Hansen (Migration)

[2020] AATA 234

Hansen (Migration) [2020] AATA 234 (6 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Michael Thomas Hansen

Kristine Lindbjerg Hansen

Oskar Lindbjerg Hansen

Carl Lindbjerg Hansen

CASE NUMBER:  1834853

DIBP REFERENCE(S):  BCC2018/417534/BCC2018/615968

MEMBER:Jennifer Cripps Watts

DATE:6 February 2020

PLACE OF DECISION:  Sydney

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 for a subclass 858 (Distinguished Talent) visa:

·     cl.858.212 of Schedule 2 to the Regulations

Statement made on 06 February 2020 at 11:23am

CATCHWORDS

MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement – International Trade Negotiation – former Danish Trade Commissioner and Consul General of Denmark to Australia and New Zealand – length of diplomatic posting – current prominence in the field – asset to the Australian community – donation to the NSW RFS during the 2019/20 bushfire crisis – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 858.212

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration (the delegate) on 7 November 2018 to refuse to grant the visa applicants Distinguished Talent (Residence) (Class BX) Subclass 858 visas under s.65 of the Migration Act 1958 (the Act).

2. The primary criteria must be satisfied by at least one member of the family unit.  The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria, which requires that they are members of the family unit (as defined in r.1.12 of the Regulations) of a person who satisfies the primary criteria.

3. The visa applicant (the applicant) applied for the visa on 24 January 2018. The delegate refused to grant the visa on the basis that the applicant did not meet cl.858.212(1) of Schedule 2 to the Regulations because the delegate was not satisfied the applicant had an internationally recognised record of exceptional and outstanding achievement in, relevantly, a profession:  cl.858.212(2)(i).

4. On 27 November 2018, the applicant applied to the Tribunal for merits review.  He has provided a copy of the delegate’s decision. 

5. The applicant appeared before the Tribunal on 4 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the second, third and fourth named applicants.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Distinguished Talent visa is a visa for someone wishing to settle in Australia permanently who has an internationally recognised record of exceptional and outstanding achievement in, among other areas, a profession.  The profession, the applicant has submitted, is in the field of ‘International Trade Negotiation’. 

8. Department policy (PAM3) indicates that a ‘high acceptance threshold applies’ for the grant of a Distinguished Talent visa.  Individuals must be nominated and be exceptionally outstanding, and be eminent in the top echelons of their field.  They should be individuals who will make substantial contributions to the Australian community because of their international achievements and who would not qualify under other visa categories.

9. Subclause 858.212(1) requires that the applicant meets the requirements of subclause (2) or (4).  The determinative issue, and the issue that was the basis for the refusal, is that the delegate found the applicant did not meet the requirements of cl.858.212(2). The applicant makes no claim to meet cl.858.212(4) and, accordingly, subclause (4) is not applicable.  Relevant to this case, cl.858.212(2) applies and requires that the applicant:

   858.212(2) 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 approved form 1000; and

   Note      An approved 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.

10. In order to have a 'record of exceptional and outstanding achievement', given the words’ ordinary dictionary meanings, an applicant would be expected to have achievements remarkable in relation to their field and in relation to their peers who are also positioned as the very best in that field.  The applicant confirmed at the hearing, and the Tribunal accepts the field which was not previously made clear, that he is seeking to meet cl.858.212(2) in a profession in the field of International Trade Negotiation.

    The applicant’s background

11. The applicant, within the Ministry of Foreign Affairs, Denmark, is a former Danish Trade Commissioner and Consul General of Denmark to Australia and New Zealand.  He had two consecutive four year postings, commencing in 2009.  His second posting ended on 13 December 2017.  Before becoming a diplomat, the applicant worked aviation.  He is currently the Managing Director of Nilfisk in Australia.

12. The visa was refused because the delegate was not satisfied that the applicant met cl.858.212.  The Tribunal needs to be satisfied that the applicant meets the requirements of cl.858.212 at the time of application and may take into account other information up to the time of decision.

