Chung (Migration) - [2019] AATA 949

Chung (Migration) [2019] AATA 949 (11 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Yi-Chang Chung
CASE NUMBER:  1812349
DIBP REFERENCE(S):  BCC2016/1611717 BCC2018/4036345 BCC2018/4036346
MEMBER:Amanda Mendes Da Costa
DATE:11 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 11 April 2019 at 3:22pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visas – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement in the sport of breakdancing – outstanding record as breakdancing competitor, trainer and judge – recently competing in international events – judge at international events – still prominent in the field – 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 [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 12 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 2 May 2016. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria in cl.858.212(2)(b) of Schedule 2 to the Migration Regulations 1994 (the Regulations) in that whilst he had an internationally recognised record of exceptional and outstanding achievement in the sport of breakdancing, he was not still prominent in that sport.
The applicant appeared before the Tribunal on 1 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Michael Fox and Mr Rueben Fuentes by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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 issue in the present case is whether the applicant is still prominent in the sport of breakdancing and meets the criteria in cl.858.212(1), which requires the applicant to meet the specific 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…

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 Chung (Migration)

Details

AGLC: Chung (Migration) [2019] AATA 949
Case: [2019] AATA 949
Decision Date: 11 April 2019

CaseChat Overview and Summary

This matter concerned an application for a Distinguished Talent (Residence) (Class BX) visa, subclass 858. The applicant sought to demonstrate an internationally recognised record of exceptional and outstanding achievement in the sport of breakdancing, and that they remained prominent in this field. The decision under review was made by the Tribunal, and the Honourable Amanda Mendes Da Costa presided.

The primary legal issue before the Tribunal was whether the applicant still met the criteria for the visa, specifically under clause 858.212(1) of the Regulations, which requires an applicant to have an internationally recognised record of exceptional and outstanding achievement in a sport and to be still prominent in that area. The Tribunal also considered the definition of "exceptional" and "outstanding" in the context of an internationally recognised record of achievement, and the relevance of previous case law, such as *Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs* [2000] FCA 293.

The Tribunal reasoned that the applicant's claims fell within clause 858.212(2)(a)(ii) of the Regulations, relating to a sport. While acknowledging that the term "internationally recognised record of exceptional and outstanding achievement" is not defined, the Tribunal referred to dictionary definitions of "exceptional" and "outstanding" to understand the required level of demonstrated excellence. The Tribunal noted that while *Gaffar* provided some guidance, its application was limited due to the different wording of the relevant clause in the present case, which required an "internationally recognised record of exceptional and outstanding achievement" rather than merely an "exceptional record of achievement." The Tribunal concluded that the applicant's circumstances would vary depending on the specific activity, and that some activities require a higher level of skill to rise above the ordinary.

Ultimately, the Tribunal found that the applicant met all applicable requirements under clause 858.212(2) and, therefore, met clause 858.212 as a whole. Consequently, the Tribunal remitted the application for reconsideration with the direction that the applicant meets the criteria in 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 issue in the present case is whether the applicant is still prominent in the sport of breakdancing and meets the criteria in cl.858.212(1), which requires the applicant to meet the specific 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). 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 breakdancer. 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 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 [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 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 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

As the applicant meets all of the applicable requirements in cl.858.212(2) the Tribunal finds that the applicant meets the requirements in cl.858.212(1) and accordingly meets cl.858.212 as a whole.DECISION The Tribunal remits the application for a Distinguished Talent (Residence) (Class BX) visa for reconsideration, with the directions 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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