CRISTIANO MORETZSOHN (Migration) - [2018] AATA 2016

CRISTIANO MORETZSOHN (Migration) [2018] AATA 2016 (16 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Leonardo CRISTIANO MORETZSOHN
CASE NUMBER:  1607554
DIBP REFERENCE(S):  BCC2015/885437 BCC2016/2251538
MEMBER:Sheridan Lee
DATE:16 May 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 criteria in cl.858.212 of Schedule 2 to the Regulations

Statement made on 16 May 2018 at 11:29am

CATCHWORDS
Migration – Distinguished Talent (Residence) (class BX) Visa – Subclass 858 – Rowing coach – Record of exceptional and outstanding achievement – Prominent in the field of rowing at the time of application – Decision under review remitted
LEGISLATION
Migration Act 1958, ss 65,
Migration Regulations 1994, Schedule 2, cl 858.212
CASES
Gaffar v MIMA [2000] FCA 293
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Zhang v MIMA [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 5 May 2016 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 March 2015. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of clause 858.212 of Schedule 2 to the Migration Regulations.
The delegate did not accept that the applicant had an internationally recognised record of exceptional and outstanding achievement in the sport of rowing. In particular, the delegate noted that ‘the evidence presented thus far is more reflective of a vice coach, who over time may establish themselves as a recognised rowing coach in the top echelons of their field’.
The applicant applied to the Tribunal on 26 May 2016 for a review of the delegate’s decision and a copy of the primary decision record was included with the application for review. The Tribunal has before it the departmental file relating to the application and material provided to the Tribunal by the applicant.
The applicant appeared before the Tribunal on 26 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Phillip Jurjevich, Director of Rowing at Trinity College, Perth.
The nominator for the applicant’s subclass 858 visa, Mr Antonio Maurogiovanni, did not attend the hearing to provide evidence. On the day of the hearing, a written statement from Mr Maurogiovanni was supplied to the Tribunal outlining that he has taken up employment as the High Performance Director at Rowing Ireland and as such was unable to attend.
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…

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.

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Details

AGLC: CRISTIANO MORETZSOHN (Migration) [2018] AATA 2016
Case: [2018] AATA 2016
Decision Date: 16 May 2018

CaseChat Overview and Summary

This matter concerned an application for a Distinguished Talent (Residence) (class BX) Visa, Subclass 858, made by Cristiano Moretzsohn. The applicant sought review of a decision to refuse his visa application. The Tribunal was asked to determine whether the applicant met the requirements of paragraph 858.212(2)(a) of the Migration Regulations 1994, which pertains to having an internationally recognised record of exceptional and outstanding achievement in a nominated field.

The primary legal issue before the Tribunal was whether the applicant possessed an internationally recognised record of exceptional and outstanding achievement in the sport of rowing, as required by paragraph 858.212(2)(a). The Tribunal noted that this phrase is not defined in the Regulations, but that judicial interpretation has established that a "record" does not necessitate quantification in terms of size, length, or duration. The applicant did not assert that he met the alternative criteria under subclause 858.212(4), which relates to providing specialised assistance to the Australian Government in matters of security.

The Tribunal found that the applicant met all applicable requirements under clause 858.212(2). Consequently, the Tribunal concluded that the applicant met the requirements of clause 858.212 as a whole. The Tribunal remitted the application for reconsideration with a 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 application was refused on the basis that the applicant did not meet the requirements of paragraph 858.212(2)(a) and therefore clause 858.212. This clause relevantly provides:858.212(1) The applicant meets the requirements of subclause (2) or (4).(2) The applicant:(a) has an internationally recognised record of exceptional and outstanding achievement in one of the following areas:a profession;a sport;the arts;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 approved 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.(4) The applicant meets the requirements of this subclause if, in the opinion of the Minister, acting on the advice of:(a) the Minister responsible for an intelligence or security agency within the meaning of the Australian Security Intelligence Organisation Act 1979; or(b) the Director-General of Security;the applicant has provided specialised assistance to the Australian Government in matters of security. The applicant has not asserted that he provided specialised assistance to the Australian Government in matters of security at the time of application on 9 March 2016. Accordingly, the Tribunal finds that the applicant did not meet the requirements of subclause 858.212(4) at the time of application. The issue under review is whether the applicant meets the requirements of cl.858.212(2)(a) of the Regulations; that is, whether the applicant has an internationally recognised record of exceptional and outstanding achievement in his nominated field of sport, specifically rowing.Internationally recognised record exceptional and outstanding achievement The Tribunal observes that the concept of 'internationally recognised record of exceptional and outstanding achievement' in paragraph 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 that the record 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

As the applicant meets all of the applicable requirements in cl.858.212(2) the Tribunal finds that the applicant meets the requirement 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 direction that the applicant meets the criteria in cl.858.212 of Schedule 2 to the Regulations.Sheridan LeeMember

Ratio Decidendi

Legal Principle Established

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