did so on the basis of his achievements in the field of sport: specifically, ultramarathon running.
5 By letter dated 14 June 2017, the appellant was notified by the delegate that his visa application had been refused on the basis that he did not satisfy the criteria for the grant of a Distinguished Talent visa.
Decision of delegate
6 Relevantly, cl 858.212 in Sch 2 to the Migration Regulations 1994 (Cth) (Migration Regulations) provides:
858.21 – Criteria to be satisfied at time of application
858.212
(1) Unless the applicant has been endorsed by the Prime Minister's Special Envoy for Global Business and Talent Attraction as mentioned in paragraph 1113(3)(f) of Schedule 1, the applicant meets the requirements of subclause (2) or (4) of this clause.
(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 completed approved form 1000; and
Note: An approved form 1000 requires the applicant's record of achievement in an area (as mentioned in paragraph (a)) to be attested to by:
(a) an Australian citizen; or
(b) an Australian permanent resident; or
(c) an eligible New Zealand citizen; or
(d) an Australian organisation;
who has a national reputation in relation to the area.
(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
(4) The applicant meets the requirements of this subclause if, in the opinion of the Minister, acting on the advice of:
(a) the Minister responsible for an intelligence or security agency within the meaning of the Australian Security Intelligence Organisation Act 1979 ; or
(b) the Director-General of Security;
the applicant has provided specialised assistance to the Australian Government in matters of security.
7 Subcl 858 of Sch 2 to the Migration Regulations is headed “Global Talent”. Heading 858.22 is “Criteria to be satisfied at time of decision”.
8 The delegate found that the appellant did not meet the requirements of cl 858.227 of Sch 2. Clause 858.227 states:
858.227
Unless the applicant meets the requirements of subclause 858.212(4):
(a) the applicant satisfies public interest criteria 4020; and
(b) each member of the family unit of the applicant satisfies public interest criteria 4020.
9 The delegate noted that, as the appellant had provided no evidence in support of meeting the requirements of subcl 858.212(4), the appellant was required to satisfy Public Interest Criterion 4020 (PIC 4020) of Sch 4 to the Migration Regulations. Relevantly, the delegate observed that PIC 4020(1) requires:
… that there is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Administrative Appeals Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
• the application for the visa; or
• a visa that the applicant held in the period of 12 months before the application was made.
10 The delegate continued, observing:
If there is such evidence, subclause 4020(4) provides that PIC 4020(1) will nonetheless be satisfied if the Minister is satisfied that:
• compelling circumstances that affect the interests of Australia; or
• compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; justify the grant of the visa.
11 The appellant’s initial visa application included what appeared to be a copy of the front cover of a 2009 issued Sports Illustrated magazine featuring the appellant’s participation in “The Midlands 100 Miler” ultramarathon race held in South Africa (document). The delegate expressed a number of concerns about the document’s authenticity, including:
the styling and format of the document was not in line with other Sports Illustrated magazine covers released at the same time; and
verification using Sports Illustrated’s online vault function failed to identify any results using the appellant’s name or key words mentioned on the magazine cover.
12 As the document had been provided in support of the appellant’s achievements as an ultramarathon runner, the delegate found the document to be material particular to the appellant’s claims with respect to subcl 858.212(2)(a), and therefore, the copy of the Sports Illustrated magazine featuring the appellant on its cover to be false and misleading.
13 On 1 May 2017, the appellant was invited by the delegate to comment on the document.
14 On 29 May 2017, the appellant responded to the delegate with a signed statutory declaration outlining the events leading to the issuance of the document. The appellant claimed that he received the Sports Illustrated magazine following completion of The Midlands 100 Miler in 2009 from its Race Director, Mr John Hall. This claim was supported by Mr Hall who suggested in an email that the magazine was unique for the race and was issued to every competitor. The appellant also claimed to have “no intrinsic knowledge of Sports Illustrated” and therefore had no reason to question the authenticity of the document.
15 The delegate found it reasonable to conclude that the Sports Illustrated magazine cover was a promotional item or novelty award handed to each competitor of The Midlands 100 Miler by its Race Director Mr Hall. As the document was supplied as part of the appellant’s initial application without an explanation to its issuance as either a copy of a genuine Sports Illustrated magazine cover or promotional item, the delegate had advanced the document as being a copy of a genuine Sports Illustrated magazine cover featuring the appellant. Accordingly, the delegate found the document to contain some purposeful falsity.
16 Based on the evidence, the delegate concluded that the appellant had given information that was false or misleading, and had therefore not satisfied PIC 4020(1).
17 The delegate also considered whether the appellant satisfied the waiver of PIC 4020(1), as per PIC 4020(4). The appellant claimed that Australia would “miss the special skill” as a renowned ultramarathon runner. Whilst the delegate acknowledged the sporting achievements of the appellant, the delegate held that there was insufficient evidence to suggest that Australia would miss out on a significant benefit that the appellant could contribute to Australia’s business, economic, cultural or other development if the appellant was not granted the visa. Accordingly, the delegate was not satisfied that the appellant met PIC 4020(4).
18 The appellant’s visa application was accordingly refused.
19 On 26 June 2017, the appellant lodged an application for review of the delegate’s decision with the Tribunal.
Decision of the Tribunal
20 On 5 February 2018, the appellant appeared before the Tribunal to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter. At the end of the hearing, the appellant confirmed that he had understood the Tribunal’s questions, and the interpretation given.
21 On 15 March 2018, the Tribunal affirmed the decision of the delegate to refuse the appellant a Distinguished Talent visa.
22 In the Tribunal’s statement of decision and reasons, the Tribunal first considered PIC 4020 and whether the appellant had given, or caused to be given, a bogus document, or information that was false or misleading in material particular. The Tribunal observed, in summary:
The term “information that is false or misleading in a material particular” is defined in PIC 4020(5) and the term “bogus document” was defined in s 5(1) of the Migration Act 1958 (Cth) (Migration Act).
In contrast to the definition of “information that is false or misleading in a material particular” in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a “false or misleading” statement had no requirement that it be relevant to a criterion for the grant of the visa.
The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applied whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the appellant (see PIC 4020(3)). It also applied whether or not the document or information was provided by the appellant knowingly or unwittingly.
While PIC 4020 referred to information that was false, in the sense of purposely untrue, it was not necessary for the Minister (or the Tribunal on review) to conclude that the appellant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person was necessary to attract the operation of the provision.
23 The Tribunal accepted the appellant’s explanation that the Sports Illustrated magazine cover was produced as a souvenir document in the manner suggested by him. However, the Tribunal declined to accept the appellant’s claim that he had “no intrinsic knowledge” of Sports Illustrated. The Tribunal found this claim to be surprising given Sports Illustrated was a major publication circulated worldwide, and the appellant claimed to be an internationally recognised athlete.
