Ahangama Baduge (Migration) - [2018] AATA 3878

Ahangama Baduge (Migration) [2018] AATA 3878 (3 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Tharanga Lakshitha Ahangama Baduge
Mrs Purnima Sadhamali Piris Millaniyage
Master Nithika Lehan Ahangama Baduge
Master Thinuga Liyan Ahangama Baduge
CASE NUMBER:  1724874
DIBP REFERENCE(S):  BCC2016/1312601
MEMBER:Amanda Mendes Da Costa
DATE:3 September 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Distinguished Talent (Residence) (Class BX) visas for reconsideration, with the direction that the first named applicant meets the following criteria:
·cl.858.212 of Schedule 2 to the Regulations.

Statement made on 03 September 2018 at 1:56pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visas – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement as a cricketer – exceptional record of achievement – continued prominence in the field of cricket – Shane Warne test – experience at a national and international level – obtaining employment – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 858.212
CASES
Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs (Gaffar’s case) [2000] FCA 293
Hatcher v Cohn (2004) 139 FCR 425
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 25 September 2017 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 first named applicant (the applicant) applied for the visa on 30 March 2016. The delegate refused to grant the visa on the basis that the applicant did not meet cl. 858.212(2)(b) of Schedule 2 of the Regulations (the Regulations).
The applicants appeared before the Tribunal on 24 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Lachlan Storey, the Secretary of the Ferntree Gully Footballers Cricket Club.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria in cl.858.212(1), which requires the applicant to meet the provisions of subclause (2) or (4).
Subclause (2) sets out the following requirements:
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 approval form 1000.
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…

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 Ahangama Baduge (Migration)

Details

AGLC: Ahangama Baduge (Migration) [2018] AATA 3878
Case: [2018] AATA 3878
Decision Date: 3 September 2018

CaseChat Overview and Summary

This matter concerned an application for a Distinguished Talent (Residence) (Class BX) visa, Subclass 858, by an applicant who claimed to have an internationally recognised record of exceptional and outstanding achievement as a cricketer. The applicant's claims were considered by the Tribunal, with the Honourable Amanda Mendes Da Costa presiding.

The primary legal issue before the Tribunal was whether the applicant met the criteria set out in clause 858.212(1) of the Migration Regulations 1994, specifically subclause (2). This subclause requires an applicant to demonstrate an internationally recognised record of exceptional and outstanding achievement in a relevant field, continued prominence in that field, that they would be an asset to the Australian community, and that they would have no difficulty obtaining employment or establishing themselves independently in Australia in that field. The applicant had not made claims under subclause (4).

The Tribunal considered the meaning of "exceptional and outstanding achievement" in the context of sport, noting dictionary definitions and relevant case law. While acknowledging that the applicant need not be a "national living treasure," as per *Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs*, the Tribunal found that the wording of the current clause, requiring an "internationally recognised record of exceptional and outstanding achievement," was more stringent than that considered in *Gaffar's* case. The Tribunal concluded that the circumstances meeting this requirement would vary across different fields, and some would necessitate a higher level of knowledge and skill to distinguish an applicant from the ordinary or merely competent.

Given the findings, the Tribunal remitted the applicant's applications for Distinguished Talent (Residence) (Class BX) visas for reconsideration by the Department. The remittal was made with the direction that the applicant meets the criteria in clause 858.212 of Schedule 2 to the Regulations, allowing the Department to consider the remaining criteria for the visa subclass.

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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets the criteria in cl.858.212(1), which requires the applicant to meet the provisions of subclause (2) or (4). Subclause (2) sets out the following requirements: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 approval form 1000.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. The applicant has not made any claims in relation to cl.858.212(4). The Tribunal notes that the applicant must meet all of the criteria in cl.858.212(2). Clause 858.212(2)(a) requires the applicant has an internationally recognised record of outstanding achievement in a profession; a sport; the arts; or academia and research. The applicant claims that he has an internationally recognised record of exceptional and outstanding achievement as a cricketer. As a result, the Tribunal finds that the applicant’s claims come within cl.858.212(2)(a)(ii) as belonging to a sport for the purposes of cl.858.212(2)(a). The Tribunal notes that the concept of ‘internationally recognised record of exceptional and outstanding achievement’ in cl.858.212(2)(a) is not defined in the Migration Regulations 1994 (the Regulations). In this context, the Tribunal has had regard to both the relevant dictionary meanings and case law applicable to cl.858.212(2)(a). According to the Macquarie Dictionary Online, the word ‘exceptional’ is defined to mean: ‘1. Forming an exception or unusual instance; unusual; extraordinary; 2. Extraordinarily good, as of a performance or product; 3. Extraordinarily skilled, talented, or clever.’ It also defines the word ‘outstanding’ to mean: ‘1. prominent; conspicuous; striking; 2. that continues in existence; that remains unsettled, unpaid, etc.; 3. standing out; projecting; detached; 4. that resists or opposes.’ The Tribunal notes that the Courts have held that in determining whether the applicant has an ‘exceptional record of achievement’, the criterion requires demonstrated excellence in the relevant occupation, which is out of the ordinary. Notably in Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs (Gaffar’s case) [2000] FCA 293 at [20], French J observed that the concept of an ‘exceptional record of achievement’ did not require an applicant to be a ‘national living treasure’. The Tribunal also observes, however, that in Gaffar’s case the Court was dealing with the wording of the then cl.805.212(6), which only required the applicant in that case to demonstrate that he had ‘an exceptional record of achievement’ in relation to his nominated occupation, profession or activity. The wording of cl.858.212(2)(a) requires the applicant before the Tribunal to have an ‘internationally recognised record of exceptional and outstanding achievement’.Therefore Gaffar’s case has limited application in the current context. The Tribunal acknowledges, however, that while the applicant need not be a ‘national living treasure’, the circumstances that will meet this requirement will vary across different professions and activities and, as French J observed, some will require far greater levels of knowledge and skill by an applicant to rise above the ordinary and the merely competent.

Decision

Reasons for decision

Given these findings, the appropriate course is to remit the secondary applicants’ applications for visas to the Department to consider the remaining criteria for Subclass 858 visas. If the secondary applicants are found to meet the remaining criteria, then they are entitled to the grant of Subclass 858 visas.DECISION The Tribunal remits the applications for Distinguished Talent (Residence) (Class BX) visas for reconsideration, with the direction that the applicant meets the following criteria:·cl.858.212 of Schedule 2 to the Regulations.Amanda Mendes Da CostaMember

Ratio Decidendi

Legal Principle Established

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