Koeberl (Migration) - [2018] AATA 3394

Koeberl (Migration) [2018] AATA 3394 (1 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Dr Martina Koeberl
CASE NUMBER:  1607419
DIBP REFERENCE(S):  BCC2016/789976
MEMBER:Amanda Mendes Da Costa
DATE:1 August 2018
PLACE OF DECISION:  Melbourne
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:
·cl.858.212 of Schedule 2 to the Regulations for a Subclass 858 (Distinguished Talent) visa.

Statement made on 01 August 2018 at 3:11pm

CATCHWORDS
Migration – Distinguished Talent (Residence) (Class BX) visa – Subclass 858 (Distinguished Talent) – Whether the applicant has an internationally recognised record of exceptional and outstanding achievement –Where the applicant has contributed significantly to a specific field of bio-chemistry – Where the applicant has obtained an international reputation in their field over a relatively short period – Visa does not require the applicant’s record be obtained over a particular length of time – Decision remitted with direction

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

CASES
Gaffar v Minister for Immigration and Multicultural Affairs [2000] FCA 293
Hatcher v Cohn (2004) 139 FCR 425
Zhang v Minister for Immigration [2007] FMCA 664

STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 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 25 February 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant’s academic achievements were indicative of an academic and researcher with an internationally recognised record of exceptional and outstanding achievement. The delegate was therefore not satisfied that the applicant met the requirements of cl.858.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The Tribunal has perused the files of both the Department and the Tribunal. On consideration of the evidence before it, the Tribunal has determined that a hearing is not required and that a decision on the review can be made on the basis of the documentation received.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

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).
Sub-clause (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…

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 Koeberl (Migration)

Details

AGLC: Koeberl (Migration) [2018] AATA 3394
Case: [2018] AATA 3394
Decision Date: 1 August 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the application of Ms. Koeberl for a Distinguished Talent (Residence) (Class BX) visa, subclass 858. The core of the dispute concerned whether Ms. Koeberl possessed an internationally recognised record of exceptional and outstanding achievement, as required by the visa criteria.

The Tribunal was tasked with determining whether Ms. Koeberl's contributions to the field of bio-chemistry, and her subsequent international reputation achieved over a relatively short period, met the threshold for exceptional and outstanding achievement. A key legal issue was whether the visa regulations mandated that such a record be accumulated over a specific duration.

The Tribunal reasoned that the visa provisions did not stipulate a minimum timeframe for the acquisition of an internationally recognised record of achievement. It found that Ms. Koeberl had demonstrated significant contributions to bio-chemistry and had indeed obtained an international reputation in her field. Consequently, the Tribunal concluded that the applicant had satisfied the relevant criteria.

The decision of the delegate was set aside, and the matter was remitted to the delegate with a direction to grant the visa.

Orders