24 The Tribunal observed that, in general, the appellant did not appear to be a person who appreciated the need to be particular about the information he provided to the Department, or to the Tribunal, and to ensure that all of the particulars were factually truthful. The Tribunal accepted that the appellant did not intend to give false or misleading information to the Department, and intended that the document evidence his participation in The Midlands 100 Miler race, without intending to represent the cover to be a genuine Sports Illustrated magazine. The Tribunal concluded that there was no evidence of fraud or deception on the part of any other person in relation to the giving of the information.
25 In view of this finding, the Tribunal found that the appellant had met PIC 4020 for the purposes of cl 858.227.
26 The Tribunal then turned to consider whether the appellant met the remaining criteria for a Distinguished Talent visa. Materially, the Tribunal identified the remaining key issue under review as being whether the appellant met the requirements of subcl 858.212(2) of Sch 2 to the Migration Regulations – that is, whether the appellant had an internationally recognised record of exceptional and outstanding achievement in his nominated field of sport, specifically ultramarathon running.
27 The Tribunal noted that the concept of “internationally recognised record of exceptional and outstanding achievement” in subcl 858.212(2)(a) was not defined in the Migration Regulations. The Tribunal observed that the Macquarie Dictionary online defined the word “exceptional” as:
1. forming an exception or unusual instance; unusual; extraordinary;
2. extraordinarily good, as of a performance or product; extraordinarily skilled, talented, or clever.
28 The Tribunal further observed that the Macquarie Dictionary online defined the word “outstanding” as:
1. prominent; conspicuous; striking;
2. that continues in existence; that remains unsettled, unpaid, etc;
3. standing out; projecting; detached;
4. that resists or opposes.
29 The Tribunal also noted that the concept of “record of exceptional and outstanding achievement” had been the subject of judicial consideration. In particular, the Courts had held that the ordinary meaning of “record” did not require that the record be quantifiable as large, or lengthy, or as having been sustained over a period of time. As a result, a “record” is an aggregation or a list, not necessarily a large aggregation or a long list: Zhang v MIMA [2007] FMCA 664, [36]-[37]. In addition, the Tribunal noted that Courts had held that, in determining whether the appellant had a “record of exceptional and outstanding achievement”, the criterion required demonstrated excellence in the relevant occupation which was out of the ordinary. Notably, an “exceptional record of achievement” did not require an applicant to be a “national living treasure”: Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 293 at [20] per French J.
30 In light of these observations, the Tribunal acknowledged that the circumstances that would meet the necessary requirement of a visa would vary across different professions and activities, and some would require far greater levels of knowledge and skill by an applicant to rise above the ordinary and the merely competent.
31 In addition, the Tribunal observed that the departmental guidelines in Procedure Advice Manual 3 (PAM 3) included the following in respect of what constituted a record of exceptional and outstanding achievement:
What does ‘exceptional’ mean
For 858.212(2)(a), applicants should be very eminent in the top echelons of their field. They should demonstrate extraordinary and remarkable abilities and be superior to others in their field.
‘Internationally recognised’ in this context means that a person’s achievements have or would be acclaimed as exceptional and outstanding in any country where the relevant field is practiced.
‘Exceptional’ and ‘outstanding’ should be accorded ordinary dictionary meaning within context.
Policy requirements
Claims of an “excellent” level of performance in a job, particularly where the benefits of such performance may only be realised locally, would not be regarded as exceptional and outstanding achievement.
A single 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 achievements that is unlikely to diminish in the future.
An achievement that may attract national acclaim would not be considered as ‘international recognised’ unless that achievement is in a field practised in other countries (including Australia) and has or would attract similar acclaim in those countries.
Given the ordinary dictionary meanings, in order to have a ‘record of exceptional and outstanding achievement’ an applicant would be expected to have achievements remarkable in relation to that field and in relation to their peers who are also positioned as the very best in that field. An applicant should be at the very top of their field.
Assessing this criterion
In assessing the applicant’s record of achievement, officers may take into account information such as, such as (sic), indicated in the following eight examples:
• Information provided by the nominator, who should provide a full account of why they believe the applicant has an exceptional an outstanding record of achievement.
• Supporting statement and material provided by the applicant detailing relevant aspects of their background including their qualifications, achievements and positions held. This should include information relating to any achievements in Australia.
• Supporting statements from internationally recognised individuals or organisations in the field who can pass comment on the applicant’s achievements and the applicant’s reputation within the field.
• Awards or higher qualifications received from internationally recognised institutions or organisations.
…
• Details and supporting material on achievements in the arts including:
o books published and
o national and internationals sales achieved and
o awards and commissions received and
o galleries in which works are displayed and
o scale and audience of displays held and
o recognition by peers and
o honours and accolades (for example, an Academy Award, or a Nobel Prize in Literature) and
o academic qualifications associated with the applicant’s area of the arts and
o statements from international artistic bodies and
o newspaper and magazine articles attesting to achievements.
…
• Details and supporting material on professional achievements including:
o industry awards and accolades and
o references from current and past employers and
o statements from prominent industry peers and
o academic degrees or professional designations associated with the applicant’s field of work and
o personal/professional titles (such as CEO, Lord, Knight, Right Honourable) indicating an earned rank or position within a formal power structure.
32 The Tribunal noted that the wording of subcl 858.212(2)(a) required the appellant to have an “internationally recognised” record of exceptional and outstanding achievement. However, there was limited Court authority as to what met this standard. Accordingly, the Tribunal held that, giving the words “international” and “recognise” their ordinary meaning, it would be reasonable to say that a record was “internationally recognised” if it had received some form of recognition in more than one country. The Tribunal noted that this was reflected in PAM 3 where it provided:
International recognition required
Achievement in a profession, a sport, the arts or academia and research that has not or would not be recognised at an international level would not be regarded as exceptional and outstanding.
It is expected that an applicant’s achievements have or would be acclaimed as exceptional and outstanding in any country where the relevant field is practised. The field would also need to have recognition and acceptance in Australia as well as international standing. In determining the international standing of the applicant, officers should consider:
• the international standing of the country, where the applicant’s achievements were realised, in respect of the particular field
• the standing of the achievement in relation to Australian standards and
• the standing of the achievement in relation to international standards.
For example, an applicant rated at or near the top of their field in their home country would be expected to have an international record of exceptional and outstanding achievement if the:
• field is undertaken and recognised in a number of countries including Australia and
• achievement would be similarly recognised in relation to international and Australian standards for that field.
33 The Tribunal observed that, whilst it may be guided by policy, it was not bound to follow it. Accordingly, whether or not the appellant’s record of achievement was exceptional and outstanding, as well as internationally recognised, would be a question of fact to be determined in the individual case and, where appropriate, to the extent that the policy was inconsistent with the Migration Regulations, the Tribunal could depart from the departmental policy guidelines. The Tribunal was aware that in assessing whether the appellant met the requirements of subcl 858.212(2)(a), the concept of onus of proof was not appropriate to administrative inquiries and decision-making. The Tribunal further observed that it, as a decision maker, was not required to make the appellant’s case for him, nor was the Tribunal required to accept uncritically any and all the claims the appellant put forward.