    Evidence provided at the time of application

13. The person nominating the applicant is Dr John Hewson.  He provides background information in a written statement that accompanied the visa application about Mr Hansen during his time as Denmark’s Consul General and Trade Commissioner to Australia from 2009 to 2017.  He confirms that Mr Hansen had ‘a double posting for twice the normal 4 years duration’ which he says is a ‘true testimonial to his engagement, high level of achievement and involvement in creating opportunities and growth for Australia and Denmark.’  Dr Hewson considers Mr Hansen’s achievements to be unique, he attests to Mr Hansen’s ‘ability to lead top-performing negotiations with high-level results on a regional, national and global market’ and states that from 2009 to 2017, as a result of Mr Hansen’s contribution as Trade Commissioner, the number of Danish subsidiaries in Australia has grown by 35 percent and trade between the countries has grown 21 percent. 

14. Letters of support were provided with the visa application in 2017.  Generally they indicate that Mr Hansen is an internationally recognised professional with a wealth of experience and a deep understanding of international trade strategy and commercial partnerships, and someone who is passionate about positive environmental change and a low carbon future.  He has optimised existing and established new business networks between Australia and, primarily but not exclusively, Denmark.

15. Where relevant matters were raised going to the applicant’s record of achievements in his field of International Trade Negotiation, they were discussed with Mr Hansen at the Tribunal hearing in more detail.  Observations taken from his oral evidence have been made in the summary of written evidence, including from:

    a.Tim Owen AM JP, Hunter Valley Natural (HVN) Trading.  In 2016, the applicant provided ‘an outstanding Danish company introduction’ to Mr Owen’s consultancy business in the renewable energy sector which led to a joint venture between Aalborg Concentrated Solar Power Ltd (Denmark) and Ampcontrol Group Pty Ltd in the Hunter Valley region of New South Wales.  Aalborg, according to its website, produces technologies, among others, that contribute to a greener future.  Aalborg was selected to design and deliver the world’s first integrated energy system based on the concentrated solar power technology for the sustainable (off-grid) operation of a greenhouse tomato plantation in South Australia, including solar towers and a thermal desalination plant using water from the Spencer Gulf. 

    b.Lars Barsoe, VP, Vestergaard.  In around 2012, when the Danish Export Association closed their network for the aviation sector, the applicant formed Aviation Group Denmark which contains 100 Danish companies that has led delegations to countries in the Middle East, Mexico and China.  They have a focus on sustainable and renewable solutions in aviation.   The applicant has facilitated introductions for Vestergaard in China and assisted during meetings in the UAE.  From introductions that have been made by the applicant in Australia, they look towards involvement in Sydney’s second airport.

    c.Tom Nørring, the current Ambassador of Denmark in Australia and in separate correspondence from the staff at the embassy.  In Australia there are more than 120 Danish subsidiaries, including Pandora, Georg Jensen, Scanpan and Ecco Shoes.

    d.Torben Sørenson, GD Pork Group.  Denmark is the biggest pork producer in the world.  Mr Hansen identified a need in Australia ‘for implementing international expertise in pork production combined with the clean and green environmental benefits of primary production of Pig Meat.’  Mr Hansen was ‘a crucial person’ in the process of GD Pork investing $25 million to improve its facilities in Western Australia and in assisting them to obtain environmental and production facility certification.  They claim now to be recognized as one of the most modern facilities in Australia.

