HUSSAIN (Migration) - [2018] AATA 5330

HUSSAIN (Migration) [2018] AATA 5330 (26 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Syed Ali Hussain
CASE NUMBER:  1607246
DIBP REFERENCE(S):  BCC2016/1622320
MEMBER:Amanda Mendes Da Costa
DATE:26 October 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 26 October 2018 at 4:11pm

CATCHWORDS
MIGRATION – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – internationally recognised record of exceptional and outstanding achievement – talented cricketer – skills as a bowler particularly in ‘leg spin’ – member of Pakistan’s Under-16 and Under-19 national team – Pakistan domestic first-class and list A teams – record of achievement in the field (as opposed to expertise) – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 858.212
CASES
Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 293
Hatcher v Cohn (2004) 139 FCR 425
Vandort (Migration) [2018] AATA 1538

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 9 May 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 May 2016. The delegate refused to grant the visa on the basis that although the applicant’s achievements as a cricketer were not at the highest standard of competition, i.e. matches involving national teams in the sports’ three variances of international competition; Test cricket, One Day Internationals and Twenty20 Internationals.
The applicant appeared before the Tribunal on 12 July 2018 to give evidence and present arguments. The Tribunal also heard evidence from Shaun Janetzki and Andrew Lowe.
The applicant was represented in relation to the review by his registered migration agent.
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 meets the criteria in cl.858.212(1), which requires the applicant to meet the provisions of subclause (2) or (4). Subclause (2) sets out the following requirements:
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 approval form 1000.
Note: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…

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 HUSSAIN (Migration)

Details

AGLC: HUSSAIN (Migration) [2018] AATA 5330
Case: [2018] AATA 5330
Decision Date: 26 October 2018

CaseChat Overview and Summary

This matter concerned an application for a Distinguished Talent (Residence) Class BX visa (subclass 858). The applicant, a cricketer, sought to demonstrate an internationally recognised record of exceptional and outstanding achievement in sport. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for the visa, specifically clause 858.212(2)(a) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant possessed an "internationally recognised record of exceptional and outstanding achievement" in cricket, as required by clause 858.212(2)(a). This clause mandates that an applicant must have demonstrated excellence in their field that is out of the ordinary. The Tribunal considered dictionary definitions of "exceptional" and "outstanding" and relevant case law, noting that while an applicant need not be a "national living treasure," the standard requires a level of achievement significantly above that of the merely competent.

The Tribunal reasoned that while the applicant had achieved a degree of recognition as a cricketer, including membership in national junior teams and participation in domestic first-class and List A matches, this record did not meet the high threshold of "exceptional and outstanding achievement" as contemplated by the regulations. The Tribunal distinguished the applicant's achievements from those that would be considered truly exceptional on an international scale, focusing on the applicant's record of achievement in the field rather than a demonstrated expertise that rose significantly above the ordinary.

Consequently, the Tribunal was not satisfied that the applicant met the criterion in clause 858.212(2)(a). As all criteria under subclause (2) must be met for the visa to be granted, and the applicant had not made claims under subclause (4), the Tribunal affirmed the decision not to grant the 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 issue in the present case is whether the applicant meets the criteria in cl.858.212(1), which requires the applicant to meet the provisions of subclause (2) or (4). Subclause (2) sets out the following requirements: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 approval form 1000.Note: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. The applicant has not made any claims in relation to cl.858.212(4). The Tribunal notes that in determining whether the applicant meets cl.858.212(2) all of the stated subclauses must be met. Paragraph 858.212(2)(a) requires the applicant has an internationally recognised record of outstanding achievement in a profession; a sport; the arts; or academia and research. The applicant claims that he has an internationally recognised record of exceptional and outstanding achievement as a cricketer. As a result, the Tribunal finds that the applicant’s claims come within cl.858.212(a)(i) as belonging to a sport for the purposes of cl.858.212(2)(a). The Tribunal notes that the concept of ‘internationally recognised record of exceptional and outstanding achievement’ in cl.858.212(a) is not defined in the Migration Regulations 1994 (the Regulations). In this context, the Tribunal has had regard to both the relevant dictionary meanings and case law applicable to cl.858.212(2)(a). According to the Macquarie Dictionary Online, the word ‘exceptional’ is defined to mean: ‘1. Forming an exception or unusual instance; unusual; extraordinary; 2. Extraordinarily good, as of a performance or product; 3. Extraordinarily skilled, talented, or clever.’ It also defines the word ‘outstanding’ to mean: ‘1.prominant; conspicuous; striking; 2. that continues in existence; that remains unsettled, unpaid, etc.; 3. standing out; projecting; detached; 4. that resists or opposes.’ The Tribunal notes that the Courts have held that in determining whether the applicant has an ‘exceptional record of achievement’, the criterion requires demonstrated excellence in the relevant occupation, which is out of the ordinary. Notably in Gaffar v Minister for Immigration and Multicultural and Indigenous Affairs (Gaffar’s case) [2000] FCA 293 at [20], French J observed that the concept of an ‘exceptional record of achievement’ did not require an applicant to be a ‘national living treasure’. The Tribunal also observes however that in Gaffar’s case the Court was dealing with the wording of the then cl.805.212(6), which only required the applicant in that case to demonstrate that he had ‘an exceptional record of achievement’ in relation to his nominated occupation, profession or activity. The wording of cl.858.212(2)(a) requires the applicant before the Tribunal to have an ‘internationally recognised record of exceptional and outstanding achievement.’ Therefore Gaffar’s case has limited application in the current context. The Tribunal acknowledges however that, while the applicant need not be a ‘national living treasure’, the circumstances that will meet this requirement will vary across different professions and activities and, as French J observed, some will require far greater levels of knowledge and skill by an applicant to rise above the ordinary and the merely competent.

Decision

Reasons for decision

Accordingly, the Tribunal is not satisfied that the applicant meets cl.858.212(2)(a) and having made this finding, there is no need to consider the other criteria which must be met for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a Distinguished Talent (Residence) Class BX visa.Amanda Mendes Da CostaMember

Ratio Decidendi

Legal Principle Established

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