1416371 (MIGRATION) - [2016] AATA 3123

1416371 (MIGRATION) [2016] AATA 3123 (21 JANUARY 2016)

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Chandanbir Singh
MRT CASE NUMBER:  1416371
DIBP REFERENCE(S):  CLF2014/25006
TRIBUNAL MEMBER:  Mary-Ann Cooper
DATE:21 January 2016
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 21 January 2016 at 3:33pm
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 16 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 Subclass 858 (Distinguished Talent) visa is a permanent visa for persons who have an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts or academia and research or have provided specialised assistance to the Australian Government in matters of security. The criteria for a Subclass 858 visa are set out in Part 858 of Schedule 2 to the Regulations.
The visa applicant applied for the visa on 18 February 2014. The delegate refused to grant the visa on the basis that the applicant was not a person who has a record of exceptional and outstanding achievement, as required by cl.858.212(2)(a) nor was s/he satisfied that he would have no difficulty finding employment as required by cl.858.212(2)(d).
The applicant appeared before the Tribunal on 16 April 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr. Kuldip Bassi, President and representative of the nominator, United Wrestling Club Incorporated. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented by his migration agent who also attended the 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 dispute in this review is whether the visa applicant meets the requirement of cl.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…

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 1416371 (MIGRATION)

Details

AGLC: 1416371 (MIGRATION) [2016] AATA 3123
Case: [2016] AATA 3123
Decision Date: 21 JANUARY 2016

CaseChat Overview and Summary

The Tribunal was tasked with reviewing a decision to refuse a Distinguished Talent (Residence) (Class BX) visa to Mr. Chandanbir Singh. The visa application was initially assessed and refused by a delegate of the Minister for Immigration on the basis that the applicant did not meet the criteria set out in cl.858.212 of the Regulations. The Tribunal's role was to determine whether the delegate's decision was correct and whether the applicant indeed fulfilled the requirements for the visa, which include having an internationally recognised record of exceptional and outstanding achievement in a profession, sport, the arts, or academia and research. The Tribunal needed to consider if the applicant's achievements were at an international level, whether they were still prominent in their field, and if they would be an asset to the Australian community, among other criteria.

The Tribunal found that the delegate's decision was sound and should be upheld. The applicant had some success in wrestling but the Tribunal did not consider his achievements to be at the highest international level. His most notable achievement was winning silver in a national wrestling championship in India, which was not followed by selection for the national team. The Tribunal also noted that there was no evidence of a sustained record of noteworthy achievements in international events. Additionally, the Tribunal was not satisfied that the applicant would have no difficulty in obtaining employment in Australia, as no evidence of tenure or terms and conditions of employment was provided by the nominator.

The Tribunal concluded that the delegate's assessment was correct and affirmed the decision to refuse the visa application. The Tribunal found that the applicant did not meet the required standard of exceptional and outstanding achievement in his field, and therefore did not satisfy the criteria for the visa. The Tribunal's decision was that the visa application should be refused.

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 dispute in this review is whether the visa applicant meets the requirement of cl.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.(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. 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 has provided specialised assistance to the Australian government in matters of security at the time of application. The Tribunal therefore finds that the applicant does not meet the requirements of subclause 858.212(4). 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 wrestling but considered that it was more reflective of an emerging wrestler rather than someone with a sustained record of noteworthy achievements in international events at the highest level. The delegate noted that he had not competed at any recognised international events and that his most significant achievement was winning silver in the 29th Boys Free Style, Greco Roman Style and 13th Girls Sub-Junior (Cadet) National Wrestling Championships, an event sanctioned by the Wrestling Federation of India. It was noted that this was not followed by selection for the national team. The delegate also noted that the applicant had not competed in any high level competition between his achievements in India in 2010 and the silver medal he was awarded in Australian Junior Canberra Cup in 2013. Having regard to the applicant’s claims that his limited opportunities in India were responsible for his failure to progress in the sport, and the acknowledgment by his referee that, given this situation, the applicant decided to concentrate on his studies, the delegate concluded that the applicant’s record was not reflective of someone in the top echelons of their field with extraordinary and remarkable abilities superior to others. It was also found that cl. 858.212(2)(d) was not satisfied on the basis that, even though nominator said it would employ him, no evidence of tenure or terms and conditions of employment was provided. Consequently the application was refused.

Decision

Reasons for decision

DECISION RECORDDIVISION:Migration & Refugee DivisionAPPLICANT: Mr Chandanbir SinghMRT CASE NUMBER: 1416371DIBP REFERENCE(S): CLF2014/25006 TRIBUNAL MEMBER: Mary-Ann CooperDATE:21 January 2016PLACE OF DECISION: MelbourneDECISION:The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) visa. Statement made on 21 January 2016 at 3:33pmSTATEMENT OF DECISION AND REASONSAPPLICATION FOR REVIEW This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 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 Subclass 858 (Distinguished Talent) visa is a permanent visa for persons who have an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts or academia and research or have provided specialised assistance to the Australian Government in matters of security. The criteria for a Subclass 858 visa are set out in Part 858 of Schedule 2 to the Regulations. The visa applicant applied for the visa on 18 February 2014. The delegate refused to grant the visa on the basis that the applicant was not a person who has a record of exceptional and outstanding achievement, as required by cl.858.212(2)(a) nor was s/he satisfied that he would have no difficulty finding employment as required by cl.858.212(2)(d). The applicant appeared before the Tribunal on 16 April 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr. Kuldip Bassi, President and representative of the nominator, United Wrestling Club Incorporated. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was represented by his migration agent who also attended the 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 dispute in this review is whether the visa applicant meets the requirement of cl.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.(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.

Ratio Decidendi

Legal Principle Established

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