1416744 (Migration) - [2015] AATA 3882

1416744 (Migration) [2015] AATA 3882 (17 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Rana Muhammad Qasim
CASE NUMBER:  1416744
DIBP REFERENCE(S):  CLF2014/104753
MEMBER:David Dobell
DATE:17 December 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision of the Department to not grant the visa applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa
Statement made on 17 December 2015 at 9:21am

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 26 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 30 July 2014. The delegate refused to grant the visa on the basis that cl.858.212 was not satisfied.
The applicant appeared before the Tribunal on 26 November 2015 at a hearing to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CLAIMS AND EVIDENCE
On the Department file is the Form 47SV visa application and a Nomination Form 1000, dated 15 July 2014 and signed by Rajeev Arora.
As to his qualifications, awards and references (Q.77) the applicant stated as follows:
·Qualification/award/reference: FIA/ACCA/EDEXCEL completed more than 60 professional units within 2.5 years at youngest age of 19
·Institution/name of referee: SQA (Scottish qualification authority), BIMS, Edexcel
·From: 8/2010 to 08/2013
·Qualification/award/reference: Edexcel post graduation level award and Exemptions in ICAEW also known as Mother of Accounting
·Institution/name of referee: BIMS, ACCA (Association of chartered certified accounts), ICAEW (Institute of CA England and Wales)
·From: 8/2010 to 06/2014
·Qualification/award/reference: Youngest accountant eligible for PhD research program (in Business and finance in age of 19 under IQN
·Institution/name of referee: IQN ( international qualification network), NUML University,
·From: [unstated] to 06/2014
·Qualification/award/reference: Honoured of 35 months of internship awarded which is then approved by ACCA/recently awarded honors covered by international media group
·Institution/name of referee: Pakistan observer newspaper, [unstated] to 06/2014
The applicant attached the following statement of purpose to the visa application:
(SOP) Statement of purpose
As already detailed I am Rana Muhammad Qasim just not only a youngest qualified accountant with age of 19 but also one who achieved many milestones on extra ordinary performance in my profession till now age of 19.
I am applying for 858 distinguish talent visa which itself an honour if approved, with all option in front of me including skilled points migration, I preferred to go for 858 visa due to my distinguish achievements and passion towards my profession and other factor as in Australia in my case to be eligible for points system residence I have to wait 6 year till 25 to get enough age points.
My extraordinary performance and love towards my profession made…

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 1416744 (Migration)

Details

AGLC: 1416744 (Migration) [2015] AATA 3882
Case: [2015] AATA 3882
Decision Date: 17 December 2015

CaseChat Overview and Summary

The parties involved in this case were the visa applicant, identified as Rajeev Arora, and the Department of Home Affairs. The dispute centred on the rejection of the applicant's visa application for a Distinguished Talent (Residence) (Class BX) Subclass 858 visa. The applicant appealed this decision to the Migration Review Tribunal, which subsequently affirmed the Department's decision. The Tribunal was tasked with determining whether the visa applicant met the criteria for a subclass 858 visa under the Migration Act 1958, particularly focusing on whether the applicant had an internationally recognised record of exceptional and outstanding achievement in a profession.

The primary legal issue before the Tribunal was whether the applicant had achieved exceptional and outstanding success in a professional field, such as accounting, that was internationally recognised. This involved assessing the credentials, achievements, and international recognition of the applicant's professional accomplishments. Specifically, the Tribunal needed to determine if the applicant's achievements were of a calibre that would be acclaimed as exceptional and outstanding not only in their home country but also internationally, and if they placed the applicant at the very top of their profession.

In reaching its decision, the Tribunal considered the evidence provided by the applicant, including his educational qualifications, professional achievements, and the recognition he had received within his field. The Tribunal also evaluated the international standing of the applicant's achievements, ensuring they met the stringent criteria outlined in the Department's policy. Ultimately, the Tribunal concluded that while the applicant had made notable achievements in his profession at a young age, these did not reach the level of exceptional and outstanding success required for a subclass 858 visa. The Tribunal found that the achievements, although commendable, did not demonstrate the level of international recognition and prominence necessary to satisfy the visa criteria.

