1502720 (Migration) - [2015] AATA 3797

1502720 (Migration) [2015] AATA 3797 (27 November 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Chiara Lee Taiariol
CASE NUMBER:  1502720
DIBP REFERENCE(S):  BCC2014/2716420
MEMBER:Glen Cranwell
DATE:27 November 2015
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) visa.

Statement made on 27 November 2015 at 8:52am

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 6 February 2015 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 14 October 2014.
The delegate refused the visa application as the applicant did not satisfy cl.858.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant had demonstrated a record of exceptional and outstanding achievement in the field of art of glass blowing.
The applicant appeared before the Tribunal on 13 November 2015 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
RELEVANT LAW
The Distinguished Talent Class BX visas are permanent visas 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.
At the time the visa application was lodged, the Distinguished Talent (Residence) Class BX visa contained only one subclass: Subclass 858 (Distinguished Talent) visa: Item 1113 of Schedule 1 to the Regulations.
The criteria for a Subclass 858 visa are set out in Part 858 of Schedule 2 to the Regulations. 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 time of application — would be of exceptional benefit to the Australian community.
[(3) omitted by SR 2003, 239…

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 1502720 (Migration)

Details

AGLC: 1502720 (Migration) [2015] AATA 3797
Case: [2015] AATA 3797
Decision Date: 27 November 2015

CaseChat Overview and Summary

The Tribunal heard an appeal against the delegate's refusal to grant a Distinguished Talent (Residence) visa to a glass blowing artist. The Tribunal had before it the Department’s file relating to the applicant, which included a visa application form, nomination form, references, academic qualifications, and a newspaper article. The delegate had found that the applicant did not have a record of exceptional and outstanding achievement in glass blowing, and that there was no evidence of specialised assistance to the Australian government in matters of security. The Tribunal was required to determine whether the delegate's decision was correct and whether the applicant met the criteria for the visa.

The Tribunal found that the applicant had not demonstrated a record of exceptional and outstanding achievement in the field of art of glass blowing. The references provided referred to the applicant as an “assistant” or someone learning from an instructor, suggesting that her career had not yet progressed to the level to meet the criteria. The Tribunal also found that there was no evidence before it that the applicant had provided specialised assistance to the Australian government in matters of security. Therefore, the Tribunal found that the applicant did not meet the criteria for the visa.

Consequently, the Tribunal affirmed the delegate's decision not to grant the applicant a Distinguished Talent (Residence) visa. The Tribunal was satisfied that the delegate's decision was correct and that the applicant did not meet the criteria for the visa. The Tribunal's decision was therefore to affirm the decision under review.

The Tribunal affirmed the decision not to grant the applicant a Distinguished Talent (Residence) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In determining whether the visa applicant has a “record of exceptional and outstanding achievement”, the criterion requires a demonstrated excellence in the relevant occupation which is out of the ordinary: see Gaffar v MIMIA [2000] FCA 293 where the Court considered the phrase “exceptional record of achievement” in an earlier category of skilled residence visa.CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources. On the department file are the following relevant documents:·visa application form;·nomination form completed by Noel Hart. Mr Hart notes that the applicant has been employed on occasions to join the team of artists working with him when he is creating new work for exhibitions;·reference from Jonathon Westacott, stating that the applicant is an integral part in the manufacturing and design aspects of his work;·applicant’s academic qualifications (untranslated);·newspaper article with passing reference to the applicant and another person opening a shop featuring glass art and jewellery, ethnic clothing, t-shirts and hats, and paintings by local artists;·reference from Alan Usher, stating that the applicant has completed a workshop with him, learning the technique of glass blowing to make goblets;·reference from Tina Cooper, stating that the applicant works occasionally for her as part of her team. Ms Cooper opines that the applicant works well as a glass blowers assistant;·reference from Lucas Salton, expressing surprise at the skill the applicant has acquired in a short time;·reference from Noel Hart, stating that the applicant was a very skilled novice in the glass art scene. The applicant has assisted him with the creation of about 50 scultures;·reference from Matthew Farrell, stating that the applicant has been working as an assistant in his studio. The delegate refused the visa application because the delegate was not satisfied that the applicant had demonstrated a record of exceptional and outstanding achievement in the field of art of glass blowing. The delegate also found that there was no evidence before it that the applicant had provided specialised assistance to the Australian government in matters of security. Therefore, the delegate found that the applicant did not satisfy cl.858.212. The applicant provided the Tribunal with a reference from Igor Balbi of Venice, stating that the applicant has been working in his glass studio learning his personal technique to blow Murano glass. At the hearing, the Tribunal explained to the applicant the requirements of cl.858.212(2). The applicant stated that she knows that at the moment she is not so well known internationally. She is a really ambitious artist. She knows she will reach that ambition. She is unique, and not everyone can blow glass. The Tribunal noted that the references provided referred to her as an “assistant”, or as having been learning from an instructor. This suggested that her career had not yet progressed to the level to meet the criteria.

Decision

Reasons for decision

Since the applicant does not meet cl.858.212(2)(a), and no evidence has been provided indicating that the applicant meets cl.858.212(4), the Tribunal finds that the applicant does not meet cl.858.212. The Tribunal must therefore affirm the decision under review. DECISION The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) visa.Glen CranwellMember

Ratio Decidendi

Legal Principle Established

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