The Applicant was not nominated by the Respondent for the Australian Team for the 2024 Paris Paralympic Games under the Respondent’s Nomination Criteria. The Applicant brought an appeal against her non-nomination under clause 8(a) of schedule 1 to the Paralympic Team Nomination, Selection & Appeals By-Law, contending that the Respondent’s Nomination Criteria were not properly applied. The Applicant sought a direction that the Respondent reconsider and determine its position regarding the Applicant’s suitability for nomination to the Paralympic team.
The Nomination Criteria set out the over-arching objective of making a nomination decision that would most likely lead to the highest competitive results at the Paralympic Games. It allowed the Respondent to make a nomination decision ‘in its absolute discretion’ if threshold eligibility criteria were met. There was no doubt that the Applicant and the Affected Parties who the Respondent sought to nominate were eligible for nomination.
The Nomination Criteria provided that scores achieved at particular competitions would be ranked and would be the primary information on which nomination decisions are based. It also provided that the Respondent had ‘sole and absolute discretion’ to consider other factors, including consistency, trends, more recent results and the context of performances. The Respondent was permitted to place greater or lesser emphasis on any of these other factors and was not required to approach their task as a pure numerical ranking.
The NST accepted the Applicant’s submission that there was no basis in the Nomination Criteria for the Respondent to average scores from the relevant competitions in the way that it did. The NST also accepted the Respondent had considered particular discretionary factors including consistency but found that there was no evidence of consideration of other discretionary factors such as trends, more recent results and the context of performances.
Ultimately, the NST found that on the balance of probabilities, the Respondent did not properly apply the Nomination Criteria when ranking the scores of the Applicant and an Affected Party. The Respondent also did not properly consider discretionary factors in light of the objective of making a nomination decision that would most likely lead to the highest competitive results at the Paralympic Games. The Respondent was therefore directed to reconsider and determine its position regarding the Applicant’s suitability for nomination to the Paralympic team in accordance with the NST’s determination. The Respondent was also directed to provide appropriate reasons for nomination or otherwise.
The NST upheld the appeal and remitted the matter to the Respondent.