Gautam (Migration) - [2019] AATA 3000

Gautam (Migration) [2019] AATA 3000 (16 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sunam Gautam
CASE NUMBER:  1812273
DIBP REFERENCE(S):  BCC2017/999562
MEMBER:Amanda Mendes Da Costa
DATE:16 May 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 16 May 2019 at 12:43pm
CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement – cricketer – early order right-handed batsman – right-arm spin bowler – junior player for Nepal in international competitions – trainer of elite athletes – current prominence in the field – well recognised by other players, officials, peak bodies/associations and media – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 858.212
CASES
Cristiano Moretzsohn (Migration) [2018] AATA 2016
Gaffar v Minister for Immigration and Multicultural Affairs [2000] FCA 293
Hatcher v Cohn (2004) 139 FCR 425
Henry Dolphin [2004] MRTA 7537
Vandort (Migration) [2018] AATA 1538

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 14 March 2017. The delegate refused to grant the visa on the basis that he did not meet cl.858.212(2)(a) of the Migration Regulations 1994 (the Regulations) because he did not have an internationally recognised record of exceptional and outstanding achievement in the sport of cricket.
The applicant appeared before the Tribunal on 4 December 2018 and 20 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Mervyn Hughes and Dr David Maddocks.
The applicant was represented in relation to the review by his registered migration agent who attended the 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 meets the criteria in cl.858.212(1), which requires the applicant to meet the 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…

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 Gautam (Migration)

Details

AGLC: Gautam (Migration) [2019] AATA 3000
Case: [2019] AATA 3000
Decision Date: 16 May 2019

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, a cricketer, claimed to have an internationally recognised record of exceptional and outstanding achievement in sport. The primary issue before the Tribunal was whether the applicant met the criteria set out in clause 858.212(2) of the Migration Regulations 1994, specifically the requirement for an "internationally recognised record of exceptional and outstanding achievement" in a sport.

The Tribunal was required to determine the meaning of "internationally recognised record of exceptional and outstanding achievement" in the context of the visa subclass. This involved interpreting the terms "exceptional" and "outstanding" by reference to dictionary definitions and relevant case law. The Tribunal noted that while the applicant's claims fell within the category of sport under clause 858.212(2)(a)(ii), the specific wording of the current regulation, requiring both "exceptional and outstanding achievement," distinguished it from previous iterations of the regulation considered in cases like *Gaffar v Minister for Immigration and Multicultural Affairs*. The Tribunal acknowledged that the standard for meeting this criterion would vary depending on the field of endeavour and would require demonstrated excellence that was out of the ordinary.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the applicant met the criteria under clause 858.212 of Schedule 2 to the Regulations, indicating that further assessment of the applicant's achievements as a cricketer was warranted to determine if they met the high threshold of an "internationally recognised record of exceptional and outstanding achievement." The application was therefore remitted to the Department for reconsideration of the remaining criteria for the visa.

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). 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). The Tribunal notes that the applicant must meet all of the criteria in cl.858.212(2). Clause 858.212(2)(a) requires the applicant to have 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 cricketer. 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 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 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’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 application for the visa to the Department to consider the remaining criteria for a Subclass 858 visa.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.Amanda Mendes Da CostaMember

Ratio Decidendi

Legal Principle Established

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