Springs v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2022] HCATrans 17 (18 February 2022)

Last Updated: 23 February 2022

[2022] HCATrans 017

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S49 of 2021

B e t w e e n -

TIMOTHY O’NEAL SPRINGS

Applicant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

KEANE J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE AND MELBOURNE

ON FRIDAY, 18 FEBRUARY 2022, AT 3.26 PM

Copyright in the High Court of Australia
KEANE J: I will announce the appearances for the parties.

MR H.P.T. BEVAN, SC appears with MS K.N. HOOPER for the applicant. (instructed by the applicant)

MR P.D. HERZFELD, SC appears with MR T. LIU for the first respondent. (instructed by the Australian Government Solicitor)

KEANE J: There is a submitting appearance from the second respondent. Yes, Mr Bevan.

MR BEVAN: Thank you, your Honours. The first matter is that Mr Springs requires an extension of time.

KEANE J: I gather that is not opposed. It is not opposed, so you have your extension.

MR BEVAN: May it please the Court. Your Honours, there are two questions posed in this application for special leave as set out in the application book at page 105. The first raises for consideration the meaning or scope of “undermines” or “undermining” in the context of information in section 359A of the Migration Act. In particular:

Whether evidence of a witness that undermines a visa applicant’s claims to satisfy a visa criterion that required the decision‑maker to embark upon a process of qualitative or subjective assessment is excluded from the operation of s 359A(1) because the undermining occurs where that evidence engages with the process of assessment that the visa criterion demands.

The second question is:

whether the implicit generations –

that underpin the Tribunal’s reasons:

require an evidentiary foundation beyond ordinary experience where there is no question of the use of the Tribunal’s specialised knowledge.

Your Honours, may I ask you to turn to the application book at page 115, where your Honours will see the visa criterion in issue. The relevant criterion for the distinguished talent visa for which Mr Springs applied is clause 858.212, relevantly sub‑regulation (2)(a)(iii), and that required the applicant to demonstrate that he:

has an internationally recognised record of exceptional and outstanding achievement in –

turning over the page, and relevantly for Mr Springs:

the arts –

The primary judge, Judge Manousaridis of the Federal Circuit Court, as it then was, construed that criterion in a passage commencing at application book page 54, paragraphs 61 to 63, the effect of which is that there must be evidence of achievement in any one or more of the categories of activities regarded as the arts that satisfies the decision‑maker as to the:

exceptional and outstanding –

nature of the achievement, which is:

a matter of opinion and degree.

And that is:

determined by reference to the opinions or knowledge of persons or of a class or classes of persons . . .

. . . distributed among two or more countries.

No criticism was made or is made of that approach, and we embrace it. The primary judge made some observation about modes of proof, which is set out at the application book pages 56 and 57 in paragraph 64 of the learned primary judge’s reasons, and that included, amongst other things, the fourth and the fifth classes the primary judge discussed, being:

opinions by persons about the attributes of –

the applicant, and:

opinions from persons who have knowledge of the field of activities of which the record of achievement forms part –

In the Federal Court, in the context of a ground no longer maintained, Justice Perram described that criterion as:

open‑textured requirements calling for the application of judgment –

Involving a qualitative assessment and an embarkation upon a process of subjective assessment. Your Honours, turning to the first special leave question we pose, applying the principle from this Court’s decision in SZBYR and the following authorities decided in the context of section 424A particularly, the obligation to give clear particulars of information, that is, the existence of evidentiary material or documentation, arises relevantly where that information in its terms contains a rejection, denial or undermining of the applicant’s claims to satisfy the visa criterion.

Pausing there, in this case the Federal Court found that the future conditional condition in the subsection as to what would be the reason or part of the reasons for affirming the decision under review was satisfied. The issue in this case therefore concerns undermining – or what constitutes undermining in its terms – and that aspect has not been the subject of express specific consideration by this Court.

Your Honours, I am now going to ask you to turn to the evidence that we say enlivened that obligation. That is set out in a passage in the reasons for judgment of Justice Perram in the Federal Court at application book page 75, in paragraph 7. The evidence was testimony of a witness, Ms Rachel Taylor, who was the Executive Director of a musical theatre company called The Production Company. Ms Taylor is Australian and she conducted the audition that Mr Springs attended for a run in Australia of the musical Show Boat; Mr Springs, of course, being an American talent, those basic facts alone give context to the international aspect.

Ms Taylor’s evidence is set out at.....and I would ask your Honours to go that on page 75. Your Honours will see where it is set out, in paragraph 7, Ms Taylor was asked:

how did you know Mr Springs, how did you come to meet him?

