1510051 (Migration) - [2016] AATA 4179

1510051 (Migration) [2016] AATA 4179 (27 July 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Timothy O'Neal Springs
CASE NUMBER:  1510051
DIBP REFERENCE(S):  BCC2015/141735
MEMBER:Miriam Holmes
DATE:27 July 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to refuse to grant the visa applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa

Statement made on 27 July 2016 at 8:48am

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 9 July 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 January 2015. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements in cl.858.212 as the delegate was not satisfied that the applicant has an internationally recognised record of exceptional and outstanding achievement in the area of the arts as required by cl.858.212(2) and that no claims were made or evidence provided in respect of the alternative requirement in cl.858.212(4).
The applicant appeared before the Tribunal on 15 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Rachel Taylor, Executive Director at The Production Company.
The applicant was represented in relation to the review by his registered migration agent, however the representative did not attend the hearing. In the hearing response the representative indicated that the representative would not be attending the hearing and the applicant stated that he consented to the hearing proceeding without his representative being present.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the requirements in cl.858.212(2), specifically whether the applicant has an internationally recognised record of exceptional and outstanding achievement in the area of the arts.
The Act and the Regulations set out the qualification criteria that a person must establish at the time of the visa application and at the time of decision to be eligible to be granted a visa. A person who applies for a Distinguished Talent (Residence) (Class BX) Subclass 858 visa must establish that they meet the requirements set out in Part 858 in Schedule 2 to the Regulations. The central issue in dispute in this case is whether the applicant meets the requirements in cl.858.212 as at the time of the visa application
The requirement in cl.858.212 is a time of application requirement. Cl.858.212 states as follows:
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…

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: 1510051 (Migration) [2016] AATA 4179
Case: [2016] AATA 4179
Decision Date: 27 July 2016

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Distinguished Talent (Residence) (Class BX) Subclass 858 visa. The central dispute concerned whether the applicant met the criteria outlined in clause 858.212(2) of the relevant regulations, specifically whether they possessed an internationally recognised record of exceptional and outstanding achievement in the arts at the time of their visa application.

The Tribunal was required to determine if the applicant satisfied all the conditions stipulated in clause 858.212(2), which include having an internationally recognised record of exceptional and outstanding achievement in a specified area, remaining prominent in that area, being an asset to the Australian community, and having no difficulty establishing themselves in Australia. The Tribunal also noted the existence of alternative criteria under clause 858.212(4) relating to specialised assistance to the Australian Government in security matters, though this was not the primary focus of the applicant's claim.

In its reasoning, the Tribunal acknowledged the policy guidelines in PAM3 but affirmed that it was not bound by them, as judicial authority indicates these guidelines are administrative aids and cannot override the legislation. The Tribunal applied the requirements of clause 858.212(2) to the evidence presented by the applicant. Ultimately, the Tribunal was not satisfied that the applicant had met the necessary requirements under clause 858.212.

Consequently, the Tribunal affirmed the decision to refuse the applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets the requirements in cl.858.212(2), specifically whether the applicant has an internationally recognised record of exceptional and outstanding achievement in the area of the arts. The Act and the Regulations set out the qualification criteria that a person must establish at the time of the visa application and at the time of decision to be eligible to be granted a visa. A person who applies for a Distinguished Talent (Residence) (Class BX) Subclass 858 visa must establish that they meet the requirements set out in Part 858 in Schedule 2 to the Regulations. The central issue in dispute in this case is whether the applicant meets the requirements in cl.858.212 as at the time of the visa application The requirement in cl.858.212 is a time of application requirement. Cl.858.212 states as follows: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(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, 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. The Tribunal has regard to the policy in PAM3 as set out in the delegate’s decision record. However, the Tribunal observes that whilst it may be guided by policy it is not bound to follow it.[1] The Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. The Tribunal notes there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2] [1] See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634[2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 168 and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 at [55], He v MI…

Decision

Reasons for decision

For the reasons set out above, the Tribunal is not satisfied that he applicant meets the requirements in cl.858.212.DECISION Therefore the Tribunal affirms the decision to refuse to grant the applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa.Miriam HolmesSenior Member

Ratio Decidendi

Legal Principle Established

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