Fonseka (Migration) - [2018] AATA 4067

Fonseka (Migration) [2018] AATA 4067 (27 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Noel Nalin Fonseka
Mrs Sharon Roma Fonseka
Master Jhanik Noel Fonseka
Miss Chayann Danielle Fonseka
CASE NUMBER:  1604253
DIBP REFERENCE(S):  BCC2015/3319190
MEMBER:Amanda Mendes Da Costa
DATE:27 August 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 first-named applicant meets the following criteria:
· cl.858.212 of Schedule 2 to the Regulations for a Subclass 858 (Distinguished Talent) visa.

Statement made on 27 August 2018 at 1:26pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – internationally recognised record outstanding achievement – pastry chef – definition of profession – roles in large international hotels – successful participation in culinary competitions – published recipes – roles as a judge – educator – improvement to skills of others – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth),
Migration Regulations 1994 (Cth), Schedule 2 cl 858.212
CASES
Baker v The Queen (2004) 223 CLR 513
Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs (Gaffar’s case) [2000] FCA 293
Griffiths v The Queen (1989) 167 CLR 372
Hatcher v Cohn (2004) 139 FCR 425
Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975
R v Kelly (Edward) [2000] QB 198

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 17 March 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 first named visa applicant (the applicant) applied for the visa on 5 November 2015. The delegate refused to grant the visa on the basis that the applicant did not meet cl.858.212 (2)(a).
The applicants seek review of the delegate’s decision and for that purpose the applicants provided the Tribunal with a copy of the primary decision.
The applicant appeared before the Tribunal on 16 July 2018 to give evidence and present arguments. The Tribunal also heard evidence from Mr Emanuel Ploumidis, Mr Jim Irwin, Mr Keerthi Hapugasdeniya and Mr Siri Mevan F.P. Sooriyarachchhi.
The applicants were represented in relation to the review by their 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 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).
Sub-clause (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…

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 Fonseka (Migration)

Details

AGLC: Fonseka (Migration) [2018] AATA 4067
Case: [2018] AATA 4067
Decision Date: 27 August 2018

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 central dispute concerned whether the applicant, a pastry chef, possessed an "internationally recognised record of exceptional and outstanding achievement" in their profession, as required by the visa criteria.

The Tribunal was tasked with determining if the applicant met the requirements of clause 858.212(2)(a) of the Migration Regulations 1994, which mandates an internationally recognised record of exceptional and outstanding achievement in a profession, sport, the arts, or academia and research. The applicant contended that their achievements as a pastry chef satisfied this criterion.

In its reasoning, the Tribunal examined the definitions of "exceptional" and "outstanding" and considered relevant case law. While acknowledging that the applicant need not be a "national living treasure," the Tribunal noted that the standard of "exceptional and outstanding achievement" requires demonstrated excellence that is out of the ordinary. The Tribunal found that the applicant's claims fell within the scope of a "profession" for the purposes of the regulations. However, the Tribunal concluded that the specific evidence presented in relation to the applicant's roles in large international hotels, culinary competitions, published recipes, judging roles, and educational activities required further consideration against the high threshold of "internationally recognised record of exceptional and outstanding achievement."

Consequently, the Tribunal remitted the applications for the Distinguished Talent (Residence) (Class BX) visas to the Department for reconsideration, with a direction that the applicant met the criteria under 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 meets the criteria in cl.858.212(1), which requires the applicant to meet the provisions of subclause (2) or (4). Sub-clause (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). 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 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 pastry chef. As a result, the Tribunal finds that the applicant’s claims come within cl.858.212(a)(i) as belonging to a profession 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 (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.prominant; 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 (Gaffar’s case) [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’s case the Court was dealing with the wording of the then clause 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 paragraph 858.212(2) (a) requires the applicant before the Tribunal to have an “internationally recognised record of exceptional and outstanding achievement.” Therefore Gaffar’s case, 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

Given the above findings, the appropriate course is to remit the applications for the visas to the Department to consider the remaining criteria for Subclass 858 visas.DECISION The Tribunal remits the application for Distinguished Talent (Residence) (Class BX) visas for reconsideration, with the direction that the applicant meets the following criteria:·cl.858.212 of Schedule 2 to the Regulations for a Subclass 858 (Distinguished Talent) visa.Amanda Mendes Da CostaMember

Ratio Decidendi

Legal Principle Established

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