Crosland (Migration) - [2024] AATA 3869

Crosland (Migration) [2024] AATA 3869 (27 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Shane Poss Crosland
CASE NUMBER:  2109123
HOME AFFAIRS REFERENCE(S):          BCC2020/1669268

MEMBER:Amanda Mendes Da Costa
DATE:27 August 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for a Distinguished Talent (Residence) (Class BX) visa for reconsideration, with the following direction:
· The applicant meets clause 858.212 of Schedule 2 to the Migration Regulations 1994 for a Subclass 858 (Distinguished Talent) visa.

Statement made on 27 August 2024 at 10.19am

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (class BX) Visa – Subclass 858 – cinematographer/filmmaker – applicant has an internationally recognised record of exceptional and outstanding talent as a Cinematographer and Film maker – still prominent in these areas – 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 Affairs (Gaffar’s case) [2000] FCA 293
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 Home Affairs on 29 June 2021 to refuse to grant the visa applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 2 June 2020. The delegate refused to grant the visa on the basis that he did not meet the requirements of cl 858.212(2)(a) of Schedule 2 to the Regulations. Whilst the delegate acknowledged the applicant’s emerging talent in the film industry, they did not consider his body of work indicative of a cinematographer or filmmaker considered exceptional and outstanding.
Via an internet-enabled audio-visual platform, the applicant appeared before the Tribunal on 12 July 2024 to give evidence and present arguments. The Tribunal also heard evidence from Mr Leo Clifford.
The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not conducted by video. The Tribunal was satisfied that the applicant and the Tribunal could satisfactorily see, hear, and understand each other throughout the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.
At the commencement of the Tribunal hearing, the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal informed the applicant that it would seek submissions from him toward the end of the Tribunal hearing on any matter he considered relevant to the review.
For the following reasons, the Tribunal has…

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 Crosland (Migration)

Details

AGLC: Crosland (Migration) [2024] AATA 3869
Case: [2024] AATA 3869
Decision Date: 27 August 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Distinguished Talent (Residence) (Class BX) Visa, Subclass 858. The applicant's claim to this visa was based on their alleged internationally recognised record of exceptional and outstanding talent as a cinematographer and filmmaker, and their continued prominence in these fields.

The primary legal issue before the Tribunal was whether the applicant satisfied the requirements of clause 858.212(2) of Schedule 2 of the Migration Regulations 1994. This clause mandates that an applicant must demonstrate an internationally recognised record of exceptional and outstanding achievement in a specified area (in this instance, the arts), be still prominent in that area, and would be an asset to the Australian community, among other criteria. A key component of this assessment involves an approved form 1000, attesting to the applicant's achievements by an individual or organisation with a national reputation in the relevant field.

The Tribunal's reasoning focused on the evidence provided, particularly the nomination form 1000 completed by Mr Stefan Jose, an Australian citizen with a national reputation in filmmaking. Mr Jose attested to the applicant's exceptional talent as a cinematographer and filmmaker, highlighting their artistic imagination, creativity, award-winning collaborations, and international professional network. The Tribunal also considered a supporting letter from Mr Jose, which detailed specific projects and accolades, including an award from the Australian Cinematographers Society for a short film. Based on this evidence, the Tribunal concluded that the applicant met the requirements of clause 858.212(2).

Consequently, the Tribunal remitted the application for a Distinguished Talent (Residence) (Class BX) visa, Subclass 858, for reconsideration. The direction was that the applicant meets 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 issue in the present case is whether the applicant meets the requirements of cl. 858.212(2) of Schedule 2 of the Regulations. Clause 858.212(2) states: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;(d) would have no difficulty in obtaining employment or in becoming established independently, in Australia in the area; 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.(e) produces a completed approved form 1000; and(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. For the purpose of this application the applicant has nominated that he is applying for a Distinguished Talent visa based on his achievements in the area of the arts and in particular, as a cinematographer/filmmaker. The applicant was nominated by Mr Stefan Jose (an Australian citizen) in a form 1000, dated 26 May 2020 and signed by Mr Jose. In his form 10000 Mr Jose describes the applicant as a leader in experimental film. In Mr Jose’s opinion the applicant has artistic imagination and a keen eye for creativity in the world of cinema which can be seen through his ward winning collaborations, published photographic work and extensive number of film professionals he has worked with internationally. Mr Jose also notes that the applicant has finished writing a feature film and in developing a film and music brand with others internationally. In Mr Jose’s opinion, the applicant is well respected by other filmmaking professionals in Australia, and he is a “driving force” who will bring much creativity and opportunity for others. Mr Jose further describes the applicant as being an extraordinary asset to him as his camera assistant. He notes that their mutual clients have included McTavish Surf, Nikon, O’Neill, Politix, Dope Lemon Music, Stephanie Gilmore, and Australia Macadamia. Mr Jose states that his productions with the applicant have won multiple awards in cinematography which would have been a huge task without the applicant. The Tribunal has also considered a letter of support (undated) which Mr Jose provided the Department in support of the applicant’s visa application. In this letter Mr Jose describes the applicant as a talented cinematographer and filmmaker with whom he has worked on several projects including a short film called Man Up which was awarded a medal from the Australian Cinematographer’s Society and was shown in several short film festivals.Supporting documentation

Decision

Reasons for decision

Given the above findings, the Tribunal finds that the applicant satisfies the requirements in cl 858.212(2) and therefore meets cl 858.212.DECISION The Tribunal remits the application for a Distinguished Talent (Residence) (Class BX) visa for reconsideration, with the following direction:·The applicant meets cl 858.212 of Schedule 2 to the Migration Regulations 1994 for a Subclass 858 (Distinguished Talent) visa.Amanda Mendes Da CostaMember

Ratio Decidendi

Legal Principle Established

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