34 In light of the above, the Tribunal accepted that the appellant had participated in several races, including:
Gold Coast 100 event;
Midlands 100 Miler event;
5th LSR International Marathon, Dambulla, Sri Lanka, 2003, certificate eof completion, no indication of place;
6th LSR International Marathon, Colombo, Sri Lanka, 2004, seventeenth place men;
12th Colombo Marathon, Sri Lanka, 2012, tenth place men;
8th Colombo Marathon, Sri Lanka, 2007, eight place men;
Colombo Marathon, Sri Lanka, 2008, first place men;
Sri Lanka Ministry of Sports & Youth Affairs National Sports Festival 2006, First Place Marathon;
People’s Bank Sports Club Marathon 2006, fourth place men’s open marathon;
North Face 100KM event, Thailand, 2012, completion place third; and
De Langste Nachtloop 24 hours ultra run, 2015, certificate of completion.
35 However, the Tribunal observed:
The appellant had not competed in any Commonwealth Games, Olympic events, or any races of international significance.
The races that the appellant had participated in were open events, in which any person who registered could participate, without any qualifying events.
There was no evidence that the appellant was internationally recognised within the sport of ultramarathon running.
Completion of any marathon, let alone several, was a noteworthy personal achievement. However, the appellant did not possess, on any objective view of the evidence, an internationally recognised record of exceptional and outstanding achievement in the sport.
36 For those reasons, and having regard to what might reasonably be expected of someone who claimed to have “internationally recognised record of exceptional and outstanding achievement” as an ultramarathon runner, the Tribunal was not satisfied that the appellant’s record had been “out of the ordinary”, “exceptional” or “outstanding”. The Tribunal was also not satisfied on the evidence before it that the appellant’s record of achievement had been “internationally recognised” as required by subcl 858.212(2)(a). In reaching this conclusion, the Tribunal considered the appellant’s undoubted running talent to be at an emerging level.
37 The Tribunal observed that, while potential was not irrelevant, the statutory test clearly called for an internationally recognised record. The relevant visa was not one designed to give those without such a record an opportunity to establish one for the first time. The evidence before the Tribunal was in relation to the appellant’s participation largely within Australia and Sri Lanka. The Tribunal did not consider those competitions to have any international significance to the sport.
38 In determining whether the appellant met subcl 858.212(2), the Tribunal observed that all of the stated subclauses needed to be met. As the Tribunal considered that the appellant’s achievements at the time of his application did not meet the requirements of subcl 858.212(2)(a) of Sch 2 to the Migration Regulations, the Tribunal found that the appellant did not meet the requirements of subcl 858.212(2) as a whole. Since the appellant did not meet subcl 858.212(2), and no evidence had been provided indicating that the appellant met subcl 858.212(4), the Tribunal concluded that the appellant did not meet cl 858.212. Accordingly, the Tribunal considered that the appellant should be refused a visa, and affirmed the decision of the delegate refusing the visa.
Decision of the Federal Circuit Court
39 On 5 December 2018 the appellant filed an amended application for review in the Federal Circuit Court. The appellant relied on the following three grounds:
1. The second respondent fell into jurisdictional error in reviewing and affirming the mister’s decision. The interpreter supplied by the tribunal was did not properly translate the applicant’s oral evidence during the hearing which in turned caused the Tribunal to question the applicant’s genuineness and his efforts in responding to the tribunal’s questions. Furthermore, The Tribunal raised new concerns during the hearing regarding clause 858.212 of the Migration Regulations 1994 which were not previously raised and brought to the applicant’s attention. For these reasons, the applicant was not able to present a fair representation of his achievements and benefits which would have been materially improved with proper translation and time.
2. The tribunals decision is unfair and unjust. The tribunal affirmed the minister’s decision which stipulates that the applicant did not satisfy PIC 4020 however the reason for affirming was due to new issues raised during the tribunal that were not previously raised to the applicant’s attention. The Department’s decision should not be affirmed and the applicant should not be caught under PIC 4020 and the non-grant period under the relevant criteria should not apply to the applicant.
3. The applicant seeks leave to amend this applicant and to submit that the applicant satisfies clause 858.212(2) and that the visa should be granted based on the applicant’s submissions that he has a record of exceptional and outstanding achievement as an ultramarathon athlete.
(Errors in original).
40 At the outset of the hearing, Counsel for the appellant asked that the first ground be treated as two separate grounds of review. Accordingly, the revised grounds relied upon by the appellant were as follows:
1(a) Furthermore, The Tribunal raised new concerns during the hearing regarding clause 858.212 of the Migration Regulations 1994 which were not previously raised and brought to the applicant’s attention. For these reasons, the applicant was not able to present a fair representation of his achievements and benefits which would have been materially improved with proper translation and time.
1(b) The second respondent fell into jurisdictional error in reviewing and affirming the mister’s (sic) decision. The interpreter supplied by the tribunal was did (sic) not properly translate the applicant’s oral evidence during the hearing which in turned caused the Tribunal to question the applicant’s genuineness and his efforts in responding to the tribunal’s questions.
2 The tribunals decision is unfair and unjust. The tribunal affirmed the minister’s decision which stipulates that the applicant did not satisfy PIC 4020 however the reason for affirming was due to new issues raised during the tribunal that were not previously raised to the applicant’s attention. The Department’s decision should not be affirmed and the applicant should not be caught under PIC 4020 and the non-grant period under the relevant criteria should not apply to the applicant.
3 The applicant seeks leave to amend this applicant and to submit that the applicant satisfies clause 858.212(2) and that the visa should be granted based on the applicant’s submissions that he has a record of exceptional and outstanding achievement as an ultramarathon athlete
41 The primary Judge summarised the appellant’s submissions in relation to ground 1(a) as follows:
The delegate and the Tribunal focussed solely upon the issue as to whether or not the appellant had provided information that was false or misleading in a material particular to the Department, and in such circumstances, the appellant was unprepared to make submissions and present arguments on the substantive question as to whether he had an internationally-recognised record of exceptional and outstanding achievement in the sport of ultramarathon running as required by cl 858.212.
The appellant had been denied procedural fairness because the Tribunal proceeded, in the hearing before it, to canvas issues relevant to the cl 858.212 criteria rather than to solely focus upon issues relating to whether the appellant had provided a bogus document to the Department as part of his visa application.
42 The primary Judge summarised the Minister’s submissions in relation to ground 1(a) as follows:
No procedural unfairness had occurred.
The appellant bore the onus of adducing evidence in support of his argument that he had been taken by surprise at the hearing before the Tribunal when required to address issues other than that in relation to whether he had supplied a bogus document in support of his application.
There was no affidavit or statutory declaration put before the Tribunal to that effect, nor was there any complaint made to the Tribunal during the course of the hearing that that was the case.
There was no evidence before the Tribunal that the sole focus before the delegate was a bogus document issue.
