Duarte Brandao (Migration) - [2020] AATA 3062

Duarte Brandao (Migration) [2020] AATA 3062 (20 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Cezar Duarte Brandao
Mrs Tatiana Ribeiro De Almeida
CASE NUMBER:  2001321
DIBP REFERENCE(S):  BCC2018/4434233
MEMBER:John Cipolla
DATE:20 July 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for a Distinguished Talent (Residence) (Class BX) visas for reconsideration, with the direction that the first named applicant meets the following criteria:
cl.858.211(2)(a) of Schedule 2 to the Regulations;
cl.858.212 of Schedule 2 to the Regulations.
Statement made on 20 July 2020 at 10.32am

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – applicant did not hold substantive visa when application made – application posted day before last substantive visa expired, received two days after – factor beyond applicant’s control – delay in nominator providing relevant form – compelling reasons for granting visa – work history and testimonials – ‘internationally recognised record of exceptional and outstanding achievement’ – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 858.211(2)(a), 858.212(2), Schedule 3, criterion 3004(d), (f)(i)
CASES
Gaffar v Minister for Immigration and Multicultural Affairs [2000] FCA 293
Hatcher v Cohn (2004) 139 FCR 425
Quan v MIMAC [2013] FCCA 1254
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 16 January 2020 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 applicant applied for the visa on 8 October 2018. The delegate refused to grant the visa on the basis that he did not meet the requirements of cl.858.211(2)(a) as he failed to satisfy Schedule 3 criterion 3004.
The applicant appeared before the Tribunal on 9 June 2020 to give evidence and present arguments.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant can satisfy the requirements of Schedule 3 criterion 3004 in order to meet cl.858.211.
When an applicant applies for a Distinguished Talent visa and they are not the holder of a substantive visa, as is the case with the applicant, they must meet cl.858.211(2)(a). This subclause provides an applicant is required to meet Schedule 3 criteria 3001, 3003 and 3004.
The delegate found that the applicant met 3001 and that 3003 was not applicable, however found that the applicant did not meet 3004. The Tribunal accepts the delegate’s findings as per 3001 and 3003; as such the Tribunal’s decision will focus on the applicant’s ability to meet 3004.
Relevantly, to meet 3004 it must be found that the applicant was not the holder of a substantive visa because of factors beyond their control, and that there are…

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 Duarte Brandao (Migration)

Details

AGLC: Duarte Brandao (Migration) [2020] AATA 3062
Case: [2020] AATA 3062
Decision Date: 20 July 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning an application for a Distinguished Talent (Residence) (Class BX) visa, Subclass 858. The applicant, Mr. Duarte Brandao, sought this visa based on his achievements as a graphic artist. The primary dispute revolved around whether the applicant met the requirements of Schedule 3 criterion 3004, particularly in circumstances where he did not hold a substantive visa at the time of his application.

The Tribunal was required to determine if the applicant could satisfy Schedule 3 criterion 3004, which necessitates a finding that the applicant was without a substantive visa due to factors beyond their control, and that there are compelling reasons for granting the visa. Additionally, the Tribunal had to be satisfied that the applicant had complied with the conditions of previous visas and would have been eligible for the visa if they had applied on the day they last held a substantive visa. The Tribunal accepted the delegate's findings that the applicant met criteria 3001 and that 3003 was not applicable, thus focusing its decision on criterion 3004.

The Tribunal found that the applicant's failure to hold a substantive visa was due to factors beyond his control, specifically a delay in his nominator providing a required form. The applicant had a history of residing, studying, and working in Australia since 2013, undertaking various courses and establishing a career as a graphic artist. Evidence presented, including testimonials and details of international exhibitions and sales of his work, supported his claim of an "internationally recognised record of exceptional and outstanding achievement."

Consequently, the Tribunal set aside the original decision and remitted the applications for the Distinguished Talent (Residence) (Class BX) visas to the Department for reconsideration. The remittal was made with a direction that the first named applicant met criteria cl.858.211(2)(a) and cl.858.212 of Schedule 2 to the Regulations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be set aside.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant can satisfy the requirements of Schedule 3 criterion 3004 in order to meet cl.858.211. When an applicant applies for a Distinguished Talent visa and they are not the holder of a substantive visa, as is the case with the applicant, they must meet cl.858.211(2)(a). This subclause provides an applicant is required to meet Schedule 3 criteria 3001, 3003 and 3004. The delegate found that the applicant met 3001 and that 3003 was not applicable, however found that the applicant did not meet 3004. The Tribunal accepts the delegate’s findings as per 3001 and 3003; as such the Tribunal’s decision will focus on the applicant’s ability to meet 3004. Relevantly, to meet 3004 it must be found that the applicant was not the holder of a substantive visa because of factors beyond their control, and that there are compelling reasons for granting the visa. The decision maker must also be satisfied that the applicant has abided by visa conditions on previous visas held, and the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive visa. The applicant has been residing, studying and working in Australia for an extended period of time. The applicant advised the Tribunal at review that he came to Australia for the first time in 2013. He initially arrived on a three-month tourist visa, and just prior to the expiration of that visa, he left Australia to New Zealand and applied for a student visa. That visa was granted and valid for 1 year. The applicant advised that he studied in Australia undertaking a Certificate III in Business, a course which ran for 5 months and then he commenced a Certificate IV in Business which he did not complete as he had to return to Brazil for family reasons. The applicant advised that he returned to Australia in 2016, again as the holder of a Student visa, to study a Graphic Design Diploma. The applicant advised the Tribunal that he successfully completed the course in 1 year. The applicant then made an application for a Distinguished Talent visa that is the subject of this review in October 2018. The applicant in his Subclass 858 Distinguished Talent visa application form, stated that he was seeking the visa on the basis of his achievements in the field of the arts, as a Graphic Artist. The evidence that was submitted with the application for a Subclass 858 visa and to the Tribunal at review indicates that the applicant is a graphic artist and describes himself in his visa application as a pioneer in incorporating 2 dimensional shapes into 3 dimensional artworks, something the applicant describes as his signature style. The applicant noted in his application that he had conducted multiple exhibitions worldwide in Melbourne, Sydney and Auckland and that his work had been exhibited in the United States and Brazil. The applicant advised that his artwork was sold at the People Print Gallery in California in the United States of America and had been published at international movie festivals.

Decision

Reasons for decision

Given the above findings, the appropriate course is to remit the applications for visas to the Department to consider the remaining criteria for a Subclass 858 visa.DECISION The Tribunal remits the applications for a Distinguished Talent (Residence) (Class BX) visas for reconsideration, with the direction that the first named applicant meets the following criteria:cl.858.211(2)(a) of Schedule 2 to the Regulations;cl.858.212 of Schedule 2 to the Regulations.John CipollaSenior Member

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.