Geertsen (Migration) - [2018] AATA 2673

Geertsen (Migration) [2018] AATA 2673 (21 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Katharina Francisca Aletta Geertsen
CASE NUMBER:  1605731
DIBP REFERENCE(S):  BCC2016/542592 BCC2016/543028
MEMBER:Mary Sheargold
DATE:21 June 2018
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 21 June 2018 at 11:15am
CATCHWORDS
Migration – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – Internationally record of exceptional and outstanding achievement – Specialist dance teacher – Meaning of profession – Definition of vocation and occupation – Qualifications and experiences – No internationally recognised record – Ministerial Intervention requested – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 858.212
CASES
Bretag v MILGEA [1991] FCA 582
Gaffar v MIMIA [2000] FCA 293
Zhang v MIMA & Anor [2007] FMCA 664
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 15 April 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 visa applicant applied for the visa on 3 February 2016. The delegate refused to grant the visa on the basis that the applicant did not have an internationally recognised record of exceptional and outstanding achievement in her profession.
The applicant appeared before the Tribunal on 24 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Amy Wiseman, David Leventhal, Erica Rose Jeffrey, Paige Gordon, and Shelley Yacopetti.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Distinguished Talent (Residence) (Class BX) visa is a permanent visa for persons who have an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts, or academia and research, or have provided specialised assistance to the Australian government in matters of security.
According to the Department’s Procedures Advice Manual 3 (PAM3), the policy intention behind this visa class is “to provide permanent residence to outstanding individuals, who would not qualify under the other visa categories, but who will make substantial contributions to the Australian community because of their international achievements.”
The issue in the present case is whether the applicant meets the requirements of cl.858.212(1) of Schedule 2 to the Regulations. Specifically, this clause requires that the applicant meets the requirements of either subclause (2) or (4) of cl.858.212 of Schedule 2 to the Regulations.
Relevantly, cl.858.212(2) requires that 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…

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 Geertsen (Migration)

Details

AGLC: Geertsen (Migration) [2018] AATA 2673
Case: [2018] AATA 2673
Decision Date: 21 June 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking review of a decision not to grant her a Distinguished Talent (Residence) (Class BX) visa, subclass 858. The visa is intended for individuals with an internationally recognised record of exceptional and outstanding achievement in a profession, sport, the arts, or academia and research, or those who have provided specialised assistance to the Australian government in matters of security. The applicant's claim for the visa hinged on whether she met the requirements of clause 858.212(2)(a)(i) of Schedule 2 to the Regulations, specifically whether she possessed an "internationally recognised record of exceptional and outstanding achievement in a profession."

The primary legal issue before the Tribunal was to determine the meaning of "profession" in the context of the applicant's claimed occupation as a "specialist dance teacher," particularly for individuals with illness or disability. The Tribunal was required to assess whether this role constituted a distinct profession that could satisfy the criteria for an internationally recognised record of exceptional and outstanding achievement at the time of the visa application. The Tribunal also considered whether the applicant's qualifications and experience, as presented, demonstrated such a record.

In its reasoning, the Tribunal noted that the applicant had met certain formal requirements, including providing an approved Form 1000 and not falling under the age-related criteria for exceptional benefit. However, the central question remained whether her work as a specialist dance teacher qualified as a profession for the purposes of the visa. The Tribunal considered the applicant's submissions and evidence regarding her formal qualifications and experience. Ultimately, the Tribunal concluded that the applicant had not demonstrated an internationally recognised record of exceptional and outstanding achievement in a profession. Consequently, the Tribunal affirmed the original decision not to grant the visa and declined the applicant's request to recommend the matter to the Minister for intervention.

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 Distinguished Talent (Residence) (Class BX) visa is a permanent visa for persons who have an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts, or academia and research, or have provided specialised assistance to the Australian government in matters of security. According to the Department’s Procedures Advice Manual 3 (PAM3), the policy intention behind this visa class is “to provide permanent residence to outstanding individuals, who would not qualify under the other visa categories, but who will make substantial contributions to the Australian community because of their international achievements.” The issue in the present case is whether the applicant meets the requirements of cl.858.212(1) of Schedule 2 to the Regulations. Specifically, this clause requires that the applicant meets the requirements of either subclause (2) or (4) of cl.858.212 of Schedule 2 to the Regulations. Relevantly, cl.858.212(2) requires that 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; andb)is still prominent in the area; andc)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; ande)produces a completed, approved Form 1000; andf)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). In determining whether the applicant meets cl.858.212(2), all of the stated subclauses must be met. The Tribunal notes that the applicant has produced a completed, approved Form 1000 in accordance with cl.858.212(2)(e), and that cl.858.212(2)(f) is not relevant to the applicant. The applicant’s claim hinges on whether she can satisfy cl.858.212(2)(a)(i) of Schedule 2 to the Regulations. That is, does she have an “internationally recognised record of exceptional and outstanding achievement in a profession”? At the outset, the Tribunal notes that this is a time of application criteria: that is, the applicant must have been able to satisfy this requirement at the time she lodged her visa application on 3 February 2016. Because of this, the applicant’s achievements in her field between that date and the date of this decision can be used as an aid, but in the absence of relevant evidence, they are not to be treated as determinative: Bretag v MILGEA [1991] FCA 582.The applicant’s profession The applicant makes her claim that she satisfies cl.858.212(2)(a)(i) of Schedule 2 to the Regulations because she is a “specialist dance teacher”. In determining whether or not a “specialist dance teacher,” which in the context of the applicant’s claim is taken to mean a dance teacher for persons with illness or disability, can be considered a distinct profession, the Tribunal has considered the range of submissions received from the applicant and her representative, as well as evidence from the applicant with respect to her formal qualifications.What is a profession?

Decision

Reasons for decision

The Tribunal has carefully considered the request for the Tribunal to recommend the matter to the Minister for intervention on the basis of the submissions above and the Minister’s guidelines regarding the unique and exceptional circumstances under which a matter may be recommended to the Minister for intervention. Having considered all of the information available to it, the Tribunal declines the applicant’s request to recommend the matter to the Minister for intervention. However, it remains open to the applicant to make such a request if she believes that she has sufficient grounds to warrant Ministerial intervention.DECISION The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) visa.Mary SheargoldMember

Ratio Decidendi

Legal Principle Established

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