Cha (Migration) - [2019] AATA 1208

Cha (Migration) [2019] AATA 1208 (4 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Seongwon Cha
CASE NUMBER:  1814064
DIBP REFERENCE(S):  2017/3626115 BCC2017/3785742
MEMBER:Mary Sheargold
DATE:4 April 2019
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 04 April 2019 at 12:00pm
CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – characterisation of applicant’s job – barista with a specialised talent in latte art – scope of the definition of ‘profession’ – any vocation, occupation, etc – one’s habitual employment – internationally recognised record of exceptional and outstanding achievement – free pour latte art – won the World Barista Championship in Latte Art in 2015 – current prominence in the field – travels across the world judging national and international latte art competitions – conducts workshops teaching latte art both nationally and internationally – asset to the Australian community – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 858.212
CASES
Gaffar v MIMIA [2000] FCA 293
Zhang v MIMA & Anor [2007] FMCA 664
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 24 April 2018 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 4 October 2017. He has claimed his distinguished talent as a latte artist. The delegate refused to grant the visa on the basis that the applicant does not satisfy cl.858.212(2)(b) of the Regulations because the delegate considered he was an emerging talent (rather than a distinguished talent) and that he did not demonstrate current prominence in his field.
The applicant appeared before the Tribunal on 25 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ross Quail, Mr Bruno Maiolo, Mr Kieran Westlake, and Mr Brent Williams.
The applicant was represented in relation to the review by his 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
The Distinguished Talent (Residence) (Class BX) 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.
According to the Department’s Procedures Advice Manual 3 (PAM3), the policy intention behind this visa class is “to provide permanent residence to outstanding individuals, who would not qualify under the other visa categories, but who will…

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 Cha (Migration)

Details

AGLC: Cha (Migration) [2019] AATA 1208
Case: [2019] AATA 1208
Decision Date: 4 April 2019

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 whose achievements were in the field of latte art. The primary issue before the Tribunal was whether the applicant met the criteria for this visa, specifically concerning an internationally recognised record of exceptional and outstanding achievement.

The Tribunal was required to determine if the applicant's achievements as a latte artist qualified as being in a "profession," "sport," "the arts," or "academia and research" as stipulated by clause 858.212(2)(a) of Schedule 2 to the Regulations. Furthermore, the Tribunal had to assess whether the applicant was still prominent in their field, would be an asset to the Australian community, and would have no difficulty obtaining employment or establishing themselves independently in Australia.

The Tribunal reasoned that the definition of "profession" in this context is broad, encompassing any vocation or occupation and one's habitual employment. It noted that the applicant had won the World Barista Championship in Latte Art in 2015 and continued to be prominent in the field through judging competitions and conducting workshops internationally. The Tribunal concluded that the applicant's achievements met the requirements of clause 858.212(2) of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for reconsideration with a direction that the applicant meets the criteria under clause 858.212 of Schedule 2 to the Regulations.

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 Distinguished Talent (Residence) (Class BX) 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. According to the Department’s Procedures Advice Manual 3 (PAM3), the policy intention behind this visa class is “to provide permanent residence to outstanding individuals, who would not qualify under the other visa categories, but who will make substantial contributions to the Australian community because of their international achievements.” The issue in the present case is whether the applicant meets the requirements of cl.858.212(1) of Schedule 2 to the Regulations. Specifically, this clause requires that the applicant meets the requirements of either subclause (2) or (4) of cl.858.212 of Schedule 2 to the Regulations. Relevantly, cl.858.212(2) requires that the applicant:·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·is still prominent in the area; and·would be an asset to the Australian community; and ·would have no difficulty in obtaining employment, or in becoming established independently, in Australia in the area; and·produces a completed, approved Form 1000; and·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). In determining whether the applicant meets cl.858.212(2), all of the stated subclauses must be met. The Tribunal notes that the applicant has produced a completed, approved Form 1000 in accordance with cl.858.212(2)(e), and that cl.858.212(2)(f) is not relevant to the applicant. The Tribunal has considered whether the applicant meets the requirements set out in cl.858.212(2)(a)-(d) inclusive as set out below. Does the applicant have an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts or academia and research? Clause 858.212(2)(a) requires the applicant to have an internationally recognised record of exceptional and outstanding achievement in one of four areas: a profession, a sport, the arts, or academia and research.A profession, a sport, the arts, or academia and research The first question to address is which of these fields the applicant’s talent as a latte artist falls within. In her primary decision record, the delegate states that “the applicant has applied for the grant of a Subclass 858 Distinguished Talent visa based on achievements in the field of the Arts, specifically as a Latte Artist.” (emphasis added)

Decision

Reasons for decision

The applicant therefore meets the requirements of cl.858.212(2) of Schedule 2 to the Regulations, which means he satisfies cl.858.212(1) of Schedule 2 to the Regulations. 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.Mary SheargoldMember

Ratio Decidendi

Legal Principle Established

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