1413600 (Migration) - [2015] AATA 3044

1413600 (Migration) [2015] AATA 3044 (7 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Ms Lucie Rebecca Walker
CASE NUMBER:  1413600
DIBP REFERENCE(S):                   CLF2013/232279
MEMBER: Steve Georgiadis
DATE:7 July 2015
PLACE OF DECISION:                  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) visa.

Statement made on 7 July 2015 at 5:06pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 July 2014 to refuse to grant the visa applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant, Ms Lucie Walker applied for the visa on 23 September 2013. She is 24 years of age (DOB 21 June 1991).
The delegate refused to grant the visa as she considered the applicant did not satisfy cl.858.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) on the basis of not being satisfied that the applicant had an internationally recognised record of exceptional and outstanding achievement in her field as a dancer/teacher of ballet and otherwise did not satisfy the requirements of cl.858.212.
On 8 August 2014, the applicant applied to the Tribunal for review of the delegate’s decision.
The applicant appeared before the Tribunal by videoconference on 18 June 2015 to give evidence and present arguments. She also made detailed written submissions to the Tribunal as follows:

‘My name is Lucie Waker and I am a Full member and a Registered teacher with the Royal Academy of Dance (RAD).

The Royal Academy of Dance (RAD) is the world’s leading organisation in classical ballet education and dance teacher training. Its aim is to promote knowledge, understanding and practice of dance internationally. The RAD examination syllabi set standards in classical ballet worldwide; it is a global leader in dance education and Continuing Professional Development for dance. The RAD's patron is Her Majesty Queen Elizabeth II.

I graduated from the Royal Academy of Dance’s BA (Hons) Ballet Education programme, validated by the University of Surrey, in July 2012. The BA (Hons) Ballet Education (BABE) is a modular programme providing an opportunity to gain a degree and prepare for a career in dance teaching. It combines the study of ballet and dance with teaching, to provide a unique dance teacher education. Whilst ballet remains a focus, the programme is designed to locate ballet within a broader concept of dance, providing a wider platform for a career in teaching. This degree is the highest qualification you can achieve with the RAD.
The course is offered internationally and only accepts 30 students maximum per year with a lengthy process of auditions, interviews and the requirement of 3 General Certificates of Education at an Advanced level (GCE A-Levels) at Grades BBC (or equivalent) and a vocational standard of dance training (RAD Intermediate and above). This is unlike any other university offering dance degree courses…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 1413600 (Migration) [2015] AATA 3044
Case: [2015] AATA 3044
Decision Date: 7 July 2015

CaseChat Overview and Summary

The case involves Ms Lucie Walker, who applied for a Distinguished Talent (Residence) (Class BX) Subclass 858 visa under the Migration Act 1958. The delegate of the Minister for Immigration refused her application on 18 July 2014, stating that Ms Walker did not meet the criteria set out in cl.858.212 of Schedule 2 to the Migration Regulations 1994. Ms Walker appealed this decision, and the matter was reviewed by the Tribunal on 18 June 2015. The Tribunal was required to determine whether Ms Walker met the requirements of cl.858.212 for the grant of the visa.

The legal issues in this case revolved around the interpretation and application of cl.858.212 of the Regulations, which required the Tribunal to assess whether Ms Walker had an internationally recognised record of exceptional and outstanding achievement in her field as a ballet teacher, was still prominent in the area, would be an asset to the Australian community, and would have no difficulty in obtaining employment or in becoming established independently in Australia in her area.

The Tribunal found that while Ms Walker had attained high level qualifications, knowledge, skill, and experience as a ballet teacher and dancer, and was held in high regard by her employer and others, she had not yet attained the highest level of professional membership of 'Life Member' recognised by the Royal Academy of Dance (RAD). The Tribunal placed substantial weight on this factor and considered that Ms Walker had not yet demonstrated that she was very eminent in the top echelons of the field of ballet teaching, or that she had 'demonstrated extraordinary and remarkable abilities... superior to others in their field.' As such, the Tribunal was not satisfied that Ms Walker had attained an internationally recognised record of exceptional and outstanding achievement in her field.

The Tribunal also noted that no claims or evidence were provided in regard to cl.858.212(4) concerning matters of security, and no advice had been received from the Minister that Ms Walker had provided specialised assistance to the Australian Government in regard to such matters.

As subclauses 858.212(2) or 858.212(4) were not met, cl.858.212 was not satisfied for the grant of the visa (cl.858.212(1)). The Tribunal therefore affirmed the decision not to grant Ms Walker a Distinguished Talent (Residence) (Class BX) visa.

The final orders of the Tribunal were that the decision not to grant Ms Lucie Walker a Distinguished Talent (Residence) (Class BX) visa be affirmed.

Orders