    e.Louise Mason, AMP Capital; Jan Utzon – architect; Caroline Grandjean-Thomsen of MADE by the Opera House, Dr Deborah Dearing of NSW Architects Registration Board, Jan Gehl – Danish architect and founding partner of Gehl Architects.  In 2013 the 40^th anniversary of the Sydney Opera House was celebrated.  In 2014 AMP Capital undertook a design competition with the City of Sydney and 3XN won the competition to construct Quay Quarter Tower at Circular Quay, site of the AMP building, which it is claimed is the ‘first major project since Jørn Utzon finished the Sydney Opera House in 1973’ (for a Danish architect).  In 2017, 3XN Sydney, a Danish architectural practice, with offices in Copenhagen and New York,  was founded.  They also won an international competition to lead design of the new Sydney Fish Market.  A partnership was created between the Sydney Opera House and AMP Capital – the MADE programme for exchange between Australia and Denmark for multi-disciplinary architecture, design and engineering with 100 alumni.  It is attested that Mr Hansen has served Australia well with his ‘strategic capability in promoting trade-based cultural connections, with real industry spin offs and substantial knowledge exchange across industry and education sectors’: (Dr Dearing).

    f.David Handley, Founding Director, Sculpture By the Sea.  Mr Hansen ‘was actively involved in the cultural and business links between Demark and Australia’, referring specifically to the introduction of Danish artists to Sculpture by the Sea in Sydney and Perth.  He introduced Mr Handley to Crown Prince Frederick and Crown Princess Mary when they visited Sydney in 2013, which led to Denmark staging, for the first time, Sculpture by the Sea by the Kattegat Sea in Aarhus.

    g.Jesper Brund, President & CEO Scanpan Denmark.  Scanpan is a Danish brand.  The applicant worked closely with Mr Brund, who is based in Los Angeles.  He worked with Scanpan to expand their business in Australia and New Zealand and then into South East Asia.

    h.Ben Liebmann, Chief Operating Officer Noma.  Noma in Copenhagen, run by chef Rene Redzepi, is one of the world’s best known restaurants.  In 2016, Noma relocated to Barangaroo in Sydney as a pop-up restaurant.  The applicant facilitated the cultural exchange and way of embracing Australian food which included Mr Redzepi sourcing native and indigenous ingredients for his dishes.  They launched MAD (which means ‘food’ in Danish) to, among other things, embrace culture and kids’ way of eating food, in collaboration with the Sydney Opera House.  It was MAD’s first Australian event.  From the launch, it was reported that there were 7.7 billion views globally and the Tribunal was told feedback from Tourism Australia was that they ‘had never seen anything like it’ in terms of this level of response.

    i.Kurt Skov, Blue Water Shipping, a major transport company, including for renewable energy.  Mr Skov participated in a Danish export delegation in 2013 and benefited from Mr Hansen identifying Australia as a ‘hub for future projects’ shortly after they had completed delivery of Australia’s largest wind turbines into New South Wales.  They attribute the ‘strong engagement’ of Mr Hansen as being fundamental to their winning global projects.  Mr Skov considers Mr Hansen to have unique negotiating skills with an ability to create strategic solutions, motivate and lead top performing initiatives … through his wide professional network with high stakeholder engagement across the private and public sector’.

    j.James Choi, Australian Ambassador to Seoul.  In 2010 Mr Choi was posted to Copenhagen as the Australian Ambassador in Denmark.  He writes that Mr Hansen has succeeded in expansion of bilateral projects in the areas of innovation, sustainability and agriculture’

    k.Jes Donneborg, Aalborg, a company that was selected to design and deliver what it claims to be ‘the world’s first Integrated Energy System based on concentrated solar power (CSP) technology’, for Sundrop Farms in South Australia (mentioned above).  Mr Hansen was ‘actively involved’ in identifying the need in Australia for alternative and sustainable solutions and facilitated the trade partnership between the companies.

16. Additional references that accompanied the visa application in 2017, tending to verify the above information, were provided by Rikke Scheel Gamborg of DanishConnect, Anders Videl of Redgreen, Bronwyn Dutton of Strata Partners, Patrick Ramsden of Linak Australia Pty Ltd, Matt Whitnall of Truck Moves, Clover Moore – Lord Mayor of Sydney, General The Honourable David Hurley, Governor of NSW, Steen Holm Jensen of Grundfos Pumps Pty Ltd, Caroline Lambert – European Union 2015 delegation to Australia and Andrew Fraser of BSE Building Services Engineers.  There is a high degree of consistency between the references and statements that have been provided relating to Mr Hansen’s unique abilities as a Trade Commissioner.  The writers are mainly leaders in their field and are considered to have provided credible information. 

