Blokker (Migration) - [2018] AATA 5557

Blokker (Migration) [2018] AATA 5557 (10 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Dr Vincent Blokker
CASE NUMBER:  1726493
DIBP REFERENCE(S):  BCC2017/1812493
MEMBER:Amanda Mendes Da Costa
DATE:10 October 2018
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 applicant meets the following criteria:
·cl.858.212 of Schedule 2 to the Regulations.

Statement made on 10 October 2018 at 12:58pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence)(Class BX) visa – Subclass 858 – internationally recognised record of exceptional and outstanding achievement – academia and research – maritime security – definition of ‘exceptional’ – early career researcher – significant achievements – asset to Australian community – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 805.212, 858.212

CASES
Gaffar v Minister for Immigration and Multicultural Affairs [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 11 October 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 visa applicant applied for the visa on 19 May 2017. The delegate refused to grant the visa on the basis that the applicant did not meet cl.858.212(2) of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The applicant appeared before the Tribunal on 28 August 2018 to give evidence and present arguments.
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; 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.
The applicant has not made any claims in relation to cl.858.212(4).
The Tribunal notes that in determining whether the applicant meets…

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 Blokker (Migration)

Details

AGLC: Blokker (Migration) [2018] AATA 5557
Case: [2018] AATA 5557
Decision Date: 10 October 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Distinguished Talent (Residence) (Class BX) visa, Subclass 858, made by an applicant who claimed to have an internationally recognised record of exceptional and outstanding achievement in academia and research, specifically in the field of maritime security. The Tribunal was tasked with determining whether the applicant met the criteria for this visa subclass.

The primary legal issue before the Tribunal was whether the applicant satisfied the requirements of clause 858.212(2) of the Migration Regulations 1994. This clause mandates that an applicant must possess an internationally recognised record of exceptional and outstanding achievement in a specified area, be still prominent in that area, be an asset to the Australian community, and have no difficulty establishing themselves in Australia. The Tribunal specifically focused on the interpretation of "exceptional and outstanding achievement" within the context of academia and research, noting that this phrase is not explicitly defined in the Regulations.

The Tribunal examined dictionary definitions of "exceptional" and "outstanding" and considered relevant case law, including *Gaffar v Minister for Immigration and Multicultural Affairs* [2000] FCA 293. While acknowledging that *Gaffar's* case involved slightly different wording, the Tribunal accepted the principle that "exceptional record of achievement" requires demonstrated excellence that is out of the ordinary. The Tribunal found that the applicant's claims fell within the scope of clause 858.212(2)(a), which pertains to academia and research. However, the Tribunal concluded that the matter should be remitted for reconsideration by the Department to assess the remaining criteria for the 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 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; 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.(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 in determining whether the applicant meets cl.858.212(2) all of the stated subclauses must be met. Paragraph 858.212(2)(a) requires the applicant has an internationally recognised record of exceptional and 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 in the field of academia and research, particularly in relation to the subject of Maritime Security. As a result, the Tribunal finds that the applicant’s claims come within 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 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 Affairs [2000] FCA 293 (Gaffar’s case) 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 application for the visa to the Department to consider the remaining criteria for a Subclass 858 visa. If the applicant is found to meet the remaining criteria, then he is entitled to the grant of a Subclass 858 visa. DECISION The Tribunal remits the application for a Distinguished Talent (Residence) (Class BX) visa 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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