Upon invitation, the appellant had in fact placed an extensive amount of material before the Tribunal relating to his purported achievements in ultra-marathon running. In such circumstances, the appellant was well aware of the matters which were relevant for consideration by the Tribunal when assessing his application, such that the appellant was in a position to make submissions at the hearing as to all aspects of his claimed athletic prowess. Accordingly, there was no merit to any assertion to the contrary.
The appellant was given every opportunity during the course of the hearing to advance any matter relevant to his visa application, and realistically it could not be suggested that he had been taken by surprise.
43 In relation to ground 1(b), the appellant submitted that there were four errors in the interpreter’s translation of the appellant’s evidence at the Tribunal hearing which significantly impacted upon the ability of the Tribunal to fairly adjudicate upon the appellant’s claims.
44 In relation to the first and second errors, the primary Judge held that though there may have been some mistranslation, it was not material or substantial so as to constitute unfairness.
45 In relation to the third error, the primary Judge held that the Tribunal appropriately dealt with the issue at [36]-[39] of its reasons. It could not be said that the mistranslation caused the Tribunal to misconceive either the evidence before it or its role in assessing such evidence. It did not result in any unfairness to the appellant in the conduct of the hearing.
46 In relation to the fourth issue, the primary Judge held that though the error might be seen as an example of the interpreter going off on a “frolic” of his own, it was in all of the circumstances neither substantial nor material, and did not result in an unfair hearing. The appellant had put extensive material before the Tribunal, and he had had ample opportunity to present his arguments. It could not be realistically said that the appellant had been denied procedural fairness.
47 The primary Judge did not accept that the mistranslation was so inadequate as to give rise to unfairness in the conduct of the hearing. The primary Judge concluded so because:
The Tribunal at no time knew that there had been any mistranslation, and was otherwise faultless in the painstaking way in which it considered all of the substantial evidence before it, all of the submissions made to it, and all of the evidence presented during the conduct of the hearing.
The Tribunal was careful to evaluate the oral evidence and submissions given at the hearing and was not adversely influenced by identified mistranslations which the primary Judge found were of no real consequence.
48 The primary Judge held that the Tribunal carefully considered what was required of the appellant to satisfy cl 858.212 and properly identified the matters which ought to have been taken into account. The primary Judge also held, in summary:
The Tribunal evaluated all relevant evidence before it.
Having found that the relevant criteria for the grant of the visa had not been met, it was open to the Tribunal to refuse the application for the visa and affirm the decision of the delegate.
It could not be said that no other rational or logical decision maker could not have made the same decision as the Tribunal.
The Tribunal’s decision could not be considered as legally unreasonable, or one lacking an evident and intelligible justification.
49 Ultimately, the primary Judge held that there was no merit to ground 1(b).
50 In relation to ground 2, the primary Judge noted that this ground was subsumed into the argument advanced in relation to refined ground 1(a). Insofar as it referred to PIC 4020, the primary Judge held that that aspect of the appellant’s claim was otiose. Accordingly, the primary Judge concluded that there was no requirement to further address this ground.
51 In relation to ground 3, leave was granted to amend at the commencement of the hearing. Otherwise, the primary Judge held that the ground related to the second refined ground of ground 1(b) of the amended application for review, and accordingly it was unnecessary to deal with ground 3.
52 The primary Judge concluded that the appellant had not demonstrated jurisdictional error on the part of the Tribunal, and the application for review was dismissed.
Appeal before the Court
53 Both the appellant and the Minister were represented in the appeal to this Court.
54 The appellant sought the following orders:
1. That the appeal be allowed.
2. That the decision of the Federal Circuit Court be set aside.
3. That the matter be remitted for hearing before a differently constituted Tribunal.
4. Such further or other Order as this Honourable Court deems appropriate.
5. Costs.
55 In support of the orders sought, the appellant relied on the following three grounds:
1. The learned Judge in the Application for Review erred in failing to properly consider in line with recognised authority that the Administrative Appeals Tribunal failed to afford the appellant procedural fairness in reaching its decisions which constituted a jurisdictional error.
2. The learned Judge in the Application for Review erred in finding that the appellant had ample opportunity to present his argument in the circumstances before the Administrative Appeals Tribunal.
3. The learned Judge erred in finding that the Administrative Appeals Tribunal was not adversely influenced by mistranslations and that such mistranslations were of no real consequence.
CONSIDERATION
Ground of appeal 1
56 In relation to ground 1 of the appeal the appellant submitted, in summary:
The appellant was unable to present the case heard in the Tribunal because he was not prepared for the assessment of matters other than PIC 4020.
The appellant was not given the opportunity to advance his best case.
The Tribunal’s exercise of its jurisdiction was unfair to the appellant.
The primary Judge erred in rejecting the appellant’s argument that the appellant was merely required to address the PIC 4020 requirements.
57 In relation to ground 1, the Minister submitted that there was no contravention of s 360(1) of the Migration Act. It was obvious from the statutory regime at play that the Tribunal would be determining whether subcl 858.212(2) was met and, in any case, the Tribunal clearly put the appellant on notice of its intention to address subcl 858.212(2).
58 The appellant framed his case under ground 1 by reference to s 360 of the Migration Act. Section 360 provides:
Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
59 Section 360 was the subject of analysis by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. In that case Hayne, Kiefel and Bell JJ relevantly observed:
61. Section 360(1) requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case. Scheduling a hearing on a date which, to the Tribunal's knowledge, would not permit the applicant to have sufficiently recovered from an incapacity to attend would not fulfil the duty imposed by s 360(1). The invitation would be an empty gesture and any decision made following the hearing would be liable to be set aside. Not only would the conduct of the Tribunal, judged by the standard set by s 357A(3), be regarded as unfair, but, relevantly, other consequences would follow because the action of the Tribunal would also amount to a failure or refusal to comply with a statutory duty in the conduct of its review. The decision could not stand and the Tribunal would be required to consider it afresh after complying with that duty.
62. It is not necessary to determine what s 357A(3) requires and what may be the consequence of a breach of that provision. Even if s 357A(3) by itself has no consequence for the ultimate decision of the Tribunal, to affirm the delegate's decision, it might nevertheless be concluded that the purpose of s 360(1) was not met. Without Ms Li being provided an opportunity to present her further evidence, it might be concluded that the hearing contemplated did not take place. It is not necessary to determine the appeal on this basis, since there is a more direct route to its resolution, by reference to s 363(1)(b) and a requirement of the law.
(Footnotes omitted).
60 It is not in dispute that, on 15 January 2018, the Tribunal wrote to the appellant inviting him to appear before it on 5 February 2018. However, the appellant submitted that his (and his legal representative’s) correspondence with the Department had focused on his alleged inability to satisfy PIC 4020, and that this instilled in the appellant the belief that he need only address that point with the Department, and subsequently the Tribunal. Accordingly, in written submissions made by the appellant’s lawyers to the Tribunal dated 11 January 2018, the appellant only addressed the criteria in PIC 4020 rather than fully addressing the criteria in cl 858.212.
