1417058 (Migration) - [2016] AATA 3029

1417058 (Migration) [2016] AATA 3029 (15 January 2016)
DECISION RECORD
DIVISION: Migration & Refugee Division
APPLICANT:  Mr Sukhwant Singh
MRT CASE NUMBER:  1417058
DIBP REFERENCE(S):  CLF2014/87691
TRIBUNAL MEMBER:  Mary-Ann Cooper
DATE:15 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 15 January 2016 at 3:22pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 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).
2.The visa applicant applied for the visa on 20 June 2014. The delegate refused to grant the visa on the basis that the applicant did not meet cl.858.212(a) or (d).
3.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.
4.The applicant appeared before the Tribunal on 21 May 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Kuldip Bassi, the President of United Wrestling Club Inc., the applicant’s nominator.
5.The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
6.The applicant was represented in relation to the review by his registered migration agent who also attended the hearing.
7.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE
8.The issue in the present case is whether the visa applicant meets the requirement of cl.858.212.
9.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.

(4) The applicant meets the requirements of this subclause if,…

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 1417058 (Migration)

Details

AGLC: 1417058 (Migration) [2016] AATA 3029
Case: [2016] AATA 3029
Decision Date: 15 January 2016

CaseChat Overview and Summary

The case of 1417058 (Migration) involved an application for a subclass 858 visa, with the central issue being whether the applicant had an internationally recognised record of exceptional and outstanding achievement in sport. The matter was heard and determined by the Federal Circuit Court of Australia. The applicant, who is a wrestler, argued that his achievements in India and Australia warranted a visa under the subclass 858 criteria, which require an internationally recognised record of exceptional and outstanding achievement in sport.

The legal issues before the court were whether the applicant’s achievements in wrestling were sufficiently exceptional and outstanding to be recognised internationally, and if the Tribunal was bound by previous decisions made in similar cases. The court had to assess the evidence provided by the applicant to determine if it met the criteria of being internationally recognised as "prominent, striking, conspicuous" and "extraordinarily good."

In reaching its decision, the court considered the applicant's achievements in both India and Australia, but found that the evidence did not demonstrate international recognition of his accomplishments as exceptional and outstanding. The court noted that while the applicant had a record of achievement, this did not necessarily translate to an internationally recognised record. The court also highlighted that there was no international recognition, profile, or ranking of the applicant's record by relevant bodies. Consequently, the court concluded that the applicant did not meet the requirements of the subclass 858 visa, as his achievements were not recognised internationally as exceptional or outstanding.

The court dismissed the application, finding that the applicant had not demonstrated an internationally recognised record of exceptional and outstanding achievement in sport. This decision underscores the necessity for such recognition to be explicitly documented and acknowledged by international governing bodies in the relevant sport.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Overall, even applying the principles in Zhang v Minister for Immigration and Multicultural Affairs & Anor[7] to the current application for review, while the Tribunal accepts that the applicant has strong capability as a wrestler and has a record of achievement in India and Australia, it does not consider that the documentary or oral evidence is sufficiently detailed to support the claim that, at the time of application, his record of achievements were at a level that is recognised internationally as exceptional and outstanding.[7] [2007] FMCA 664CONCLUSION The applicant’s representative also submitted that previous visa applications made by applicants with a similar background to the applicant had been granted and, as the Tribunal understood the submission, that the present Tribunal should follow that approach in relation to this applicant and the requirements of s.858.212(2)(a). The Tribunal accepts that it is desirable, whenever possible, to achieve consistency in decision-making in terms of applicants who present with similar claims however it also notes that other such decisions are not binding on it. In line with the comments of the court in Pasula v Minister for Immigration and Anor[8] (although that case concerned regard to previous Tribunal decisions), the Tribunal must review the present matter by assessing the facts and evidence before it to determine whether this particular applicant meets the criteria for a subclass 858 visa.[9] [8] [2010] FMCA 219 at [31][9] See section 353 of the Act 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. For reasons discussed above, the Tribunal does not consider that the fact of national competition in two countries, of itself, necessarily translates to an internationally recognised record of exceptional and outstanding achievement. 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”. As also discussed above, the guidelines provide that an applicant should be at the very top of his field and demonstrate extraordinary and remarkable abilities. On the evidence before the Tribunal, the applicant’s achievements in India and Australia do not appear to have been accompanied by any corresponding international recognition, profile or ranking of his record as a wrestler by the relevant ‘governing’ bodies, or others at the international level, as exceptional and outstanding. Consequently, having carefully 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 he has a record of achievement in wrestling, 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 sport as required by paragraph 858.212(2)(a)(ii). It follows that the Tribunal is not satisfied that the applicant meets the requirements of paragraph 858.212(2) as a whole.

Ratio Decidendi

Legal Principle Established

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