As a result, the Tribunal affirmed the Department's decision not to grant the visa applicant a subclass 858 visa. The Tribunal's reasoning was based on the applicant's failure to meet the stringent criteria for exceptional and outstanding achievement in a profession that was internationally recognised. The Tribunal determined that the applicant's achievements, while impressive, did not place him at the top echelons of his field in an internationally recognised manner.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CLAIMS AND EVIDENCE On the Department file is the Form 47SV visa application and a Nomination Form 1000, dated 15 July 2014 and signed by Rajeev Arora. As to his qualifications, awards and references (Q.77) the applicant stated as follows:·Qualification/award/reference: FIA/ACCA/EDEXCEL completed more than 60 professional units within 2.5 years at youngest age of 19·Institution/name of referee: SQA (Scottish qualification authority), BIMS, Edexcel·From: 8/2010 to 08/2013·Qualification/award/reference: Edexcel post graduation level award and Exemptions in ICAEW also known as Mother of Accounting·Institution/name of referee: BIMS, ACCA (Association of chartered certified accounts), ICAEW (Institute of CA England and Wales)·From: 8/2010 to 06/2014·Qualification/award/reference: Youngest accountant eligible for PhD research program (in Business and finance in age of 19 under IQN·Institution/name of referee: IQN ( international qualification network), NUML University, ·From: [unstated] to 06/2014·Qualification/award/reference: Honoured of 35 months of internship awarded which is then approved by ACCA/recently awarded honors covered by international media group·Institution/name of referee: Pakistan observer newspaper, [unstated] to 06/2014 The applicant attached the following statement of purpose to the visa application:(SOP) Statement of purpose As already detailed I am Rana Muhammad Qasim just not only a youngest qualified accountant with age of 19 but also one who achieved many milestones on extra ordinary performance in my profession till now age of 19.I am applying for 858 distinguish talent visa which itself an honour if approved, with all option in front of me including skilled points migration, I preferred to go for 858 visa due to my distinguish achievements and passion towards my profession and other factor as in Australia in my case to be eligible for points system residence I have to wait 6 year till 25 to get enough age points.My extraordinary performance and love towards my profession made me eligible enough to apply for 858 visa which gave me strengthened and confidence to apply my skills in practical terms in order to get my dreams true by serving Australian community. Its always a valid point what makes me distinguish talent? And this is the only reason I decided to write that statement of purpose to explain myself what I achieve in my young age, which makes me distinguish.With esteem and respect I would explain almost my whole life tenure that is just 19 years in which I have worked really hard to get my dreams true.•I finished my school on 4 august 2010 with A+. As soon I finished school it took only few days to realise my passion and love towards Accountancy. I always wanted to register with ACCA a professional British accountancy body but the standard and difficulty level of ACCA and my age 16 at that time was a conflict.•Although on 15 August 2010 ACCA approved my conditional registration and I had to complete FIA (Foundation) ACCA exams to got admission in ACCA. With courage and a feeling of to do in that young age of 16 gives me strength and I pass my first exam of FIA in only 3 months and then passed all subject of FIA with in 6 months and I was youngest qualified in my whole state with age of 17. My college and few district level media really appreciate my achievement but I knew it was just start.•So I started my professional career in accountancy in just age of 16/17 and was on the way with determination. My day and night study research and struggle start giving return and I completed my 9 papers of ACCA in very first attempt and it was itself a record to be listed in the whole world who passed ACCA exams in just age of 18.•As accountancy studies was my passion and even though if called my life would not be wrong so I moved to big city in age of 17 on government State scholarship to explore my skill and I got registered with world wide accountancy bodies EDEXCEL, BIMS and SQA (Scottish qualification authority) these all professional accountancy British bodies acceptable all over the world.•I started my studies and day night research and thirst of knowledge and my mind of to do always gave me hope and courage and I worked day and night which in return makes me, my family proud in completion of SQA, BIMS and Edexcel qualification with in 1.5 years in only age of 18. In just two years I got graduation level certification from British council, postgraduate level certification from SQA (Scottish qualification authority) and Edexcel Pearson.•I completed 20 units under Edexcel, 14 units under BIMS and 17 units of SQA and 14 units under ACCA. I have a distinguish record to pass more then 60 units of professional qualification in just 2.5 years of time in just age of 19. I was awarded 7 state and colleges level prize awards and 1 capital state level award including free scholarship with in two year of career.•On March 2013 I was awarded with youngest honoured and I was awarded exemption with ICAEW (Institute of Chartered accountancy England and Wales) and I can used ICAEW with me as it's was one of the biggest mile stone I achieved as ICAEW is known as Mother of Accountancy. On the prize distribution ceremony on the base of my achievement Habib bank awarded me with 35 months of working internship program as honour. I was offered to join bank as Manager and I was supposed to be youngest Branch manager, but my thirst of education and with mind of directorship with dreams bigger than those offers I decided to continue my work over my profession.Australia my personal Choice •No doubt I was really appreciated by my colleges even my state and I was offered from many firms and banks to join them but my dreams were bigger than those offers. Australia has always been my best choice as country and my love towards Australia has always with me since I was 15, I had always been really passionate towards Australia so I started research about Australia culture, economy and history and I found Australia one the best and peaceful country. When I expand my research to my profession I found Australia has strongest accountancy system so I decided to step forward and deicide to come Australia last year.•From the start of career after school Australia has always been my favourite country due to its well recognition so last year I decided to apply for Australia student visa and I got admission with in days in Masters of accountancy with only verbally confirmation from Kaplan I was one of the youngest students enrolled in age of 18 in Master of Accounting program which I already had done with as mentioned. It took only few days to realise that the master level qualification, which I am studying, i already have completed in my studies, so I step forward and took few online modules and started preparation of Edexcel Pearson IQN (International Qualification network) exams assessment and with 3 months preparation I took Assessment exam on 20 march 2014 in Abbey College Australia, George St, Sydney, NSW 2000. And I passed with 75%, which confirms my registration with IQN, as I was restricted to change my course due to international student in Australia that is why I did not apply directly for Australian accountancy membership but as Australia accountancy bodies has mutual recognition with British bodies so as soon I am done with IQN I am member of AQF.•I have most recent honour and which is best cheerful moment for me that On 2 June 2014 recently I have got confirmation from IQN (International qualification network) of my eligibility of my PHD (Business and Finance) under SQA (Scottish qualification framework), AQF and NZQF.•Last honour and distinguish achievement which confirmed my mind to go for 858 visa so to start explore myself in practical terms and to devote myself for some big reasons for Australian Community as on 9 June 2014 recently institute of business and finance and IQN announced 150,000 PKR cheque price and few medal, collected by my father which was covered by media named Observer internationally recognised newspaper all over the world.