61 At the hearing of the appeal the appellant relied on the decisions of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63.
62 In Lam the High Court referred to the obligation of the Tribunal to provide fairness in the overall general requirements of decision-making. Relevantly, Gleeson CJ said:
34. The applicant seeks to establish that he was denied procedural fairness. He does not claim that any unfairness exists apart from that created by the statement of 7 November 2000 and the subsequent change of intention without notification to him. The argument is that the letter created an expectation, and fairness required that the procedure foreshadowed in the letter (contacting Ms Tran) should not be departed from without the applicant being informed of the intention to do so. It is not in dispute that, regardless of the letter of 7 November, the respondent was obliged to extend procedural fairness to the applicant. And it is clear that the content of the requirements of fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed. So, for example, if a decision-maker informs a person affected that he or she will hear further argument upon a certain point, and then delivers a decision without doing so, it may be easy to demonstrate that unfairness is involved. But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. In some contexts, the existence of a legitimate expectation may enliven an obligation to extend procedural fairness. In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.
63 More particularly, the appellant relied on SZBEL as involving similar factual circumstances and articulating applicable principles.
64 In SZBEL a visa applicant had made a statutory declaration describing the occurrence of three events upon which he relied. His visa application was refused by a delegate of the Minister, who did not accept the accuracy of one of the events recounted in the statutory declaration. At the review hearing before the Tribunal, the Tribunal did not challenge the accuracy of the other two events described in the visa applicant’s statutory declaration. Ultimately the Tribunal refused the application for review, indicating that it found implausible the two events described in the statutory declaration which had not been doubted by the delegate. The visa applicant sought judicial review of the Tribunal’s decision, referable to s 425(1) of the Migration Act (which is in materially similar terms to s 360(1)).
65 The headnote of the decision in the Commonwealth Law Reports summarises the decision as follows:
Held, that, in the absence of steps taken by the Tribunal to notify an applicant to the contrary, he or she was entitled to assume that the issues considered dispositive by the delegate were the issues which arose in relation to the decision under review. If the Tribunal should be inclined to reach its decision by reference to an issue other than those considered dispositive by the delegate, a failure to notify the applicant would be a denial of procedural fairness. Hence the Tribunal’s decision should be quashed.
66 In the course of reaching its decision the High Court referred to the decision of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 1074, in particular where the Full Court had observed at 591-592:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
67 The High Court in SZBEL continued:
33. The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (s 425(1) (emphasis added)). The reference to “the issues arising in relation to the decision under review” is important.
34. Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language “arising in relation to the decision under review” is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister’s delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.
35. The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
68 Returning to the case before me, the Tribunal found in favour of the appellant in relation to the issue involving PIC 4020, which the Tribunal at [6] described as “the determinative issue before the delegate”. However, after doing so the Tribunal then turned to “Consideration of Claims and Evidence”, stating:
15. In order to be granted a Distinguished Talent (Residence)(Class BX), visa, the applicant would need to meet the requirements of paragraph 858.212(2)(a) and clause 858.212. The clause relevantly provides….
…
18. The issue under review is whether the applicant meets the requirements of cl.858.212(2)(a) of the Regulations, that is, whether the applicant has an internationally recognised record of exceptional and outstanding achievement in his nominated field of sport, specifically ultramarathon running.
69 The Tribunal gave detailed consideration to this issue. However, it is plain that the question whether the appellant actually met the requirements of subcl 858.212(2)(a) was never one to which the delegate turned their mind.
70 In finding that this aspect of the appellant’s claim lacked merit, the primary Judge referred to the decision of Siopis J in Minister for Immigration and Citizenship v Pham [2008] FCA 320. The respondent similarly relied on this case. In Pham, in summary:
The visa applicant had applied for a spouse visa.
During the course of visa assessment the visa applicant’s husband advised the Department that the relationship had ended and he no longer wished to support the visa application.
The visa applicant nonetheless continued in respect of the visa application on the basis that at the time of the application she and her husband had been in a genuine spousal relationship, but the relationship had ceased and she had suffered domestic violence from her husband.
The visa applicant sent three statutory declarations to the Department attesting to the domestic violence.
The delegate of the Minister refused the visa application on the basis that there had not been a genuine and continuing spousal relationship between the visa applicant and her husband. The delegate did not consider the domestic violence issue.
The solicitors for the visa applicant wrote to the Tribunal, referring to the statutory declarations and enquiring whether there would be any issue from the viewpoint of the Tribunal as to whether they met the prescribed requirements and accordingly whether they were validly accepted into evidence. The Tribunal did not reply, and there was no mention of the statutory declarations at the hearing.
The Tribunal subsequently sent a letter under s 359A of the Migration Act, inviting the first respondent to comment on documents which called into question the visa applicant’s claim that her relationship with her former husband was genuine and continuing.
The Tribunal dismissed the visa applicant’s application on the basis that it was not satisfied there had been a genuine and continuing spousal relationship, and that one of the statutory declarations provided by the visa applicant failed to comply with relevant statutory requirements.
At first instance the Court upheld an application for review on the basis that there had been a failure by the Tribunal to consider evidence provided by the visa applicant which went to the genuineness of the spousal relationship. The Court at first instance however rejected the visa applicant’s claim that the Tribunal erred in respect of its decision concerning the statutory declaration.
The Minister appealed the decision on the basis (inter alia) that the Tribunal had affirmed the decision of the delegate on an independent ground referable to the claim of domestic violence.
The visa applicant filed a notice of contention, claiming (inter alia) that the Tribunal erred in failing to notify the visa applicant of any perceived deficiency in the relevant statutory declaration. On appeal, Siopis J dismissed this ground, finding that the Tribunal did not err in its identification of the relevant question concerning the statutory declaration.
More relevantly, his Honour examined whether the Tribunal had acted in contravention of s 360(1) of the Migration Act, given that the delegate had not identified in the statutory declaration an issue in relation to the decision made to refuse the spouse visa. His Honour examined SZBEL in this regard;
Justice Siopis found that SZBEL was distinguishable. His Honour explained:
51. …The distinction lies in the fact that the first respondent chose to make a claim for a spouse visa founded on a non-judicially determined claim of domestic violence. It was, therefore, incumbent upon the first respondent to establish that the relationship with her former spouse had been genuine and continuing and to present evidence in a form which complied with the Regulations, that her former spouse had subjected her to domestic violence. As to the evidence of domestic violence, Div 1.5 of the Regulations described in detail the qualifying conditions for a statutory declaration which was to be used in support of the domestic violence claim. An essential issue, therefore, in the determination of the first respondent’s visa application was whether the statutory declarations relating to domestic violence met the requirements prescribed in the Regulations. It did not matter, therefore, that the delegate had in refusing the visa, not dealt with the domestic violence issue. If the first respondent was to succeed before the Tribunal, it was necessary for her to show that the statutory declarations satisfied the Regulations, notwithstanding that the delegate had dealt only with the genuineness of the relationship issue in refusing the visa. In other words, the nature of the claim and statute dictated that this would be an issue before the Tribunal, notwithstanding that the delegate had not dealt with the issue.
