Houstoun (Migration)
[2018] AATA 4815
•27 September 2018
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– positive contribution to Australian society – assists vulnerable community members – skills shortage –partner visa withdrawn – misguided by registered migration agent – ministerial intervention request by Tribunal – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2 cl 858.211, 858.212 Schedule 3 conditions 3001, 3004, 3004CASES
Quan v MIMAC [2013] FCCA 1254STATEMENT 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 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.
At the time of the primary application the applicant was employed as a care manager by ‘Care For You Pty Ltd’, a disability service provider for people with spinal cord or acquired brain injuries living in their own home.
Distinguished Talent visa applications require an Australian nominator. The nominator can be an individual or can be an organisation, such as a company, sporting club, university or other type of association. ‘Care For You Pty Ltd’, the applicant’s then employer, was listed as the nominator for the purposes of the application.
The nomination form completed and submitted by Care For You Pty Ltd describes the applicant as follows:
Jon possessed highly refined skills and knowledge in the area of SCI/ABI. He is a care Manager within our organisation and responsible for Managing complex clients and support workers. In addition he is integral in the recruitment of support workers into our company. He is a truly an asset to this organisation and the quality of life of our clients…
The initial application was accompanied by four letters from or on behalf of individuals whom the applicant personally managed care for. These letters all had a strong common theme; that the applicant was highly skilled in the care he provided them, and that he had contributed enormously to, and had improved, their quality of life since being responsible for their care.
Eight further letters of support were also provided from colleagues within the applicant’s profession. All outlined the applicant had exceptional skills and knowledge in his field, that he was respected and made a difference in the work place and to those he provided care to.
Submissions from the applicant’s lawyers provided to the Department as part of the primary visa application stated:
As these statements were given by both TAC and Quadriplegic clients to Care For You, it shows the positive impact our client was leaving; and continues to do so; and what sort of legacy he endeavours and continues to positively impact and change the life of people in the disability sector.
Jonathan had and continues to have a strong impact in the everyday of clients with quadriplegic and spinal cord injuries which as it can be appreciated a complex and rigorous process that not only physical but certainly emotional and touch the lives of many sick or injured Australian. Without him ,their lives may not certainly be the same. Also our client is an asset not only for Care for You but to the Australian society.
Compelling reasons might have an impact on one or two people, in Jonathan’s case, it goes beyond that. It effects the lives of injured Australians who need a very specialised and caring process and so far, at least in this particular role, no one has done a better job than Jonathan.
Evidence at hearing
The Tribunal asked the applicant to explain the events that led him to applying for a Distinguished Talent visa. The applicant outlined to the Tribunal that he had been in a long term relationship with an Australian, and on that basis he had applied for a Partner visa. He explained that he thought the relationship was going well and that they had been trying for children. Then in April 2015 he discovered that his partner was having an affair. He explained that this turned his whole world upside down. He described the situation as one of shock and devastation. He explained that, thinking he was doing the right thing; he immediately called and informed the Department of Immigration about his relationship breakdown. The applicant told the Tribunal that he had played no part in his relationship breakdown and he had no control over the choices made by his former partner to have an affair, thus ultimately ending the relationship between them. He explained that his former partner even provided a personal written statement to the Department, which the Tribunal notes was referred to in the decision record, that she was solely responsible for ending the relationship between them. The Tribunal accepts that the applicant’s relationship ended as a result of the actions taken solely by his then partner.
The applicant outlined that, after a discussion with the case officer who was responsible for processing his permanent Partner visa application, he withdrew his permanent residency application as he was no longer in the relationship and that he thought this was the right thing to do. He outlined that he did not realise, at that time, the implications this may potentially have had on future visa applications. Simply, he wanted to abide by the law and be up upfront and honest about the situation, so felt that he needed to withdraw the application, as he was no longer in the relationship and that he understood from his conversations with the Department that was the correct action to take before applying for another type of visa.
The applicant also outlined to the Tribunal that he sought advice from a migration agent about what he should do. They confirmed he should withdraw his Partner visa application and advised him to then apply for a Distinguished Talent visa.
The Tribunal asked the applicant if he knew the purpose of the Distinguished Talent visa and if he had given consideration about whether he would be eligible to apply before making the application. The Tribunal discussed with the applicant the requirements of the Distinguished Talent visa, specifically, that an applicant had to demonstrate they had an internationally recognised record of exceptional and outstanding achievement in either: their profession; a sport; the arts; or academia and research, and show that they are still prominent in the area; or that they have provided specialised assistance to the Australian Government in matters of security. The Tribunal outlined to the applicant that, although he seemed to be highly skilled and competent at his job, and made a difference to the many individuals he cared for; there was no evidence on file that he was internationally recognised in his profession nor sufficiently prominent in his profession as required. As such, the Tribunal had concerns that he was not able to meet these visa requirements.
