Houstoun (Migration) - [2018] AATA 4815

Houstoun (Migration) [2018] AATA 4815 (27 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jonathan Andrew Houstoun
CASE NUMBER:  1603250
DIBP REFERENCE(S):  BCC2015/2073734
MEMBER:Cathrine Burnett-Wake
DATE:27 September 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa.
Statement made on 27 September 2018 at 4:30pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) – Subclass 858 (Distinguished Talent) – specialised disabilities services – no international professional recognition – compassionate circumstances – positive contribution to Australian society – assists vulnerable community members – skills shortage –partner visa withdrawn – misguided by registered migration agent – ministerial intervention request by Tribunal – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2 cl 858.211, 858.212 Schedule 3 conditions 3001, 3004, 3004
CASES
Quan v MIMAC [2013] FCCA 1254
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 2 March 2016 to refuse to grant the visa applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa (DTV) under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 21 July 2015. The delegate refused to grant the visa on the basis that he did not meet the requirements of cl.858.211(2)(a) as he failed to satisfy Schedule 3 criterion 3004, specifically parts (c) and (d). The delegate also raised concerns about the applicant’s ability to meet 3004(f)(i), however, made no definitive finding on that point.
The applicant appeared before the Tribunal on 8 June 2018 to give evidence and present arguments.
The applicant was not represented in relation to the review.
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 can satisfy the requirements of Schedule 3 criterion 3004 in order to meet cl.858.211.
When an applicant applies for a Distinguished Talent visa and they are not the holder of a substantive visa, as is the case with the applicant, they must meet cl.858.211(2)(a).This subclause provides an applicant is required to meet Schedule 3 criteria 3001, 3003 and 3004.
The delegate found that the applicant met 3001 and that 3003 was not applicable; however found that the applicant did not meet 3004. The Tribunal accepts the delegate’s findings as per 3001 and 3003; as such the Tribunal’s decision will focus on the applicant’s ability to meet 3004.
Relevantly, to meet 3004 it must be found that the applicant was not the holder of a substantive visa because of factors beyond their control, and that there are compelling reasons for granting the visa. The decision maker must also be satisfied that the applicant has abided by visa conditions on previous visas held, and the applicant would have been entitled to…

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 Houstoun (Migration)

Details

AGLC: Houstoun (Migration) [2018] AATA 4815
Case: [2018] AATA 4815
Decision Date: 27 September 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Distinguished Talent (Residence) (Class BX) Subclass 858 visa. The applicant, who had been in Australia since late 2011, initially held a Subclass 457 visa. He later applied for a Subclass 820 Partner visa, which was granted, but this visa was withdrawn after his relationship with his Australian partner broke down. At the time of applying for the Distinguished Talent visa, the applicant did not hold a substantive visa, meaning he was required to satisfy Schedule 3 criteria, specifically criterion 3004.

The primary legal issue before the Tribunal was whether the applicant could meet Schedule 3 criterion 3004. This criterion requires that the applicant's lack of a substantive visa was due to factors beyond their control, that there are compelling reasons for granting the visa, that the applicant has abided by previous visa conditions, and that they would have been entitled to the visa if they had applied when they last held a substantive visa. The Tribunal accepted that the applicant met criteria 3001 and that 3003 was not applicable, thus focusing its determination on criterion 3004.

The Tribunal found that the applicant's profession involved providing specialised services to individuals with quadriplegia, paraplegia, and severe acquired brain injuries, with over 15 years of experience in the disability sector. While the applicant's work was recognised within the community he served, the Tribunal noted the absence of international professional recognition, which is typically a component of the Distinguished Talent visa. However, the Tribunal considered the applicant's unique circumstances, including the breakdown of his relationship which led to his partner visa being withdrawn, and the compassionate nature of his work. The Tribunal concluded that the applicant's continued care for many Australians would likely result in poor health and psychological outcomes for these individuals if he were unable to continue his services.

Despite affirming the decision not to grant the Distinguished Talent visa based on the applicant's failure to meet Schedule 3 criterion 3004, the Tribunal referred the matter to the Minister for personal intervention under section 351 of the Migration Act 1958. This referral was made on the basis that the applicant's circumstances, including the importance of his work and the positive impact he has on vulnerable community members, fell within the guidelines for ministerial intervention.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 can satisfy the requirements of Schedule 3 criterion 3004 in order to meet cl.858.211. When an applicant applies for a Distinguished Talent visa and they are not the holder of a substantive visa, as is the case with the applicant, they must meet cl.858.211(2)(a).This subclause provides an applicant is required to meet Schedule 3 criteria 3001, 3003 and 3004. The delegate found that the applicant met 3001 and that 3003 was not applicable; however found that the applicant did not meet 3004. The Tribunal accepts the delegate’s findings as per 3001 and 3003; as such the Tribunal’s decision will focus on the applicant’s ability to meet 3004. Relevantly, to meet 3004 it must be found that the applicant was not the holder of a substantive visa because of factors beyond their control, and that there are compelling reasons for granting the visa. The decision maker must also be satisfied that the applicant has abided by visa conditions on previous visas held, and the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive visa. The applicant has been working and residing in Australia continually since the end of 2011. Initially he entered on a Subclass 457 visa, and then in May 2013 applied for a temporary Subclass 820 Partner visa on the basis of being in a de facto relationship with his then Australian partner. This visa was granted on 21 July 2014. On 9 April 2015, the applicant wrote to the Department informing it that the relationship between him and his Australian partner had broken down. His email stated:I am currently on a Defacto 802(sic) Visa and I have just found out my partner of over 3 years has been unfaithful. This has obviously shocked me as we had been trying for children and discussed marriage.I am unsure what to do or where this leaves me and called immigration this morning, then then instructed me to email. The applicant’s Partner visa application was withdrawn on 1 July 2015. On 21 July 2015, the applicant applied for a Distinguished Talent visa; at the time he applied for the visa he was not the holder of a substantive visa. The applicant describes his profession in the Distinguished Talent visa application form as a: Specialist provider of services to quadriplegic/paraplegic and severe acquired brain injuries……With over 15 years’ experience in the disability sector, and specialist knowledge of the spinal and ABI community I am assisting these clients to fulfil and promote their individual independence to the best of their ability. Thus ensuring the best care and service. Documentary evidence on the Department file indicates the applicant has worked in the community care field since 1996 in both the United Kingdom and Australia. He has a diploma in Advanced Management Care and has undertaken numerous specialist disability training courses over the years.

Decision

Reasons for decision

Section 351 states that the Minister can only intervene and substitute a decision that is more favourable to the applicant once the Tribunal has made an unfavourable decision. In considering whether it should make a referral that the Minister intervene and exercise his power under s.351 of the Act, the Tribunal has considered the guidelines in PAM3 as to the circumstances in which the Minister may exercise this power. In doing so the Tribunal notes it is not bound by Department policy. The Departmental guidelines for Ministerial intervention can be found at: >The Tribunal considers that the applicant has unique circumstances of a compassionate nature, given the circumstances that led to him applying for the Distinguished Talent visa, the importance of the work he performs, the many, many Australians that he cares for and the significant positive impact he makes on their lives, and that these circumstances fall within the guidelines. Based on the supporting evidence provided to the Tribunal from the Australian’s the applicant provides care to, it is apparent that if the applicant is not able to continue that care, it would likely result in poor health and psychological outcomes for these individuals. As such, the Tribunal refers this matter to the Minister for his personal intervention under s.351 of the Act.DECISION The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) (Class BX) Subclass 858 visa.Cathrine Burnett-WakeMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.