(Emphasis added).
71 Relevantly – is the present case distinguishable from Pham, such that the principles articulated by the High Court in SZBEL are applicable?
72 In Pham:
Plainly the key issue for the purposes of the visa application was that the visa applicant was the “spouse” of the sponsor. Regulation 1.15A of the Migration Regulations at that time required the Minister to be satisfied that the relationship between the visa applicant and the sponsor be genuine and continuing, however, a qualification to this requirement was where the relationship had ceased and the visa applicant had suffered domestic violence committed by the sponsor.
The delegate had found that the relationship between the visa applicant and the sponsor was not genuine and continuing – in other words the visa applicant was not a “spouse” for the purposes of the Migration Regulations.
As Siopis J noted, it was unnecessary for the delegate to deal with the statutory declaration issue – clearly in the delegate’s view the visa applicant’s case did not reach the point where this issue required consideration.
For the visa applicant to succeed in the Tribunal, it was necessary for her to establish that the qualification operated concerning the existence of domestic violence. However, this was predicated on the visa applicant having originally been a “spouse”. Both the delegate and the Tribunal found that she had not.
73 In the case before me:
Plainly the key issue for the purposes of the visa application was whether the appellant had an internationally recognised record of exceptional and outstanding achievement in his nominated sport of ultramarathon running (for the purposes of subcl 858.212(2)).
A further issue had arisen in respect of the possible supply of a bogus document (relevant to subcl 858.212(4) and PIC 4020).
The focus of the delegate was exclusively on subcl 858.212(4), and ultimately PIC 4020, in respect of the alleged provision of a bogus document by the appellant. Insofar as I can ascertain, the delegate at no point made any findings concerning subcl 858.212(2) or the recognition of the appellant in respect of ultramarathon running.
In correspondence to the Tribunal the lawyers for the appellant focused on challenging the delegate’s finding of non-compliance by the appellant with PIC 4020.
As appears from the transcript of the Tribunal hearing, the Tribunal commenced the hearing by referring to the decision of the delegate, and the production of the alleged bogus document.
74 To this point, unlike the circumstances in Pham, it appears that the principles in SZBEL may be applicable in the present proceedings. However, as is also plain from the transcript of proceedings in the Tribunal, after engaging with the appellant in relation to the PIC 4020 issue, the Tribunal clearly turned to the question of other visa criteria the appellant was required to satisfy, referable to his abilities as an athlete. A copy of the transcript was tendered as evidence in this appeal, and in particular I note the transcript at page 9 of 26, where the Tribunal commenced the discussion by stating:
Tribunal: [00:24:08] Let me make this very basic. If I think that you have been misleading with the department in giving them that document. Why should you. What do you have to offer to Australia by staying.
75 The accuracy of the translation of information given by the appellant to the Tribunal is the subject of another ground of appeal, to which I will shortly turn. However, following this statement by the Tribunal, there followed an extensive engagement by the Tribunal with the appellant, where the appellant detailed his activities as an ultramarathon runner, including in the international arena.
76 Having considered the facts of this case, I am satisfied that, although the case before me is not on all fours with the position addressed by Siopis J in Pham, nonetheless the decision of the Tribunal was not affected by jurisdictional error in terms of s 360(1) of the Migration Act. The principles identified by the High Court in SZBEL are of no assistance to the appellant in this case. I so find for the following reasons:
Although the delegate did not specifically deal with subcl 858.212(2), satisfaction of that subclause by the appellant was necessary for the purposes of a grant of the relevant visa.
The absence of specific findings by the delegate concerning subcl 858.212(2) criteria did not mean that the delegate could be said to have found in the appellant’s favour. Rather, in light of the delegate’s findings concerning subcl 858.212(4) and PIC 4020, it was unnecessary for the delegate to address subcl 858.212(2).
The Tribunal plainly stated that the purpose of the review was for the Tribunal to make a fresh decision on the evidence before it, and that it was not bound by the findings of the department. This clearly meant, at the very least, the PIC 4020 issue.
As is plain from SZBEL, the issues arising in relation to the decision under review for the purposes of s 360 are identified by the Tribunal. The Tribunal is not confined to whatever may have been the issues that the delegate considered.
Importantly, early in the hearing in this case the Tribunal took steps to identify to the appellant relevant issues other than those the delegate had considered dispositive, specifically telling the appellant at the hearing that he needed to explain how he satisfied the criterion of being an exceptional athlete. In this respect the Tribunal directly put the appellant on notice of the need to address criteria in subcl 858.212(2).
This approach on the part of the Tribunal was both reasonable and appropriate in circumstances where the appellant could only be granted a visa if the Tribunal was satisfied all the visa criteria were met (see s 65 of the Migration Act).
The subsequent engagement by the Tribunal with the appellant at the hearing in this respect was extensive, and involved the appellant producing detailed material and submissions to the Tribunal, as is plain from the transcript.
The appellant was represented at the hearing, and gave no indication to the Tribunal, either at the hearing or afterwards, that he was in any way unprepared to engage with the Tribunal in respect of his satisfaction of the criteria in subcl 858.212(2).
The Tribunal thoroughly addressed the evidence before it concerning the question whether the appellant satisfied the criteria in subcl 858.212(2), and concluded that he did not.
77 It follows that I am not satisfied the appellant was denied procedural fairness by the Tribunal in terms of ground of appeal 1. In my view this ground of appeal is not substantiated.
Ground of appeal 2
78 As Allsop CJ explained in SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212; [2013] FCAFC 142:
24. … As I have said earlier, I agree with the expression of the matter by Robertson J and that, fundamentally, the question is one of evaluation as to whether the applicant has had a real and fair opportunity to put what she or he wanted to put, to understand what was being said to her or him, and to participate in the hearing in a way from which it can be concluded that the hearing was fair, and thus that administrative justice was done….
(Emphasis added).
79 Specifically, in relation to ground 2, the appellant submitted, in summary, that in circumstances where the Tribunal raised new concerns at the hearing (specifically referable to subcl 858.212(2)), the appellant was denied the opportunity to properly present his case before the Tribunal.
80 In relation to ground 2, the Minister submitted, in summary:
The appellant had opportunities both before, during and after the Tribunal hearing to present evidence and submissions relating to the visa criteria in question.
The appellant was represented at the Tribunal hearing.
The appellant never sought an adjournment of the Tribunal hearing.
81 In relation to whether the primary Judge erred in finding that the appellant had “ample opportunity” to present his case to the Tribunal, I note there was no evidence that, at the Tribunal hearing, the appellant or his representative expressed any concern about being denied the opportunity to put on evidence before the Tribunal, or, for example, sought an adjournment of the Tribunal hearing.
