Haseeb (Migration) - [2023] AATA 3646

Haseeb (Migration) [2023] AATA 3646 (13 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Abdul Haseeb
REPRESENTATIVE:  Mr George Vassiliou (MARN: 0746634)
CASE NUMBER:  2011780
HOME AFFAIRS REFERENCE(S): BCC2019/41467 BCC2019/4146750

MEMBER:Antonio Dronjic
DATE:13 October 2023
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 13 October 2023 at 2:46pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visas – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement in the sport of cricket – cricket player – contracts for coaching – Australian employment unrelated to cricket – employment in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 858.212
CASES
Gaffar v MIMA [2000] FCA 293
Prabhakaran v MICMA [2023] FedCFamC2G 357
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Springs v MICMSMA [2020] FCCA 371
Vishnumolakala v Minister for Immigration [2006] FMCA 1209
Zhang v MIMA [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 Home Affairs on 8 July 2020 to refuse to grant the visa applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 20 August 2019. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of cl 858.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The applicant applied to the Tribunal on 17 July 2020, for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.
The applicant has been nominated by an Australian organisation, the Melbourne University Cricket Club. The applicant is applying for a distinguished talent visa based on his achievements in the area of sport, specifically as a cricket player.
On 21 August 2023, the Tribunal wrote to the applicant pursuant to s 359(2) of the Migration Act 1958 (the Act). The letter invited the applicant to provide information in writing that will demonstrate the applicant meets the requirements of cl 858.212(2) or (4) of the Regulations.
On 4 September 2023, the applicant submitted documentary evidence and submissions. The list of documents submitted to the Tribunal is attached to this decision record as Attachment A.
The applicant appeared before the Tribunal via video link on 28 September 2023 to give evidence and present arguments. He was represented in relation to the review.
On 4 October 2023, the applicant’s representative wrote to the Tribunal stating that the applicant conceded that contracts in relation to Lindisfarne Cricket Club (for under 15 and under 17 teams) were related to coaching and not playing at this team.
On 5 October 2023, the applicant submitted…

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 Haseeb (Migration)

Details

AGLC: Haseeb (Migration) [2023] AATA 3646
Case: [2023] AATA 3646
Decision Date: 13 October 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr. Haseeb concerning his application for a Distinguished Talent (Residence) (Class BX) visa, subclass 858. The dispute arose because the applicant was refused this visa, and he sought review of that decision. The Tribunal was tasked with determining whether the applicant met the criteria for this permanent visa, which is designed for individuals with an internationally recognised record of exceptional and outstanding achievement in specific fields, including sport.

The primary legal issue before the Tribunal was whether the applicant satisfied the requirements of clause 858.212(2)(a) of Schedule 2 to the Migration Regulations 1994. This subclause mandates that an applicant must have an internationally recognised record of exceptional and outstanding achievement in a profession, sport, the arts, or academia and research. The applicant's claim for the visa hinged on his achievements in the sport of cricket.

The Tribunal reasoned that while the applicant had provided evidence of his involvement in cricket, including coaching contracts and letters of support from various cricket organisations, this did not establish an "internationally recognised record of exceptional and outstanding achievement" as required by the regulations. The Tribunal noted that the criteria under clause 858.212 are assessed at the time of application, although subsequent events and circumstances can be considered up to the date of the decision, as per the Federal Circuit and Family Court of Australia's decision in *Prabhakaran v MICMA*. Ultimately, the Tribunal concluded that the applicant had not demonstrated the requisite level of international recognition and outstanding achievement in cricket to meet the specific requirements of clause 858.212(2)(a).

Consequently, the Tribunal affirmed the decision not to grant Mr. Haseeb a Distinguished Talent (Residence) (Class BX) 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 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. 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. The application was refused on the basis that the applicant did not meet the requirements of cl 858.212(2)(a) and therefore cl 858.212. This clause relevantly provides:858.212(1) The applicant meets the requirements of subclause (2) or (4).(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; andNote 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.(4) The applicant meets the requirements of this subclause if, in the opinion of the Minister, acting on the advice of:(a) the Minister responsible for an intelligence or security agency within the meaning of the Australian Security Intelligence Organisation Act 1979; or(b) the Director-General of Security;the applicant has provided specialised assistance to the Australian Government in matters of security. The applicant has not made any claims in relation to cl 858.212(4). The applicant’s claim depends on whether he can satisfy cl 858.212(2)(a)(iii) of Schedule 2 to the Regulations. At the outset, the Tribunal notes that this is a time of application criteria. However, In Prabhakaran v MICMA,[1] the Court held that this did not connect grammatically to the terms of cl 858.212 and that the text of the clauses under the subheading did not support any general conclusion that the criteria in that part spoke exclusively to matters which must be satisfied at the time of application. Rather, cl 858.212 allows a decision‑maker to consider events and circumstances that arise between the date of the visa application and the date of the decision.[1] Prabhakaran v MICMA [2023] FedCFamC2G 357 at [56].Internationally recognised record of exceptional and outstanding achievement

Decision

Reasons for decision

Accordingly, the Tribunal finds that the applicant does not meet the requirements of cl 858.212(2)(a).DECISION The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) visa.Antonio DronjicMemberAttachment A: Document List·Submission from representative George Vassiliou dated August 2023.·Letter of support from Cricket Canada signed by Ingleton Liburd dated 30 August 2023.·Statement from Mr Haseeb dated 29 August 2023.·Letter of support from Lindisfarne Cricket Club signed by Roger Hutchinson dated 24 August 2023.·Letter of support from Cricket Tasmania signed by Thomas Barwick dated 22 August 2023.·Letter of support from Manitoba Cricket Association Inc signed by Ron Dipchand dated 25 August 2023.·Letter of support from Melbourne University Cricket Club signed by Daniel Hutton undated.·Letter of support from Lindisfarne Cricket Club signed by Nathan Ellis undated. ·Letter of support from Lindisfarne Cricket Club signed by Matt Wilkie undated.Attachment B: Document List·Statement from the applicant’s representative George Vassiliou dated October 2023.·Facebook message from Michael Hayes regarding Preston Cricket Club dated 12 June 2019.·Facebook message from Paul Boraston head coach of Frankston Peninsula Cricket Club head coach dated 8 May 2020.·Facebook message from Warren Ayres regarding Dandenong Cricket Club dated 10 June 2020.·Player contract from Lindisfarne Cricket Club dated 4 October 2023.·Contract offer letter from Lindisfarne Cricket Club undated.

Ratio Decidendi

Legal Principle Established

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