17. At the Tribunal hearing, Mr Hansen was spontaneously forthcoming with details expanding on the information in the documents that accompanied his application.  Prior to the Tribunal hearing, on the documents alone, it was difficult to get a true and full sense of the applicant’s achievements in his field.  However, with the benefit of a face to face meeting at the hearing, the Tribunal was able to gain deeper insight into Mr Hansen’s achievements and prominence in the field of International Trade Negotiation. 

18. Convention appears to be that diplomatic postings are for four years, although an Ambassador is not prevented from serving longer.  It is also worth noting that they can be recalled earlier as well.  The length of time Mr Hansen was posted to Australia as the Danish Consul General and Trade Commissioner is unique in that his post was for double the usual four years.  Following his first four years, his posting was extended enabling him to continue to promote international trade agreements and export trade programmes for additional four years, from 2013 to 2017.  Mr Hansen mentioned that he takes a commercial approach to trade development, which is reflected in the information contained in the written references and recommendations he provided.  Overall, the impression the Tribunal is left with is that the writers consider that Mr Hansen’s drive, energy, and excellent global contacts, together with his commercial approach, sets him apart in a unique way.

19. The Hansens came to Australia in 2009.  The fourth-named applicant, Carl, started kindergarten in Australia and is now in his final year of high school.  His older brother, Oskar, is in his second year of a bachelor degree at the University of Sydney.  When, in 2013, Mr Hansen’s first four year posting came to an end, both Mr Hansen and his wife were under 45 years of age.  On the face of it, the Tribunal accepts the claim that they could have made visa applications with a pathway to permanent residency at that time.  However, in 2017, after the second four year posting, many changes had been made to Australia’s work visa programmes.  It was submitted at the Tribunal hearing that normally someone who had lived in Australia for eight years would be considered to have mainly resided in Australia for the purpose of lodging a permanent visa application.  However, because they held diplomatic visas for eight years, they could not count this as residing in Australia for the purpose of pursuing permanent residency.  The family was left with very limited options and less favourable opportunities to pursue permanent residency in their circumstances and as a result of the visa changes. 

20. Mr Hansen currently holds a Subclass 482 visa, granted in 2019 on the basis of an approved nomination by Nilfisk Australia.  He is the Managing Director.  The Subclass 482 TSS visa has no age limit and can be a pathway to permanent residency.  However, when applying for permanent residency an applicant must be under the age of 45 when the permanent residency application is made.  Mr Hansen is now 46 which means he would now be ineligible, holding a Subclass 482 visa, to apply for permanent residency.

    Does the applicant have an internationally recognised record of exceptional and outstanding achievement in the field of International Trade Negotiation?

21. The Tribunal has carefully considered all relevant written and oral evidence.  A large volume of written evidence was provided that indicates and satisfies the Tribunal that Mr Hansen is internationally recognised for his record of exceptional and outstanding achievement in a profession in the field of International Trade Negotiation at the time he lodged the visa application in 2018.

22. For the reasons given above, the Tribunal is satisfied that the applicant meets cl.858.212(2)(a).

    Is the applicant still prominent in the area?

23. At the time of application, there is no doubt in the Tribunal’s mind that the applicant was still prominent in the area of International Trade Negotiation.

24. The weight of written and oral evidence, which has been carefully considered and found to be overwhelmingly favourable relating to the applicant’s unique and outstanding achievements, satisfies the Tribunal that at the time of application the applicant was still prominent in the nominated field. 

25. On the evidence, the Tribunal is satisfied that the applicant meets cl.858.212(2)(b).

    Would the applicant be an asset to the Australian community?