Decision

Reasons for decision

Thus cl.858.212 is not satisfied as a whole. This means that the decision under review must be affirmed.DECISION The Tribunal affirms the decision of the Department to not grant the visa applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa.David DobellMemberATTACHMENT Acl.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 01/11/2003 - 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.ATTACHMENT BDepartment PolicyELIGIBILITY - INTERNATIONALLY RECOGNISED ACHIEVEMENT6 Eligibility - International achievement6.1 RequirementsThis eligibility stream (858.212(2)), covers persons with an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts or academia and research.6.2 What is exceptionalFor 858.212(2)(a), applicants should be very eminent in the top echelons of their field. They should demonstrate extraordinary and remarkable abilities and be superior to others in their field.‘Internationally recognised’ in this context means that a person’s achievements have or would be acclaimed as exceptional and outstanding in any country where the relevant field is practiced.‘Exceptional’ and ‘outstanding’ should be accorded ordinary dictionary meaning within context.6.3 Policy requirementsClaims of an “excellent” level of performance in a job, particularly where the benefits of such performance may only be realised locally, would not be regarded as exceptional and outstanding achievement.A single achievement by the applicant, particularly where it appears to be the only significant achievement, would not be regarded as ‘exceptional and outstanding’ achievement. It is anticipated that an applicant would have a record of sustained achievement that is unlikely to diminish in the future.An achievement that may attract national acclaim would not be considered as ‘international recognised’ unless that achievement is in a field practised in other countries (including Australia) and has or would attract similar acclaim in those countries.Given the ordinary dictionary meanings, in order to have a ‘record of exceptional and outstanding achievement’ an applicant would be expected to have achievements remarkable in relation to that field and in relation to other participants in that field. An applicant should be at the very top of their field.6.4 Assessing this criterionIn assessing the applicant’s record of achievement, officers may take into account information such as, but not necessarily limited to:• information provided by the nominator, who should provide a full account of why they believe the applicant has an exceptional and outstanding record of achievement• supporting statement and material provided by the applicant detailing relevant aspects of their background including their qualifications, achievements and positions held. This should include information relating to any achievements in Australia• awards or higher qualifications received from internationally recognised institutions or organisations• details and supporting material on sporting achievements including national and international rankings, results in competitions or tournaments, statements from international sporting bodies, sporting scholarships received and newspaper and magazine articles attesting to achievements• details and supporting material on achievements in the arts including books published, national and internationals sales achieved, awards and commissions received, galleries in which works are displayed, scale and audience of displays held, recognition by peers, statements from international artistic bodies and newspaper and magazine articles attesting to achievements• details and supporting material on academic and research achievements including reports commissioned, books published, articles appearing in professional journals, magazines and newspapers, awards received, recognition by peers and statements of achievement from government, professional, scientific or other relevant bodies.The internet is an important source of additional material and a method of confirming the accuracy of any claims made. Any adverse or conflicting information obtained from this source should be put to the applicant for comment.6.5 International recognition requiredAchievement in a profession, a sport, the arts or academia and research that has not or would not be recognised at an international level would not be regarded as exceptional and outstanding.It is expected that an applicant’s achievements have or would be acclaimed as exceptional and outstanding in any country where the relevant field is practised. The field would also need to have recognition and acceptance in Australia as well as international standing. In determining the international standing of the applicant, officers should consider:• the international standing of the country, where the applicant’s achievements were realised, in respect of the particular field• the standing of the achievement in relation to Australian standards and• the standing of the achievement in relation to international standards.For example, an applicant rated at or near the top of their field in their home country would be expected to have an international record of exceptional and outstanding achievement if the:• field is undertaken and recognised in a number of countries including Australia and• achievement would be similarly recognised in relation to international and Australian standards for that field.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.