1509577 (Migration) - [2016] AATA 3461

1509577 (Migration) [2016] AATA 3461 (3 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Gabriella Scornavacche
Mr Daniele Centurione
CASE NUMBER:  1509577
DIBP REFERENCE(S):  BCC2015/284796 BCC2015/285723
MEMBER:Kate Millar
DATE:3 March 2016
PLACE OF DECISION:  Adelaide
DECISION:The tribunal affirms the decision not to grant the applicants Distinguished Talent (Residence) (Class BX) visas.

Statement made on 03 March 2016 at 8:17am

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Ms Scornavacche came to Australia from Italy in 2012 on a working holiday visa. Since arriving she has also held a student visa. On 27 January 2015 she applied for a Distinguished Talent (Residence) (Class BX) Subclass 858 on the basis of her ability as a singer and performer. Mr Centurione applied for the same visa as her spouse and as a secondary applicant for the visa.
Their visa applications were as refused by a delegate of the Minister for Immigration on 6 July 2015 under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied Ms Scornavacche has an internationally recognised record of exceptional and outstanding achievement in the arts, which is a criteria for the grant of the visa.
Ms Scornavacche and Mr Centurione appeared before the Tribunal on 10 February 2016 to give evidence and present arguments, and were represented by their registered migration agent. The Tribunal also received oral evidence from Ms Scornavacche’s sponsor, Mr Alfredo Malabello.
For the following reasons, the tribunal has concluded that matter should be affirmed.
THE HEARING
Ms Scornavacche’s representative provided submissions before the hearing. Due to technical difficulties, some of the submissions were not provided to me before the hearing. Ms Scornavacche’s representative said at several points in the hearing that the hearing would have been conducted differently had these submissions been before me prior to the hearing. Having reviewed these submissions, I do not think this is the case.
The submissions provide further information on Ms Scornavacche’s more recent experience, in particular the to audition as well as her more recent performances including those before the Mayor and the Governor. Ms Scornavacche gave oral evidence of this experience at the hearing, as would have been the case whether or not her submissions had been received. She was provided with the opportunity to read the written submissions and give oral evidence of anything that was not before me.
Ms Giordani’s submissions on the law are addressed further below. These submissions would not have affected the manner in which the hearing was conducted because the hearing was conducted to give Ms Scornavacche and her witness the opportunity to present any evidence they wished to provide on whether she had an internationally record of exceptional and outstanding achievement.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Distinguished Talent (Class BX) (Subclass 858) visa is a permanent visa. The criteria for the grant of the visa are set out in Part 858 of Schedule 2 of the Migration Regulations 1994 (the Regulations). Ms Scornavacche must meet the primary…

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.

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Details

AGLC: 1509577 (Migration) [2016] AATA 3461
Case: [2016] AATA 3461
Decision Date: 3 March 2016

CaseChat Overview and Summary

The applicants, Ms Scornavacche and Mr Centurione, sought to obtain a Distinguished Talent (Residence) (Class BX) visa, a permanent visa designed for individuals with an internationally recognised record of exceptional and outstanding achievement in the arts. The delegate, however, determined that Ms Scornavacche's record did not meet the criteria for this visa, which consequently affected Mr Centurione's application as well. The case was heard and decided by a member of the tribunal.

The primary legal issue the tribunal had to decide was whether Ms Scornavacche's record met the criteria for the Distinguished Talent (Residence) (Class BX) visa, specifically the requirement of having an internationally recognised record of exceptional and outstanding achievement in the arts. The tribunal considered the four elements outlined in the relevant regulation and previous case law. It was necessary to determine whether Ms Scornavacche's record was indeed internationally recognised, of exceptional and outstanding achievement, and in the nominated field of the arts.

The tribunal examined the evidence presented by Ms Scornavacche and her witness, focusing on whether her achievements were of an exceptional and outstanding nature and whether they were internationally recognised. The tribunal compared the criteria for the subclass 858 visa with the requirements of the subclass 805 visa, as previously considered in Gaffar v Minister for Immigration and Multicultural Affairs, and found notable differences between the two. The tribunal concluded that Ms Scornavacche's record did not meet the stringent criteria for the subclass 858 visa. Consequently, the tribunal affirmed the decision not to grant the applicants the visa.

In summary, the tribunal upheld the delegate's decision, finding that neither Ms Scornavacche nor Mr Centurione met the criteria for the Distinguished Talent (Residence) (Class BX) visa. The tribunal's decision was based on a thorough analysis of the evidence and the relevant legal criteria, ensuring that the applicants' achievements were assessed against the appropriate standards.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Ms Giordani’s submissions on the law are addressed further below. These submissions would not have affected the manner in which the hearing was conducted because the hearing was conducted to give Ms Scornavacche and her witness the opportunity to present any evidence they wished to provide on whether she had an internationally record of exceptional and outstanding achievement. CONSIDERATION OF CLAIMS AND EVIDENCE The Distinguished Talent (Class BX) (Subclass 858) visa is a permanent visa. The criteria for the grant of the visa are set out in Part 858 of Schedule 2 of the Migration Regulations 1994 (the Regulations). Ms Scornavacche must meet the primary criteria for the grant of the visa, and Mr Centurione need only satisfy the secondary criteria. As it applies to Ms Scornavacche, this visa is for people who have an internationally recognised record of exceptional and outstanding achievement in the arts (cl. 858.212(2)). The delegate was not satisfied that Ms Scornavacche’s record was an internationally recognised record of exceptional and outstanding achievement as required by cl.858.212(2)(a). This clause has been considered by the Federal Magistrates Court in Zhang v Minister for Immigration and Anor [2007] FMCA 664. In that case, Federal Magistrate Cameron found this clause required a consideration of four elements:(a) An internationally recognised(b) Record(c) Of exceptional and outstanding achievement (d) In [the specified field, in this case the arts][1][1] At [31] Federal Magistrate Cameron said the person’s record need not be long or lengthy or been sustained over a long period of time.[2] Federal Magistrate Cameron went about the task of assessing this requirement by first identifying the applicant’s record then looking at whether it was internationally recognised, and was of exceptional and outstanding achievement in the field nominated by the applicant in the application. [2] At [36] Ms Scornavacche’s representative relies on Gaffar v Minister for Immigration and Multicultural Affairs [2000] which addresses the claim of national of Sri Lanka to have skills as a chef for the purpose of a subclass 805 visa. There are significant differences in the requirements of the 805 visa and the criteria for a subclass 858 visa. in which Justice French considered the requirements of a subclass 805 visa, in particular cl.805.212(6). This has notable difference to the requirements of cl.858.212. Of particular note is that Justice French discusses the requirements in 805.212(6)(b)(i)(A) that the applicant “has an exceptional record of achievement in that occupation, profession or activity”. It is in this context that Justice French states the tribunal had taken an unduly restrictive approach in applying the requirement to having an “exceptional record of achievement,” and that this requires a demonstrated excellence in the relevant occupation out of the ordinary. Justice French states an “exceptional record” plainly requires something out of the ordinary.

Decision

Reasons for decision

As Ms Scornavacche does not meet cl.858.292, Mr Centurione does not meet cl.858. 321 and the decision in relation to his visa application is affirmed. DECISION The tribunal affirms the decision not to grant the applicants Distinguished Talent (Residence) (Class BX) visas. Kate MillarMember

Ratio Decidendi

Legal Principle Established

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