26. It is accepted by the Tribunal that Mr Hansen has been an asset to the Australian community through his work as a Diplomat, establishing and facilitating international partnerships in many diverse areas, including the arts, transport, solar power and sustainable energy and aviation, for example.  He arranged a very generous donation of equipment on behalf of his company to the NSW RFS during the catastrophic 2019/2020 bushfire crisis.  Mr Hansen has been an active supporter and participant in a voluntary capacity with the Youth Sailing programme at the Royal Sydney Yacht Squadron. 

1. Mr Hansen and his three immediate family members have made a combined application.  To meet the criteria for the grant of the visa, the secondary applicants must be members of the family unit of a person who has been granted the Distinguished Talent visa. 

2. In considering whether Mr Hansen would be an asset to the Australia, the Tribunal considers it pertinent to also consider these members of his family unit, as they too engage in activities and work that benefit the Australian community. They are all highly motivated individuals.  Mrs Hansen established her own graphics design company in Australia in 2011 and has worked on projects for Murdoch Books, the Country Women’s Association and Telstra.  Their sons, Oskar and Carl, are both talented and engaged students who take part in a diverse range of extra-curricular activities, including working as volunteers for local charities.

3. This is a family with dedication and commitment to engaging in and contributing substantially to the Australian community where they have now lived for over 10 years. 

4. For these reasons, the Tribunal is satisfied that the applicant will be an asset to the Australian community and he therefore meets cl. 858.212(2)(c).

   Would the applicant have no difficulty in obtaining employment or in becoming established independently in Australia in the area?

5. In February 2019, Mr Hansen was granted a 482 visa to work as a Managing Director in Australia, sponsored by Nilfisk.  Nilfisk is a Danish company with a global presence that manufactures professional cleaning equipment.  He continues to work there and this of itself satisfies the Tribunal that the applicant would continue to have no difficulty in obtaining employment, or becoming establishing independently.

6. The Tribunal is satisfied that the applicant meets cl.858.212(2)(d).

   Has the applicant provided an appropriate Form 1000?

7. A Form 1000 was provided with the visa application. The nominee is Dr John Hewson.  In the Form 1000, he describes his own national reputation in the same field as the nominee as follows:

   ‘Having received a doctorate in Economics, being a former economist at the Reserve Bank of Australia as well as having been an economic advisor to the Fraser Government, I have obtained a national reputation for striving for Economic Growth and Economic Development.  This led me to become a strategic facilitator.’ 

8. Dr Hewson aligns his own reputation with Mr Hansen’s, describing him in the following terms:

   ‘(he) has been a facilitator for multinational business partnerships which emphasise improvements in sustainability, efficiency and thus assist with making services more commonly available.’

9. Dr Hewson is an economist, former leader of the Liberal Party and recipient of the Member of the Order of Australia award.

10. In the Form 1000, Dr Hewson expresses his view that the Mr Hansen has a ‘well-deserved reputation’ for his ‘internationally recognized record of exceptional and outstanding achievement’.  He says Mr Hansen is ‘internationally recognized as above all a visionary, net-worker and strategic facilitator across many spheres’. 

11. The Tribunal is satisfied that the applicant has produced a completed approved Form 1000 with his record of achievement attested to by an Australian citizen who has a national reputation in relation to the area of International Trade Negotiation.

12. Therefore the applicant satisfies cl.858.212(e).

    Exceptional benefit requirement

13. Subclause 858.212(2)(f) requires that an applicant should be of ‘exceptional benefit’ if they are less than 18 or more than 55 years of age, which is not applicable in this case.

    Conclusion

14. For the reasons given, the Tribunal finds that the applicant meets cl.858.212(2), which is a prescribed criterion for the grant of Subclass 858 visa.  The matter is remitted to the Department for reconsideration.

    DECISION

15. The Tribunal remits the applications for Distinguished Talent (Residence) Class BX visas for reconsideration with the direction that the applicant meets the following criteria for a subclass 858 (Distinguished Talent) visa:

    ·cl.858.212 of Schedule 2 to the Regulations

    Jennifer Cripps Watts
    Member