82 I further note the acceptance by the primary Judge at [10]-[12] that:
the appellant had in fact placed an extensive amount of material before the Tribunal relating to his purported achievements in ultramarathon running;
the appellant was well aware of the matters which were relevant for consideration by the Tribunal when assessing his application, such that he was in a position to make submissions at the hearing as to all aspects of his claimed athletic prowess; and
it could not be said realistically that the appellant had been taken by surprise.
83 In my view his Honour’s reasoning and findings were sound, and betray no error. Ground of appeal 2 is not substantiated.
Ground of appeal 3
84 In relation to ground 3, the appellant submitted, in summary:
Translation went to the very heart of the assessment of the appellant’s case by the Tribunal.
The primary Judge’s error went to the assessment of the importance of the material facts, and did not address the absence of opportunity given to the appellant by the translator to demonstrate the clarity and cogency of answers.
The primary Judge failed to follow the decision of SZRMQ v Minister for Immigration & Border Protection (2013) 219 FCR 212; [2013] FCAFC 142.
85 In relation to ground 3, the Minister submitted, in summary:
Even if the appellant could establish a contravention of s 360(1) of the Migration Act, in order for that error to give rise to jurisdictional error the appellant must be able to establish that the error was a material one.
None of the four alleged mistranslations could result in a breach of s 360(1) of the Migration Act or give rise to jurisdictional error, as none of the four alleged mistranslations were of any significance or consequence and were otherwise immaterial to the Tribunal’s decision.
In any event there were no mistranslations of evidence of the appellant before the Tribunal.
86 The four errors alleged by the appellant were as follows:
(1) At 00:43:41 of the transcript the appellant’s evidence was different from that translated by the interpreter. The Tribunal asked the appellant whether the Sri Lankan Athletic Association published its statistics. The appellant claimed his actual response was:
That means there are no Ultra Marathon meets in Sri Lanka … so most of the times, my options are limited to international meets. Magazines reports statistics and articles based on the outcome of those meets.
The interpreter translated this response as:
So he said there at the moment there are no athletic competition in Sri Lanka … so he goes to foreign countries and they, the results of those are given on paper cuttings or what ever he has.
(2) At 00:46:17 of the transcript the appellant’s evidence was different from that translated by the interpreter. The Tribunal asked the appellant if he had any information about where he ranked in the sport of ultramarathon running in Australia. The appellant indicated the only record he had was fifth place in a 100 km ultramarathon event in Australia in 2016. He submitted that he proceeded to explain why he had such a limited record of achievement in Australia by saying:
I am not a member of any of the Athletes organizations in Australia. I haven’t got a chance to do that so far. I am still training and representing Sri Lanka.
The interpreter interpreted this as:
So far he has not got into those associations sport associations here, he’s just still training so he has only the membership in Sri Lankan associations.
It was submitted that the mistranslation was such that there was a grave difference between having membership in Sri Lanka (of an association) and representing Sri Lanka and that this was likely to have made a considerable difference to the outcome of the decision by the Tribunal.
(3) At 00:53:41 of the transcript, the alleged mistranslation was evidence of non-responsive answer being given by the appellant. During the Tribunal hearing, the appellant gave evidence about Guinness and ASSIST “world” records that he held. At 00:53:41, the appellant gave evidence explaining “Guinness” and “ASSIST” were, saying:
It means these associations are like companies. Guinness and ASSIST World record are some of them there are lot more other companies collect and records elite athletes’ data. Now this ASSIST World Record means who has got data collection of world’s best athletes.
The interpreter interpreted this as:
There are companies, it seems, that sponsor these kind of you know various records or various sports in the world … So these like Guinness is a collect maybe or collection of organization who sponsor Guinness records and that kind of thing. So the other one is similar, there are various organization who support or sponsor these. So he thinks these are various bodies in the world who organize various events, some of these are organizations where he participated in various events
(4) At 01:18:04 of the transcript the Tribunal asked the appellant whether he had anything further he wished to say. The interpreter interpreted this as:
They ask whether you have anything more to say? There is no point of repeating the same thing, tell if there is anything new.
The appellant submitted that that constituted procedural unfairness.
87 At [15] of his reasons the primary Judge addressed the issue of mistranslation referable to these alleged errors, as follows:
15. Mr Clutterbuck took the Court to parts of an agreed transcript of the proceedings before the Tribunal where it was clear that what the interpreter translated was inaccurate. In an outline of submissions filed on behalf of the applicant on 18 September 2019, particulars of errors in translation of evidence before the Tribunal were set out on pages 2 – 6 of such particulars. In that regard, reliance was not placed upon the passages of the transcript as set out on pages 2 – 4, up to “00:18:24”, because those matters were no longer in issue as they related to the bogus document question. As to the balance of the particulars provided, there were four (4) matters relied upon by the applicant as follows:
a. At 00:43:41 it was submitted that the applicant’s evidence at such point was different from that translated by the interpreter. Though there may have been some mistranslation, the Court does not find it to have been material or substantial so as to constitute unfairness. The force and effect of what was there translated was, in effect, what had been said by the applicant. The extent of any such mistranslation was immaterial to the Tribunal in its deliberations.
b. At 00:46:17, it was submitted that the applicant’s evidence at such point was different from that translated by the interpreter. It was submitted that the mistranslation was such that there was a “grave difference between having membership in Sri Lanka (of an association) and representing Sri Lanka” and that “This is likely to have made a considerable difference to the outcome of the decision by the Member.” Though there was a mistranslation, the Court is not of the view that such was so material or substantial so as to give rise to procedural unfairness. At transcript page 16, [1] the applicant admitted that there was no established ranking system in place in Sri Lanka for ultra-marathon runners, and that that was why Sri Lankan officials had sent the applicant overseas to international competitions. Further, at transcript page 18, in answer to a query from the Tribunal Member as to what information the applicant had about his status with an organisation called IAU (International Association for Ultra-Marathon), [2] the applicant replied, in respect of what his ranking was, that “I haven’t reached that level yet. I mean I have participated in Ultra-Marathon meets organised by them. So far, my best performance is that in Gold Coast and I got the 5th place.” From that dialogue, it is clear that any mistranslation as claimed by the applicant had been satisfactorily resolved by the giving of answers to questions put to the applicant by the Tribunal Member. There was no unfairness caused as a result of the mistranslation.
c. At 00:53:41, it was submitted that the mistranslation was evidence of a non-responsive answer being given by the applicant. At 00:55:26, the Tribunal Member, though expressing that there was some difficulty in understanding the applicant’s argument, nevertheless appreciated that the criteria required the applicant to satisfy the Tribunal that he had an internationally recognised record of exceptional and outstanding achievement in the field of ultra-marathon running. To the extent that there was not an exact translation, the Court finds that the Tribunal appropriately dealt with the issue at [36] – [39] of its reasons where it was said:
• “[36] The Tribunal asked the applicant, multiple times, to explain who had made the awards, what the selection process was, and whether it was competitive. The applicant could not explain whether each specific world record claimed had been issued by Guinness, or by “Assist World Records”. The applicant could offer no explanation for the Tribunal’s concerns about the nature of his world record claims. Whilst the Tribunal accepts that the applicant is not intending to mislead, he was not a reliable witness, as he did not appear to be a person who appreciated the need to be particular about the information he provided to the Department, or to the Tribunal. He did not answer the Tribunal’s questions directly, and was largely unable to respond to the Tribunal’s questions about his ultramarathon career. He could not explain what organisations measured his success, what athletes he competed against, and how he had calculated himself to be the top marathon athlete in his home country of Sri Lanka.
