1415958 (Migration) - [2015] AATA 3839

1415958 (Migration) [2015] AATA 3839 (3 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Lankatilaka Dilini Narmada Kithsiri
CASE NUMBER:  1415958
DIBP REFERENCE(S):  CLF2013/309456 CLF2013/309488
MEMBER:Mary-Ann Cooper
DATE:3 December 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) visa.
Statement made on 03 December 2015 at 2:56pm

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 9 September 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 applied for the visa on 17 December 2013. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of clause 858.212 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). In particular, the delegate was not satisfied that the applicant had an internationally recognised record of exceptional and outstanding achievement as a synchronised swimmer.
The applicant appeared before the Tribunal on 13 March 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the President of Victorian Synchronised Swimming Inc. and a representative of her employer, the Aquatic Centre Manager of Presbyterian Ladies’ College (PLC).
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the requirements of paragraph 858.212(2)(a) and clause 858.212. This clause relevantly provides:
858.212
(1)     The applicant meets the requirements of subclause (2) or (4).
(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.
[(3) omitted by SR 2003, 239 with effect from 1/11/2003 - LEGEND note]
(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…

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.

Continue reading 1415958 (Migration)

Details

AGLC: 1415958 (Migration) [2015] AATA 3839
Case: [2015] AATA 3839
Decision Date: 3 December 2015

CaseChat Overview and Summary

The parties involved in this case are the applicant, who is seeking a visa, and the Tribunal reviewing the decision to refuse the application. The applicant's visa application was refused on the basis that she did not meet the criteria for a visa under the Migration Regulations. The central dispute concerns whether the applicant had an internationally recognised record of exceptional and outstanding achievement in sport, specifically synchronised swimming, at the time of her visa application. The court reviewing this matter is the Migration Review Tribunal, which has the authority to assess the correctness of the delegate's decision.

The legal issues before the Tribunal were whether the applicant's achievements in synchronised swimming were recognised internationally as exceptional and outstanding, and whether these achievements met the criteria for a visa under the Migration Regulations. The Tribunal had to consider whether the delegate's decision that the applicant's achievements did not meet the required standard was correct. The Tribunal's task was to review the evidence and determine whether the delegate's findings were supported by the evidence and whether the Tribunal should affirm or overturn the decision.

The Tribunal examined the evidence provided by the applicant and concluded that her achievements in synchronised swimming, while notable, did not amount to an internationally recognised record of exceptional and outstanding achievement. The Tribunal found that the applicant's success in international competitions, though significant, was not sufficient to demonstrate that she had an internationally recognised profile or ranking as a synchronised swimmer or coach. The Tribunal also noted that there was limited evidence of international recognition of the applicant's achievements. Consequently, the Tribunal affirmed the delegate's decision that the applicant did not meet the criteria for a visa under the Migration Regulations.

The final orders of the Tribunal were to affirm the decision of the delegate to refuse the visa application. The Tribunal held that the applicant had not demonstrated that she had an internationally recognised record of exceptional and outstanding achievement in sport, and therefore did not meet the criteria for the visa. The Tribunal's decision was based on a careful consideration of the evidence and the applicable legal standards.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets the requirements of paragraph 858.212(2)(a) and clause 858.212. This clause relevantly provides:858.212(1) The applicant meets the requirements of subclause (2) or (4).(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; andNote 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.[(3) omitted by SR 2003, 239 with effect from 1/11/2003 - LEGEND note](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.[Tribunal emphasis] As confirmed at the hearing, there is no claim or any evidence that the Minister responsible for an intelligence or security agency, or the Director-General of Security, has provided an opinion that the applicant had provided specialised assistance to the Australian government in matters of security at the time of application. The Tribunal therefore finds that the applicant did not meet the requirements of subclause 858.212(4) at the time of application. As recorded in the delegate’s decision, a copy of which was provided with the review application, the delegate acknowledged that the applicant had some success in synchronised swimming in Sri Lanka and that she had contributed to the sport in Australia however he was not satisfied that, at the time of application, it was sufficient to demonstrate that she had an internationally recognised record of exceptional and outstanding achievement in the sport. Consequently the application was refused. Prior to the hearing the applicant’s representative provided further documents and a written submission which asserted, among other things, that the delegate had erred in finding that the applicant’s success had not been achieved over a sustained period of time. The submissions relied on the Court’s findings in Zhang [2007] FMCA 664 which found that the word “record” should not be understood as requiring a record which is quantifiable as large or lengthy or as having been sustained over a period of time, that a record is an aggregation or a list, not “ a large aggregation of a long list.”

Decision

Reasons for decision

The Tribunal therefore does not accept, on the basis of the material before it that, even having regard to the principles set out in Bretag’s case, the applicant’s achievements as a coach of synchronised swimming were internationally recognised at the time of application as exceptional and outstanding.CONCLUSION The central question before the Tribunal is whether, at the time of application, the applicant had an internationally recognised record of exceptional and outstanding achievement in sport. The fact of international competition, of itself, does not necessarily translate to an internationally recognised record of exceptional and outstanding achievement. As noted above, applying the ordinary meaning of the words, the criterion requires demonstrated excellence in the relevant field that is internationally recognised as “prominent, striking, conspicuous” and “extraordinarily good”. The guidelines, from which the Tribunal sees no reason to depart, require that an applicant should be at the very top of her field and demonstrate extraordinary and remarkable abilities that have or would be acclaimed as exceptional and outstanding in any country where the relevant field is practised. The Tribunal accepts that in 2005-6 the Sri Lankan synchronised swimming team was placed at two international events. This was remarkable because it was the first time it had done so. Significantly, these events took place in 2005 and 2006, approximately eight years prior to the lodgement of the applicant’s visa application on 18 December 2013. On the evidence before the Tribunal, these achievements do not appear to have been accompanied by any corresponding international recognition of the applicant’s record as a synchronised swimmer by the relevant ‘governing’ bodies at the international level. In addition there is little in the evidence that demonstrates she had an internationally recognised profile or ranking as a synchronised swimmer or coach. The Tribunal further observes that, notwithstanding the significant local coverage, there appears to be no reporting or recognition of the applicant’s accomplishments as a synchronised swimmer at the international level. Therefore, having carefully considered the applicant’s achievements, the Tribunal finds the evidence that the applicant had an internationally recognised record of exceptional and outstanding achievement in sport at the time of application to be quite limited. This is so even having regard to the principles set out in Bretag’s case. Consequently, having considered the claims and evidence as a whole, both on an individual and cumulative basis, on balance, the Tribunal is not satisfied that the applicant has demonstrated that she has a record of achievement in synchronised swimming, either as a coach or swimmer, that is internationally recognised as exceptional or outstanding within the ordinary meaning of those words. It follows that the Tribunal is not satisfied that, at the time of application, the applicant had an “internationally recognised record of exceptional and outstanding achievement” in the field of synchronised swimming as required by paragraph 858.212(2)(a).

Ratio Decidendi

Legal Principle Established

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