1502780 (Migration) - [2016] AATA 3619

1502780 (Migration) [2016] AATA 3619 (23 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Min Soo Kim
Ms Kyung Ok Shin
Mr Mi-ru Kim
Miss Da-ye Kim
CASE NUMBER:  1502780
DIBP REFERENCE(S):  BCC2014/3250660
MEMBER:Brook Hely
DATE:23 March 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Distinguished Talent (Residence) (class BX) visa for reconsideration, with the direction that the first named applicant meets the following criteria:
·cl.858.212(2)(a) of Schedule 2 to the Regulations

Statement made on 23 March 2016 at 2:28pm

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 5 February 2015 to refuse to grant the visa applicants Distinguished Talent (Residence) (Class BX) Subclass 858 visas 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 applicants applied for the visa on 28 November 2014. The delegate refused to grant the visa because the delegate was not satisfied that the first named applicant (the applicant) had at the time of application an internationally recognised record of exceptional and outstanding achievement in the field of sport (specifically, taekwondo). As there was nothing to indicate that the applicant had provided specialised assistance to the Australian Government in matters of security, the delegate found that the applicant did not meet the requirements of cl.858.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The applicants appeared before the Tribunal on 18 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Daniel Trenton (Nominator - President Sports Taekwondo Australia). The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Relevant law
The issue in dispute in this review is whether the visa applicant meets the requirement of cl.858.212. This clause relevantly provides:
(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;…

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 1502780 (Migration)

Details

AGLC: 1502780 (Migration) [2016] AATA 3619
Case: [2016] AATA 3619
Decision Date: 23 March 2016

CaseChat Overview and Summary

The parties involved in this case were the visa applicant and the Minister for Immigration and Border Protection. The visa applicant had applied for a Distinguished Talent (Residence) visa under subclass 858, which requires exceptional and outstanding achievement in a relevant area, such as a profession, sport, arts, or academia and research. The applicant claimed to have such a record of achievement and submitted relevant evidence to support the claim. The Tribunal was required to determine whether the visa applicant met the criteria set out in cl.858.212 of Schedule 2 to the Migration Regulations 1994.

The legal issue before the court was whether the visa applicant met the criteria for a Distinguished Talent (Residence) visa under cl.858.212 of Schedule 2 to the Migration Regulations 1994. Specifically, the court needed to determine whether the applicant had an internationally recognised record of exceptional and outstanding achievement in one of the specified areas, was still prominent in the area, and would be an asset to the Australian community. The court also had to assess whether the evidence submitted by the applicant was sufficient to satisfy the requirement of a demonstrated excellence in the relevant occupation which was out of the ordinary.

The court found that the Tribunal had taken an unduly restrictive approach in interpreting and applying the criterion of "exceptional record of achievement". The court noted that the criterion required a demonstrated excellence in the relevant occupation which was out of the ordinary and that the evidence submitted by the applicant might have satisfied that requirement. However, the Tribunal did not properly assess the evidence against the criterion as it was construed. The court held that the Tribunal's interpretation and application of the law in this case was erroneous. The application was allowed, the Tribunal's decision was set aside, and the matter was remitted to the Tribunal to be decided according to law.

The court remitted the application for a Distinguished Talent (Residence) visa for reconsideration, with the direction that the first named applicant met the following criteria: cl.858.212(2)(a) of Schedule 2 to the Regulations. The court held that if the applicants were found to meet the remaining criteria for subclass 858 visas, then they were entitled to the grant of subclass 858 visas.

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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCERelevant law The issue in dispute in this review is whether the visa applicant meets the requirement of cl.858.212. This clause relevantly provides:(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.…(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. 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. For example, in Gaffar v MIMIA [2000] FCA 293 French J made the following comments in relation to the term ‘record of exceptional achievement’ in the context of an application for a subclass 805 skilled visa :It is true enough, that mere competence and industry in an occupation will not amount to ‘a record of exceptional achievement’. Such a record plainly requires something out of the ordinary”. [Paragraph 19]…The requirement of an exceptional standard of achievement in an occupation, profession or activity is to be applied across a variety of occupations, professions and activities. Some will require far greater levels of knowledge and skill than others in order to rise above the ordinary and the merely competent. And while the applicant for such a visa is required to be “an asset to the Australian community” it is not required that he or she be a “national living treasure”. The Tribunal in this case, in my opinion, has taken an unduly restrictive approach to the criterion of “exceptional record of achievement”. That criterion requires a demonstrated excellence in the relevant occupation which is out of the ordinary. On that basis there was evidence before the Tribunal from Mr Gaffar’s former employers and from some of their customers which might have satisfied that requirement. That evidence was never really assessed against the requirement properly construed. I do not suggest, of course, that that evidence must lead to the conclusion that Mr Gaffar answers the criterion for a skilled visa in the relevant subclass. That is a matter for the Tribunal. But in my opinion the Tribunal erred in its interpretation and application of the law in this particular case. The application will be allowed, the Tribunal’s decision set aside and the matter remitted to the Tribunal to be decided according to law.” [paragraph 20]

Decision

Reasons for decision

Given these findings, the appropriate course is to remit the application for the visas to the Department to consider the remaining criteria for subclass 858 visas. If the applicants are found to meet the remaining criteria, then they are entitled to the grant of subclass 858 visas.DECISION The Tribunal remits the application for a Distinguished Talent (Residence) (class BX) visa for reconsideration, with the direction that the first named applicant meets the following criteria:· cl.858.212(2)(a) of Schedule 2 to the RegulationsBrook HelyMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.