• [37] The Tribunal acknowledges that the applicant has participated in the Gold Coast 100 event, and the Midlands 100 Miler events. He has participated in several other races, including the following:
• 5th LSR International Marathon, Dambulla-Sri Lanka, 2003, certificate of completion, no indication of place;
• 6th LSR International Marathon, Colombo-Sri Lanka, 2004, seventeenth place men;
• 12th Colombo Marathon, Sri Lanka, 2012, tenth place men;
• 8th Colombo Marathon, Sri Lanka, 2007, eighth place men;
• Colombo Marathon, Sri Lanka, 2008, first place men;
• Sri Lanka Ministry of Sports & Youth Affairs National Sports Festival 2006, First Place Marathon;
• People’s Bank Sports Club Marathon 2006, fourth place men’s open marathon;
• North Face 100KM event, Thailand, 2012, completion place third;
• De Langste Nachtloop 24 hours ultra run, 2015, certificate of completion.
• [38] The applicant has not competed in any Commonwealth Games, Olympic events, or any races of international significance. The races that the applicant has participated in are open events, which any person that registers can partake in, without any qualifying events. There is no evidence that the applicant is internationally recognised within the sport. Completion of any marathon, let alone several, is a noteworthy personal achievement. However, here, the applicant does not possess, on any objective view of the evidence, an internationally recognised record of exceptional and outstanding achievement in sport.
• [39] For the reasons set out above, and having regard to what might reasonably be expected of someone who claims to have an 'internationally recognised record of exceptional and outstanding achievement' as an ultramarathon runner, the Tribunal is not satisfied that the applicant's record has been 'out of the ordinary', 'exceptional', or 'outstanding'. It is also not satisfied on the evidence before it that the applicant's record of achievement has been 'internationally recognised', as required by paragraph 858.212(2)(a). In reaching this conclusion the Tribunal has considered the applicant's undoubted running talent, at an emerging level.”
In such circumstances, it could not be said that the mistranslation caused the Tribunal to misconceive either the evidence before it or its role in assessing such evidence. It did not result in any unfairness to the applicant in the conduct of the hearing.
• At 01:18:04, it was submitted that though the applicant had been asked whether he had anything further he wished to say, the interpreter’s response to that was “There is no point repeating the same thing tell if there is something new.” and that that constituted procedural unfairness. Though that might be seen as an example of the interpreter going off on a frolic of his own, it was in all of the circumstances neither substantial nor material and did not lead to an unfair hearing. The applicant had put extensive material before the Tribunal and he had had ample opportunity to present his arguments. It could not realistically be said that he had been denied procedural fairness.
(Footnotes omitted).
88 The appellant correctly submitted that an error in interpretation or translation can lead to a material and adverse finding relevant to a decision against that person, resulting in unfairness of the hearing: SZRMQ at [10]. However, as Edelman J observed in BZAID v Minister for Immigration and Border Protection (2016) 242 FCR 310; [2016] FCA 508 at [52]:
(1) interpretation involves an expert exercise involving judgment based on close correspondence in meaning. It is not necessary, and indeed might never be possible, to achieve a “perfect” interpretation;
(2) whether or not an inadequate translation or interpretation means that a hearing has not been fair is an evaluative exercise which will depend on the particular circumstances;
(3) in making the evaluative assessment, all of the circumstances are relevant including the course the hearing took as well as the reasoning of the decision-maker;
(4) where interpretation is necessary, it must be adequate to convey “the substance of what is said” or “the essential elements that were being conveyed by the appellant” in order to communicate the substance of the appellant’s case and his or her response to the issues raised to a sufficient degree that the hearing can be described as real and fair;
(5) where there are frequent or continuous errors in translation, it may be easier to conclude that the process has miscarried and that there has been a denial of procedural fairness;
(6) where there are intermittent errors, the individual errors must be assessed in the context of the overall fairness of the hearing. Individually, the errors may not be significant but viewed in aggregate they may demonstrate a pattern that indicates a denial of procedural fairness;
(7) if an error of interpretation or translation leads to a material adverse finding, the unfairness of the hearing will often be self-evident;
(8) however, it is not necessary, and in many cases will not be possible, to establish a causal link between an error of interpretation or translation and an adverse finding. It might be sufficient for a finding that a hearing was procedurally unfair if the irregularity might reasonably have led to an adverse finding either because of its materiality or repetition or context.
89 In the present case, comparing the individual statements of the appellant with the individual translations of that evidence, I am not persuaded that there was a “mistranslation” of the appellant’s evidence in respect of the first and third alleged errors. While not perfect translations, I am satisfied that the substance of the appellant’s evidence was accurately conveyed by the interpreter to the Tribunal, and that as a result the Tribunal understood the appellant’s evidence.
90 In respect of the second alleged error concerning the absence of reference by the interpreter to the appellant “representing” Sri Lanka, the transcript reveals that the appellant had stated that he travelled to international meets to race in ultramarathons, that he was the only Sri Lankan to do so, and that that this was conveyed to the Tribunal. However, there is no evidence that the appellant had said anything to the Tribunal about his “representation” of Sri Lanka in these meets. To that extent, while the interpreter may have failed to translate the appellant’s assertion of “representation” of Sri Lanka to the Tribunal, nonetheless I am satisfied that the Tribunal understood the substance of the appellant’s evidence in this regard.
91 In respect of the fourth alleged error, the interpreter’s second sentence concerning “there is no point in repeating the same thing” was not a strict interpretation of the Tribunal’s statement to the appellant, but rather appeared to be in the nature of the interpreter’s attempt to explain the words of the Tribunal to the appellant. Notwithstanding this, ultimately the substance of the Tribunal’s statement seeking “anything further” was correctly translated by the interpreter to the appellant. I am satisfied that, indeed, the appellant had nothing further to say to the Tribunal at that point.
92 In any event, even if the translation by the interpreter had the four individual errors claimed by the appellant, those errors must be assessed in the context of the overall fairness of the hearing. For reasons set out at [15] of the primary Judge’s reasons, his Honour found that there had not been a denial of procedural fairness in respect of the conduct of the hearing. I am not persuaded that his Honour erred in so finding.
93 In my view ground of appeal 3 is not substantiated.
Conclusion
94 The appeal must be dismissed. Costs follow the event.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier. |
Associate:
