Gecaite (Migration) - [2019] AATA 940

Gecaite (Migration) [2019] AATA 940 (4 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Kotryna Lyra Gecaite
CASE NUMBER:  1803793
DIBP REFERENCE(S):  BCC2017/2655794 BCC2017/2709522
MEMBER:Amanda Mendes Da Costa
DATE:4 March 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) Class BX visa.

Statement made on 04 March 2019 at 1:01pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement – theatre production – graduate of prestigious schools for the performing arts in the USA – emerging talent in the New York theatre scene – works received critical acclaim in Australia – achievements primarily attained in Australia and not overseas – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 858.212

CASES
Gaffar v Minister for Immigration and Multicultural Affairs [2000] FCA 293
Hatcher v Cohn (2004) 139 FCR 425

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 29 January 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 25 July 2017. The delegate refused to grant the visa because the delegate was not satisfied that the applicant had an internationally recognised record of exceptional and outstanding achievement in the arts.
The applicant appeared before the Tribunal on 6 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Phoebe Taylor and Ryan Stewart.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria in cl.858.212(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations), which require the applicant to meet the provisions of subclauses (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…

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 Gecaite (Migration)

Details

AGLC: Gecaite (Migration) [2019] AATA 940
Case: [2019] AATA 940
Decision Date: 4 March 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Distinguished Talent (Residence) visa (subclass 858). The applicant claimed to have an internationally recognised record of exceptional and outstanding achievement in theatre production. The primary issue before the Tribunal was whether the applicant met the criteria set out in clause 858.212(2) of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine if the applicant possessed an "internationally recognised record of exceptional and outstanding achievement" in the arts, specifically theatre production. This involved interpreting the meaning of "exceptional" and "outstanding" in the context of the regulations, considering dictionary definitions and relevant case law. The Tribunal also had to assess whether the applicant's achievements, though critically acclaimed in Australia, were sufficiently recognised internationally to meet the regulatory threshold.

The Tribunal reasoned that while the applicant had demonstrated exceptional talent and received critical acclaim for her theatre productions in Australia, her achievements were primarily attained within Australia. The term "internationally recognised" was interpreted to mean that the record of achievement must be known and acknowledged beyond Australia's borders. The Tribunal noted that while the applicant was a graduate of prestigious performing arts schools in the USA and had some presence in the New York theatre scene, her significant achievements and acclaim were largely within Australia. Consequently, the Tribunal concluded that the applicant had not met the requirement of having an *internationally* recognised record of exceptional and outstanding achievement.

As the applicant failed to satisfy the threshold criterion of an internationally recognised record of exceptional and outstanding achievement, the Tribunal found it unnecessary to consider the other requirements for the visa. The Tribunal affirmed the decision not to grant the applicant the Distinguished Talent (Residence) 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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets the criteria in cl.858.212(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations), which require the applicant to meet the provisions of subclauses (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 in determining whether the applicant meets cl.858.212(2) all of the stated paragraphs must be met. Paragraph 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 she has an internationally recognised record of exceptional and outstanding achievement in theatre production. As a result, the Tribunal finds that the applicant’s claims come within cl.858.212(2)(a)(iii) as belonging to the arts 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

Having made this finding, there is no need to consider the other criteria which must be met for the grant of the visa. DECISION The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) Class BX visa.Amanda Mendes Da CostaMember

Ratio Decidendi

Legal Principle Established

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