Choo (Migration) - [2019] AATA 1863

Choo (Migration) [2019] AATA 1863 (13 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Kenneth Zhe Hooi Choo
CASE NUMBER:  1823474
DIBP REFERENCE(S):  BCC2018/473079 BCC2018/672847
MEMBER:Phoebe Dunn
DATE:13 June 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 13 June 2019 at 4:00pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement – badminton – past achievements and reputation – first and second placings in various national, state and university tournaments in Australia – placings in international tournaments – coaching achievements and capabilities – trained with the Malaysian national team prior to coming to Australia – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 858.212
CASES
Gaffar v Minister for Immigration and Multicultural and Indigenous 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 10 August 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 25 January 2018. The delegate refused to grant the visa on the basis that the applicant did not meet the primary criteria specified in the Regulations for the grant of a Distinguished Talent (Migrant) (Subclass 858) (Class BX) visa, specifically that the applicant had not demonstrated that he satisfied subclause (2) or (4) of cl.858.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The applicant appeared before the Tribunal on 3 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ong Beng Teong, Ms Rochelle Liyanage, Mr Matthew Chau and Mr Rizwan Azam.
The applicant was represented in relation to the review by his 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 applicant made an application for a Distinguished Talent visa on 25 January 2018. The applicant made the visa application on the basis of his achievements in the field of sport, specifically, badminton.
Relevant Law
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…

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 Choo (Migration)

Details

AGLC: Choo (Migration) [2019] AATA 1863
Case: [2019] AATA 1863
Decision Date: 13 June 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 claims for the visa were based on his achievements in the sport of badminton. The applicant sought review of a decision concerning his eligibility for the visa.

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), which requires an applicant to demonstrate an internationally recognised record of exceptional and outstanding achievement in a sport, to still be prominent in that sport, to be an asset to the Australian community, and to have no difficulty in obtaining employment or establishing themselves independently in Australia in that field. Additionally, the applicant must provide a completed approval form 1000, attested to by a person or organisation with a national reputation in the relevant field.

The Tribunal reasoned that the phrase "internationally recognised record of exceptional and outstanding achievement" does not necessitate a quantifiable or lengthy record, but rather an aggregation of achievements. The Tribunal found that the applicant's claims fell within the scope of "a sport" as per clause 858.212(2)(a)(ii). Crucially, the Tribunal determined that the applicant satisfied clause 858.212(2)(e) as the requisite Form 1000 was completed by two nominators, Badminton Australia and Mr Ong Beng Teong, both of whom possessed a national reputation in badminton.

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 Migration Regulations 1994.

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 applicant made an application for a Distinguished Talent visa on 25 January 2018. The applicant made the visa application on the basis of his achievements in the field of sport, specifically, badminton.Relevant Law 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 anarea (as mentioned in paragraph (a)) to be attested to by (a) an Australiancitizen; or (b) an Australian permanent resident; or (c) an eligible NewZealand citizen; or (d) an Australian organisation; who has a nationalreputation 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. Clause 858.212(2)(a) requires the applicant to have 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 in the area of sport, specifically, badminton. 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).Internationally recognised record of exceptional and outstanding achievement 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. However, the Tribunal notes that the concept of ‘record of exceptional and outstanding achievement’ has been the subject of judicial consideration. In particular the Courts have held that the ordinary meaning of ‘record’ does not require the record to be quantifiable as large, or lengthy, or as having been sustained over a period of time. As a result, a ‘record is an aggregation or a list, not [necessarily] a large aggregation or a long list’.[1][1] Zhang v MIMA [2007] FMCA 664 (Cameron FM, 9 May 2007) at [36]-[37]

Decision

Reasons for decision

The final paragraph in cl.858.212(2) that must be met is paragraph (e).The paragraph requires that the prescribed form be signed and completed by an eligible nominator that attests to the applicant’s record of achievement. In this case the requisite form 1000 was completed by two nominators. The first nominator is Badminton Australia, the organisation responsible for the development of badminton in Australia and internationally and is signed by Mr Paul Brettell, the CEO. The second nominator is Mr Ong Beng Teong a former international badminton champion who won gold at the 1982 Commonwealth Games, was the Malaysian Men’s Singles Champion in 1995 and was formerly ranked number two on the Badminton World Federation World Rankings. The Tribunal finds that both the nominators have a national reputation in the field of the sport of badminton. As such cl.858.212(2)(e) is met.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.Phoebe DunnMember

Ratio Decidendi

Legal Principle Established

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