After referring to the audition, in the underlined portion your Honours will see Ms Taylor gave evidence that:

Timothy was new to us, and new to Australia at that time, we weren’t familiar with him.

Over the page, on page 76, after a discussion about aspects of the show Show Boat, Ms Taylor was asked further questions about Mr Springs being new to her and new to Australia and it was suggested that:

you weren’t familiar, you’re not familiar with his work ‑

and her evidence was:

We weren’t familiar with him or his work prior to that, and he really impressed us with his talent, and we cast him in the production, the feature ensemble role.

STEWARD J: Mr Bevan, I know your client – or at least, I assume your client was not present in the Tribunal – and that he had a registered migration agent who did not attend the hearing – I think that is right.

MR BEVAN: Your Honour, my client did attend the hearing at the Tribunal and he gave evidence. Your Honour is correct, his migration agent was not there, but Mr Springs was.

STEWARD J: All right. So, Ms Taylor was giving evidence on his behalf ‑ ‑ ‑

MR BEVAN: Yes.

STEWARD J: ‑ ‑ ‑ and he was in the Tribunal room when he heard the answers that were given.

MR BEVAN: Yes.

STEWARD J: So, the question perhaps for me is, what is the information the particulars of which you wanted disclosed to the applicant?

MR BEVAN: The particulars of the information were, one, that at the time that he auditioned, he was new to the production company, and new to Australia and that they were not familiar with him – with his work – with him or his work prior to that.

STEWARD J: But he heard that, did he not?

MR BEVAN: He did hear that, but this is not a question of whether or not the obligation otherwise would arise in the context of section 360 in the invitation to hear. If this evidence or testimony was or meets the criterion in 359(1)(a), then the obligation to provide it would still arise unless the Tribunal otherwise went to engage, for example, the mechanism in section 359AA by providing the information to him orally. There is a finding in the Federal Court, I think it is at paragraph 13 on application book 77 that the Tribunal did not raise that aspect with Mr Springs during the course of the hearing. And so, whilst he heard it, if the information is of the character for which my client would contend, the obligation would still be enlivened, in my respectful submission.

KEANE J: Mr Bevan, can I ask, I notice at paragraph 2 in Justice Perram’s reasons at page 74, he says:

In support of his visa application Mr Springs provided a range of documentary evidence –

It is not suggested, is it, that the pieces of evidence at pages 75 and 76 that you have taken us to contradicted any of the documentary evidence, or any of the other evidence that your client relied on?

MR BEVAN: No, that is correct, your Honour.

KEANE J: Do you accept that the purpose of section 359A is to ensure that an applicant has procedural fairness?

MR BEVAN: Yes, that is the central purpose of provisions and other cognate provisions like it, yes.

KEANE J: It might be thought to be stretching things a bit to suggest that this information that does not actually seem to challenge any of the information that your client provided in support of his claim needed to be provided to him to give him procedural fairness, given that it came from a witness that he called.

MR BEVAN: Well, your Honour, what we would say in relation to that is that evidence of Ms Taylor nevertheless enlivened the obligation because, coming from a witness with expertise in Australia, it did undermine or weaken his claim to satisfy the criterion, because she is ‑ ‑ ‑

KEANE J: But we are not concerned with his reputation in Australia, we are concerned with his international reputation, and a case was made, the claim was made, in terms of the evidentiary support for it, the actual claim was made in terms that were in no way contradicted by what Ms Taylor said and in circumstances where this evidence came from someone that your client called.

MR BEVAN: Yes, my client did call Ms Taylor in support of his case and, indeed, when asked – as your Honours would see in the passage set out in Justice Perram’s reasons at paragraph 10 – the question in terms of the statutory criteria, whether or not her opinion was that he did have such an internationally recognised record – her answer was that he did.

KEANE J: Yes, so her evidence did not contradict the material that he put in. Her evidence supported that contention. We are a long way from material that undermined his claim and that might have been used in a way that denied him procedural fairness – a very long way.

MR BEVAN: Your Honour, then the only additional aspect that I can say in relation to that is that whilst the latter part of her evidence there certainly did support his claim, the aspect set in paragraph 7, in my respectful submission, did undermine it, and did weaken it, such as to enliven the obligation.

STEWARD J: But, Mr Bevan, what did you want the Tribunal to do? Did you want the Tribunal to say to him at some point, allow me to read out to you some answers given by your witness?

MR BEVAN: First, that would be the first obligation. But the obligation then under 359A is not limited to the provision of information, it also requires the Tribunal to ensure as far as reasonably practical that the applicant understands why it is relevant to the review and the consequences of it being relied upon.