At hearing the applicant conceded to the Tribunal that he had serious concerns about his ability to meet the criteria before he applied and realises now that he does not meet the criteria for the visa. The applicant outlined that he raised his reservations with the migration agent preparing the application, but they assured him it was the correct visa to apply for so he proceeded with the application on the basis of their advice and reassurance. The Tribunal asked if the applicant had considered getting a second opinion, however, the applicant responded that the person who assisted him was a registered migration agent, so as they were registered with the Migration Agents Registration Authority he trusted that they had the relevant expertise and knowledge to provide him the correct advice for his situation.
Would the applicant have been entitled to be granted a Subclass 858 visa if he had applied for the visa on 1 July 2015?
The Tribunal considered whether the applicant meets the criteria contained within cl.3004(f)(i). This requires the applicant to demonstrate that he would have been entitled to the grant of the Subclass 858 visa if he had applied for the visa on the day on which he last held a substantive visa on 1 July 2015.
The application of cl.3004(f)(i) was the subject of judicial consideration in Quan v MIMAC [2013] FCCA 1254 (Quan). Although that case is in reference to a Subclass 457 visa application, the reasoning is applicable to the present matter. In Quan, the Tribunal had found that the visa applicant would not have been entitled to the grant of a Subclass 457 visa when she last held a substantive visa, as she did not have the sponsorship required for the grant of a Subclass 457 visa.
The Tribunal was correct in finding that the visa applicant did not meet cl.3004(f)(i) as she would not have been entitled to the grant of a Subclass 457 visa on the day on which she last held a substantive visa, as she did not have the sponsorship required for the grant of a Subclass 457 visa. As such, it was not necessary for the Tribunal to consider whether there were compelling reasons for granting the visa pursuant to cl.3004(d).
In the present case, the evidence before the Tribunal is that at the time the applicant's last substantive visa expired, he did not have an internationally recognised record of exceptional and outstanding achievement in his profession, nor was he prominent, both being requirements for him to satisfy the mandatory prescribed criteria in cl.858.212(2). The applicant confirmed in his evidence that he did not meet the criteria, and only applied for the Distinguished Talent visa following advice to do so that he had received from a registered migration agent.
The applicant was not entitled to be granted a visa of the class applied for had he applied for the visa on the day when he last held a substantive visa, on 1 July 2015. The applicant therefore does not meet cl.3004(f)(i). As there is no evidence that the applicant entered Australia unlawfully, cl.3004(f)(ii) does not apply.
As the applicant does not meet cl.3004(f) it follows that the applicant does not meet criterion 3004 as a whole and, therefore, does not satisfy cl.858.211(2)(a) of the Migration Regulations 1994. Given these findings, and following the reasoning in Quan, it has not been necessary for the Tribunal to consider the applicant’s claims and evidence in relation to the remaining criteria under cl.3004.
The facts of the case are not in dispute, and all parties agree that the applicant, at the time his last substantive visa expired, did not have an internationally recognised record of exceptional and outstanding achievement in his profession, and was not prominent in his profession; nor had he provided specialised assistance to the Australian Government in matters of security, being alternatives for him to satisfy the mandatory prescribed criteria in cl.858.212(1). The Tribunal therefore concludes the applicant does not meet cl.3004(f)(i) and subsequently does not satisfy cl.858.211(2)(a).
Ministerial intervention
It’s apparent to the Tribunal that the applicant would likely have been eligible for a different type of visa. However, because of the wrong and professionally incompetent advice he received from the migration agent it has led to an adverse migration outcome for him. This is also the view the applicant told the Tribunal he held.
The Tribunal discussed with the applicant that it would consider whether to refer the case to the Department for consideration by the Minister pursuant to s.351 of the Act, given the circumstances that led to him applying for the Distinguished Talent visa.
The Tribunal considers that the work the applicant undertakes is of significant importance to Australians who are quadriplegic/paraplegic and/or have severe acquired brain injuries. The evidence provided in the primary application was clear, that is, the applicant has a significant impact on the quality of life of the many Australians he cares for. Further, it is clear that he is highly-respected in the industry and is sought out for leadership and mentoring. The applicant has also provided updated evidence to the Tribunal in the form of further letters from those he cares for along with more supporting letters from colleagues. These letters confirm that the applicant continues to make a difference to those he cares for and works with. The Tribunal is of the position that the applicant contributes significantly to the Australian community through his work.
As part of the review process for this matter, the Tribunal undertook research about the disability care sector, specifically; caring for individuals with complex needs, and notes there is a shortage of qualified disability carers. According to the Productivity Commission’s 2017 report, this will only become worse, leading to poorer care outcomes for the most vulnerable, if skilled individuals such as the applicant are not available to meet the work force demands.[1] At hearing the applicant gave evidence that part of his role is recruitment and training new people in the disability care sector to help address the lack of qualified workers. The Productivity Commission report notes that the recruitment and training of individuals into the sector is crucial in addressing skill shortages if the industry is to circumvent them in the future.
[1]Productivity Commission 2017, National Disability Insurance Scheme (NDIS) Costs, Study Report, Canberra
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-Wake
Member
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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