So, in this instance, the Tribunal would, having given the particulars, then say, and the reason why that is important is because the lack of familiarity by people in Australia with you prior to your arrival and audition tells against you having such an internationally recognised record of achievement.

KEANE J: Would the section have obliged the Tribunal to inform your client that it proposed to disregard Ms Taylor’s evidence?

MR BEVAN: At that level, your Honour, no, it would not. To demonstrate where, in my respectful submission, the reasoning in Justice Perram’s reasons where this issue arises, can I ask your Honours to turn to his Honour’s reasons for judgment on page 80 of the application book, between paragraphs 22 and 24. His Honour identified a logical chain of propositions in paragraph 22, and concluded in paragraph 24 that:

The evidence of Ms Taylor did not in its terms undermine Mr Springs’ application unless and until the Tribunal engaged with –

the second of those propositions. And:

Without Proposition 2 her evidence did not bear upon the eligibility criterion.

The vice, we say, lies in the erection of the second propositional statement. So if instead the visa criterion as construed was there substituted, then we would say Ms Taylor’s evidence did directly engage with it and undermined his claims, or case, to satisfy that criterion. And we say that because, as I have submitted, her evidence weakened or diminished the extent of the international recognition of his reputation, and it is not, in my respectful submission, an intermediary or analytical step or an inferential step in the Tribunal’s processes such that SZBYR, contrary to Justice Perram, who did not compel the contrary conclusion.

Your Honours, for completeness, if Ms Taylor did have evidence of that character then, on the findings of the Federal Court, the error would be jurisdictional, and no issues otherwise, at least that were.....no issues of materiality were at least pressed below with respect to this aspect of the ground.

Your Honours, I will move on to the second of the special leave questions, if I may. The primary judge found that the Tribunal’s reasoning was founded implicitly upon three generalisations. Your Honours will see them at page 94 of the application book in paragraph 73. They are that:

Lead roles would be assigned to persons who have –

the record in the criterion:

Persons who have –

the record in the criterion:

would be performing in larger venues . . . [and] in productions that had longer runs than –

Mr Springs, and:

Persons who have –

the record in the criterion:

would not have to audition for a role –

It will be recalled that the visa criterion in issue, as construed, has embedded within it an element or aspect of proof by reference to persons with relevant expertise, and the criterion is not one in respect of which the deployment of accumulated knowledge would be anticipated, such as country information, as this Court recently considered in Viane. But notwithstanding or despite the substantial body of evidence in Mr Springs’ favour, including the testimony of Ms Taylor directly in answer to the criterion, the Tribunal set those aside and based its decision on those three generalisations.

Now, where they came from is not identified, and we would say, responsively, to what is put against us, that they are not part and parcel of
ordinary human experience where what is at issue is the determination of whether a specific criterion is met. And it does not contain the drawing of an inference and cumulative experience, and the vice within them is that those factors are inconsistent with what the visa criterion demands.

KEANE J: Mr Bevan, what do you say is the error in what Justice Perram says at paragraphs 76 to 79?

MR BEVAN: The error really falls within paragraph 79, your Honour, because whilst all of the factual details as to the nature of his roles was contained in the evidence ‑ and I obviously cannot dispute or take issue with that ‑ but the problem is reasoning by reference to those factors, away from the visa criterion which requires an assessment of the evidence of the people performing, or the people in the relevant class, to assess whether or not the person has the internationally‑recognised record. So in the absence of a basis for those generalisations, we would say that the Tribunal has effectively reasoned from what would be a personal or idiosyncratic experience of or assumption about the arts, especially theatre, music, and opera. Attendances at those kinds of production cannot supplant the assessment by reference to the evidence and whether the statutory criterion is satisfied.

STEWARD J: But, Mr Bevan, speaking for myself, I am not sure you could describe the three propositions as idiosyncratic. Proposition 2:

Persons who have an internationally recognised record of exceptional achievement would be performing in larger venues ‑

That strikes one as a proposition pregnant with commonsense.

MR BEVAN: It may be an aspect that one could appreciate but it embodies an assumption that that is always so when performance in larger venues does not necessarily of itself bespeak satisfaction of the criterion. Your Honours, those are my submissions.

KEANE J: Thanks, Mr Bevan. The Court will adjourn for a moment to consider the course it will take on this application. Adjourn the Court for a moment please.

AT 3.47 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.50 PM:

KEANE J: We need not trouble you, Mr Herzfeld.

The appeal foreshadowed by this application does not enjoy sufficient prospects of success to warrant the grant of special leave. The application is dismissed with costs.

The Court will now adjourn to 9.30 am on Monday, 21 February 2022. Please adjourn the Court.

AT 3.51 PM THE MATTER WAS CONCLUDED